Presentation Transcript

1. OBSCENITY AND DEFAMATION

   4/21/09
2. Roth Definition of Obscenity 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.
3. "I know it when I see it" Test Between the 1957 Roth case and the 1967 case of Redup v. New York, the Supreme Court made a series of revisions designed to further clarify the definition of what was to be considered legally obscene. In Redup they 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?
4. 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.”
5. Applying the Miller Test Determining if the works in question depict or describe sexual conduct is pretty straight forward, but how is a judge or jury suppose to determine what is patently offensive to local community’s standards?
6. Applying the Miller Test In Hamling v. United States (1974), the Supreme Court 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. What kind of problems does this create?
7. Applying the Miller Test Miller test goes on to state that the materials involved must be specifically prohibited in state law. This presents some interesting problems for drafting obscenity statutes. The statutes must specifically describe the types of acts that are prohibited and exactly how much of breasts or genitals can or cannot be shown or described.
8. Applying the Miller Test Finally, the Miller test states that the materials involved must lack serious literary, artistic, political, or scientific value. Who determines whether the materials lack serious literary, artistic, political, or scientific value? What standard is applied for determining if the value is serious enough?
9. Jenkins v. Georgia (1974) Case involved the prosecution of movie theatre in Albany Georgia for showing a main stream Hollywood movie called Carnal Knowledge . The movie was directed by Mike Nichols, and starred Jack Nicholson, Art Garfunkel, Candice Bergen, and Ann-Margret. The film had made several "Ten Best" lists when it came out in1971, and Ann-Margret nominated for an Oscar.  The movie in question was clearly not the type of "hard core porn" that the Justices thought should be an exception to the first amendment. 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.
10. Juvenile Access to “Adult Materials” Ginzburg v. New York (1968) Upheld NY statute that prohibited the sale to minors of sexually explicit materials that were not legally obscene. 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.
11. Limiting Adult Access to Protect 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. Reno v. ACLU (1997) It is a violation of the first amendment for the federal government to prohibit "indecent transmission" and "patently offensive displays" that are not legally obscene from being transmitted on the Internet.
12. 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.
13. 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. A refusal to fund libraries that don’t use filters, without more, could not be equated with the imposition of a penalty on use of the internet.
14. 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.
15. 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?
16. Problems with Child Porn Laws As is the case with adult porn, a big problem with child porn is vagueness and ambiguity in defining the crime. How do you distinguish between real “child pornography” and parents to take pictures of their young children taking baths or dancing around the house without any clothes on?
17. 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.”
18. Ashcroft v. Free Speech Coalition FACTS: Challenge to the Child Pornography Prevention Act 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.”
19. 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.
20. Ashcroft v. Free Speech Coalition REASONING: Court distinguishesFerber because virtual porn doesn’t directly injure children. Children are not being exploited in production. The government’s assertion that images can lead to actual instances of child abuse is not adequately supported by fact.
21. 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.

22. DEFAMATION

23. Key Definitions A tort is a private wrong (other than breach of contract) for which the courts provide a remedy in the form of monetary damages. Defamation is a tort involving injury to one's reputation. It involves holding a person up to ridicule, or to exicte adverse, derogatory, or unpleasant feelings or opinions about someone. When defamation is directed at the eye (traditionally in print) it is called libel when it is directed at the ear it is called slander Libel is often used interchangeably with defamation to include slander. Standards/tests applied for libel and slander are the same.
24. Key Elements of Defamation Suit In order for plaintiff to prevail in a libel or slander suit, he/she must show that the statements in question: Were defamatory Were false Actually damaged the plaintiff’s reputation. However, under the libel per se doctrine, a false statement about another which accuses him/her of a crime, immoral acts, inability to perform his/her profession, having a loathsome disease (like syphilis), or dishonesty in business, is considered so obviously harmful that plaintiff doesn’t need to prove specific losses.
25. New York Times v. Sullivan (1964) FACTS: New York Times published an advertisement that criticized the manner in which the police in Montgomery Alabama had handled several civil rights protests. City official in charge of the police department in Montgomery, Alabama sued the newspaper for libel. The Times admitted that some of the statements contained in the ad were not accurate descriptions of events which had occurred in Montgomery, but argued that their statements were protected by the first amendment.
26. NY Times v. Sullivan (1964) HOLDINGS: The protections of the 1st (as applied to the states through the 14th amendments) apply to political messages that are published in the form of paid advertisements. It is a violation of the 1st (as applied to the states through the 14th amendments) to assess damages for liable against a public official for criticism of official conduct without a showing of actual malice (knowledge that the material is false or a reckless disregard for the truth) on the part of the person or media outlet making the allegedly defamatory statements.