Obscenity and the Law

Objective

•      To understand the evolution of obscenity law in the United States

•      To explain current obscenity law

•      To understand current laws dealing with pornography and minors

•      To explain other forms of censorship

•      To explain municipal pornography regulations

To understand the evolution of obscenity law in the United States

To understand evolution of obscenity law in the U.S.

•      Massachusetts Law of 1712

•      Tariff Act of 1842

•      Lord Campbell’s Act of 1857

•      Hicklin Test

•      Comstock Law of 1873

•      The Roth Test

 

Early Obscenity Battles

Massachussetts Colonial Legislature, 1712

•      Crime to publish “any filthy, obscene, or profane song, pamphlet, libel or mock sermon”

 

Tariff Act of 1842

•      First U.S. federal law designed to restrict the flow of obscenity

•      Prohibited the “importation of all indecent and obscene prints, paintings, lithographs, engravings and transparencies

 

Lord Campbell’s Act of 1857

•      Established the Hicklin Rule

 

The Hicklin Rule

•      What was the Hicklin Rule?

•       A work is obscene if it has a tendency to deprave those whose minds are open to such immoral influences (children, for example) and into whose hands it might happen to fall.

 

The Hicklin Rule

•      Defined obscenity in terms of its effect on the most susceptible members of society

•      Allowed a work to be ruled obscene based on isolated passages taken out of context

 

 

The Comstock Law of 1873

•      Federal Obscenity Act of 1873

•      Gives U.S. Post Office the power to banish “obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publications of an indecent character” from the mail.

•      All obscene books, pamphlets, pictures, and other materials were non-mailable

•      No definition of obscenity was provided by the Congress

 

Roth v. U.S., 1957

•      Obscene materials are not protected by the First Amendment

•      Officially adopted a new definition of obscenity and made it binding everywhere in America

 

What was the Roth Test?

•      First, the dominant theme of the material taken as a whole must appeal to prurient interest in sex

 

What was the Roth Test?

•      Second, a court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters

 

What was the Roth Test?

•      Third,  before something can be found to be obscene, it must be utterly without redeeming social value

 

Roth Test v. Hicklin Rule

•      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 was obscene

 

Expanding the Roth Test

Memoirs v. Massachusetts, 1966

•      Three-part test for obscenity:

–   Roth test

–   Patent offensiveness

–   Utterly without redeeming social value

 

Memoirs v. Massachusetts, 1966

A work could not be considered obscene if it had “social value.”

 

 

Redrup v. New York, 1967

•             Sale of sexually titillating material to juveniles.

•             Distribution of such materials in a manner that is an assault on individual privacy because  it is impossible for unwilling person to avoid exposure to it.

•             Sales made in a “pandering” fashion.

 

Expanding Obscenity Law

•      Stanley v. Georgia, 1969

•      Constitutional right to possess and use obscene materials in the privacy of one’s home.

 

Expanding Obscenity Law

•      U.S. v. Reidel,  1971

•      Upheld constitutionality of the federal obscenity law against mailing obscene matter even to consenting adults

 

Expanding Obscenity Law

•      U.S. v. Thirty-Seven Photographs, 1971

•      Customs officials could seize obscene materials from a returning traveler’s luggage.

 

Expanding Obscenity Law

•      U.S. v. Twelve 200-foot Reels of Super 8mm Film, 1973

•      A person has no right to bring allegedly obscene material back from abroad.

To explain current obscenity law

The Miller Test

How did the Miller Test define obscenity?

•      A narrow class of material defined by the Supreme Court in the Miller test.  Material that is legally obscene is not protected by the First Amendment.  Obscene material is sometimes referred to as hard-core pornography

 

How was indecent material defined?

•      Material that may be sexually graphic but is protected  by the First Amendment.  Indecent material is also referred to as adult material or sexually explicit material.  Many  laws bans the sale or distribution of indecent material to minors.  Such material may, however, be freely distributed among adults.

 

Contemporary Obscenity Law

•      What are the three elements of the Miller Test?

 

Summary: Miller Part I

•      An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest.

•      This test requires the fact finder to apply local (usually state) standards rather than a national standard. The jury (or judge if there is not a jury) determines the standard, based on its knowledge of what is acceptable in the community

 

Summary: Miller Part II

•      The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law.  Again, the fact finder in the case determines patent offensiveness, based on local community standards.

•      But the Supreme Court has ruled that only so-called hard-core pornography can be found to be patently offensive. 

•      Also, either the legislature or the state supreme court must specifically define the kind of offensive material that may be declared to be obscene

 

Summary: Miller Part III

•      The material lacks serious literary, artistic, political, or scientific value.  This is a question of law, not of fact, to be decided in large part by the judge

 

Miller Test Definitions?

•      An average person?

•      Community standards?

•      Patently offensiveness?

•      Social value?

 

An Average Person

•      The trial judge or jury must rely on knowledge of standards of the residents of the community to decide whether the work appeals to a prurient interest

•      The juror is not supposed to use his or her own standards

 

Community Standards

•      Definition of community standards is a key to the first part of the Miller test

•      State standards

 

Patently Offensiveness

•      A work is obscene if it depicts in a patently offensive way sexual conduct specifically defined by applicable state law

•      Patent offensiveness is to be judged using contemporary community standards

•      Only hard-core sexual material meets the patently offensive standard

 

To explain other forms of censorship

•      Postal censorship

•      Military censorship

•      Film censorship

•      Film censorship

•      Internet censorship

•      Government grant censorship

 

Postal Censorship

•      Pandering Advertisement Act, 1968

–   Allows postal patrons to demand their names be removed from objectionable mailing lists.

•      Rowan v. Post Office, 1971

–   Allowed postal patrons to demand their names be removed even before the first objectionable items arrive.

 

Military Bases

•      Military Honor and Decency Act of 1996

–   Military is free to ban the sale or rental of sexually oriented videos and publications in their stores.

 

Film Censorship

•      Mutual Film Corp. v. Industrial Commission of Ohio, 1915

–   Movies are not protected by the First Amendment.

•      Burstyn v. Wilson, 1952

–   Films are a significant medium for communication and protected by the First Amendment.

 

Internet Censorship

•      Reno v. ACLU, 1997

–   Internet is entitled to First Amendment protection.

•      AppolloMedia Corp. v. Reno, 1999

–   Bans obscene but not indecent email.

 

Government Grant Censorship

•      NEA v. Finley, 1998

•      Those who award government grants for the arts can consider general standards of decency and respect for the diverse beliefs and values of the American people.

 

To explain municipal pornography regulations

Nuisance regulations

•      Alexander v. U.S., 1993

•      Federal officials have the legal authority to shut down a chain of adult businesses and seize its assets after a few items are ruled legally obscene

•      A city may be able to win a court-ordered closure by meeting a lower standard of proof than is required in criminal cases

 

Zoning Laws

•      Shad v. Mt. Ephraim, 1981

–   A community cannot, under the guise or zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters, or newsstands

 

Zoning Laws

•      Renton v. Playtime Theatres, 1986

–   A city could prohibit adult businesses within 1,000 feet of any park, school, church or private residence.

 

Women’s Rights and Pornography

•      Hudnut v. American Booksellers, 1986

•      Cities cannot control pornography by using the defense that it violates the civil rights of women