Lightning Case Module #003
Obscenity and The First Amendment
Dr. Brad Burenheide
Kansas State University
College of Education
Contents
For Teachers: Overview of Lightning Case Module
3
Introduction to the Controversy
7
The Cases
8
Alberts v. California (1956)
Stanley v. Georgia (1968)
Miller v. California (1971)
Jenkins v. Georgia (1973)
New York v. Ferber (1981)
Osborne v. Ohio (1989)
For Teachers: More About the Cases (decisions and more)
10
Final Assessment: Reading a Professional Journal Article
12
Bibliography
13
For Teachers: Overview of Lightning Case Model
Under the ruling levied in Marbury v. Madison, the Supreme Court became the
institution in the American legal system that serves as the ultimate arbiter of issues of
constitutional law. In the opinion, Justice John Marshal noted that “the judicial power of
the United states is extended to all cases arising under the Constitution…It is also not
entirely unworthy of observation that, in declaring what shall be the supreme law of the
land, the Constitution, itself is first mentioned, and not the laws of the United States
generally, but those only which shall be made in pursuance of the Constitution, have the
rank (Marbury v. Madison, 1803).”
Under this system of judicial review, it becomes extremely important for students to
understand the rights contained with the Constitution and the subsequent Bill of Rights as
the Constitution is the ultimate law of the United States. As precedents developed, the
scope of the rights of citizens has evolved over time. Thus, it becomes important for
citizens to follow this evolution and how the courts currently measure these rights.
As Vontz and Leming noted, the use of Supreme Court cases lend themselves well to
certain methods (Vontz & Leming, 2003). But, in this specific case, it is important to realize
that the method must be integrated with the content. Vontz and Lemming further suggest
civics educators who utilize active and participatory strategies, analyze documents and
issues, teach with relevant topics, and teach civics content relevant to democratic
citizenship can best motivate students to acquire knowledge of citizenship. One of the
means of doing this is through the analysis of Supreme Court cases.
The case study method of court decisions can engage students in gaining key
knowledge through the analysis of important cases (McDonnell, 2002; Long, 1994). Vontz
and Leming denote however that the understanding of the “bigger topics” of citizenship can
be collected from the study of Supreme Court cases than the law students analyzing cases
for method and specific topics of study (Vontz & Leming, 2003). These cases can allow
students to investigate facts, issues, arguments, context, civic principles, and higher order
thinking skills (Knapp, 1993; Leming, 1991).
While there are common strategies to dissect cases of the Supreme Court, many of
them can be heavily involved and use up a large amount of time in the classroom. Hanna
and Dettmer (2004) encourage the teacher when designing assessments to maintain a
balance between reliability, authenticity, and economy. Reliability would be accuracy of
the measurement. Authenticity deals with the real-world application of knowledge to
encourage transfer of learning. Economy deals with the use of time, effort, and energy in
administering the assessment. Where economy focuses on the great “enemy” of the
teacher—time—the teacher must consider if the strategy is the optimal and most
appropriate use of time. In their article encouraging the use of Supreme Court cases, Vontz
and Leming (2003) called for the use of Socratic seminars and moot court cases to
effectively analyze the thinking of the court, the institution of the case in an historical
context, and by taking an active role in the participating of the activity, becoming content
experts of the case. But is this the best use of time in the classroom? Does the depth of
content in this instance supersede the coverage of breadth? This study intends to analyze
this question by employing a strategy that employs a significant quantity of cases without
sacrificing the apparent quality of learning.
Description of the Model
The “Lightning Case” method discussed in this study is rooted in a sound literature
base of experiential learning. Kolb (1984) and Kolb and Lewis (1986) provide a model for
experiential learning or having students actively engaged in testing explanatory ideas
created by the student. Mukhamedyarova (2005) explored the idea of interactive learning
and evaluated five strategies commonly used. O’Brien (2003) discussed a model for
students to engage in historical prediction making. Finally, Hess (2002) and Parker (2003)
illuminated the nature of controversial deliberation in the classroom and provided
guidelines for teachers to follow.
Through the sources cited above, a model was constructed that causes students to
be actively engaged in the analysis of cases, make predictions based upon their knowledge
of the Constitution, and discuss with fellow students, albeit briefly, about their decisions
and rationale. Figure 1 provides a visual overview of the model.
Figure 1: An Overview of the “Lightning Case” Model
Teacher Guides
Overview of
Right/Concept in
Question
Students deliberate a
number of illustrative
cases dealing with the
concept.
Students tackle a
Students conceptualize
number of
the boundscases
of the
illustrative
right/concept in the eyes
dealing with the
of the law.
concept.
The model provides students with the opportunity to utilize several cases to
develop their own conceptualization of the boundaries of liberty within society and in the
“eyes of the law.” The teacher provides a brief overview of the rights enumerated in the
Constitution based upon the specific concept that will be addressed. After this introduction,
several cases are presented to the student in a written or oral format with a short synopsis
of the key facts of illustrative Supreme Court cases. Pending on the teacher’s preference,
students may be given the opportunity to deliberate with their classmates, or they will
create their own decision of the case. After the court’s actual decisions are shared with the
students with brief rationale for their decision, students conceptualize the boundary of the
right or concept discussed in the “Lightning Case” session.
Introduction to the Controversy
What is art to one person may be offensive and morally reprehensible to
others. The question becomes what is obscenity? As defined by dictionary.com,
obscenity is:
“the character or quality of being obscene, indecency; lewdness”
Obscene is defined:
“offensive to morality or decency; indecent; depraved;” OR “causing
uncontrolled sexual desire;” OR “abominable; disgusting; repulsive.”
The difficulty in defining this term is indicative of how difficult it can be to explain
in our society. Whether the case law deals with the use of swear words in public
(ala George Carlin in the 1970’s) or cases dealing with the use and distribution of
pornography, obscenity has been at the heart of our country’s moral dilemmas for
quite some time, especially in the age of enhanced technology and media.
As an example of the difficulty the court has had with defining it, Justice Potter
Stewart wrote in his concurring opinion in Jacobellis v. Ohio (1964):
“I shall not today attempt further to define the kinds of material I
understand to be embraced within that shorthand description [“hard-core
pornography”]; and perhaps I could never succeed in intelligibly doing so.
But I know it when I see it and the motion picture in this case is not that.”
This module takes students through six that tackle this tough and controversial
issue. In an ironic twist, I suggest the teacher carefully preview the module and see
if it is appropriate for their class and students.
The final assessment asks students to read a professional academic journal article
detailing a proposed revisiting of the obscenity standards in society. Students are
asked to read the article, and then provide a written response to the article. This is
in conjunction with a more mature audience who can handle the seriousness and
demeanor of the subject matter and content.
The Cases
Alberts v. California (1956)
Overview of the Case
Alberts conducted a mail-order business which sold sexually explicit materials. He
was convicted in a Municipal Court in California on a misdemeanor complaint
which found him guilty of selling lewd and obscene books and of composing and
publishing an obscene advertisement for his products.
Question
Did the California law on obscenity dealing with the selling and distribution of
obscene literature violate Alberts freedom of speech and press as guaranteed by the
First Amendment?
Stanley v. Georgia (1968)
Overview of the Case
Law enforcement officers, under the authority of a warrant, searched Stanley's
home pursuant to an investigation of his alleged bookmaking activities. During the
search, the officers found three reels of eight-millimeter film. The officers viewed
the films, concluded they were obscene, and seized them. Stanley was then tried
and convicted under a Georgia law prohibiting the possession of obscene materials.
Question
Did the Georgia statute infringe upon the freedom of expression protected by the
First Amendment?
Miller v.California (1971)
Overview of the Case
Miller, after conducting a mass mailing campaign to advertise the sale of “adult”
material, was convicted of violating a California statute prohibiting the distribution
of obscene material. Some unwilling recipients of Miller’s brochures complained ot
the police, initiating the legal proceedings.
Question
Is the sale and distribution of obscene materials by mail protected under the first
amendment?
Jenkins v. Georgia (1973)
Overview of the Case
An Albany, Georgia theater manager was convicted under a Georgia obscenity law
when he showed the critically acclaimed film “Carnal Knowledge.” The film
explored social conceptions of sexuality and starred Jack Nichiolson and Ann
Margaret.
Question
Did the manager’s conviction violate the First and Fourteenth Amendment?
New York v. Ferber (1981)
Overview of the Case
A New York child pornography law prohibited persons from knowingly promoting
sexual performances by children under the age of sixteen by distributing material
which depicts such performances.
Question
Did the law violate the First and Fourteenth Amendments?
Osborne v. Ohio (1989)
Overview of the Case
After obtaining a warrant, Ohio police searched the home of Clyde Osborne
and found explicit pictures of naked, sexually aroused male adolescents.
Osborne was then prosecuted and found guilty of violating an Ohio law that
made the possession of child pornography illegal.
Question
Did Ohio’s ban on the possession of child pornography violate the First
Amendment?
For Teachers: More About the Cases
Alberts v. California (1956)
The Court, speaking through Justice William J. Brennan, Jr. held 6 to 3 that
obscenity was not "within the area of constitutionally protected speech or press.”
Thus the California law was upheld.
Stanley v. Georgia (1968)
In a unanimous 9-0 decision, the Court held that the First and Fourteenth
Amendments prohibited making private possession of obscene materials a crime. In
his majority opinion, Justice Marshall noted that the rights to receive information
and to personal privacy were fundamental to a free society. The Court distinguished
between the mere private possession of obscene materials and the production and
distribution of such materials. The latter, the Court held, could be regulated by the
states.
Miller v. California (1971)
The court ruled 5-4 for Miller. The court stated that obscene materials did not enjoy
First Amendment protection. However, the court established another test for
whether or not something was obscenity: "[t]he basic guidelines for the trier of fact
must be: (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."
The Court rejected the "utterly without redeeming social value" test of an earlier
decision.
Jenkins v. Georgia (1973)
A unanimous Court held that the Georgia Supreme Court misapplied the obscenity
test in Miller v. California Justice Rehnquist argued that Miller did not give juries
“unbridled discretion” to determine what is offensive. Only material that displays
“hard core” sexual conduct is prohibited. Since the movie in question did not
contain scenes of that nature it merited constitutional protection.
New York v. Ferber (1981)
In the Court’s first examination of a statute specifically targets against child
pornography, it found that the state’s interest in preventing sexual exploitation of
minors was a compelling “government objective of surpassing importance.” The law
was carefully drawn to protect children from the mental, physical, and sexual abuse
associated with pornography while not violating the First Amendment.
Osborne v. Ohio (1989)
The Court held that Ohio could constitutionally proscribe the possession of
child pornography. The Court argued that the case at hand was distinct from
Stanley v. Georgia, "because the interest underlying child pornography
prohibitions far exceed the interests justifying the Georgia law at issue in
Stanley." Ohio did not rely on "a paternalistic interest in regulating
Osborne's mind;" rather, Ohio merely attempted to protect the victims of
child pornography. The Court argued that regulations on production and
distribution of child pornography were insufficient and could not dry up the
market for pornographic materials. The Court also found that an error in jury
instructions in the lower courts mandated Osborne be given a new trial.
Final Assessment: Revisiting Obscenity Laws
Go to the following link and download the article:
Scot A. Duvall, A Call for Obscenity Law Reform, 1 Wm. & Mary Bill of Rts. J. 75 (1992),
http://scholarship.law.wm.edu/wmborj/vol1/iss1/4
In this journal article, Mr. Duvall (who is now an Intellectual Property Attorney)
reviews development of obscenity issues in case law and calls for a revisiting of
them.
After reading the article, you are asked to write a position paper on the issue of
obscenity that answers the following questions:
Does our society need laws to protect citizens from obscene materials?
Has society changed where obscenity laws cannot keep up?
Is there a way to permanently police obscenity to address concerns about its
lasting social impact?
What is your personal position on obscene materials?
Your teacher will establish a rubric for assessing your performance on this issue.
Bibliography
Cover Graphic:
http://www.menwithfoilhats.com/wp-content/uploads/2010/07/FirstAmendmentE.jpg?cda6c1
Overview of the Controversy
Definition of obscenity: http://dictionary.reference.com/browse/obscenity
Definition of obscene: http://dictionary.reference.com/browse/obscene
Quote of Potter Stewart: http://en.wikipedia.org/wiki/I_know_it_when_I_see_it
The Cases
Alberts v. California (1956)
http://www.oyez.org/cases/1950-1959/1956/1956_61
Stanley v. Georgia (1968)
http://www.oyez.org/cases/1960-1969/1968/1968_293
Miller v. California (1971)
http://www.oyez.org/cases/1970-1979/1971/1971_70_73
Jenkins v. Georgia (1973)
http://oyez.org/cases/1970-1979/1973/1973_73_557
New York v. Ferber (1981)
http://oyez.org/cases/1980-1989/1981/1981_81_55
Osborne v. Ohio (1989)
http://oyez.org/cases/1980-1989/1989/1989_88_5986
Final Assessment
Scot A. Duvall, A Call for Obscenity Law Reform, 1 Wm. & Mary Bill of Rts. J. 75 (1992),
http://scholarship.law.wm.edu/wmborj/vol1/iss1/4