Lecture 25 Chapter 7

1. Lecture 25Chapter 7 Boundaries of Free Expression II (Obscenity I)

2. This Lecture • More Boundaries of Free Expression • Pages 335-348 • Obscenity I • Roth v. United States (1957) • Miller v. California (1973)

3. What is Obscenity?

4. Regina v. Hicklin (Britain-1868) • It would seem that that standards on what is obscene may have changed over time • And some view things differently than others • Different communities see things differently • Regina v. Hicklin (1868) • A British case • Tendency of the matter charges as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall • Not considered as a whole • Not directed to social value or worth • Applies more to children getting a hold of it • The Supreme Court used the Hicklin Test in Ex parte Jackson (1878)

5. Butler v. Michigan (1957) • Butler v. Michigan (1957) • Court appears to back away from the Hicklin test • “Burn the house to roast the pig” • Criminalized material for all when the intended to keep it away from were children

6. Roth v. United States (1957) • Background • Roth was a NYC businessman who sold books and photos depicting persons in the nude • Congress had banned "obscene, lewd, lascivious or filthy" materials through the mail • He was convicted under this and sentenced to five years in person and a $5,000 fine

7. Roth v. United States- II • Arguments • For Roth • Framers did not carve out an obscenity exception • Does not fit the clear and present danger test • The law is vague and does not put one on notice as to whether they may be violating it • For the United States • First Amendment is not absolute a balancing test with society’s better interests • Obscenity has little redeeming social value • Protection of public morals is a justifying reason to restrict this speech

8. Roth v. United States- III • Brennan, J. for a 6-3 majority • Obscenity not protected under the First Amendment • First Amendment not designed to protect every utterance • Look at state constitutions and state laws prior to the Bill of Rights • “Appealing to the prurient interests” • Sex and obscenity not synonymous • Without redeeming social value • Court abandons the Hicklin test • May punish some protected speech

9. Roth v. United States- IV • More from Brennan, J. • The new test • Must look at the work as a whole (this is new) • Determine its impact on the average member of the community (replaces child) • Does it offend present day standards of the community? (contemporary) • Appealing to the prurient interest (applies it to sexual materials) • The statute in question did not offend the First Amendment • Conviction is upheld

10. Roth v. United States- V • Warren, C.J. concurring in judgment • Would limit the decision to the individual case’s facts • Standards seem to always be changing • Look to the conduct of the defendant, not the materials

11. Roth v. United States- VI • Harlan, J. dissenting (in Roth) and concurring (in Alberts) • He concurred in Alberts because he saw states having more authority • Remember the federal statute involved the mail • He sees defining obscenity as one that may change case by case • “The intractable obscenity problem” • Douglas, J. joined by Black, J. dissenting • Goes back to preferred freedom status of speech • First Amendment protects obscenity • Absolutist position of them

12. Jacobellis v. Ohio (1964) • Jacobellis v. Ohio (1964) • Many wanted to replace Roth, but finding a new test was difficult • Getting five votes for a new standard • This case is about the showing of the movie Les Amants • It involved a nude love scene • Brennan, J. in a plurality opinion • Contemporary community standards of the nation as a whole, not a local one • Added “must be utterly without redeeming social importance” • Stewart, J. concurring • I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that

13. Memoirs v. Massachusetts (1966) • Memoirs v. Massachusetts (1966) • Another plurality opinion from Brennan, J. (vote was 6-3 to reverse) • Changes the “utterly without redeeming social importance” • To “modicum of social value” to not be obscene • Most obscenity convictions under this new standard were reversed • This led to more sexually explicit materials • Movies, movie theaters, books, magazines • This prompted a political backlash by conservatives and a crackdown under the Reagan Administration

14. Miller v. California (1973) • Background • Miller was owned a business that sold adult books and movies • He sent out a mass mailer with explicit sexual depictions on the handbill • It went to many that did not want it someone complained and he was arrested • This was part of a group of cases decided together • Chance to replace Roth

15. Miller v. California- II • Arguments • For Miller • The state used the statewide decency standard, not nationwide (case in Orange County) • The handbills were not utterly without redeeming social value • For California • A statewide standard is proper because of local concerns • The statewide standard not much different than the national one • This involves hard core pornography

16. Miller v. California- III • Burger, C.J. for a 5-4 Court • Notice this was the four Nixon appointees plus White, J. • The Court adopts a different three prong test: • 1) Would the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest? • 2) Does the work depict or describe, in a patently offensive way, sexual conduct or excretory functions specifically defined by the applicable state law? • 3) Does the work, taken as a whole, lack Serious Literary, Artistic, Political, or Scientific value? • The third prong is often known as the SLAPS test

17. Miller v. California- IV • More from Burger, C.J. • He points out the Memoirs test never received more than three votes • So no need to formally overrule the case • Roth is essentially superseded • Examples of what could be prohibited • Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated • Patently offensive representation of masturbation, excretory functions, and lewd exhibitions of the genitals • These would have to meet the SLAPS criteria to be allowed • This seems to limit prosecution to “hard core” pornography

18. Miller v. California- V • More from Burger, C.J. • Notice that the Court essentially abandons the nationwide standard • It is up to the trier of fact to determine that • People in Maine and Mississippi may have a widely differing idea of application of this test than those in New York City or Las Vegas • What about San Francisco versus Orange County? • Forum shopping • Some areas would crack down after this decision • Summary • Obscene material is not protected by the First Amendment • Utterly without redeeming social value replaced by SLAPS • Community standards replaces national standards

19. Miller v. California- VI • Douglas, J. dissenting • Criticizes the new standard for obscenity as not being part of any law • Obscenity never mentioned in First Amendment • Thus no constitutional guidance as to what is and isn’t obscene • Different people will have different ways to judge what is and isn’t • A mature society should have no censorship • To ban obscenity, it should be done by constitutional amendment, not by Court decision

20. Miller v. California- VII • Brennan, J. joined by Stewart and Marshall, JJ. dissenting • They believe the statute overbroad, so no further for more consideration • The same trio also dissented in Paris Adult Theater I (decided the same day) • He reiterates the vagueness issue of obscenity laws • Can one ever be put on proper notice of what the law really is? • Side effects of suppressing unprotected speech • He sees a carve out for obscenity to juveniles • Importance of this dissent • He acknowledges a proper definition is not possible • Suppression includes protected speech • No suppression of obscenity except for juveniles

21. Issues of Enforcement • Distribution • Block foreign distribution • Or my mail • Zoning • Preventing adult oriented businesses  TPM restrictions • Racketeering • RICO laws • Government Funding • Government can deny funding to things it sees as obscene

22. Next Lecture • Finish Obscenity • Pages 348-362 • Obscenity II • Child Pornography • New York v. Ferber (1982) • Go over Cruelty/Violence • Brown v. Entertainment Merchants Association (2011)