OBSCENITY AND PORNOGRAPHY

1. OBSCENITY AND PORNOGRAPHY CLASS SLIDES

2. Definitions Related to Obscentity Pornography is generally defined as: • sexually explicit materials (books, magazines, movies, videos) which are intended primarily for the purpose of sexual arousal. Some types of pornography are legal, while others are not. Obscenity as we will use the term in this course: • refers to specific types of sexually explicit materials that are not protected by the first amendment, and can thus be constitutionally prohibited.

3. Roth v. United States (1957) ISSUES: • Did the federal government violate the 1st amendment freedom of speech and press clauses when it prosecuted Roth for having distributed these sexually explicit materials? NO (6-3) • What standard should the courts apply in determining if something is obscene?

4. Roth v. United States HOLDING: It is not a violation of the free speech and press clauses of the first amendment for the federal government, to prohibit the mailing of sexual materials which, the average person applying contemporary community standards, would find the dominant theme of the material, taken as a whole, appeals to the prurient interest.

5. Roth v. United States REASONING: • History shows that founding fathers considered some types of speech to be excepts to the 1st amendment. • 13 of 14 states in existence in 1792 provided for prosecution of libel. • all of the states had laws making either blasphemy or profanity a crime. • Most states and most nations have laws against it. • Obscenity should be considered an exception to 1st amendment because they lack redeeming social importance.

6. Roth v. United States DISSENTING ARGUMENTS: • History does not support the argument that founding fathers wished to exempt obscene materials from 1st amendment protections. • Sexually explicit materials do have social value and therefore should be protected.

7. Social Value Argument • With respect to the argument that obscene materials being an exception to the 1st amendment because they have no social value, • First amendment advocates dispute the assertion that sexually explicit materials don’t have value. • What value might some of these materials have?

8. Value of Sexually Explicit Materials • Psychologists and sex counselors use it in professional treatment of sexual dysfunctions. • “Safety valve" facilitating alternative forms of sexual release. • Artistic value • Entertainment value

9. Arguments for prohibiting production and distribution of pornography • Porn causes crimes of violence against women and children. • Porn leads to the breakdown of families. • Porn encourages people to engage in immoral behavior. • Porn degrades and stigmatizes women.

10. Erotica v. Pornography • Erotica refers to sexually explicit materials (books, magazines, artwork, movies, videos) that people approve of. • Pornography refers to sexually explicit materials which people disapprove of. • Obscene materials constitute a subcategory of pornography that is not protected by the first amendment, and can thus be constitutionally prohibited.

11. Roth Definition of Obscenity Key elements in the Roth definition were: • material had to be taken as a whole, not judged on the basis of isolated passages • material had to involve an appeal to prurient interests "Prurient" come from a Latin word meaning "itching" or "longing for". It is commonly used in the sense of an intent to arouse, an appeal to sexual desires. • this appeal to the prurient interest was to be judged on the basis of the average person in the community rather than on the basis of the most susceptible person into who's hands it might fall.

12. "I know it when I see it" Test • In 1967 in Redup v. New York, the Supreme Court gave up on trying to define obscenity and resorted to Stewart's "I know it when I see it" test. • With this test each justice has to make his/her own judgment on the basis of their own criteria and then announced their verdict without attempting to set down a common test other courts could apply. • What kind of problem did this approach create?

13. Miller v. California (1973) In Miller v. California the new Nixon appointees were finally able to get a majority to agree on a common definition of obscenity. ------------------------------------------------------------ “In order to be considered to be obscene, the works in question have to depict or describe sexual conduct in a way that is patently offensive to local community standards and which is specifically prohibited in state law; and, taken as a whole, it has to appeal to a prurient interest in sex and lacks serious literary, artistic, political, or scientific value.”

14. Hamling v. United States (1974) • Ruled that the defense attorney had no right to introduce public opinion polls or samples of comparable materials sold in the community. • It thus left it to the jury to determine community standards on the basis of their own limited experiences.

15. Defining Local Community Standards Jenkins v. Georgia (1974) • In overturning the conviction the Supreme Court held that while the local jury ultimately determined what offended local community standards, it was still up to the appellate courts to determine if the work lacked serious artistic value. • This movie was not the type of "hard core porn" that was an exception to the first amendment.

16. Children and Pornography Need to distinguish between: • Pornography involving children as subject matter. • Children having access to pornography involving adults as the subject matter.

17. Distribution to Juveniles Ginzburg v. New York (1968) Upheld NY statute that prohibited the sale to minors of materials defined in terms of its appeal and effect upon juveniles, whether or not it would be considered obscene by adult standards. FCC v. Pacifica (1978) Upheld the right of the FCC to prohibit use of “indecent language” on radio or TV during times that children were likely to be listening.

18. Distribution to Juveniles Sable Communications v. FCC (1989) • Held that FCC couldn’t prohibit "Dial a Porn" commercial telephone services absent a record of an adequate legislative finding to justify a conclusion that there is no constitutionally acceptable less restrictive means available to protect minors. • Gov. could accomplish its objective of protecting children without limiting access to adults through use of technology that can screen out children rather than limiting constitutional rights of adults.

19. Reno v. ACLU (1997) PRECEDENT: It is a violation of the first amendment for the federal government to prohibit "indecent transmission" and "patently offensive displays" on the Internet.

20. Reno v. ACLU (1997) REASONING: • The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media are not present in cyberspace. There is no long history of extensive government regulation or scarcity of available frequencies • Although the Government has an interest in protecting children from potentially harmful materials, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive. • Parents can install filters to block out objectionable material.

21. U.S. v. American Library Assoc. ISSUE: Do the filtering provisions in the Children's Internet Protection Act (CIPA), 114 Stat. 2763A-335 violate the 1st amendment free speech clause? NO 6-3 HOLDING: It is not a violation of the free speech clause of the 1st amendment to require libraries to use filtering software on computers with access to the internet.

22. U.S. v. American Library Assoc. OPINION OF THE COURT: C.J Rehnqist joined by O’Connor, Scalia, and Thomas • A library's decision to use filtering software was a collection decision, not a restraint on private speech. • A library's need to exercise judgment in making collection decisions depended on its traditional role in identifying suitable and worthwhile material; • it was no less entitled to play that role when it collected material from the Internet than when it collected material from any other source. • Because public libraries' use of Internet filtering software did not violate their patrons' First Amendment rights, the CIPA did not induce libraries to violate the U.S. Constitution,

23. U.S. v. American Library Assoc. OPINION OF THE COURT (Cont.): • CIPA is a valid exercise of Congress' spending power. • The funding programs were intended to help public libraries fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes. • Congress could insist that these public funds be spent for the purposes for which they were authorized. • A refusal to fund protected activity, without more, could not be equated with the imposition of a penalty on that activity.

24. Child Pornography • Child pornography is usually defined as pornography involving children as part of the subject matter. • In New York v. Ferber (1982) the Supreme Court defined child pornography as materials showing sexual performances involving children.

25. New York v. Ferber (1982) HOLDING: It is not a violation of the 1st amendment as applied to the states through the 14th amendment due process clause for a state to prohibit the production, sale, and distribution of materials showing sexual performances involving children—even if it doesn’t meet the Miller test.

26. New York v. Ferber (1982) • What was the vote in this case? • What was the justification for treating pornography involving children differently than pornography involving adults? • Why not just make it a crime to produce this material? Why is it necessary to block distribution?

27. Child Pornography Prevention Act prohibited “any visual depictions, including any photograph, film, video, picture, or computer or computer generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.”

28. Ashcroft v. Free Speech Coalition ISSUES: • Does the Child Pornography Prevention Act provision prohibiting “virtual child pornography violate the 1st amendment freedom of speech clause? YES (7-2) • Does the Child Pornography Prevention Act provision prohibiting pornographic images that “appear to be...a minor” violate the 1st amendment freedom of speech clause? YES (6-3) Justice O’Connor splits her vote on these two issues.

29. Ashcroft v. Free Speech Coalition HOLDING: It is a violation of the 1st amendment freedom of speech clause for the federal government to prohibit “any visual depictions, including any photograph, film, video, picture, or computer or computer generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct.”

30. Narrow Construction/Overbreadth • A statute that limits first amendment freedoms must be as narrowly drawn as possible so that it limits only what the government has a legitimate reason to regulate. • If the wording sweeps broader than it needs to be, it can be struck down on the basis of overbreadth.

31. Ashcroft v. Free Speech Coalition REASONING: • CPPA is found to be overbroad because it extends to images that are not obscene under the Miller standard. • Materials could be explicit without appealing to prurient interest. • Pictures of 17-year olds engaging in sexually explicit activities do not necessarily contravene community standards. • Obscenity must be judged on basis of whole, not isolated scene.

32. Location of Sexually Explicit Materials and Activities Quick summary of cases not covered in the text • Activities and materials that are legally obscene can be totally banned. • Activities and materials that are not legally obscene cannot be totally banned but through zoning laws governments can regulate the location of businesses such as adult book stores and strip clubs.