Media Law | Exam Iii | Definitions

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Regulating obscenity is difficult since:

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Unclear standards/test

New technologies

No agreement on harms

“Consenting adults”

Insufficient breadth of definitions

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What is obscenity?

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a narrow class of material defined by the Supreme Court in the Miller test; material that is legally obscene is not protected by the First Amendment

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what is Indecent Material?

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Sexually graphic; often referred to as adult or sexually explicit material that is protected under the First Amendment. Such material may be barred in works available to children and in over-the-air radio and television broadcasts

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What is Pornography?

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This term has no legal significance but is often used by laypersons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer

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The Hicklin Rule (pre-1957)

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A work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall (“most susceptible member of society”)

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Roth-Memoirs Test (1957)

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The dominant theme of the material taken as a whole must appeal to the prurient interest in sex
The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
The material is utterly without redeeming social value

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The Miller Test

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An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest
The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
The work in question lacks serious literary, artistic, political or scientific value

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"An Average Person"

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The material is to be “judged neither on the basis of each juror’s personal opinion nor by its effect on a particular sensitive or insensitive person or group.”

“Reasonable person” standard”

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"Community Standards"

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In most jurisdictions, “community standards” are “state standards”

Community standards are becoming more difficult to identify in the era of the Internet, where material can be distributed to and viewed in many communities

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"Patent Offensiveness"

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Only hard core sexual materials meet this requirement

“Representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,” and “representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals”

Established by applicable state laws

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"Serious Value"

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Could someone, not does someone find literary, artistic, political or scientific value in the work?

A slight step up from Roth-Memoirs

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Variable Obscenity Statutes

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Banning sale of material to juveniles that would be acceptable for adults

Such laws online have been problems because of limiting minors but not adults

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Child Pornography

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The production, distribution and possession of child pornography is not protected by the First Amendment

Images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller

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Child Pornography Prevention Act (1996)

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barred the sale and distribution of any images that “appear” to depict minors performing sexually explicit acts.

In 2002, the Supreme Court ruled that important segments of this law violated the First Amendment as the CPAA “prohibits speech that records no crime and creates no victims in its production.”

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PROTECT Act of 2003

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aimed at curbing the promotion of child pornography

In 2006, a federal appellate court found the act unconstitutionally overbroad and void for vagueness.

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Obscenity and Women

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Feminist scholars assert that sexually explicit content subordinates women to men

Several communities have attempted to adopt laws regulating indecent materials based on this argument

But c.f., American Booksellers Association v. Hudnut: women need less protection than do children

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scienter

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guilty knowledge; whether the defendant was knowledgeable about the contents before it was sold, published, or distributed.

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Postal Censorship

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1873 Comstock Act provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail

Ex parte Jackson (1878): “use of the mails is a privilege, not a right”

Today, postal patrons may request to block the delivery of solicitations for adult material or other obscene publications sent through the mail

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Film Censorship

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Motion pictures were not granted First Amendment protection until 1957 (film as business)

Interstate Circuit v. Dallas: case led to voluntary rating system when Court upheld censorship

Currently local censorship of films is infrequent as adult theaters have almost disappeared

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Sexually Oriented Businesses

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Sexually oriented businesses such as strip clubs, adult video stores and adult theaters are subject to two kinds of local laws:

Zoning regulations

Expressive conduct regulations

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Sexually Oriented Businesses

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Test for Zoning Regulations (Renton v. Playtime Theatres):

A community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstores, movie theaters or newsstands

The ordinance must be justified by showing that it furthers a substantial state interest

The ordinance must be narrowly drawn so as not to restrict more speech than is necessary

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Communication Decency Act (1996)

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Made it a crime to transmit indecent material or allow indecent material to be transmitted over public computer networks

U.S. Supreme Court ruled this act unconstitutional in 1997

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Child Online Protection Act (1998)

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Prohibits commercial Web sites from knowingly transmitting to minors material that is harmful to them

Lower courts ruled this law unconstitutional as it restricted adults from legal material

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Children’s Internet Protection Act (2001)

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Requires public libraries to install anti-pornography filters on all computers with Internet access in order to receive federal funding

Lower courts ruled the statue was un-constitutional

In 2003, the U.S. Supreme Court overturned this decision ruling that libraries could constitutionally restrict children’s access to pornography

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Current Issues Online: The “Dot XXX” Domain

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In March 2007, ICANN rejected a proposal that would have shielded minors from sexual conduct online by creating a sexually explicit Internet domain

The adult industry did not support the proposal in part because it would have created a virtual ghetto of nonobscene, First Amendment-protected speech

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Prior restraint

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Unconstitutional in nearly all cases
The Near v. Minnesota exceptions:
National security
Obscenity
Incitement to violence, or “fighting words”
But denying someone a fair trial is also unconstitutional
When interests collide, courts muddle through on a case-by-case basis

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Conditions for gag orders

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Pre-trial publicity would be extensive and pervasive
No alternative measures would offset the effects of the publicity
A gag order would succeed in protecting the right to a fair trial

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Alternative measures

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Continuance
Postpone trial until media frenzy blows over
Change of venue; change of veniremen
Move trial to a place where the crime is not so notorious
Intensive voir dire
Question prospective jurors as to whether they can remain fair and impartial
Jury admonitions
Remind jurors not to follow coverage in the media or to discuss the case

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Alternative measures (2)

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Continuance
Change of venue; change of veniremen
Intensive voir dire
Jury admonitions
Sequestration
Most extreme, generally (and rarely) used only for deliberations

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Newsgatherer's Privilege

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There is an inevitable conflict between journalist’s confidential and government’s desire to know who supplied information.

The result is a conflict leading to the issues of newsgather’s privilege

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Contempt of court

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Direct contempt - involves an act which violates the decorum of the court -- usually for a reporter’s misconduct
Indirect contempt - involves a disrespect that is remote from the courtroom -- journalists could be cited for writing unfavorably about a judge or violating gag order

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Civil versus Criminal Contempt

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Civil contempt is a form of coercion: a person who disobeys a court order can be fined or locked up until the person decides to cooperate with the judge
Criminal contempt is a punishment for an act of disrespect for the court such as a photographer taking an unauthorized picture in the courtroom

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Common law tradition did not recognize journalists as those who could claim privilege.

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States have adopted specific laws to provide privilege for reporters
By 2010, some 37 states have enacted some kind of shield laws that provide protection to reporters (Texas passed its shield law in 2009.)

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Shield Laws - Congress has never passed a federal shield law

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Attempts were made after the Branzburg decision but Congress got bogged down with details; most recent attempt was December 2009
Congress has a difficult time agreeing to a definition of a journalist
E.G. - Are bloggers journalists?

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To date, 37 states have enacted Shield Laws

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They vary widely in philosophy and scope
Some have been rejected by state courts
Some states have modified their constitutions to include a reporter’s shield within the it
Some shield laws have been weakened by court decisions
Some states opt to rely on court cases, rather than statutory shield law

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Shield Laws fall into three groups

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1. Absolute privilege laws
2. Laws that only the privilege if the information is published or broadcast
3. Qualified for limited privilege that may have one or more exceptions allowing the courts to disregard them

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Judges and lawyers don’t like the concept of Shield

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Strips the courts of authority to do their important work
Some courts see shield laws as an obstacle to justice