FSU ADV 3352 - CHAPTER 13 Regulation of Obscene and Other Erotic Material

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ADV 3352 MASS MEDIA LAW CHAPTER 13 Regulation of Obscene and Other Erotic Material STUDENT OUTLINE I Common Terms A Obscenity B Indecent Material i A narrow class of material defined by the Supreme Court in the Miller test ii Material that is legally obscene is not protected by the First Amendment i Sexually graphic often referred to as adult or sexually explicit material ii Protected under the First Amendment iii Such material may be barred in works available to children and in over the air radio and television broadcasts C Pornography i Term used to describe anything from real obscenity to material that is simply ii This term has no legal significance because of the overuse and misuse of the offensive to a viewer imprecise term iii Often used by laypersons and politicians II The Law of Obscenity A Important Facts i Roth v United States 1957 a Supreme Court made it clear that a narrow category of sexually explicit speech called obscenity is not protected by the First Amendment freedoms of speech and press b After abandoning the Hicklin rule the Court was forced to fashion a new definition of obscenity beginning with this case 1 ADV 3352 MASS MEDIA LAW ii The Miller Test 1973 a Problems STUDENT OUTLINE 1 Leaves flexibility and wiggle room for interpretation in its actual application by judges and juries 2 Embraces the use of contemporary community standards that vary from state to state leading to anomalous results 3 Sexually explicit content is readily available because of technology which increases the risk of minors coming across it 4 Some people feel that speech considered obscene under the test still deserves First Amendment protection 5 Viewed as insufficient use of government time and resources to prosecute obscenity cases with freely consenting adults 6 Sexually explicit content that doesn t rise to the level of obscenity defined by the Miller test but is nonetheless sexual and broadcasted B Regulation i Today s challenges obscenity a The Miller test presents several issues that arise when dealing with b Many strong opinions from the community against pornography 1 Feminist scholars claim pornography objectifies women 2 Conservative religious individuals believe pornography harms family values erodes marriages and leads to addiction C Early Obscenity Law i 1815 First obscenity prosecution in the U S a Jesse Sharpless fined for exhibiting a painting of a man in an imprudent pose with a woman ii 1821 Memoirs of a Woman of Pleasure conviction 2 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE a Peter Holmes convicted for publishing an erotically enhanced version of John Cleand s Memoirs of a Woman of Pleasure iii As the 19th century progressed obscenity laws and prosecutions became more common iv Comstock Act 1873 a Ebbing and flowing with major reform movements in the 1820s and 1830s a The law declared that all obscene books pamphlets pictures and other materials were non mailable b No definition of obscenity provided by Congress D Defining Obscenity i Pre 1957 The Hicklin Rule a 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 everyone b Problems 1 If it could negatively influence one person it was regarded obscene for 2 If any part of the work was obscene the whole work was obscene 1 Very loose and broad definition made it possible for federal and state authorities to wage a successful war against erotic materials c After 1957 the Supreme Court abandoned the Hicklin Rule 1 Declared that because of this rule American adults were permitted to read or watch only what was fit for children ii 1957 Roth Memoirs Test a New test for obscenity 1 Replaces the Hicklin Rule b Three Parts of the Roth Memoirs Test 3 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE 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 3 It must be utterly without redeeming social value Continually bedeviled government prosecutors because if it had even a slight social value it couldn t be obscene III Contemporary Obscenity Law A The Miller Test i Miller v California 1957 a Marvin Miller convicted for violating the California Penal Code 1 Sent five unsolicited brochures to a restaurant in Newport Beach 2 Contained pictures of men and women engaging in sexual activities 3 The recipient of the mailing complained to the police and state authorities prosecuted Miller ii Parts of the Miller Test 1 An average person applying contemporary local community standards finds that the work taken as a whole appeals to prurient 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 interest value iii Implications and ambiguities created the need for a fuller explanation 4 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE a Some guidelines emerged in result such as the definition of an average person B An Average Person i Material is judged on knowledge of the standards of the residents of the community to decide whether the work appeals to prurient interest ii Prurient interest a A shameful or morbid interest in nudity sex or excretion b Elements of prurient interest 1 Be taken as a whole 2 Exclude violence as it only includes nudity sex or excretion C Community Standards i State standards a In most jurisdictions community or local standards are state standards b All communities within the same state share the same standards ii Applying standards a Material seized by the U S Postal Service 1 Venue shopping Selecting a site where a conviction is most easily obtained In prosecutions initiated by the U S Postal Service the government is free to choose the venue in which to try the case Could be the city from where the material was sent received or any city the material passed through in transit 2 10th U S Circuit Court of Appeals A postmaster in Oregon asked a postmaster in Wyoming to solicit using a false name erotic material distributed by an Oregon man After the defendant sent the material to Wyoming he was tried using Wyoming standards not Oregon s 5 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE The 10th Circuit Court of Appeals upheld the conviction noting that under the existing law federal enforcement


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FSU ADV 3352 - CHAPTER 13 Regulation of Obscene and Other Erotic Material

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