Obscenity and Pornography Laws

Key Terminology

  • Prurient interests: Lustful thoughts or sexual desires.
  • Patently Offensive: Hard-core sexual conduct.
  • Sexting: Using digital technology to transmit pictures of minors (scantily dressed, nude, semi-nude, or engaged in sexual activities) to others with or without permission.
  • Obscenity: Legally defined - judicial concept defined over time.
  • Indecency: Term applied by the FCC to broadcast TV and radio and by extension to leased access programming on cable TV.
  • Pornography: Generic term used popularly but not by the courts - except for child pornography - but pornographic material has been regulated.

Regina v. Hicklin (1868)

  • Facts: This English litigation was the result of the distribution of an immoral publication. The pamphlet was actually anti-Catholic but prosecuted under the Obscene Publication Act of 1857.
  • Importance: Allowed the isolated passage effect, uses a susceptible person standard. Came to be known as the “Hicklin Test.”

Anthony Comstock

  • Comstock advocated the adoption of the 1873 Comstock Act.
  • Comstock was appointed to enforce this federal law.

Roth v. U.S. & Alberts v. California (1957)

  • Facts: Roth was convicted for mailing an obscene book, circular, and advertising. Alberts was convicted for the distribution of obscene books in California.
  • Importance: The USSC ruled that obscenity must be determined by the average person, the work must be judged as a whole and obscenity is utterly without redeeming social importance.

Miller v. California (1973)

  • Facts: Miller was convicted under state law for conducting a mass-mailing campaign to advertise four books and a film containing sexually explicit pictures and drawings.
  • Importance: Average person, applying contemporary community standards, the work taken as a whole appeals to prurient interests, work is patently offensive as defined by applicable state law and the work lacks serious literary, artistic, political, or scientific value (SLAPS). All parts must be met for a work to be obscene.

Non-obscene Controls on Sexual Expression

  • Zoning requirements
  • Postal regulations - Goldwater Amendment
  • Display laws
  • Self regulation
  • Civil rights approach

RICO

  • Racketeer Influenced and Corrupt Organization Act.
  • 1984 amended to be used against obscenity and pornography.
  • Can seize all “interests” connected to a racketeering enterprise.

Obscenity Studies

  • 1968 President's Commission on Obscenity and Pornography (Lockhart Commission)
  • 1986 Meese Commission

1968 President’s Commission on Obscenity and Pornography

  • Ban all state laws on consumption of obscenity by consenting adults.
  • No link of consumption of obscene material to violent crimes.
  • Did not study impact of juveniles, so keep laws to protect them.
  • Senate rejected report/conclusions.

1986 Meese Commission

  • Concluded a link does exist between violent obscenity and violence in society.
  • Made numerous recommendations to curtail access to obscene material.

U.S. v. Ulysses (1934)

  • Facts: Custom officials tried to stop the importation of James Joyce's Ulyssess.
  • Importance: A federal judge in New York ruled that the literary or artistic merit of a work can be weighed against any incidental obscenity.

Ginsberg v. New York (1968)

  • Facts: Sam Ginsberg was convicted for selling “girlie” magazines to a minor. These magazines had been found not to be obscene for adults.
  • Importance: The USSC established a variable standard of obscenity - one for adults and one for juveniles.

Ginzburg v. U.S. (1966)

  • Facts: Ralph Ginzburg mailed a hardbound magazine along with two other periodicals. Ginzburg’s advertising emphasized the erotic nature of his publications.
  • Importance: USSC rule that Ginzburg was guilty of pandering. Pandering is advertising and promoting non-obscene material in an obscene way.

New York v. Ferber (1982)

  • Facts: Ferber was convicted for selling undercover police two films of young boys masturbating.
  • Importance: The USSC declared that there is a need to protect the physical and emotional well-being of minors.

Memoirs v. Massachusetts (1966)

  • Facts: John Cleland’s Memoirs of a Woman of Pleasure (known as Fanny Hill) was ruled to be obscene.
  • Importance: The USSC held that to be obscene a work must be utterly without redeeming social value.

Redrup v. New York (1967)

  • Facts: Redrup was prosecuted for the distribution of “sexy” magazines. The publications contained pinup pictures of scantily clad females, but no sexually explicit activity.
  • Importance: The USSC declared that statutes concerning obscene materials must be specific and narrow in scope.

Stanley v. Georgia (1969)

  • Facts: Stanley was convicted for possession of obscene films found while police were searching his residence for evidence of illegal bookmaking.
  • Importance: The USSC ruled that the private possession of obscene material is permissible.

Hamling v. U.S. (1974)

  • Facts: Hamling was convicted by the use of expert witnesses.
  • Importance: The USSC held that jurors may rely on their own knowledge of their community’s standards.

Young v. American Mini Theaters (1976)

  • Facts: Detroit passed a zoning ordinance that prohibited adult bookstores and theaters from locating close to residential areas, churches, or in close proximity to other sexually oriented businesses.
  • Importance: The USSC ruled that “erogenous zones” are a valid way to control obscenity.

Reno v. ACLU (1997)

  • Facts: The ACLU challenged the Communication Decency Act (a sub-section of the Telecommunications Act of 1996 as unconstitutional on its face.
  • Outcome: The USSC ruled the CDA was unconstitutional.
  • Significance: The USSC ruled that communication via the Internet deserves the highest level of First Amendment protection.

Ashcroft v. Free Speech Coalition (2002)

  • Facts: In 1996 Congress adopted an amendment to the federal child pornography law that barred the sale and distribution of any images that “appear” to depict minors performing sexual acts.
  • Outcome: The USSC ruled the amendment violated the First Amendment.
  • Significance: The Court ruled that the justification for the law was insufficient since Congress had failed to produce any evidence linking images to actual child abuse.

Child Pornography Legislation

  • 1977 - Protection of Children Against Sexual Exploitation
  • 1990 - Child Protection Restoration And Penalties Enhancement Act
  • 1996 - Child Pornography Prevention Act
  • 1997 - Communication Decency Act (CDA)
  • 1998 - Child Online Protection Act
  • 2001 - Children’s Internet Protection Act
  • 2003 - PROTECT Act

Osborne v. Ohio (1990)

  • Facts: Ohio had a state law that made it a crime to view child pornography in his own home. Osborne was arrested and convicted on lower court and on appeal.
  • Results: The USSC upheld the conviction and stated that the state’s interest far exceeded what it characterized as Georgia’s “paternalistic interest” in protecting the minds of adult viewers of pornography as in Stanley v. GA.

U.S. v. Williams 2008

  • Facts: Williams tries to sell an undercover officer photos involving a four-year-old girl. When he is arrested he is in possession of child pornography, but not the specific photos he advertised.
  • Significance: The USSC ruled the PROTECT Act was constitutional and upheld Williams conviction.

Brown v. Entertainment Merchants Association (2011)

  • Facts: California passed a law that banned selling or renting violent video games to minors.
  • Outcome: The USSC invalidated the statute.
  • Significance: The government may not ban material due to its content.