Shared Flashcard Set


Legal Issues of the Mass Media
Obscenity, Pornography, Indecency, Hate Speech
Undergraduate 3

Additional Law Flashcards




  • no first amendment protection
  • own category-separate from pornography & indecency
  • even though obscene content is in the same circle with pornography and indecency, it doesn't overlap with the circle that guarantees first amendment protection
  • Miller v. California
Miller v. California
  • 1973 Supreme Court Case that decided what is obscene
  • 3 part test
    • an average person applying contemporary community standards, finds the work, taken as a whole, appeals to the prurient interest (determined by a jury)
    • the work depicts in a patently offensive way sexual conduct specifically defined by state law (determined by a jury)
    • the work in question lacks serious literary, artistic, political or scientific value (determined by a judge)
other court cases - obscenity
  • Luke Records v. Navarro
    • 2 live crew's album As Nasty as They Want to Be accused of being obscene
    • initially ruled as obscene but later overturned on grounds of community standards and artistic merit
  • US v. Williams
    • interplay between First Amendment rights and the constitutionality of the PROTECT Act -which prohibits knowingly advertising, promoting, presenting, distributing or soliciting material in a manner that reflects the belief, or is intended to cause another to believe, that the material is illegal child pornography; is it overly broad and impermissibly vague?
    • No- it is neither overbroad nor unconstitutionally vague
special circumstances of obscenity
  • variable obscenity statutes
    • definition of "obscenity" can vary depending on who it is distributed to (ex.- products aimed at children under 18)
    • can't do away w/ adult access to material defined as obscene for children under 18 solely for the purpose of keeping them away from it
  • Child pornography- children portrayed in sexual situations (criminal punishment and no 1st amendment protection)
    • NY v. Ferber (1982)
NY v. Ferber
  • denies 1st amendment protection of Child Pornography
  • established that you can be criminally punished for creating, publishing, or posessing it
Pro-censorship view
  • C. MacKinnon (U. Michigan Law)- "It is what happens to make porn & what happens through its use that are the problem."
    • process of making porn, not necessarily the ideas, is the problem --> women are sexually exploited
    • increased male aggression toward women as result
Anti-censorship view
  • N. Strossen (ACLU)- "...censoring seual expression would actuall do more harm than good to women's rights and safety."
    • restriction/violation of 1st amendment rights is contradictory to the social advancement of women
    • limits ability of woment to express themselves sexually
solutions for controlling obscenity
  • criminal penalties (scienter- guilty knowledge) for producer/distributor of material
  • civil nuisance laws- judge can issue injunction to stop ciruculation of material that has been declared obscene
  • RICO statutes (Racketeering Influence and Corrupt Organizations Act)- govt. has right to seize property and $ gained in violation of circulating material that had already been declared obscene
  • postal regulations- illegal to send obscene material via U.S. postal service
solutions for controlling non-obscene material
  • controlling sexual content (pornography/indecency)
  1. zoning laws
  2. incidental restrictions on expression
  3. display laws
  4. industry self-regulation
  5. cutting funding
zoning laws
  • limit adult businesses to one part of town
    • can't be w/i a certain proximity of one another
    • regulations on proximity of adult businesses to schools, churches, playgrounds, etc.
  • criteria for constitutional zoning
    • can't completely bar or significantly reduce the # of adult businesses (must have specific definition of what an adult business is)
    • must have a substantial state interest- secondary effects (not just content issues)
    • ordinance must be narrowly drawn- can't restrict more speech than is necessary to address secondary effects
incidental restrictions on expression
  • one way of controlling non-obscene content
  • Erie v. Pap's A.M. (2000)
    • ordinance requires nude dancers to wear pasties and g-string (costume) to avoid drunks, drug users, and "seeming people"
    • upheld by S.C.; opinion issued by Justice O'Connor
Display laws
  • one way of controlling non-obscene content
  • must be displayed where minors can't see/access it
industry self-regulation
  • one way of controlling non-obscene content
  • used to avoid govt. regulation
    • ex.- rating codes, explicit material labels
cutting funding
  • one way of controlling non-obscene content
  • especially done in arts and humanities (budget cuts)
  • endowments must consider standards of American decency when they give out thier grans to artists
Hate speech
  • "Expression that attacks individuals or groups because of their race, ethnic background, religion, gender, or sexual preference."
  • How should legal system handle it?
    • other countries
    • "more speech" solution vs. harmful impact
current legal framework for hate speech
  • Fighting word's doctrine- expression so offensive as to "have a driect tendency to cause acts of violence by the person to whom...the remark is addressed."
    • not protected expression
    • expression of bigotry protected as political speech
  • VA v. Black- cross burning is violent form of expression; plaintiff has B.O.P. to show that cross was burned as form of intimidation and not just symbolic expression
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