Obscenity and Indecency
Controlling / Regulating
obscenity, pornography, indecency
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FCC regulations of broadcast
Local, state, and federal governments’
restrictions of all media
Definitions
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Obscenity: a class of sexual material so offensive
that is deemed by the Supreme Court to have
virtually no 1st Amendment protection
Pornography: all material that is sexually
explicit and intended primarily for the purpose of
sexual arousal
Indecency: not necessarily obscene, but deemed
inappropriate for the airwaves
Historical background
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Under the common law rule that prevailed
since the 1868 English case Hicklin v.
Regina,
any material that tended to "deprave and
corrupt those whose minds are open to
such immoral influences" was deemed
"obscene" and could be banned on that
basis.
Roth v. United States (1957)
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Facts of the Case: Roth was convicted of mailing
obscene circulars and an obscene book in violation
of a federal obscenity statute.
Question: Did either the federal or California's
obscenity restrictions, prohibiting the sale or
transfer of obscene materials through the mail,
impinge upon the freedom of expression as
guaranteed by the First Amendment?
Roth v. United States (1957)
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Conclusion: The Court held that obscenity
was not "within the area of constitutionally
protected speech or press." The Court noted
that the First Amendment was not intended
to protect every utterance or form of
expression, such as materials that were
"utterly without redeeming social
importance."
Roth test to determine obscenity
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"whether to the average person, applying
contemporary community standards, the
dominant theme of the material taken as a
whole appeals to prurient interest."
The Court held that such a definition of
obscenity gave sufficient fair warning and
satisfied the demands of Due Process.
Paris Adult Theatre v. Slaton (1973)
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Facts of the Case: State officials in Georgia
sought to enjoin the showing of allegedly obscene
films at the Theatre. The Theatre clearly warned
potential viewers of the sexual nature of the films.
The Georgia Supreme Court held that the films
were "hard core" pornography unprotected by
the Constitution.
Question: Did the Georgia injunction against the
films violate the First Amendment's guarantee of
freedom of expression?
Paris Adult Theatre v. Slaton (1973)
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Conclusion: The Court held that obscene
films did not acquire constitutional
protection simply because they were
exhibited for consenting adults only. The
Court found that there were "legitimate state
interests at stake in stemming the tide of
commercialized obscenity," including the
community's quality of life and public
safety.
Miller v California (1973)
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Facts of the Case: Miller was convicted of
violating a California statute prohibiting the
distribution of obscene material. Some unwilling
recipients of Miller's brochures complained to the
police, initiating the legal proceedings.
Question: Is the sale and distribution of obscene
materials by mail protected under the First
Amendment's freedom of speech guarantee?
Miller v California (1973)
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Conclusion:
In a 5-to-4 decision, the Court held that
obscene materials did not enjoy First
Amendment protection. The Court modified
the test for obscenity established in Roth v.
United States
The Miller Test (modified Roth)
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1. The average person, applying contemporary
community standards' would find that the work,
taken as a whole, appeals to the prurient interest
2. The work depicts or describes, in a patently
offensive way, sexual conduct specifically defined
by the applicable state law
3. The work, taken as a whole, lacks serious
literary, artistic, political, or scientific value.
The work, taken as a whole, appeals to
the prurient interest
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Prurient: having or encouraging unhealthy
sexual curiosity. The material was intended
to lewd, lustful, shameful, or morbid
thoughts about sex
Normal, healthy sexual desire does not fall
into this category
BUT: What is lustful and what is healthy
and normal?
Patent (obvious) offensiveness
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Patently offensive representations or
depictions of ultimate sexual acts, normal or
perverted, actual or simulated
Patently offensive representations or
descriptions of masturbation, excretory
functions, and lewd exhibition of the
genitals
Lack of serious value
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A national, reasonable-person standard is
used (not a community standard).
Local, State, and Federal
Obscenity Laws
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All states have laws governing the distribution
of obscene materials.
Generally, these statutes prohibit the sale, lending,
renting, giving, publication, exhibition or other
dissemination of materials, with general
knowledge of their obscene character and content.
Drafted before an electronic age, many states
define “materials” as covering any writing, written
matter, picture, pictorial representation, film or
motion picture, or sound recording.
Contemporary Arts Center in Cincinnati,
Ohio: Robert Mapplethorpe Show
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Dennis Barrie and the
Contemporary Arts Center were
indicted for pandering
obscenity hours after the
opening of the show that
exhibited several portraits,
mostly of sadomasochistic acts.
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Mr. Barrie and the
arts center he directed
were acquitted in a muchpublicized trial that lasted
six months.
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Protesters outside the
Contemporary Arts Center
Federal statutes
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It is a federal crime to knowingly use the mail to
send obscene material, to import it into the U.S.,
or to transport it between states by any method
It is a crime to transmit obscene material by
broadcast or by cable TV
It is unlawful to make obscene communication by
means of the telephone for a commercial purpose
Obscene? Indecent?
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European Union Official advertisement for
European Cinema
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Carls Jr commercial
Indecent: Definitional problems
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Indecent: offending against decency;
unsuitable
Decency: correct, honorable, or modest
behavior
Special legal meaning: a class of speech that is
restricted on the broadcast airwaves, even though
is not necessarily obscene and would be legally
allowable in other avenues of expression.
Seven Dirty words
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George Carlin Seven Dirty Words….
On1973's Occupation: Foole album Carlin performed a
routine titled "Filthy Words." Pacifica station WBAI-FM
broadcast the routine uncensored.
Morality in Media organization complained to the FCC
that the material was inappropriate for the time of day.
FCC v. Pacifica Foundation, (1978)
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The FCC upheld the complaint.
Pacifica appealed this decision.
The U.S. Court of Appeals overturned FCC’s
decision.
The FCC appealed to the Supreme Court.
The Supreme Court ruled in favor of FCC, but did
not define the scope of “indecency”
FCC v. Pacifica Foundation, (1978)
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The Court upheld the FCC action by a vote of 5 to 4
The government has interest in:
1) shielding children from potentially offensive material
2) ensuring that unwanted speech does not enter one's
home.
The FCC had the authority to prohibit such broadcasts
during hours when children were likely to be among the
audience
It gave the FCC broad leeway to determine what
constituted indecency in different contexts.