Chapter 13- Obscenity

A. What is obscene?
How is it defined?

 

 

generally thought of in terms of sex, which raises questions
what is art?
ex. nudes
what is merely descriptive?
ex. biology textbooks
what is literary?
ex. the Bible

 

 

pornography and obscenity are not the same

(though "hard core pornography" might by synonymous)

indecency and obscenity are not the same

(we'll look at indecency in Ch. 16)

I can't define what obscenity is, but I know it when I see it!

 

 

should that which is obscene be protected under the First Amendment?

 

 

Pember - "The high court has based this ruling (that obscenity is outside the protection of the FA) largely on the dubious proposition that the Founding Fathers who drafted the FA did not intend to protect obscenity. It has been noted previously that there is little evidence to support any conclusions about the intent of the drafters of the FA and the people who supported it." (a previous edition)

 

 

Pember isn't quite right, explain why

 

 

B. standards
One of the first standards for obscenity
Roth vs. United States (1957)  
Roth test (Brennan)- whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interests (utterly without redeeming social importance)

 

 

"appeals to a prurient interest"
prurient - to itch, to yearn (takes place in the mind)
arouses a obsessive or morbid interest in sex

 

 

effect of the materials is irrelevant under Roth
if material is found to be obscene it is a per se violation

 

 

Warren's concurrence - should content or conduct be the issue?
i.e. should the court's be examining the value of material in question or whether or not a supplier is exploiting material with a prurient effect? (and, what about effect?)

 

 

Miller v. California (1973)
three prong test
1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest

 

 

2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law (Minnesota 617.241)

 

 

3. The work in question lacks serious literary, artistic, political, or scientific value

 

 

C. other issues
1. variable obscenity - differing standards for obscenity - adults/minors
ex. excluding entrance/sales to minors
7-11 and putting porn behind the counter or with "covers"
conduct is the key

 

 

2. zoning laws - dictating where adult bookstores/theatres can be located
ex. NYC has used zoning on 42nd street

 

 

3. child pornography
it is illegal to make or sell materials that show children engaged in sexual action
what about virtual porn?
Child Pornography Protection Act (1996)

 

 

4. the internet
The transmission of legally obscene material via computer is banned by federal law

 

 

Various attempts to regulate the Internet have failed
Communication Decency Act (1996)
Child Online Protection Act (1998)
Children's Internet Protection Act (2000)
filtering software

June 23, 2003 United States v. American Library Association, Inc.,

Supreme Court (6-3) said that the First Amendment doesn't prohibit Congress from forcing public libraries - as a condition of receiving federal funding - to use software filters to control what patrons access online using library computers

Patrons can ask that the filters be removed (for them)!

 

 

a hostile work environment?

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