Jour 3060 Obscenity/ Indecency Exam 4

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Obscene

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offensive or repulsive to decency

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Pornographic

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stuff intended to arouse sexual desires

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Indecent

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patently offensive descriptions of body parts or excretory
functions

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U.S. v. One Book Called
“Ulysses

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Lawsuits filed against books, films, NOT authors

Something is obscene if corrupots:
1. normal person
2. "work as a whole" has to be considered

Ulysses wins bc taken as a whole does not corrupt a person

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FEMINIST THEORY

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harm and degradation of women is enough to warrant pornography’s control

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Butler v. Queen (1992)

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The Court upheld the obscenity law as a justifiable restriction on freedom of expression.

“If true equality between male and female persons is to
be achieved, we cannot ignore the threat to equality resulting from
exposure to audiences of certain types of violent and degrading material.
Materials portraying women as a class as objects for sexual exploitation
and abuse have a negative impact on the individual’s sense of self-worth
and acceptance.

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Supreme Court of Canada defines obscenity

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what subordinates,
harms, dehumanizes, or degrades women (anecdotal evidence)

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American Booksellers v. Hudnutt (1985)

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defined pornography by reference to its portrayal of women, which the court held was unconstitutional


The ordinance did not refer to the prurient interest, as required of obscenity statutes by the Supreme Court in Miller v. California,

Indianapolis ordinance overturned by federal appellate court and

upheld without opinion by U.S. Supreme Court

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The problem of "scienter"

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guilty knowledge

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Early obscenity/ indecency Statutes

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The Tariff Act of 1842
The Comstock Act of 1873

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The Tariff Act of 1842

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forbade importation of “indecent and obscene” prints,
paintings, etc.

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The Comstock Act of 1873

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forbade the sending of any “obscene, lewd or
lascivious book, or other publication of an indecent character” through the mail.

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Queen v. Hicklin (1868

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the Hicklin Rule: “whether the tendency of the matter
charged as obscenity is to deprave and corrupt those whose minds are open to such
immoral influences,” a.k.a., the Weakest Minds Concept

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those whose minds are open

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Children
Mentally handicapped

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. U.S. v. One Book Called “Ulysses” (1933)

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context

Normal person with average sexual instincts

“Work as a whole” — not just the objectionable parts out of context

no obscene

def found in Tariff Act of 1930

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Tariff Act of 1930 def of obscenity

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“Tending to stir sex impulses or to lead to sexually impure and lustful thoughts"

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Roth v. U.S./Alberts v. California (1957)

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convicted of mailing various circulars and a
book, American Aphrodite.



Explicitly REJECTS the Hicklin Rule

The Roth Test: A work is obscene if,

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“The Roth test

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o 1) the average person, 2) applying
contemporary community standards 3) the dominant
theme of the material taken as a whole appeals to 4)
prurient interest.”

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Definitions/Re-definitions of Roth

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Average person => intended audience — Mishkin v. New York (1966)

Contemporary community standards => national standards — Jacobellis v. Ohio
(1964)

Dominant theme of the material taken as a whole

NOT mere nudity — Manual Enterprises v. Day (1962)

Dominant theme must be patently offensive — Massachusetts v. John
Cleland’s “Memoirs of a Woman of Pleasure” (1966)
15.5.4. Prurient interest => two kinds of lust, good lust and bad lust — Brockett v.
Spokane Arcades (1985)

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Mishkin v. New York (1966

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Average person => intended audience

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Jacobellis v. Ohio
(1964)

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Contemporary community standards => national standards

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Manual Enterprises v. Day (1962)

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NOT mere nudity

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Massachusetts v. John
Cleland’s “Memoirs of a Woman of Pleasure” (1966)

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Dominant theme must be patently offensive

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Brockett v. Spokane Arcades (1985)

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Prurient interest => two kinds of lust, good lust and bad lust

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Transition Cases

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Jacobellis v. Ohio (1964)
Ginzburg v. U.S. (1966)
Ginsberg v. New York (1968)
Stanley v. Georgia (1969)

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Jacobellis v. Ohio (1964)- justice potter stewart

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“I shall not today attempt further to define the kinds of
material I understand to be embraced within [the area of hard-core pornography];
and perhaps I could never succeed in intelligibly doing so. But I know it when I see
it...” — Justice Potter Stewart (concurring).

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Ginzburg v. U.S. (1966

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pandering

1. The question of obscenity includes the setting in which the nonpornographic publications are presented/the way it is advertised or promoted.

Conduct may make content criminally obscene.

Ginzburg’s publications were obscene because he used them in “the
business of purveying textual or graphic matter openly advertised to appeal to
the erotic interest of his customers, and was not used for intellectual purposes
because circulars were not sent only to professionals, such as doctors and
psychiatrists” — Justice William Brennan (majority opinion).

Is there any way ahead of time that Ginzburg could have known his
material/actions were criminal

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Ginsberg v. New York (1968)

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variable standard of obscenity


What’s acceptable for adults may not be OK for minors.

Minors have fewer rights than adults.

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Stanley v. Georgia (1969)

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the right of privacy makes the mere possession of
obscene materials in one’s own home OK. YET, there is no right to sell, deliver,
disseminate, give, receive, etc.

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Miller v. California (1973)

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conducted a mass mailing
campaign to advertise the sale of illustrated adult books
and movies.

Obscenity is utterly without redeeming social value

The Miller Test

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The Miller Test

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Whether the average person applying contemporary community standards
would find that the work taken as a whole appeals to prurient interest (a
shameful or morbid interest in sex or nudity) --only a slight variation of the
Roth Test

Whether the work depicts or describes in a patently offensive way, sexual
conduct specifically defined by applicable state law

Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value (the LAPS Test) => measured by “reasonable
person” standard NOT community standard

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Jenkins v. Georgia (1974)

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e movie “Carnal Knowledge”

Not obscene because the sexual conduct depicted in the film did not violate the second part of the Miller Test; it was NOT patently offensive

In other words, it had serious artistic (LAPS) value.

“Juries do not have unbridled discretion in determining what is ‘patently offensive’.”

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18 U.S.C. 2257 Compliance Notice

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education and/or willing entertainment

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K. Gordon Murray Productions v. Floyd (1962)

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Film censorship in Atlanta

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Corinth Publications v. Wesberry (1967)

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Georgia Literature Commissio

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The Georgia Statute

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Definition — Material is obscene if:

To the average person, applying contemporary community standards, taken as a whole, it predominantly appeals to the prurient
interest, that is, a shameful or morbid interest in nudity, sex, or excretion.

The material taken as a whole lacks serious literary, artistic,
political, or scientific value.

The material depicts or describes, in a patently offensive way,
sexual conduct specifically defined ... below:

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The material depicts or describes, in a patently offensive way,
sexual conduct specifically defined ...

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Acts of sexual intercourse, heterosexual or homosexual,
normal or perverted, actual or simulated;

Acts of masturbation;

Acts involving excretory functions or lewd exhibition of
the genitals;

Acts of bestiality or the fondling of sex organs of animals;
or

Sexual acts of flagellation, torture, or other violence
indicating a sadomasochistic sexual relationship

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This That & the Other Gift v. Cobb County (2006)

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Two groups may legally view/possess obscene material:

Those for whom it is prescribed by a physician

Those studying it in higher education

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Does Georgia have a valid obscenity statute today?

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No

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Osborne v. Ohio (1990

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Possession of Child Pornography

: the state has a
compelling interest in protecting the physical and psychological well-being of
children. Possession of child pornography NOT OK. Does the ruling in this case
overturn Stanley?

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Kenneth Tynan:

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The purpose of art is to excite, stimulate, arouse, shock.

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Emile Durkheim in The Division of Labor in Society

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: Law defines the
limits of acceptable behavior and unites society in outrage against non-normal
behavior. Deviance therefore promotes solidarity. It establishes outer
boundaries of acceptable behavior. But boundaries are a meaningful point of
reference only so long as they are regularly tested by those on the fringes,
repeatedly defended, and reinforced. Expanding the boundaries of acceptable
behavior only serves to mandate more extreme forms of deviance. E.g., Lenny
Bruce, George Carlin

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Indecency

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(language only for the purpose of shock treatment)

Not protected by First Amendment

Libertarian Theory

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FCC v. Pacifica Foundation (1978

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George Carlin’s “Seven Dirty Words” and the problems of common usage
and contemporary meaning

Simple: sh*t, p*ss, f*ck, c*nt, t*ts

Compound: motherf*ck*r, c*cksucker

Other: f*rt, t*rd, tw*t

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Indecency now

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protected by First Amendment

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Indecency Concerns

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Time
Audience

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NEA v. Finley (1997)

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If it’s protected, must it be funded?

Consider “general standards of decency”

. No categorical requirement, only admonition => advisory vs. compulsory

Consider educational suitability

The problem of “patron” vs. “sovereign”

What should be considered in making grants?

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Indecency Test Today

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Context

Whether “average person” would find the material “patently offensive

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Cohen v. California (1971)

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indecent expression on jacket

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Erznoznik v. Jacksonville (1975)

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indecency displayed at drive-in movie

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FCC v. Fox TV (2009)

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upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act.