defining obscenity

defining obscenity • “I KNOW IT WHEN I SEE IT” • —Supreme Court Justic Potter Stuart

Courts have had a tough time establishing a legal definition of obscenity.

Hicklin Standard 1865 • Obscenity shall be determined by the “affects of isolated passages upon the most susceptible mind.” • Isolated passages? • A sentence or even just a word • Most susceptible mind? • A child

Hicklin Standard • Think of all the publications you know of that would be declared obscene according to this standard: • Health textbook • Almost any medical text • Any magazine that discusses sex • The Bible! (because of the Song of Solomon, among other passages)

Hicklin Standard • This was NOT law. This was a guideline.

1st legal definition • Roth vs. the United States 1957 • Obscenity is not constitutionally protected (that means it can be censored). • Must have socially redeeming value, i.e. nude statue (like Michaelangelo’s David) can claim artistic value.

3-part test to determine obscenity • Miller vs. California 1973 • 1) Whether a reasonable person applying contemporary community standards would find that the work, taken as a whole, appeals to a prurient (lustful) interest. • In English: a jury of local people will apply the local community’s current standard to see if the work overall is designed to cause lustful thoughts.

3-part test to determine obscenity • Miller vs. California 1973 • 2) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined as obscene by applicable state law. • In English: after looking at the local standards, the state definition of obscenity will be taken into consideration.

3-part test to determine obscenity • Miller vs. California 1973 • 3) Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. • In English: This is referred to as the LAPS test (Literary, Artistic, Political, Scientific). • It is the current version of the “socially redeeming value” clause from Roth.

The Miller test has been the standard for defining obscenity for more than 30 years. Essentially, only “hard-core,” explicit descriptions of sexual activity that arouse sexual feelings are obscene under Miller. • Profanity, nudity and offensive material are, in themselves, not obscene if they do not arouse sexual feelings or depict hard core sexual situations. And even hard core sexual situations may not be considered obscene if they occur in a serious literary, artistic, political or scientific context.

Adult magazines like Playboy and Penthouse, while offensive, are not considered obscene.

Obscene as to minors • Ginsberg vs. State of New York (1968) • Applied a three-part test similar to what later appeared in Miller. • define obscenity as to minors as any description or representation of nudity or sexual conduct which • `1) predominantly appeals to the purient, shameful or morbid interest of minors — (a short version of what will later become the first part of the Miller standard) • 2) is patently offensive according to adult standards as a whole with respect to what is suitable material for minors. • 3) utterly without redeeming social value. — (notice similarity to wording in Roth, but hasn’t moved to the Miller verbage).

Indecent Speech in High School • Bethel vs. Fraser 1986 • Debate student Matthew Fraser gave the following speech in support of a student government candidate before a high school assembly audience of 600 students. • “I know a man who is firm — he’s firm in his pants, he’s firm in his shirt, his character is firm — but most of all, his belief in you, the students of Bethel is firm. • Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he’ll take an issue and nail it to the wall. He doesn’t attack things in spurts — he drives hard, pushing, pushing and pushing until finally — he succeeds.

Indecent Speech in High School • Bethel vs. Fraser 1986 con’t • Jeff is a man who will go to the very end — even the climax, for each and every one of you. • So vote for Jeff for A.S.B. vice-president — he’ll never come between you and the best our high school can be.” • How do you think students reacted to this speech? • How do you think administrators reacted to this speech?

Indecent Speech in High School • Bethel vs. Fraser 1986 con’t • Administrators yanked Fraser off the stage and suspended him. They later denied him the opportunity to speak at graduation and to participate in any way in the graduation ceremony. • The Court upheld Fraser’s suspension as a permissible sanction of student expression, even though the speech fell far short of obscenity under Miller.

Indecent Speech in High School • Bethel vs. Fraser 1986 con’t • The Court indicated that it believed that Fraser’s speech was materially disruptive under the Tinker standard. • It also suggested the appropriateness of a dual standard for 1st Amendment protection. • Court concluded that the school has a responsibility to teach the “habits and manners of civility” and that means that schools can restrict vulgar and lewd speech… even if it is not obscene..

Indecent Speech in High School • Bethel vs. Fraser 1986 con’t • Important to note that Fraser gave his speech during a school-sponsored assembly to an audience of students who had no practical way of leaving the gymnasium during Fraser’s brief speech if they were offended. • The Court noted that the students were essentially “a captive audience.” • If the audience had not been captive or if the forum had not been school-sponsored, the court might not have allowed administrators to punish speech that was only indecent.

Your turn… • Teacher Stan Mayze has been placed on unpaid administrative leave after being accused of the statutory rape of a sophomore and indecent liberties with a student who is a senior. • Sophomore Stefanie Nicholsen presented Principal William Arnold with copies of email conversations between Mayze and herself during their four-month affair. • The conversations provide details of their sexual relationship. Stefanie came forward with her accusations she found out that Mayze was also having a relationship with senior Anika Morrison. • Both Nicholsen and Morrison met Mayze, who worked in the attendance office during 3rd hour, when they were called to the attendance office for disciplinary reasons.

Reporter Samantha Tedrow returned from her interview with Nicholsen saying that she was shocked by what Nicholsen was willing to reveal to her. She has copies of all of the emails, both what she sent to Mayze and what Mayze sent to her as well as graphic details of the relationship. “I feel dirty. I just want to go home and shower,” she tells editor Jayson Johnson. • Tedrow has attempted to speak to Morrison, but Morrison’s parents have said that she is not to talk to any member of the press. • Tedrow has also contacted Mayze, but Mayze is also not available for comment. He has issued a statement which indicates that this is all just a misunderstanding.

As Tedrow prepares to write her story, what advice will you give her? How much detail should she go into? • The e-mail exchanges contain a great deal of intimate and disturbing description as does the information revealed in the interview. • Is the information gathered in the e-mail and the interview obscene or is it merely in poor taste? • Will you advise Tedrow to quote directly from the e-mail and the interviews or should she paraphrase to keep the information less explicit? • Can you print information that directly describes sexual activity or should that only be alluded to? • Beyond the sexual aspects of this, remember that you only have Nicholsen’s version of this affair as neither Mayze norr Morrison will speak to your reporter. What impact, if any, does this have on what you are willing to print?

Your turn again… • Reporter Kate Macon has submitted an amazing story on students who deal drugs in your school. The story is well-written, well-conceived and well-organized. It is a convincing portrayal focusing primarily on two honors students who deal, but don’t do, drugs. The story also contains quotes from other dealers in your school as well as several buyers. • Although the drug-dealing honors students are well-spoken, others quoted in the story use profanity often, referring to the drugs as “shit,” as in “I’ll buy that shit whenever I can get my hands on it.” In another quote, a student responds to a scenario laid out by the reporter by saying “Fucking right, man. I’m all over that fucking shit and nobody better fuck with me.”

Your principal, Dr. Sharon Hart, was in the room just a few minutes ago on her routine walk through the building. She read parts of the story over Kate’s shoulder and remarked as she turned away from the story, “Thank goodness you can’t run anything obscene. That’s really shocking.” • The story is slated to appear in the next issue of your paper. As editor you must determine whether this is obscene. • Carefully explain your position on this and the legal precedents upon which your position is based.

Your last turn • Oh, man! You just can’t believe that you didn’t notice. In the sports section of today’s paper, a story on tennis phenom Kent Stern appeared. Kent is an Olympic hopeful who is tearing up the courts. He is best known for his killer serves. Rarely is anyone on the high school circuit able to return them. • Photographer Amy Buller caught an amazing shot of Kent slamming a serve. Amy focused on the intensity in Kent’s face which is in sharp focus. The ball is just a white streak headed out of the picture. • So what you did miss? Kent has two tennis balls in his left pocket. With the angle and all, he appears… well… unnaturally endowed.

When you picked up the phone, you thought Kent’s mom was calling to thank you for the amazing coverage. Not exactly. • She wants you to retrieve every copy of the paper and destroy them. Kent is terribly embarrassed by the picture, she is mortified and is threatening to sue “based on this obscenity.” • She says that if she doesn’t hear by the end of the day that you have retrieved every single copy of the paper, she will be contacting your principal and her lawyer, in that order. • So what now? Does she have a potentially successful obscenity case? If so, how can you defend yourself? If not, explain why. • Is there anything you, as editor, can do to reduce her mortification or Kent’s embarrassment? Your publication is distributed once every month.

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defining obscenity