Chapter 13 Regulation of Obscene and Other Erotic Material INTRODUCTION THE LAW OF OBSCENITY Sexual speech that meets a three part test for obscenity falls outside First Amendment protection Sexually explicit speech remains a problem today despite two important facts 1 The nation s high court made it clear more than 50 years ago in Roth v United States that a narrow category of sexually explicit speech called obscenity is not protected by the First Amendment freedoms of speech and press 2 The Supreme Court articulated in 1973 in Miller v California a test still used by all courts for determining when speech is obscene The Miller obscenity test leaves much flexibility for interpretation in its actual application by judges and juries Also the test embraces the use of contemporary community standards that vary from state to state leading the anomalous result that any given adult DVD might be protected by the First Amendment in one state but not in another Technologies like the Web and cell phones as well as cable and satellite television services such as video on demand and pay per view movies have made adult content readily accessible Although the arguments of both anti porn feminists and religious conservatives deserve study it must be emphasized that the term pornography is not the same thing as obscenity Common Terms Obscenity A narrow class of material defined by the Supreme Court in the Miller test Material that is obscene is not protected by the First Amendment Obscene material is sometimes referred to as hard core pornography Indecent Material Material that may be sexually graphic often referred to as adult material or sexually explicit material This material is protected under the First Amendment However such material may be barred in works available to children variable obscenity laws and in over the air as opposed to cable or satellite generated radio and television broadcasts Pornography This term has no legal significance but is often used by laypeople and politicians to describe anything from real obscenity to material such as a passionate love scene that is simply offensive to the viewer The overuse and misuse of this imprecise terms adds more confusion to an already muddled legal landscape The Federal Communications Commission restricts nonobscene sexual content if it satisfies the FCC s definition of indecency Page 1 EARLY OBSCENITY LAW The Comstock Act is a law that declares all obscene books pamphlets pictures and other materials nonmailable The Bureau of Customs and the U S Postal Service were the nation s most vigilant obscenity fighters during the late 19th and first half of the 20th centuries They banned burned and confiscated huge amounts of erotic materials including religious objects pieces of art books magazines and a wide array of material on birth control Between 1957 an 1977 the high court heard arguments in almost 90 obscenity cases and wrote opinions in nearly 40 of those cases DEFINING OBSCENITY American courts borrowed a British definition called the Hicklin rule A work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall In 1957 the Supreme Court abandoned this rule declaring that because of this rule American adults were permitted to read or watch only what was fit for children The Roth Memoirs test has three parts to define or test obscenity 1 The dominant theme of the material is taken as a whole must appeal to prurient 2 A court must find that the material is patently offensive because it affronts contemporary community standard relating to the description or representation of sexual matters 3 Before something can be found to be obscene it must be utterly without redeeming interest in sex social value CONTEMPORARY OBSCENITY LAW By 1973 when the case of Miller v California was decided a more conservative Supreme Court had its chance to redefine obscenity This new test is the one courts must use today THE MILLER TEST Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant They advertised erotic books and a film and contained pictures and drawings of men and women engaging in a variety of sexual activities In Miller for the first time since 1957 a majority of the Supreme Court reached agreement on a definition of obscenity Material is obscene if the following standards are met 1 An average person applying contemporary local community standards finds that the work taken as a whole appeals to prurient interest 2 The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law 3 The work in question lacks serious literary artistic political or scientific value Page 2 An Average Person The trier of fact trial judge or jury makes this determination A judgment is to be made n the basis of contemporary community standards The material judged is neither on the basis of each juror s personal opinion nor by its effect on a particular sensitive or insensitive person or group Prurient interest has been defined by courts to mean a shameful or morbid interest in nudity sex or excretion Obscenity law deals only with sexually oriented content not violent stories or violent images Community Standards In most jurisdictions local standards have been translated to mean state standards All communities within the same state share the same standards In prosecutions initiated by the U S Postal Service the government is free to choose the venue in which to try the case Might be the city from which the material was sent the city in which it was received or any city through which the material passed during its transit Called venue shopping selecting a site where a conviction is most easily obtained When imported erotic material is seized the standards of the state in which the material is seized are applied at trial Courts are permitting the government to select the venue for prosecution of material dispersed via the Internet The 9th Circuit Court of Appeals held in United States v Kilbride that a national community standard must be applied in regulating obscene speech on the Internet including obscenity disseminated via email The 11th circuit rejected this national community standard in United States v Little The D C Circuit also rejected this in United States v Stagliano The jury is to decide what the community standards are The government is not required to present any
View Full Document
Unlocking...