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Porn Roth v. US; Miller v. CA; New York v. Ferber; Ashcroft v. Free Speech Coalition; Porn Roth v. US; Miller v. CA; New York v. Ferber; Ashcroft v. Free Speech Coalition;

Porn Roth v. US; Miller v. CA; New York v. Ferber; Ashcroft v. Free Speech Coalition; - PowerPoint Presentation

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Porn Roth v. US; Miller v. CA; New York v. Ferber; Ashcroft v. Free Speech Coalition; - PPT Presentation

Archive FCC v Pacifica Definitions Obscenity from Latin obscenus not said B eyond First Amendment protection Obscenity includes pornography but also includes blasphemy ID: 734997

sexual pornography obscenity material pornography sexual material obscenity court law speech 1957 child state porn conduct involved blasphemy picture

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Slide1

Porn

Roth v. US; Miller v. CA; New York v. Ferber; Ashcroft v. Free Speech Coalition; Reno v. ACLU;

Archive:

FCC v. Pacifica Slide2

Definitions

Obscenity

- from Latin,

obscenus

- not said.

B

eyond

First Amendment protection.

Obscenity includes pornography, but also includes

blasphemy

and

profanity

.

Pornography

- from Greek

pornographos

-

writing about prostitutes.

Material whose

primary purpose is to cause sexual arousal

;

n

ot all pornography is obscene.Slide3

Obscenity Originally

Restricted to Blasphemy

First known pornography prosecution,

Rex v. Read

(England, 1708) involved author of

The Fifteen Plagues of a Maidenhead

Acquitted. Court found book "bawdy stuff," but not criminal because it did not libel either the King or Religion.Slide4

Obscenity Originally

Restricted to Blasphemy

First known

successful

pornography prosecution,

Rex v. Curl

(England, 1727) involved author of

Venus in her Cloister, or the Nun in her Smock

Court found Curl guilty of “offence to religion” as the action involved clergy in sexual situations that mocked religious rituals.Slide5

Obscenity Originally

Restricted to Blasphemy

Massachusetts had only colonial statute condemning what today might be called pornography, but law required works be “in imitation of preaching or any other part of divine worship.”

Changes law in 1835 to replace religious requirement with “tending to corruption of the morals of youth.”Slide6

Burstyn, Inc v. Wilson

(1952)

Involved

The Miracle” by Roberto Rossellini, in which a man claims to be St. Joseph and impregnates a woman who believes she is Mary.

Catholic Church condemns as blasphemous,

100

s

of letters sent to

NY

State Board of Regents protesting exhibition, which the Board then bans.Slide7

Burstyn v. Wilson

(1952)

Supreme Court finds that provisions of the New York

Education

Law allowing a censor to forbid the commercial showing of any non-licensed motion picture film, or revoke or deny the license of a film deemed to be "sacrilegious," was a "restraint on freedom of speech."Slide8

Arguments against Pornography

Porn focuses

on body, not complete person

Sexual

gratification outside marriage

is wrong (or illegal)

Pornography undermines gender equality

Pornography

increases

sex crimes and/or reduces

sympathy for

victims

Porn contributes to a more vulgar society

Porn harms “performers”Slide9

Arguments against Censorship

Pornography is a harmless outlet for exploring sexual fantasies

No one has moral authority to determine what may be perverted or “prurient”

No proof that pornography increases sex crimes

Problem of defining pornography to include sexual discourse serving other valuesSlide10

Queen v. Hicklin

(1868)

“whether

the tendency of matter charged as obscenity is to deprave and corrupt those who minds are open to such immoral influences, and into whose hands a publication of this sort may fall

.”Slide11

Comstock Act of 1873

Made it illegal to send any "obscene, lewd, and/or lascivious" materials through the mail, including contraceptive devices & information. 

Used to ban works by Gustav Flaubert,

Honore

Balzac, James Joyce, D.H. Lawrence, Henry Miller, and Leon TolstoySlide12

Comstock Act of 1873

Ban on contraceptives devices and info ended by appellate court decision (

U.S. v. One Package of Japanese

Pessaries

, 2

nd

Circuit, 1936

)

Comstock standards in place until modified by

Roth v. U.S.

in 1957Slide13

Butler v. State of Michigan

(1957)

Michigan made

it a misdemeanor to sell or

distribute to

the general reading public any book containing obscene language "tending to the corruption of the morals of youth"

Court found that it violated

the Due Process Clause

because

of significant

overbreadth

. Slide14

Butler v. State of Michigan (1957)

According to Justice Frankfurter in

Butler

, the effect of the

Hicklin

test was "

to reduce the adult population of the United States to reading only what is fit for children."Slide15

Roth v. US (1957) Slide16

Roth v. US (1957)

a

. "whether to the

average person, applying contemporary community standards

,

b. the

dominant theme of the material, taken as a whole, appeals to the prurient

interests

,"

c. the work is

without redeeming social value

.”Slide17

Memoirs of a Woman of Pleasure (Fanny Hill) v. Mass. (1966)

a

) the

dominant theme of the material taken as a whole appeals to a prurient interest

in sex;

(b) the material is patently offensive because it

affronts contemporary community standards

relating to the description or representation of sexual matters; and

(c) the material is

utterly without redeeming social value

.Slide18

Miller v. California (1973)Slide19

Miller v. California

(1973)

(a) whether "the

average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest

,

(b) whether the work depicts or describes, in a patently offensive way,

sexual conduct specifically defined by the applicable state law

, and

(c) whether the work, taken as a whole,

lacks serious literary, artistic, political, or scientific value.Slide20

Prior Restraint on Obscenity

Must meet all three requirements:

1. the burden of instituting judicial proceedings, and of proving that the material is unprotected, rests on the censor;

2. any prior restraint can be imposed only for a specified brief period and only to preserve the status quo;

3. A prompt final judicial decision on the merits must be assured.

Freedom v. Maryland

,

380 U.S. 51

(1965)Slide21

Young v. American Mini Theaters

(1976)

Court

upheld a Detroit

zoning

ordinance that forbade adult motion picture theaters from locating within 1,000 feet of any two other regulated uses or within 500 feet of residential

areas.

Regulated

uses referred to

1 0

different kinds of establishments in addition to adult theaters.Slide22

New York v. Ferber Slide23

Ashcroft v. Free Speech Coalition

(2002)

Case brought by Free Speech Coalition, a pornography trade association, but also a "publisher of a book advocating the nudist lifestyle;” a painter of nudes; and a photographer.Slide24

Ashcroft v. Free Speech Coalition

(2002)

Court found that "CPPA prohibits speech despite its serious literary, artistic, political, or scientific value." In particular, it prohibits the visual depiction of teenagers engaged in sexual activity, a "fact of modern society and has been a theme in art and literature throughout the ages."Slide25

Child Pornography Prevention Act prohibited

A.

"any visual depiction, 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.“

B.

"any sexually explicit image that was advertised, promoted, presented, described, or distributed in such a manner that conveys the impression it depicts a minor engaging in sexually explicit conduct."Slide26

U.S. v. Williams

Williams was charged with one count of promoting, or “pandering,” material “in a manner that reflects the belief, or that is intended to cause another to believe,” that the material contains illegal child pornography

Claims that statute is overbroad b/c it could be construed to punish the solicitation or offering of "virtual" (computer generated/animated) child pornographySlide27

U.S. v. Williams

"an offer to provide or request to receive virtual child pornography is not prohibited by the statute. A crime is committed only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts real children. It is simply not true that this means 'a protected category of expression [will] inevitably be suppressed

,‘ ...

Simulated child pornography will be as available as ever.”Slide28

U.S. v

.

Stevens

(2010)

Congress enacts law prohibiting

any visual or auditory depiction "in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed," if that conduct violates federal or state law where "the creation, sale, or possession takes place.” Another clause exempts depictions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value."Slide29

F.C.C. v. Pacifica

(1978)Slide30

George

Carlin’s “Seven Words You Can Never Say on Television”

F**K

S**T

C**T

M****RF****R

P**S

T**S

B***H