“Adult” film industry much bigger than Hollywood
Chapter 11

“ Lewd and obscene ” are of “ slight social value
” and not protected by First
Amendment
Justice Frank Murphy ( Chaplinsky v. New Hampshire, 1942)
Chapter 11 Regulation of Obscenity

Harry Clor describes the obscene as making offensively public that which should be kept private.
Chapter 11 Regulation of Obscenity

Miller v. California (1973) results from sexually-charged brochures sent in the mail.
Chapter 11 Regulation of Obscenity

 Regulations must be highly specific
 Look at the work as a whole
 “Community” is not the whole USA
 Work must appeal to prurient interest
 Work must be patently offensive
Chief Justice
Warren Burger
Regulation of Obscenity
Chapter 11

The
test
 Serious . . .
 Literary
 Artistic
 Political; or
 Scientific value
Chapter 11 Regulation of Obscenity

But state of GA could not forbid Carnal Knowledge
Chapter 11 Sexually Oriented Speech

Chapter 11 Sexually Oriented Speech

Is the average person in my community a reasonable person?
Chapter 11 Regulation of Obscenity

Thematic Obscenity
 Works cannot be found obscene because of their sexually heretic themes
 Lady Chatterley’s Lover
 Last Temptation of Christ
 The Woodsman
Chapter 11 Regulation of Obscenity

Privacy of the home
 Stanley v. Georgia
(1969)
 Privacy doctrine does not extend to:
 Seeing films at
“adults only” theatres
 Importing obscenity
 Carrying obscenity across state lines
 Mailing obscenity
Regulation of Obscenity
Chapter 11

Variable Obscenity
 Definition relaxed if:
 Sold to children
 Aimed at a specialized target audience
 Pandering
Chapter 11 Regulation of Obscenity

Child Pornography
 Prohibits use of Child Actors, Models
 Laws can reach distribution/possession also
Chapter 11 Regulation of Obscenity

to prevent child abuse
 No SLAPS test
 Need not consider whole work
 No patent offensiveness requirement
 No prurient interest requirement
 Law reaches mere possession
Chapter 11 Regulation of Obscenity

• Clothed models can be prohibited
• Computer-generated “children” cannot be prohibited
• What if “child” is NOT a child?
CLICK HERE to see relevant scene from American Beauty
Chapter 11 Regulation of Obscenity

Chapter 11 Sexually Oriented Speech

Sexting laws not designed for “grown ups”
Chapter 11
Discussion of Media and Rep. Weiner
Regulation of Obscenity

“The” Feminist Response
 Emphasizes harmful effects on women
 Degrading depictions
 Encouraging misogynist views
 Leading men to act violently?
Chapter 11
Andrea Dworkin & Catherine MacKinnon
Regulation of Obscenity

decision
 Struck down model “femporn” law
 Lacked several protections from Miller
 Punished specific viewpoints
Chapter 11
Andrea Dworkin & Catherine MacKinnon
Regulation of Obscenity

Zoning
 Can concentrate or disperse “adultoriented” businesses
 Generally upheld if they:
 Are aimed at
“secondary effects”
 Do not effectively shut down the whole category
 Are not overly restrictive
Regulation of Obscenity
Chapter 11

Public Nuisance Laws
 Mostly used against places where sexual conduct takes place
 Truly “expressive” activities might be permitted to go on
 Can also be used against public display of nudity [e.g., Dallas and
1975 Newsweek cover]
Regulation of Obscenity
Chapter 11

Chapter 11
Comment on 2010 Ala. Sup Ct decision
Sexually Oriented Speech

Racketeering Statutes
 Selling obscene works twice in ten years is the trigger for federal RICO
 Punishments can include:
 Huge fines, and 20 years in jail
 Forfeiture of assets, including private property
Chapter 11 Regulation of Obscenity

Government Sponsorship
 Government as speaker can engage in viewpoint discrimination
 Government as sponsor-NEA v. Finley (1998)
 OK for government to take into account general standards of “decency”
 But not to engage in viewpoint discrimination
Karen Finley
Regulation of Obscenity Chapter 11

Federal court prohibited NYC from punishing the Brooklyn
Museum
Sexually Oriented Speech Chapter 11

Postal Regulations
 Goldwater Amendment
 Homeowner opts out of receiving
ANY “sexually oriented” mailings
 PO notifies companies on its list
 Pandering Act
 Homeowner identifies a specific mailing
 PO notifies that mailer never to send again
Chapter 11 Regulation of Obscenity

Chapter 11
Nadine Strossen defends pornography
Regulation of Obscenity 27