1 / 15

cl5

cl5

tester
Download Presentation

cl5

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Obscenity and Pornography • Definitions • Relevant legal standards • Current applications • When can the government restrict access to non-obscene speech? • How is pornography regulated on-line?

  2. Defining Obscenity • Obscene -- 1: disgusting to the senses; 2: abhorrent to morality or virtue; synonym: repulsive. [Webster’s New Collegiate Dictionary] • As a legal term of art obscenity must deal with sexual content • See Brown v. Entertainment Merchants Ass’n (2011)

  3. Obscenity before the Supreme Court • Hicklin: “Whether the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences.” • Roth: “Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.”

  4. Miller Test for Obscenity • Whether the average person applying contemporary community standards would find the work taken as a whole, appeals to the prurient interest. • Whether the work describes in a patently offensive way, sexual conduct specifically defined by…state statute. • Whether the work taken as a whole lacks serious literary, artistic, political or scientific value [SLAPS test].

  5. Applying the Miller Standard • What are “contemporary community standards?” • What “audience” determines whether a work appeals to the “prurient interest?” • Webster’s: “1) marked by restless craving; 2) having lascivious thoughts/desires or arousing such thoughts/desires” • See NY Penal Law §235(1)(c)

  6. Obscenity Directed to a “Special Group” • Pornographic material directed to gay men/women • Pornographic material directed to minors • See Ginsberg v. New York (1968). • See NY Penal Law §235(1)(c)

  7. Statutes Defining Obscenity • What is “patently offensive?” • Applicable state law • See NY Penal Law §235(1)(b)

  8. Does a Work Have Value? • Who sets the standard? • Who has the burden of proof? • How do you prove “value?”

  9. Miller Test Applied • Luke Records, Inc. v. Navarro (11th Cir. 1992) • 2 Live Crew -- As Nasty as They Wanna Be • Determining the community standard • Establishing patent offensiveness • Is there artistic and literary value?

  10. Regulation of Pornography • What societal interests are used as the rationale for regulating pornography? • See Ginsberg v. New York (1968) • What test/standard should be applied to determine the constitutionality of such regulations? • See Young v. American Mini Theatres (1976)

  11. Implicated Societal Interests • Aesthetics • Health and safety • Privacy of non-consenting adults • Protection of minors • Women’s rights

  12. Regulating Pornography • Retail sales of books, magazines and videos • Movie theaters • Broadcast pornography • FCC v. Pacifica Foundation (1978) • Sable Communications v. FCC (1989)

  13. Pornography on the Internet • Communication Decency Act of 1996 [CDA] • Reno v. ACLU (1997) • Child Online Protection Act of 1998 [COPA] • Ashcroft v. ACLU (2004) • Requiring filtering software • Children’s Internet Protection Act • U.S. v. American Library Ass’n (2003)

  14. Child Pornography • The use of children in pornography – how does that affect legal analysis? • New York v. Ferber (1982) • Statute made it illegal to film kids under 16 engaging in even non-obscene sexual acts • New York court had declared this to be unconstitutional – illegality based on content where content was protected speech • Supreme Court reversed (9-0) -- why?

  15. Child Pornography, con’t • Child Pornography Prevention Act of 1996 [CPPA] • Ashcroft v. Free Speech Coalition (2002) • Can virtual child pornography be regulated?

More Related