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Obscenity

Obscenity. Obscenity: An overview. We know it is not protected, but… The problem comes in defining obscenity. What is it? Where is it found? Who should define it? EXAMPLES: ARE THESE OBSCENE?. The Canterbury Tales. Benetton Commercial. Janet Jackson. Robert Mapplethorpe. Karen Finley.

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Obscenity

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  1. Obscenity

  2. Obscenity: An overview • We know it is not protected, but… • The problem comes in defining obscenity. • What is it? • Where is it found? • Who should define it? • EXAMPLES: ARE THESE OBSCENE?

  3. The Canterbury Tales

  4. Benetton Commercial

  5. Janet Jackson

  6. Robert Mapplethorpe

  7. Karen Finley

  8. Andres Serano

  9. Sally Mann’s Children

  10. Obscenity: Origins • Regina v. Hicklin (1868): Very strict test. • Ex Parte Jackson (1878): Strengthened Hicklin. • U.S. v. One Book Called Ulysses (1934): Intention is key. • Butler v. Michigan (1957): Rejects Hicklin.

  11. Roth v. U.S. (1957) • Does the federal obscenity statute violate the First Amendment? • No. 6-3 vote. • The test in each case is whether the book, picture, or publication considered as a whole, not upon any particular class, but upon those whom it is likely to reach appeals to the prurient interest. In other words, you determine its impact on the average person in the community using present day standards.

  12. Roth Test • Average person. • Contemporary community standards. • Material appeals to prurient interests. • Dominant theme.

  13. What is a community and what is the dominant theme? • Jacobellis v. Ohio (1964): Community equals the nation as a whole! • Break-up of the Court over obscenity. • Memoirs v. Massachusetts (1966): Modicum of redeeming social value.

  14. Enforcing Roth • Kingsley v. Regents of New York University (1959): Immorality does not equal obscenity. • Smith v. California (1959): Scienter. • Marcus v. Search Warrant (1961): Cannot seize materials without a search warrant.

  15. Enforcing Roth • Bantam Books v. Sullivan (1963): Commissions cannot determine what may and may not be published. • Ginzburg v. U.S. (1965): Win for the states. Portraying material erotically is not protected speech. • Redrup v. NY (1967): Reverses conviction, but Court is completely fractured! • Stanley v. Georgia (1969): State may not prohibit use of obscenity inside someone’s house. • California v. LaRue (1972): State may take liquor licenses of establishments that show nude shows.

  16. Miller v. California (1973) • Does a person have the right to send adult material through the mail? • No. 5-4 vote. • We have recognized that states have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles.

  17. Miller Test • Average person, contemporary community standards, would find that the work appeals to his/her prurient interests. • Whether the work depicts, in a patently offensive way, sexual conduct as defined by STATE LAW. • Whether the work as a whole lacks serious literary, artistic, political, or scientific value.

  18. Aftermath of Miller • Paris Adult Theatre (1973): Brennan throws up his hands! • U.S. v. 12 200 ft. Reels of Film (1973): Government may ban importation of obscene matter even for private use. • Jenkins v. Georgia (1974): Local juries must follow Miller standards, but may apply community standards without a definition of what that standard is. • Southeastern Promotions v. Conrad (1975): Prior restraint comes into play. • Erznoznik v. Jacksonville (1975): Nude scenes at an outdoor theater.

  19. Ferber v. New York (1982) • May a state regulate and prohibit material deemed as child pornography? • Yes. 9-0 vote. • We adjust the Miller standard to reflect that the trier of fact need not find the material appeals to the prurient interest of the average person; it is not required that sexual conduct portrayed is done so in a patently offensive manner; and the material at issue need not be considered as a whole.

  20. Ashcroft v. Free Speech Coalition (2002) • May the government prohibit the production and distribution of virtual children engaged in sexual activities? • No. 5-4 vote. • The contention that the Child Pornography Prevention Act is necessary because pedophiles may use virtual child pornography to seduce children runs afoul of the principle that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it.

  21. Reno v. ACLU (1997) • Do the provisions of the Community Decency Act violate the First Amendment because they are unconstitutionally vague? • Yes. 7-2 vote. • In order to deny minors access to potentially harmful speech, the Community Decency Act effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. The breadth of this law is therefore wholly unprecedented.

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