Obscenity Cases and Child Pornography Statutes

Obscenity Cases: Filling the Details

This video module examines obscenity cases that clarify the progression from the Hicklin and Roth tests to the Miller test. It also covers statutes related to online child pornography.

United States versus Ulysses

Ulysses, a book by James Joyce, was initially declared obscene in Great Britain but later deemed not obscene by British courts.
An American publisher acquired rights to publish Ulysses in the United States.
The publisher alerted customs officials about an incoming shipment of the book to initiate a court judgment on its obscenity.
A federal judge ruled that some obscenity could be tolerated, balancing it against artistic merit.
This case bridges the gap between the lack of merit under the Hicklin test and the "utterly without redeeming social value" component of the Roth test.

Ginsburg versus New York (1968)

Sam Ginsberg operated a store in New York City and was rumored to be selling "girly magazines" to minors.
New York had a two-tiered obscenity standard: stricter for juveniles and more lenient for adults.
What is deemed protected speech for adults could be obscene for juveniles.
Ginsburg argued against the two-tiered system, but the Supreme Court upheld the variable standard.

Ginsburg versus United States (1966)

Ralph Ginsburg was prosecuted for an obscene advertising campaign, even though the advertised material (magazines and periodicals) was not obscene itself.
The Supreme Court ruled that the advertising campaign could be judged obscene independently.
The term "pandering" was introduced: advertising non-obscene material in an obscene way.

New York versus Ferber

This case establishes that child pornography is never constitutionally protected by the First Amendment.
Ferber was arrested for selling a film depicting young children masturbating and argued it was an artistic film and should be protected by the First Amendment.
The government argued against protection due to the physical and emotional harm to children involved in child pornography.
Two motivational factors:
- Physical harm to the child.
- Emotional damage caused by participation in the films.

Visual Images

The legal status of computer-generated images of children in sexual acts is more complex than that of real children.

Fanny Hill

The plot involves a young prostitute who meets a man, falls in love, leaves prostitution, and lives an upright life thereafter.
The book was controversial, with some arguing it glamorized prostitution which might encourage young girls to become prostitutes.
The U.S. Supreme Court applied the Roth standard/criteria that considers whether the work is utterly without redeeming social value.
It was deemed not obscene because the story possessed redeeming qualities and was thus protected by the First Amendment.

Redrup versus New York

The case involves the selling of "girly magazines" (young women in bikinis), which were clearly not sexually explicit by the definition of obscenity in the 1960s.
Redrup argued that sexually explicit material should be covered by the First Amendment, with only obscene material not covered.
The Supreme Court agreed, stating that statutes must be very specific about what is deemed obscene.
Redrup laid the groundwork for the "contemporary community standards" component of the Miller test.

Stanley versus Georgia

Stanley, a bookmaker, was found to possess obscene films during a police search for bookmaking materials.
Stanley's attorney argued that personal consumption of obscenity in one's own home should be legal for adults.
The Supreme Court agreed, ruling that owning obscene material for personal use is legal.
However, this ruling did not extend First Amendment protection to the sale of obscene material, making it a somewhat confusing decision.

Hamlin versus United States

Hamlin argued that the use of expert witnesses in obscenity trials violated his constitutional rights.
His attorney argued that juries are the best judge of local community standards, as established in Miller (1973).
The Supreme Court agreed, eliminating the use of expert witnesses and allowing juries to rely on their own knowledge of community standards.

Young versus American Mini Theatres

The Detroit mayor wanted to clean up the inner city by using dispersal zoning to keep obscene shops away from residential areas, churches, and each other.
American Mini Theatres, owning multiple shops close together, challenged the ordinance as an unconstitutional abridgment.
The Supreme Court upheld dispersal zoning as a valid method to control the spread of sexually explicit material.
The Justices referred to these zoning ordinances as "erogenous zones".

Reno versus ACLU (1997)

The Communications Decency Act (CDA), part of the Telecom Act of 1996, aimed to penalize ISPs for obscene material on their websites.
The ACLU feared that ISPs would act as censorship boards and practice prior restraint.
The Supreme Court ruled the CDA unconstitutional, providing a high level of First Amendment protection for the Internet.

Ashcroft versus Free Speech Coalition (2002)

In 1996, Congress created a law in which virtual images of young children involved in sexual acts was considered as child pornography.
The Free Speech Coalition argued that Ferber dealt with emotional and physical well-being and therefore could not possibly apply, since these were not real children.
The US Supreme Court agreed with the Free Speech Coalition and ruled in the case that because Congress did not provide any evidence that looking at the virtual images would lead to the physical and emotion harm of children, the law could not apply.

Child Pornography Legislation

Legislatures have made significant efforts to protect children using legislative agendas.

Protection of Children Against Sexual Exploitation Act of 1977:

Prohibits shipping, receiving, distributing, or reproducing visual depictions of minors engaged in explicit sexual conduct.

Child Protection, Restoration, and Penalties Enhancement Act of 1990:

Requires producers of sexually explicit material to keep accurate records of the names and ages of individuals appearing in sexual performances.
Producers must be able to prove that individuals who appear to be minors are adults.

Child Pornography Prevention Act of 1996:

Dealt with virtual images of children, later declared unconstitutional under the Ashcroft v. Free Speech Coalition ruling.

Communications Decency Act of 1996:

Declared unconstitutional in Reno v. ACLU.

Child Online Protection Act (COPA) of 1998:

Aimed to prohibit transmitting harmful information to minors online.
Ruled unconstitutional because there was no way to ensure that minors weren't getting the information through adults or false information.

Children’s Internet Protection Act of 2001:

Requires public libraries receiving federal funds to install filters on internet-capable computers to prevent access to obscene material.
This is a constitutional action by the federal government.

PROTECT Act of 2003:

Stands for "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today."
Prohibits pandering of child pornography, even if the material is not actually possessed.
Making an accusation or claim of owning and being willing to sell child pornography is a violation of this act.

Court Rulings Post-Legislation

Osborne versus Ohio

Osborne was viewing child pornography in his home, paralleling Stanley v. Georgia.
He argued that if Stanley could view pornography in his home for private consumption, he should be able to view child pornography.
The Supreme Court upheld Osborne’s conviction, stating that the state has a great desire to protect the minds of viewers, and therefore Stanley does not apply in cases of child pornography.

United States versus Williams

Williams tried to sell photos of a four-year-old girl to an undercover officer but claimed he did not have the photograph at the meeting.
He was prosecuted under the PROTECT Act.
The Supreme Court ruled that the PROTECT Act is constitutional, meaning that if one says they have child pornography, they are in violation of the law.