CHAPTER 13 Regulation of Obscene and Other Erotic Material I Common terms A Obscenity A narrow class of material defined by the Supreme Court in the Miller test Material that is legally obscene is not protected by the 1st Am B Indecent material Sexually graphic adult sexually explicit material that is protected under the 1st Am Such material may be barred in works available to children and in over the air radio and tv broadcasts C Pornography 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 IS NOT LIMITED TO SEX II The law of obscenity A Important facts I Roth v United states 1957 a A case that worked to define Obscenity after the Hickin rule was done with ii The miller test 1973 a Marvin Miller was convicted for sending 5 unsolicited brochures to a restaurant which contained erotic drawings of men and women having sex B Regulation i Today s challenges 1 1 Hard to track because of the Internet C Early obscenity law i 1815 first obscenity prosecution in the u s a Jesse Sharpless was fined for exhibiting a painting of a man in an imprudent posture with a woman ii 1821 memoirs of a woman of pleasure conviction a Peter Holmes was convicted for publishing an erotically enhanced version of Memoirs of a Woman of Pleasure iii 1873 comstock act a The first Federal obscenity statute This law declared that all obscene books pamphlets pictures and other materials were nonmailable This law has been amended and is still in federal law today D Defining obscenity i Pre 1957 the hicklin rule a Says that 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 b The Supreme Court abandoned this rule ii 1957 roth memoirs test a Parts of the roth memoirs test to test for obscenity 1 2 The dominant theme of the material taken as a whole must appeal to prurient interest in sex A court must find that the material is patently offensive because it affronts contemporary 2 3 community standards relating to the description of representation of sexual matters It must be utterly without redeeming social value If a work has even the slightest social value it could not be deemed to be obscene Iii Contemporary obscenity law A The miller test i Miller v California a This is the case about Marvin Miller as stated before who sent the 5 brochures of sexual drawings 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 interest having or engaging in sexual matters 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 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 3 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 standards are state standards b These are becoming more difficult to identify in the era of the Internet ii Applying standards a Material seized by the u s postal service 1 venue shopping Selecting a site where conviction is most easily obtained 2 10th u s circuit court of appeals Notes that under the existing law federal enforcement officers are free to shop for venue from which juries with the most restrictive views are likely to be impanelled b Imported erotic material c Obscenity on the internet d Proving community standards 4 1 The government is not required to present any evidence about community standards D Patent offensiveness Clearly without doubt offensive i Determining patent offensiveness a The supreme court ruling 1 Only what the Supreme Court calls hardcore sexual material meets the patently offensive standard b State laws 1 Supposed to define the kinds or material or conduct that are prohibited as obscene c Justice rehnquist s description 1 Representations or descriptions of ultimate sexual acts normal or perverted actual or simulated and representations or descriptions of masturbation excretory functions and lewd exhibition of genitals E Serious value i Determining value a Elements of value 1 Not judged by the tastes of the average person The test has to do with if a person COULD find value not if they personally do b Role of the judge 5 1 Decides if a work has serious value c A reasonable person 1 Normal person in society d Expert testimony 1 The state and the defense will frequently introduce expert testimony to try and educate the jury on the relative merit of the material in question F Variable obscenity says that a state can have 2 standards for obscenity one for adults and one for minors i Ginsberg v new york 1968 a Supreme Court ruled that the 1st Am did not bar New York from prosecuting a storeowner who sold 4 nudie magazines to a 16 year old boy ii Variable obscenity statues a Even though it is legal for the magazines to be purchased by adults they are not allowed to be sold to kids b The Supreme Court ruled it IS constitutional to ban the sale of material to juveniles that is legally distributed to adults iii harmful to minors a Try to prevent minors from obtaining things that will warp their minds G Child pornography i Child pornography and the first amendment a The production distribution and possession of child pornography is not protected by the 1st Am 6 ii Child pornography and the miller test a 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 constitute child pornography iii Child pornography prevention act 1996 a Barred the sale and distribution of images that appear to depict minors performing sexually explicit acts b This act was justified as means to protect children from pedophiles and child molesters whose behavior may be stimulated from child porn c Act was shut down by the Supreme Court and the PROTECT act was made iv The PROTECT act 2003 a Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today b This prohibits a person from knowingly advertising promoting or soliciting material in
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