ADV 3352 MASS MEDIA LAW CHAPTER 13 Regulation of Obscene and Other Erotic Material STUDENT OUTLINE 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 First Amendment B Indecent Material Sexually graphic often referred to as adult or sexually explicit material that is protected under the First Amendment Such material may be barred in works available to children and in over the air radio and television 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 II THE LAW OF OBSCENITY A IMPORTANT FACTS I Roth v United States 1957 ii The Miller test 1973 B REGULATION i Today s challenges C EARLY OBSCENITY LAW i 1815 First obscenity prosecution in the U S ii 1821 Memoirs of a Woman of Pleasure conviction iii 1873 Comstock Act D DEFINING OBSCENITY i Pre 1957 The Hicklin Rule ii 1957 Roth Memoirs Test a Parts of the Roth Memoirs Test 1 ADV 3352 MASS MEDIA LAW 1 2 3 STUDENT OUTLINE The dominant theme of the material has 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 community standards relating to the description or representation of sexual matters It must be utterly without redeeming social value III CONTEMPORARY OBSCENITY LAW A THE MILLER TEST i Miller v California Marvin Miller was convicted for violating the California Penal Code by sending five unsolicited brochures to a restaurant in Newport Beach containing pictures of men and women engaging in sexual activities ii Parts of the Miller Test 1 An average person applying contemporary local community standards finds that 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 artistic political or scientific value 3 The work in question lacks serious literary B AN AVERAGE PERSON i Prurient interest a shameful or morbid interest in nudity sex or excretion To be taken as prurient material must a 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 In most jurisdictions community standards are State standards 2 ADV 3352 MASS MEDIA LAW ii Applying standards STUDENT OUTLINE a Material seized by the U S Postal Service 1 Venue shopping 2 10th U S Circuit Court of Appeals Imported erotic material b c Obscenity on the Internet d Proving community standards D PATENT OFFENSIVENESS i Determining patent offensiveness a The Supreme Court ruling b State laws c Justice Rehnquist s description E SERIOUS VALUE i Determining value a Elements of value b Role of the Judge c A reasonable person d Expert testimony F VARIABLE OBSCENITY i Ginsberg v New York 1968 ii Variable obscenity statues iii Harmful to minors G CHILD PORNOGRAPHY i Child Pornography and the First Amendment 3 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE ii Child Pornography and the Miller Test iii Child Pornography Protection Act 1996 iv The PROTECT Act 2003 v Child Pornography and the Internet H CHILDREN AS CHILD PORNOGRAPHERS AND SEXTING i Child Pornographers and Sexting a Minors create their own content b New legislation a American Booksellers Association Inc v Hudnut I OBSCENITY AND WOMEN i Feminist assertions ii Pornography and women IV CONTROLLING OBSCENITY A IMPORTANT FACTS i Criminal prosecution ii Scienter a Smith vs California 1959 ii Other methods a Civil nuisance laws b RICO laws B POSTAL CENSORSHIP i The U S Postal Service ii The Supreme Court ruling 1878 iii Other laws 4 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE C FILM CENSORSHIP i Film censorship today a Infrequent due to two facts 1 2 ii Motion Picture Association of America a Film rating system b Video dealers and the rating system iii Community censorship V REGULATION OF NONOBSCENE EROTIC MATERIAL A SEXUALLY ORIENTED BUSINESSES i Sexually Oriented Businesses SOBs a SOBs are subject to two types of local laws 1 Zoning regulations 2 Expressive conduct regulations b Zoning tactics c Secondary effects of SOBs d The land available for SOBs e Regulating conduct inside SOBs f SOBs and taxes B ATTACKS ON THE ARTS AND POPULAR CULTURE 5 ADV 3352 MASS MEDIA LAW STUDENT OUTLINE i Other forms of pop culture are being challenged DVD S web ii Media industries motion pictures television music sites and other forms are being challenged both in court and by advocacy groups for sexual content recording video games voluntarily rate their products or include warning labels to inform the public about content C EROTIC MATERIALS IN CYBERSPACE i Communications Decency Act CDA 1996 a The CDA 1 Implications made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks 2 Definition of indecency b Reno v ACLU 1997 U S Supreme Court ruled that this act unconstitutional ii Child Online Protection Act COPA 1998 a The COPA 1 Implications prohibits commercial Web sites from knowingly transmitting to minor s material that is harmful to them 2 Definition of harmful material b Ashcroft v ACLU 2004 c The COPA never took effect lower courts ruled this law unconstitutional as it restricted adults from legal material iii Children s Internet Protection Act CIPA 2001 a The CIPA 1 Implications required public libraries to install anti pornography filters on all computers with Internet access in order to receive federal funding 6 ADV 3352 MASS MEDIA LAW 2 Problem with filters STUDENT OUTLINE b United States v American Library Association 2003 iv Current Issues Online The New Dot XXX Domain a The Internet Corporation for Assigned Names and Numbers ICANN 1 Approved xxx suffix on domain names for adult entertainment Web sites b The Free Speech Coalition argued that this would create an online red light district for adult content and allows for greater censorship of adult content by foreign governments CHAPTER 14 Copyright III IMMATERIAL PROPERTY LAW D COPYRIGHT o Definition an area of law that deals with intangible property property that a person cannot touch or hold or lock away for safekeeping E PATENTS o Gives the inventor a monopoly on selling the product for 20 years o Three kinds of patent protections process 1 Inventions that have utility Ex a machine or 2 Inventions that are
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