Presentation Transcript

1. Government regulation of sexually explicit non-obscene speech Outside of the context of obscenity and child pornography: What interest does the gov’t have in regulating sexually explicit expression? We have already seen one case involving this issue – Renton v. Playtime Theatres(p. 113) – SCT upheld zoning regulations pertaining to adult theaters Controversy re decision – claimed law was content-neutral TPM regulation due to it’s reliance on “secondary effects” rationale Regulation of sexually explicit speech comes up in a variety of contexts Zoning Nude Dancing Access via various media
2. Non-Obscene Sexually Explicit Speech – Nude Dancing Why are cases like Barnes & Paps A.M. even decided on First Amendment grounds – is nude dancing expressive conduct deserving of First Amendment protection? Note Dallas v. Stanglin– gathering together for purposes of recreational dancing is NOT protected by the 1st Amendment – does NUDE dancing convey expressive meaning?
3. Nude Dancing – Barnes v. Glen Theatre SCT upheld law prohibiting intentional public nudity (defining nudity as showing of genitals (including breasts), pubic areas or buttocks with less than a fully opaque covering) as applied to nude dancing Plurality applied O’Brien: (w/in power of gov’t, important gov’t interest, unrelated to suppression of free expression, no greater than necessary to meet gov’t interest Prongs 1 & 2 met: Gov’t interest (protecting morality by banning public nudity) is w/in govt’s power and important Prong 3 - Is the interest unrelated to suppression of free expression? Would the law ban nudity in theatrical productions of “Hair”? If so, is it legitimate? If not, what problems does the law raise? Prong 4 - Does the effect that nude dancers use certain covering devices unduly interfere with the “erotic message”?
4. Nude Dancing – Erie v. Paps A.M. SCT applied O’Brien & upheld law banning public nudity as applied to business engaging in nude dancing – used different reasoning than Barnes. SCT – State’s interest in regulating public nudity is unrelated to suppression of free expression – why? State interest is battling the harmful 2° effects of nude dancing – crime, prostitution, etc. Can this reasoning be right? How does a ban on nudity aim at secondary effects of nude dancing? What evidentiary support does City supply? Is SCT’s use of secondary effects doctrine different from Young (cited in Paps) and Renton? What kind of regulation is this compared to a zoning regulation?
5. Dial-A-Porn – Sable Communications v. FCC SCT struck down federal law banning indecent, sexually explicit telephone messages individuals could call using 1-900 numbers. Majority ruled that (unlike ban on obscene phone calls which was constitutional) ban on indecent calls was overly broad If you can ban nude dancing why can’t you ban sexually explicit phone call services? What is the Court’s reasoning as to why the law is unconstitutional?
6. FCC v. Pacifica Radio station broadcast George Carlin monologue of “seven dirty words” during mid-afternoon. Broadcast was preceded by a warning that material might be offensive. The FCC received a complaint from father driving with son in the car. FCC issued an order holding that the broadcast was indecent within the meaning of 18 USC § 1474, which prohibits the use of “obscene, indecent, or profane language by means of radio communication.” FCC later clarified that its ruling was based on a nuisance theory, which simply meant that it could “channel [such broadcasts] to times of day when children most likely would not be exposed to [them].” SCT upholds the regulation (plurality opinion – again)
7. Confluence of 5 factors in Pacifica – presence or absence of these is important in later cases Profanity is lowish value speech (indecent) & regulation doesn’t suppress viewpoints; The broadcast medium is particularly intrusive, especially in the home or car (i.e., people are a captive audience); Would Stevens have upheld the regulation if it involved offensive messages? Why is it okay to regulate profanity simply because it is offensive? Is this reasoning consistent with Cohen? How does the intrusiveness of the broadcast medium play a role in the captivity analysis. Is Stevens’ right about how intrusive it is? We need to protect children from exposure to such language What role should this interest play? Regulation only “channels” to certain time; it doesn’t suppress profanity Broadcast medium is already heavily regulated – doesn’t get much protection anyway
8. Back to Sable Federal law banning indecent, sexually explicit telephone messages individuals could call using 1-900 numbers. Majority ruled that ban on indecent calls was overly broad to meet interest in protecting children. How is the situation here different from or similar to Pacifica? What kind of regulation is it (ban or channeling)? What kind of medium is involved and how is it used in the regulation? Is there a captive audience? Are there narrower alternatives? Other cases also follow this pattern: Denver Area & Playboy– statute giving cable operators discretion to block indecent programming is ok but portion requiring segregation or blocking or scrambling or channeling to certain hours was not ok – less restrictive alternatives exist Reno v. ACLU– statute prohibiting knowing transmission of indecent/patently offensive material in a manner available to minors was not ok. Definitions were vague and amounted to complete ban of (some valuable) material to minors even with parental consent or even if one simply had a computer where minors could see. Other less restrictive alternatives exist – filtering . . .
9. How to make sense of SCT cases on non-obscene, sexually explicit speech SCT treats sexually explicit speech as “lowish” value speech – protected by 1A but greater regulation allowed than with political or non-sexual speech (note these regulations are almost always content-based) Typical interests involved – children, secondary effects, morality Morality less so unless speech approaches obscenity – such as public displays of nudity (Barnes/Paps) Total bans of indecent speech are disfavored (exception – nude dancing) – SCT more likely to allow “zoning regulations” w/in medium Physical zoning – Renton, Young Zoning within medium – Pacifica (zone indecent words to certain times of broadcast) Attempts to regulate Internet have been unsuccessful at achieving the zoning paradigm Captive audience rationale is important with sexually explicit speech Intrusive indecent speech can be regulated if captive audience (Pacifica) But if one must seek out indecent speech, captive audience rationale won’t work (Sable, Internet cases)