Final Exam Study Guide Chapter 13 Regulation of Obscene and Other Erotic Material 1 The Law of Obscenity Obscenity o A narrow class of material defined by the Supreme Court in the o Material that is legally obscene is not protected by the First Miller test Amendment Problems with Obscenity Today o Miller obscenity test a Leaves much flexibility and wiggle room for interpretation in its actual application by judges and jurors b Embraces the use of contemporary community standards that vary from state to state leading to the anomalous result that any given adult DVD might be protected by First Amendment in one state but not the other o Adult content is readily accessible a Good for adults that want to view content from privacy of their home and not offend anyone b Bad for young children and minors as they may come across it with greater ease o People feel speech considered obscene under Miller still deserves First Amendment protection a People question whether or not viewing it really causes harm o Insufficient use of scarce government monetary resources in prosecuting obscenity cases when the content involves adults who have consented a Greater problems child pornography terrorism global o Content that may not quite rise to the level of obscenity under warming the Miller test a However the content is sexual and broadcast over the Nation s television and radio waves o Sexually graphic often referred to as adult or sexually explicit material that is protected under the First Amendment a Such material may be barred in works available to children and in over the air radio and television broadcasts Indecent Material 2 Early Obscenity Law Pornography o This term has no legal significance but is often used by laypersons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer a The overuse and misuse of this imprecise term adds more confusion to an already muddled legal landscape 1815 First obscenity prosecution in the U S o Jesse Sharpless was fined for exhibiting a painting of a man in an imprudent posture with a woman 1821 Memoirs of a Woman of Pleasure conviction o Peter Holmes convicted for publishing an erotically enhanced version of John Cleveland s work 1873 Comstock Act o Most comprehensive federal statue during the century o Known as Comstock act because of the pressure applied by Congress by Anthony Comstock o Declared that all obscene books pamphlets pictures and other materials were nonmalleable 3 Defining Obscenity Pre 1957 The Hicklin Rule 1957 The Roth Memoirs Test o Defined 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 a If something might influence the mind of a child it was viewed as obscene for everyone b ANY part of the work met this definition the entire work was regarded as obscene c This broad and loose definition made it possible for federal and state authorities to wage an aggressive and highly successful war against erotic materials in the first half of the 20th century 1 The dominant theme of the material 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 standards relating to the description or representation of sexual matters It must be utterly without redeeming social value 3 a Entire test was far narrower then the Hicklin Rule it was the third part of the test that continually troubled government prosecutors b If a work had any social value it could not be deemed obscene 4 Contemporary Obscenity Law The Miller Test The Average Person 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 o In Miller for the first time since 1957 the majority of the Supreme Court reached an agreement on a definition of obscenity o The material is to be judged neither on the basis of each juror s personal opinion nor by its effect on a particular sensitive or insensitive person or group o Prurient Interests Defined by courts to mean a shameful or morbid interest in nudity sex or excretion o TWO PARTS a Work must be taken as a whole and cannot be considered in isolation or standing alone b Definition focuses only on nudity sex and excretion it has nothing to do with violence c Obscenity laws deal only with sexually ordinated content not violent stories images Community Standards standards o In most jurisdictions community standards are state o Community standards are becoming more difficult to identify in the era of the Internet where material can be distributed to and viewed in many communities Serious Value o Could someone not does someone find literary artistic political or scientific value in the work o Would a reasonable person see any serious value in the work Other Standards o Variable Obscenity Statutes a Defined 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 b The U S Supreme Court has ruled it is constitutional to ban the sale of material to juveniles that is legally distributed to adults o Child Pornography c Laws restricting access by juveniles to indecent material on the Internet have been largely unsuccessful as courts have ruled they also limit legal access by adults to this material d Ordinances that require the use of blinder racks are legal e Tricky issue is how to define the material that minors f cannot purchase Harmful to minors Florida defines as any image depicting nudity sexual conduct or sexual excitement when it i ii iii Predominately appeals to a prurient shameful or morbid interest Patently offensive to prevailing standards in the adult community with respect to what is suitable material or conduct for minors Is without serious literary artistic political or scientific value for minors a The production distribution and possession of child pornography are not protected by the First Amendment b Images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller in order for them to fall outside of
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