Chapter 13- Obscenity
| A. What is obscene? | |
| How is it defined? | |
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| generally thought of in terms of sex, which raises questions | |
| what is art? | |
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ex. nudes
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| what is merely descriptive? | |
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ex. biology textbooks
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| what is literary? | |
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ex. the Bible
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pornography and obscenity are not the same
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indecency and obscenity are not the same
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| I can't define what obscenity is, but I know it when I see it! | |
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should that which is obscene be protected
under the First Amendment?
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| 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) | |
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Pember isn't quite right, explain why
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| B. standards | |
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One of the first standards for obscenity
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| Roth vs. United States (1957) | |
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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)
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| "appeals to a prurient interest" | |
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prurient - to itch, to yearn (takes place
in the mind)
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arouses a obsessive or morbid interest
in sex
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effect of the materials is irrelevant
under Roth
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if material is found to be obscene it
is a per se violation
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| Warren's concurrence - should content or conduct be the issue? | |
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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?)
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| Miller v. California (1973) | |
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three prong test
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| 1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest | |
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| 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law (Minnesota 617.241) | |
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| 3. The work in question lacks serious literary, artistic, political, or scientific value | |
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| C. other issues | |
| 1. variable obscenity - differing standards for obscenity - adults/minors | |
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ex. excluding entrance/sales to minors
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7-11 and putting porn behind the counter
or with "covers"
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conduct is the key
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| 2. zoning laws - dictating where adult bookstores/theatres
can be located |
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ex. NYC has used zoning on 42nd street
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| 3. child pornography | |
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it is illegal to make or sell materials
that show children engaged in sexual action
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what about virtual porn?
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Child Pornography Protection Act (1996)
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| 4. the internet | |
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The transmission of legally obscene material
via computer is banned by federal law
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Various attempts to regulate the Internet
have failed
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| Communication Decency Act (1996) | |
| Child Online Protection Act (1998) | |
| Children's Internet Protection Act (2000) | |
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filtering software
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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 |
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| Patrons can ask that the filters be removed (for them)! | |
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| a hostile work environment? |