ADV3352 Exam 3 Chapter 13 Regulation of Materials Obscenity narrow class of material defined by the Supreme Court in the Miller test o Material that is legally obscene is NOT protected by the First Amendment Indecent material sexually graphic o Adult sexually explicit material that IS protected under the First Amendment o CANT be regulated o Material may be barred covered in works available to children and in radio tv broadcasts o soft porn or nudity o ex dirty magazines for 18 and older have a cover on it so children cant see Pornography used by politicians to describe anything from real obscenity to material that is simply offensive to a viewer o Legal term is obscenity o CAN be regulated o Renton v Playtime Theaters cities trying to combat pornography cannot justify zoning laws on the basis of creating so called secondary effect Law of Obscenity Early obscenity law o 1815 first obscenity prosecution in the US Photography did not exist people could break up the printing press if it was obscene o 1821 Memoirs of a Woman of Pleasure conviction o 1873 Comstock Act US post office has the right to take away your obscene materials criminalized publication distribution and possession of info about or devices for unlawful abortion or contraception ex putting a cover on your Playboy Comstock was aimed at abortion safe sex Defining obscenity o Pre 1957 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 If it indecent obscene for a child or sensitive person no one can see it o 1957 the Roth Memoirs Test 1 Dominant theme of the material must appeal to prurient interest in sex avg person 2 Court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters a Dominant theme of the material must appeal to prurient interest in sex Prurient interest the average person b Court finds that the material is patently offensive because it affronts contemporary community standards i i Community standards wherever it was seized what is accepted in the community 3 Without redeeming social values Contemporary obscenity law the Miller test o The Miller Test 1 Average person Finds that the work appeals to prurient interest avg person Each county has different ideas of the standard person 2 Community standards Work depicts in a patently offensive way sexual conduct defined by state law Must be written down sexual conduct must be defined Local community standards state standards 3 Works lacks serious literary artistic political or scientific value Comstock made it impossible to transport medical books Depends upon whether a reasonable person could find such value Could someone find literary artistic etc scientific value in the work o Variable obscenity statutes o Child porn It is permissible for states to adopt laws banning material that may be legally distributed and sold to adults from being available to juveniles US Supreme Court banned the sale of material to juveniles that is legally distributed to adults The laws should not interfere with the right of adults to receive protected expression Merely possessing it makes you guilty not protected by first amendment Child Porn Prevention Act 1996 barred the sale distribution of computer generated nudity of minors States wishing to combat child pornography may prohibit the distribution of such material even if it does not meet the definition of obscenity under the Miller test Ashcroft v Free Speech Doctrine Supreme Court ruled the Child Pornography Prevention Act upheld the law to help shield minors from receiving patently offensive material over the internet Controlling Obscenity o Scienter guilty knowledge Whether the defendant was knowledgeable about the contents before it was sold published or distributed Mere possession makes you guilty Government must prove that a seller or distributor was aware of the obscene material o Postal censorship o Film censorship US Postal Service is the most diligent in policing obscenity Motion pictures were not granted first amendment protection until 1957 Hicklin Rule and Roth Memoirs Test Regulation of Nonobscene Erotic Material o Sexually oriented businesses strip clubs adult video stores etc Zoning Regulations requesting it not be near a school church etc Grandfathering once you put in a strip joint you cannot put in a school because the strip place was there first Must have substantial state interest Must be narrowly drawn to not restrict more speech than necessary Expressive content regulations To regulate expressive content the state must show o Serves substantial interest unrelated to the content of speech o Narrowly tailored not broader than necessary Erotic materials in cyberspace o Communications Decency Act 1996 It is a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks Reno v ACLU 1997 US Supreme Court ruled this act unconstitutional in 1997 Ruled that the provisions of the Communications Decency Act regarding indecent and patently offensive material are unconstitutionally vague and suppress speech that adults have a right to receive and transmit in cyberspace o Child Online Protection Act COPA 1998 prohibits websites from knowingly transmitting material to minors that is harmful to them Ruled unconstitutional because it restricted adults from legal material In 2008 it was found overbroad under the First Amendment because it restricts adult access to material that is protected expression o Children s Internet Protection Act CIPA 2001 requires public libraries to install anti porn filters on all computers with internet access Requires schools and libraries who receive e rate subsidies to install software filters Ruled unconstitutional Then overturned because libraries could constitutionally restrict children s access to porn US v American Library Association supreme court ruled CIPA constitutional under the first amendment because adults may have filtering software disabled o Dot XXX Domain xxx domain names for adult entertainment websites Adults didn t support it because it would create a ghetto of non obscene first amendment protected speech Chapter 14 Copyright Copyright protects intangible property Patents gives the inventor a monopoly on selling the product for 20 years o 3 kinds Utility machine or process Designs appearance of an
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