1. Obscenity regulation COMM 502, Feb. 7-9, 2011

3. 1873 – Comstock Act (criminal law)

4. Why?Anthony Comstock

5. Comstock act (1873) Every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, and -- * * * * Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, . . . whether sealed or unsealed . . . * * * * Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

6. Comstock act Did not define the crime

7. Problems for the courts (1) Legal concept: What is obscenity?

8. Problems for the courts (2) Evidence: How should the obscenity of an artifact be determined?

9. Regina v. hicklin (1868) obscene is that which has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the work might fall

10. Roth v. united states (1957) Legal concept “Obscene material is material which deals with sex in a manner appealing to prurient interest.”

11. Roth v. united states (1957) Evidentiary test “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest”

12. What about the First Amendment?

13. Chaplinski v. new Hampshire (1942) “there are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting" words’...”

14. Chaplinski v. new Hampshire (1942) “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”

15. Roth determined that statutes regulating obscenity are constitutional.

16. Memoirs v Massachusetts (1966) (1) Dominant theme of the material taken as a whole must appeal to prurient interest

17. Memoirs v Massachusetts (1966) (2) A court must find that the material is patently offensive because it affronts contemporary community standards re sexual maters

18. Memoirs v Massachusetts (1966) (3) Material must be utterly without redeeming social value

19. Loophole:Expert testimony that material had a modicum of social value

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

21. Miller v. california (1973) (2) The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law

22. Miller v. california (1973) (3) The work lacks serious literary, artistic, political or scientific value

24. What is the relevant community?

25. What are prurient interests?

26. What is patent offensiveness?

28. State has the choice of jurisdiction, even on the Internet

29. Community standards Jury decide what the community standards are

30. Prurient interest Shameful or morbid interest in nudity, sex or excretion

31. Patent offensiveness State laws are supposed to define what type of content is patently offensive

32. Serious value Test: whether a reasonable person (juror) would find serious literary, artistic, political or scientific value Use of experts

33. Robert Mapplethorpe

34. Variable obscenity Two standards: Material that may be legally distributed to adults, but not to juveniles

35. Variable obscenity may be regulated using TPL regulations

36. Regulation of non-obscene material Zoning, licensing, signal scrambling, ID technologies, etc. 31

37. Media self-regulation E.g., MPAA code

38. Child pornography Images of minors engaged in sexually explicit conduct, even if the depiction does not raise to the standards of obscenity in Miller

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

40. What about sexting? Minors who take, possess or distribute sexually explicit photos of themselves or other minors are not exempt from child pornography statutes.

42. 1998, Child Online Protection Act

44. Attempted to regulate the distribution of both indecent and obscene online material to children

46. Required commercial distributors of “material harmful to minors” to restrict minor access to their sites

48. Requires schools and public libraries using federal funding to install anti-pornography filters on their public computers

50. Roth v. U.S. (1957)

51. Memoirs v. Massachusetts (1966)

52. Miller v. California (1973)

53. The Miller test of obscenity

54. Average person

55. Community

56. Community standards

57. Prurient interest

58. Patent offensiveness

59. Serious valueVariable obscenity Examples of erotic material regulations Child pornography CDA, COPA, CIPA