Obscenity
Obscenity: An overview
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We know it is not protected, but…
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The problem comes in defining obscenity.
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What is it?
Where is it found?
Who should define it?
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EXAMPLES: ARE THESE OBSCENE?
The Canterbury Tales
Benetton Commercial
Janet Jackson
Robert Mapplethorpe
Karen Finley
Andres Serano
Sally Mann’s Children
Obscenity: Origins
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Regina v. Hicklin (1868): Very strict test.
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Ex Parte Jackson (1878): Strengthened
Hicklin.
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U.S. v. One Book Called Ulysses (1934):
Intention is key.
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Butler v. Michigan (1957): Rejects Hicklin.
Roth v. U.S. (1957)
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Does the federal obscenity statute violate the First
Amendment?
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No. 6-3 vote.
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The test in each case is whether the book, picture,
or publication considered as a whole, not upon any
particular class, but upon those whom it is likely to
reach appeals to the prurient interest. In other
words, you determine its impact on the average
person in the community using present day
standards.
Roth Test
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Average person.
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Contemporary community standards.
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Material appeals to prurient interests.
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Dominant theme.
What is a community and what is the
dominant theme?
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Jacobellis v. Ohio (1964): Community
equals the nation as a whole!
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Break-up of the Court over obscenity.
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Memoirs v. Massachusetts (1966):
Modicum of redeeming social value.
Enforcing Roth
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Kingsley v. Regents of New York University
(1959): Immorality does not equal
obscenity.
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Smith v. California (1959): Scienter.
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Marcus v. Search Warrant (1961): Cannot
seize materials without a search warrant.
Enforcing Roth
• Bantam Books v. Sullivan (1963): Commissions cannot
determine what may and may not be published.
• Ginzburg v. U.S. (1965): Win for the states. Portraying
material erotically is not protected speech.
• Redrup v. NY (1967): Reverses conviction, but Court is
completely fractured!
• Stanley v. Georgia (1969): State may not prohibit use of
obscenity inside someone’s house.
• California v. LaRue (1972): State may take liquor licenses
of establishments that show nude shows.
Miller v. California (1973)
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Does a person have the right to send adult material
through the mail?
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No. 5-4 vote.
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We have recognized that states have a legitimate
interest in prohibiting dissemination or exhibition
of obscene material when the mode of
dissemination carries with it significant danger of
offending the sensibilities of unwilling recipients or
of exposure to juveniles.
Miller Test
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Average person, contemporary community
standards, would find that the work appeals
to his/her prurient interests.
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Whether the work depicts, in a patently
offensive way, sexual conduct as defined by
STATE LAW.
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Whether the work as a whole lacks serious
literary, artistic, political, or scientific value.
Aftermath of Miller
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Paris Adult Theatre (1973): Brennan throws up his hands!
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U.S. v. 12 200 ft. Reels of Film (1973): Government may ban
importation of obscene matter even for private use.
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Jenkins v. Georgia (1974): Local juries must follow Miller
standards, but may apply community standards without a
definition of what that standard is.
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Southeastern Promotions v. Conrad (1975): Prior restraint comes
into play.
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Erznoznik v. Jacksonville (1975): Nude scenes at an outdoor
theater.
Ferber v. New York (1982)
• May a state regulate and prohibit material deemed
as child pornography?
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Yes. 9-0 vote.
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We adjust the Miller standard to reflect that the
trier of fact need not find the material appeals to the
prurient interest of the average person; it is not
required that sexual conduct portrayed is done so in
a patently offensive manner; and the material at
issue need not be considered as a whole.
Ashcroft v. Free Speech Coalition
(2002)
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May the government prohibit the production and
distribution of virtual children engaged in sexual
activities?
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No. 5-4 vote.
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The contention that the Child Pornography
Prevention Act is necessary because pedophiles
may use virtual child pornography to seduce
children runs afoul of the principle that speech
within the rights of adults to hear may not be
silenced completely in an attempt to shield children
from it.
Reno v. ACLU (1997)
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Do the provisions of the Community Decency Act
violate the First Amendment because they are
unconstitutionally vague?
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Yes. 7-2 vote.
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In order to deny minors access to potentially
harmful speech, the Community Decency Act
effectively suppresses a large amount of speech
that adults have a constitutional right to receive and
to address to one another. The breadth of this law
is therefore wholly unprecedented.