In addition to this outline I would read all chapter summaries as well as the notes on the sides of the pages This guide has most of the main points main cases and main decisions It is suppose to be a supplement to the book and will help in studying Please email me if you have any questions Chapter 13 Regulation of Obscene and Other Erotic Material Sexual speech that meets a three part test for obscenity falls outside First Amendment protection THE LAW OF OBSCENITY 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 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 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 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 interest in sex 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 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 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 Variable Obscenity A Supreme Court doctrine that permits states to prohibit the sale distribution or exhibition of certain kinds of nonobscene matter to children so long as these laws do not interfere with the accessibility of this material to adults Many states use the phrase harmful to minors to describe sexual material that is permissible for adults to purchase but that minors may not buy Child Pornography The production distribution and possession of child pornography is not protected by the First Amendment Federal statutes outlaw images of minors people under age 18 engaged in sexually explicit conduct including sexual intercourse bestiality and masturbation as well as images depicting a lascivious exhibition of the genitals or pubic area Child pornography does not need to meet the test of obscenity outlined in the Miller ruling to be an illegal product The 1996 Child Pornography Prevention Act CPPA defined child pornography to include not only actual images photos videotapes films of children but also computer generated images and other pictures that are generated by electronic mechanical or other means in which such visual depiction is or appears to be a minor engaging in sexually explicit conduct This was struck down as unconstitutional PROTECT Act prohibits a person from knowingly advertising promoting or soliciting material in a manner that reflects the belief or that is intended to cause another to believe that the advertised material is child pornography involving real minors even if the underlying material does not in fact include real minors or is otherwise completely innocuous Obscenity and Women Some feminist scholars assert that sexually explicit content subordinates women to men objectifies and exploits women as sex objects for men s pleasure and leads to violence Statutes based on such arguments were declared unconstitutional because of viewpoint based discrimination CONTROLLING OBSCENITY Criminal prosecution If a case goes to trial the judge or jury must
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