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21 Cards in this Set
- Front
- Back
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- Obscenity vs. Indecency
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• Obscenity- material found to be legally obscene does not have first amendment protection and may be censored by the government. Definition is taken from the Miller vs. California- obscene material contains “patently offensive” descriptions of sexual content
• Indecency- has first amendment protection. Involves sexual matters, but is not considered as graphic or as “offensive” as obscene material. Definition taken from the FCC vs. Pacifica- goal of indecency laws is to protect children from getting access to sexually explicit material while allowing access to adults. |
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- History of Obscenity Laws (Britain and US)
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• 1821 Vermont became the first state to pass an obscenity law in the newly founded U.S.
• Obscenity was illegal in much of America by the middle of the century • Tariff Act of 1842, which banned the importing of all indecent and obscene • 1857 Congress rewrote the Tariff Act to include printed material |
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o Regina v. Hicklin (Hicklin Test)
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o Regina v. Hicklin (Hicklin Test)
• 1868 concerned a pamphlet critical of the Catholic Church and Britain’s chief of justice said it violated English obscenity law • Hicklin Test- a work could be labeled obscene based on two criteria Looking at individual passages taken out of context Looking at its effect on the most sensitive and susceptible people in society 1873 congress passed the Costock Act giving the Post Office authority to confiscate any mail and illegal to send contraceptives or abortion • 1865 congress made it illegal to mail obscene material |
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• Ulysses v. US
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o 1930 U.S. customs agents confiscated compies of the book Ulysses and were enforcing the Tariff Act of 1930 that banned the importation of obscene material
o federal court ruled Ulysses “as a whole is not pornographic” and established two new criteria for obscenity • the work must be judged as a whole • the work must be judged by its effect on the average person o this was when it was beginning to show that they would no longer allow government officials to ban material based on such loose standards as those found in the Hicklin Test. |
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• Roth v. US (Roth Rest)
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o Provided first definition of obscenity
o Sam Roth convicted for mailing obscene material o Roth Test- material is obscene if • The average person • Applying contemporary community standards • Finds that the dominant theme of the material as a whole • Appeals to the prurient interest (materials that promote lustful thoughts and urges) o Many critics to the Roth Test |
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• Memoirs v. Massachusetts
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o A book Fanny Hill on memoirs of a prostitute re-written explicitly by a man was convicted in Massachusetts for obscenity
o 1966 U.S. Supreme Court ruled that the book was not obscene o provided a new three-prong test for obscenity • the material does not pass the Roth Test • the material is “patently offensive” • the material is “utterly with out redeeming social value” made prosecuting extremely difficult later threw out because it was hard to discharge under criminal standards of proof |
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Miller v. California and its impact
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• Marvin Miller convicted of using mass mailings to try to sell obscene material
• Brochures sent to a restaurant where he was caught and given a misdemeanor • The miller test- a work is obscene if o The average person, applying contemporary community standards, finds that the work, taken as a whole, appeals to the prurient interest o The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law o The work, taken as a whole, lacks serious literary, artistic, political, or scientific value o Dissenting justices in Miller felt it was vague and supreme court riled that contemporary community standards must indeed be determined by a local community or by state. |
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- Zoning ordinances and pornography
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• About time, place, and manner- city ordinances about how far away adult theaters can be from other businesses and residential areas.
• Supreme court ruled zoning was reasonable and constitutional • Supreme Court provided four basic guidelines o Ordinance does not try to significantly reduce or “ban adult theaters all together” o Ordinance does not aim at the content of the films. It must be a time, place, manner restriction o Ordinance designed “to serve a substantial government interest” o Ordinance is not overly restrictive |
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- Children and Obscenity
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• cannot ban pornography just because the children might get into it
• protecting minors from pornography- only for 18 and up • WA- law prohibiting the sale of “erotic recordings” to anyone under 18- material that was needed to have an “adult only” label or stop selling all together |
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- Obscenity vs. Indecency
|
• Obscenity- material found to be legally obscene does not have first amendment protection and may be censored by the government. Definition is taken from the Miller vs. California- obscene material contains “patently offensive” descriptions of sexual content
• Indecency- has first amendment protection. Involves sexual matters, but is not considered as graphic or as “offensive” as obscene material. Definition taken from the FCC vs. Pacifica- goal of indecency laws is to protect children from getting access to sexually explicit material while allowing access to adults. |
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- Child Pornography
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• material that depicts children engaged in sexual activities, whether it is by themselves, with other children, or with adults
• illegal because its creation involves illegal sexual exploitation of children • Child pornography does not have to be legally obscene under the miller test to be illegal o Child porn may be illegal even if it does not appeal to the prurient interest of the average person o Child Porn may be illegal even if it is not patently offensive o Child porn does not have to be considered “whole” • Child Porn Prevention Act o Banned images that “appear to depict a minor engaged in sexually explicit content” o 2002 Supreme struck down on act • Movies with images “appearing to depict minors engaging in sex” could not be banned • Computerized images of children engaging in sex could not be banned • Using real children in computer-altered sexual images is illegal |
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- History of Obscenity Laws (Britain and US)
|
• 1821 Vermont became the first state to pass an obscenity law in the newly founded U.S.
• Obscenity was illegal in much of America by the middle of the century • Tariff Act of 1842, which banned the importing of all indecent and obscene • 1857 Congress rewrote the Tariff Act to include printed material |
|
|
o Regina v. Hicklin (Hicklin Test)
|
o Regina v. Hicklin (Hicklin Test)
• 1868 concerned a pamphlet critical of the Catholic Church and Britain’s chief of justice said it violated English obscenity law • Hicklin Test- a work could be labeled obscene based on two criteria Looking at individual passages taken out of context Looking at its effect on the most sensitive and susceptible people in society 1873 congress passed the Costock Act giving the Post Office authority to confiscate any mail and illegal to send contraceptives or abortion • 1865 congress made it illegal to mail obscene material |
|
|
• Ulysses v. US
|
o 1930 U.S. customs agents confiscated compies of the book Ulysses and were enforcing the Tariff Act of 1930 that banned the importation of obscene material
o federal court ruled Ulysses “as a whole is not pornographic” and established two new criteria for obscenity • the work must be judged as a whole • the work must be judged by its effect on the average person o this was when it was beginning to show that they would no longer allow government officials to ban material based on such loose standards as those found in the Hicklin Test. |
|
|
• Roth v. US (Roth Rest)
|
o Provided first definition of obscenity
o Sam Roth convicted for mailing obscene material o Roth Test- material is obscene if • The average person • Applying contemporary community standards • Finds that the dominant theme of the material as a whole • Appeals to the prurient interest (materials that promote lustful thoughts and urges) o Many critics to the Roth Test |
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• Memoirs v. Massachusetts
|
o A book Fanny Hill on memoirs of a prostitute re-written explicitly by a man was convicted in Massachusetts for obscenity
o 1966 U.S. Supreme Court ruled that the book was not obscene o provided a new three-prong test for obscenity • the material does not pass the Roth Test • the material is “patently offensive” • the material is “utterly with out redeeming social value” made prosecuting extremely difficult later threw out because it was hard to discharge under criminal standards of proof |
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Miller v. California and its impact
|
• Marvin Miller convicted of using mass mailings to try to sell obscene material
• Brochures sent to a restaurant where he was caught and given a misdemeanor • The miller test- a work is obscene if o The average person, applying contemporary community standards, finds that the work, taken as a whole, appeals to the prurient interest o The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law o The work, taken as a whole, lacks serious literary, artistic, political, or scientific value o Dissenting justices in Miller felt it was vague and supreme court riled that contemporary community standards must indeed be determined by a local community or by state. |
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|
- Zoning ordinances and pornography
|
• About time, place, and manner- city ordinances about how far away adult theaters can be from other businesses and residential areas.
• Supreme court ruled zoning was reasonable and constitutional • Supreme Court provided four basic guidelines o Ordinance does not try to significantly reduce or “ban adult theaters all together” o Ordinance does not aim at the content of the films. It must be a time, place, manner restriction o Ordinance designed “to serve a substantial government interest” o Ordinance is not overly restrictive |
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|
- Children and Obscenity
|
• cannot ban pornography just because the children might get into it
• protecting minors from pornography- only for 18 and up • WA- law prohibiting the sale of “erotic recordings” to anyone under 18- material that was needed to have an “adult only” label or stop selling all together |
|
|
- Child Pornography
|
• material that depicts children engaged in sexual activities, whether it is by themselves, with other children, or with adults
• illegal because its creation involves illegal sexual exploitation of children • Child pornography does not have to be legally obscene under the miller test to be illegal o Child porn may be illegal even if it does not appeal to the prurient interest of the average person o Child Porn may be illegal even if it is not patently offensive o Child porn does not have to be considered “whole” • Child Porn Prevention Act o Banned images that “appear to depict a minor engaged in sexually explicit content” o 2002 Supreme struck down on act • Movies with images “appearing to depict minors engaging in sex” could not be banned • Computerized images of children engaging in sex could not be banned • Using real children in computer-altered sexual images is illegal |
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- Stanley v. Georgia
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• 1969 police raided Stanley’s home looking for gambling materials and found “adult films”- police arrested for violating Georgia’s obscenity law
• Supreme Court overturned conviction saying people have the right to possess obscene materials in the privacy of their homes • Only producers and distributors of obscenity would be the main targets for prosectution |
