Lecture 8a: Obscenity, Indecency and Pornography

1. Lecture 8a:Obscenity, Indecencyand Pornography COM 451 Communication and Law

2. I. Chronology of regulation of obscenity in the U.S. Note: These laws also laid a foundation for indecency laws later, when the two became separate legal concepts. • 1712: The Massachusetts colonial legislature passed a law that made it a crime to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon.” • By 1792: All fourteen states had laws against blasphemy and/or profanity, but NOT against obscenity. • 1815: First obscenity conviction under Pennsylvania obscenity law. A man named Jesse Sharpless was fined for exhibiting a painting of a man “in an imprudent posture with a woman.” • 1821: Another conviction and new law in Vermont against publication or sale of ”lewd and obscene material.” A man named Peter Holmes was convicted for publishing a spiced-up version of John Cleland’s Memoirs of a Woman of Pleasure (popularly known as “Fanny Hill”). COM 451

3. I. Chronology of regulation of obscenity in the U.S. (con’t) • Tariff Act of 1842: The first Federal Legislation that prohibited the “importation of all indecent and obscene prints, paintings, lithographs, engravings and transparencies.” This was expanded in 1857 to include printed matter as well. • 1865: The US Post Office entered the field of control when Congress passed a law that made mailing obscene materials a crime. COM 451

4. I. Chronology (con’t),Regina v. Hicklin (1868) • This case, decided in Great Britain, established the precedent for obscenity law for the next 60 years. The case involved the enforcement by a Judge Hicklin of a recently enacted anti-obscenity law ordering the confiscation and destruction of copies of a pamphlet titled The Confessional Unmasked, which included depictions of sexual acts. • The case was upheld on appeal by a Lord Chief Justice Cockburn, who formulated what came to be known as the HICKLIN test. The test had two parts for determining obscenity • the material included passages (no matter how small) had the tendency to “deprave and corrupt”; and • the influence could effect the minds of even the most sensitive and easily influenced individuals in society, including children. • NOTE that the work was not evaluated AS A WHOLE, and that even if a very FEW people could be corrupted, it was determined to be unacceptable. Also note that Queen Victoria was on the throne (i.e. the term “Victorian” attitudes toward sexual behavior was born). COM 451

5. I. Chronology (con’t), The Comstock Act (1873) • A drive was led by by a Congregationalist from New England named,Anthony Comstock who applied pressure on Congress to pass a law declaring that all obscene books, pamphlets, pictures, and other materials were non-mailable. The law was described as “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use.” However, no definition of obscenity was provided by Congress. Anthony Comstock, who led the movement, was later appointed a special agent to the post office to enforce the law. • The act is still on the books today, in Title 18, Section 1461 of the US Code. Penalties are: • $5000 and/or 5 years in prison for the first offense. • Further offenses add $10,000 and/or a prison term of not more than 10 years • By 1900: At least 30 states were actively prohibiting the distribution of obscene materials. COM 451

6. I. Chronology (con’t),US v. Ulysses (1933) • This case ended the Hicklin test. A customs official had prevented a person from bringing the James Joyce novel Ulysses into the country. The U.S. District Court Judge John M. Woosley ruled in New York that the book was not obscene and, therefore, could be imported into the country. • The Judge rejected the Hicklin rule and ruled that any test of obscenity should evaluate a work based on its WHOLE (not just passages) and the artistic merit of the work. Also, that the court must look at the effect of the material on the average person (“a person with average sex instincts”), not on sensitive individuals. • 1940's: US Postal Service engaged in actions to revoke 2nd class mailing permits for obscene/indecent materials. Supreme Court said that was unconstitutional; the postal service is like a highway, everyone has a right to use it. COM 451

7. I. Chronology (con’t), Roth v. U.S. (1957) • The Supreme Court ruled that obscenity is NOT constitutionally protected; that it is outside the protection of the Constitution. What happened? • A gentleman named Samual Roth was convicted under federal law for mailing circulars, a book and advertising material that were considered obscene. • These materials were determined to make no contribution to the “marketplace of ideas” Roth was fined $500 and placed on probation in lieu of 60 days in jail. The Supreme Court affirmed his conviction. • The decision was significant because, for the first time the Supreme Court officially abandoned the Hicklin rule stating that it was too restrictive and was unconstitutional. (The Ulysses case was at the US District Court level.) Under this old rule American adults were permitted to read only what was fit for children to read. COM 451

8. I. Chronology (con’t), Roth v. U.S. (1957)(con’t) • This case and a series of other similar cases over the next nine years forced the Supreme Court to come up with a new definition of obscenity which came to be known as the Roth-Memoirs Test. The test had three main parts: • 1) The dominant theme of the material, taken as a whole, appeals to an average person’s prurient interest in sex. This modified the Hicklin rule in two ways: • Material that was offensive to children or overly sensitive persons was no longer declared obscene for all. • The entire work, not just a part of a book or film, must be considered when determining whether it is obscene. • 2) The material is patently offensive because if affronts contemporary community standards relating to sexual matters. • It was assumed that there was a single, national standard that was applicable to all parts of the country. • 3) The material is utterly without redeeming social value. It has no value at all. • It is significant to note that Justice Earl Warren dissented, urging the court to examine the actions of the defendant, NOT the MATERIAL. Had the court done as he suggested, the whole future of obscenity law would be very different. COM 451

9. I. Chronology (con’t) 1957-1969: Postal inspectors made more than 100,000 investigations concerning the use of US mail for the distribution of obscene materials. Nearly 5,000 convictions resulted. 1966: Ginzberg v. US • Ralph Ginzburg, a well known photographer, was convicted not of marketing inherently obscene publications, but rather of pandering... “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of customers.” • Ginzburg intentionally tried to mail his publications from “Intercourse” and “Blue Ball” Pennsylvania to get the post mark, but the post offices couldn't handle the volume, so he settled for “Middlesex” New Jersey. • The court concluded that those mailing points were selected only for the effect their names would have on his sales. Thus, the court affirmed an obscenity conviction based on the conduct of the seller rather than on the content of the works. COM 451

10. I. Chronology (con’t) 1968: Ginsberg v. State of New York • Established the constitutionality of “variable obscenity law.” This is a law that says that material which is “illegal” for a minor could “"legally” be sold to an adult. In 1965, a 16 year old boy bought two “girlie” magazines at Sam Ginsberg’s store in Bellmore, Long Island, New York. His mother actually sent him to the store to buy the magazines so she could test the law. The court found that the law was rational. By 1969: 36 states had laws which protected children from obscenity. 1969: Stanley v. Georgia • Ruled for the first time that possession of obscene material in the home was not a crime. Under a Georgia law, Robert Eli Stanley was convicted of a crime for having a stag movie in his home. The court distinguished between “mere private possession” and “commercial distribution” of the material. COM 451

11. I. Chronology (con’t) • In 1970, an 18 member President's Commission on Obscenity and Pornography spent $2 Million trying to determine the extent of the problems associated with pornography in the US After studying the problem, and deciding that there were no serious negative effects, the commission made the following recommendations: • 1) All laws restricting the consumption of erotic materials by consenting adults should be repealed. • 2) Legislation should be made to protect children from pornography, although not written material. (That was deemed too hard to define.) • 3) Laws should also to be made to protect people who didn't want the material from advertisements sent through the mail. COM 451

12. I. Chronology (con’t) Several things should be known about this report: • The Commission was originally appointed by President Johnson in 1967, but when President Nixon took office in 1968 he vowed to “get tough with obscenity.” • President Nixon ridiculed the report as not making sense and being morally bankrupt. He rejected the commission's conclusion that regular viewing or reading of obscenity produced no harmful effects. • The Supreme Court also ignored its findings, most obviously in 1973 in the Miller v. California case. • The type of pornographic materials in the US at the time were not the same as now. Materials were MUCH tamer at that time. There was an absence of violent pornography and close-up shots of female genitalia. That type of material was available in Europe at the time, and immediately began entering this country after the release of the report. • For the next several years, there was very little attention paid to the issues of obscenity and pornography--except by those who used it, profited from it, and were abused as a result of it. COM 451

13. I. Chronology (con’t), Miller v. California (1973) • Marvin Miller was convicted under California law for mass mailing advertising brochures in an attempt to sell pornographic books. As it turned out, a man who owned a diner in Newport Beach, CA opened his mail at the counter with his mother looking over his shoulder. They had no idea what was in the envelope. When they opened it, the ad was for four books: Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography as well as an ad for a film, Marital Intercourse. • The brochure itself had pictures and drawings of men and women participating in various sexual acts, their genitals displayed in clear view. After the man picked his mom up off the floor, he called the police. COM 451

14. I. Chronology (con’t), Miller v. California (1973) The Miller decision was significant because: • It marked the first time that the Supreme Court had been able to agree on “concrete guidelines to isolate ‘hard core’ pornography from expression protected by the First Amendment.” These concrete guidelines are the following standards which are still in effect today. • 1) An average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. • 2) The materials depict or describe sexual conduct in a patently offensive way specifically defined by state law. • 3) The work in question, taken as a whole, lacks serious literary, artistic, political, or scientific value. • In 1987, point one was changed from “An average person” to “A reasonable person.” COM 451

15. I. Chronology (con’t), Miller v. California (1973) • The above definition is EXTREMELY important. All three parts of the definition must be met in order for the material to be deemed obscene. The idea was to limit hard core pornography and to make it easier to prosecute by being more specific than the previous “utterly without redeeming social value.” The court also said the State... • had the right to stop the transportation of obscene materials even for private use. • stop interstate transportation of such materials regardless of what its intended use. • do whatever is necessary to prevent the distribution of such materials to minors. • The only place where obscene material is safe from the reach of the law, is the home (unless the material is made available to children and child welfare agencies find out). COM 451

16. I. Chronology (con’t), • By the late 80’s, the public outcry against violence and sex in the country, especially against children, led to two significant government actions. • In the early 80’s McCall’s magazine published a graphic story about children, toddlers and even infants, who were used by pornographers and pedophiles for sexual gratification and profit. • Many of the pornographic films resulted in the death of the child, sometime because of outright torture and sometimes because of massive internal injuries caused by an adult sex organ penetrating a child. • McCall’s called for the nation to do something, and parents, especially women, all over the country were outraged and vocal. • That was the beginning of attention being focused on something NO ONE ever talked about. COM 451

17. I. Chronology (con’t), Child Protection and Obscenity Enforcement Act (1986) • The maximum penalty for using a child in the creation of pornography was increased from $10,000 to $100,000 and subsequent convictions increased the fine to $200,000. The need to prove obscenity was removed for a conviction; sexual or lascivious activity were all that was needed for materials to qualify. The law made it much easier for prosecutors to successfully deal with the pornographers. Filmmakers and photographers must keep careful records of the ages of actors. • This law was made possible by a 1982 Supreme Court Ruling in New York v. Ferber which removed child pornography from First Amendment protection. The court said that was appropriate because: • The state had a compelling interest in protecting children. • Miller standard didn't satisfactorily solve child pornography problems. • Child pornography, like "fighting words", is not compatible with the intent of the First Amendment. • States have additionally passed laws against child pornography. An Ohio law, upheld by the Supreme Court in 1990, makes it illegal to possess such materials even in one’s own home. The court ruled that the state had a legitimate interest is destroying the market for the abuse and exploitative use of children. COM 451

18. I. Chronology (con’t), Report of The Attorney General's Commission on Pornography (1986) Known as the Meese Report after Attorney General Edwin Meese • 1985: President Reagan appointed an 11-member commission to determine “the nature, extent, and impact on society of pornography in the United States” and to make recommendations about ways that pornography might be more effectively contained. • Summer, 1986: Commission released report; concluded that… • there does exist a causal relationship between sexually violent materials and violent or sexually violent acts against women. • nonviolent photography that depicts degradation, domination, subordination, or humiliation also has an impact on fostering attitudes that women enjoy being raped. • 92 recommendations were made to limit pornography and aid law enforcement. • The commission did NOT recommend additional restrictions or re-definitions of obscenity. • Rather, it pointed out the link between the industry and organized crime, emphasized the evidence collected by the FBI concerning the role of pornography and criminals, and urged that current laws on the books BE enforced. • It recommended that dial-a-porn services be regulated and that legal obscenity restrictions be enforced for Cable. COM 451

19. I. Chronology (con’t), Report of The Attorney General's Commission on Pornography (1986) • The commission was attacked on several fronts, by the ACLU, news media and other. However, the Commission did a credible job, but arrived at what some believe was a politically incorrect conclusion. • News reporters who covered the report had not read it, reports they compiled indicated they were not familiar with the limitations of social science, and the industry is overwhelmingly against any type of restriction of freedom of expression. • That inherent bias may have influenced the reports, but there were overt efforts to discredit the commission and its work. Never the less, Congress passed nearly (if not all) all of the Commission’s recommendations. • Broadcasters weren’t really concerned that much about it, because, while shock radio was in its infancy, broadcasters didn’t think they were dealing with the same type of content the Commission was talking about, and they were right. COM 451

20. I. Chronology (con’t) • 1996: Congress Passed the Telecommunications Act of 1996 which includes The Communications Decency Act (CDA) which applied broadcast restrictions to cable and telecommunications. COM 451