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
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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