Emily's notes: Pornography

Question 1

What did Potter Stewart say about obscenity?

Answer 1

“I may not be able to define obscenity, but I know it when I see it.”

Question 2

What did John Marshall Harlan say about obscenity?

Answer 2

“Anyone who undertakes to examine in Supreme Court’s decisions…Which have held particular material obscene or not obscene would find himself in utter bewilderment.”

Question 3

What did William Brennan say about obscenity?

Answer 3

“I am forced to conclude that the concept of ‘obscenity’ cannot be defined with sufficient specificity and clarity to provide fair notice to prevent substantial erosion of protected speech…and to avoid very costly constitutional harm.”

Question 4

What is erotica?

Answer 4

Erotica – sexually explicit but is not demeaning, neutral term that simply means sexual

Question 5

What is pornography?

Answer 5

Pornography – sexually explicit that is demeaning, usually women are demeaned, usually protected by First Amendment

Question 6

What is obscenity?

Answer 6

Obscenity – pornography that crosses the line and has been determined by a court to be a kind of material that is without social worth and is therefore not protected by the First Amendment

Question 7

What is the background behind obscenity?

Answer 7

• 1868 The Hicklin Rule
• 1842 Importing obscene material prohibited
• 1878 Mailing obscene material illegal
• 1930s Hicklin rule dies
• 1940s Mailing restrictions curbed

Question 8

What is the background behind Roth v. US (1957)?

Answer 8

Samuel Roth had a long history of convictions, minor obscenity accounts, one involved James Joyce’s Ulysses. He sent sexually explicit mail, Good Times magazine. Convicted on 4 counts, $5,000 fine and spend 5 years in jail. He appealed saying the federal law that he was convicted was unconstitutional because the law was too vague, affirmed his conviction by 5-4 vote, if it’s obscene, it’s not protected. Sexuality and obscenity are not the same

Question 9

What is the issue behind Roth v US?

Answer 9

Is obscenity protected speech under the First Amendment of the United States Constitution (Constitution)?

Question 10

What was the outcome of Roth v. US?

Answer 10

The federal law banning such speech is constitutional as long as the appropriate standard of obscene is used. Obscenity is “not communication and is without social value.”

or: “Implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance.”

Question 11

What is background behind Miller v. California?

Answer 11

In this case, the Appellant, Miller (Appellant), conducted a mass mailing campaign to advertise the sale of illustrated adult material books. The Appellant’s conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail. The brochures consist primarily of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often predominantly displayed. This case thus involves the application of a state’s criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients.

Question 12

What is the issue behind Miller v. California?

Answer 12

Whether the obscenity presented in this case is prohibited by the applicable state statute?

Question 13

What was the outcome of Miller v. California?

Answer 13

In sum, the Supreme Court: (a) reaffirmed the Roth holding that obscene material is not protected by the First Amendment of the United States Constitution (Constitution), (b) held that such material can be regulated by the States, subject to specific safeguards, without a showing that the material is “utterly without redeeming social value and (c) held that obscenity is to be determined by applying “contemporary community standards.” As a result, the majority determined that the material at issue in this case was not protected by the First Amendment of the Constitution and that the California state statute could regulate the matter. Furthermore, the requirement that a California jury evaluate the materials with reference to “contemporary standards” is constitutionally adequate.

Question 14

What is the Miller Test?

Answer 14

1. The average person, applying contemporary, local, and community standards must find the work, taken as a whole, appeals to the prurient interest
2. The work lacks serious literary, artistic, political or scientific value
3. The work depicts in a patently offensive way sexual conduct specifically defined by state law

“The three parts are considered separately, but one doesn’t outweigh the others.”

Question 15

What is obscenity in Virginia?

Answer 15

“Considered as a whole material has its dominant theme or purpose an appeal to the prurient interest in sex, that is a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof of sadomasochistic abuse and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.”

Question 16

What is the Overbreadth Doctrine?

Answer 16

• A statute is unconstitutionally overbroad if it prohibits more speech than necessary to achieve a compelling government interest
• Vagueness: too broad you can’t see the intent

Question 17

What is the background behind Ashcroft v. ACLU?

Answer 17

Congress passed the Child Online Protection Act (COPA) to avert minors from having access to pornography on the internet. The American Civil Liberties Union (ACLU) and online publishers sued in federal court to prevent enforcement of the act, arguing that it violated the Free Speech clause of the First Amendment. The District Court agreed. On appeal, a Third Circuit Court of Appeals panel affirmed, the Court held that because the act used “community standards” to determine which material was harmful to minors, it would bar material that was offensive in the most “puritanical” communities from being displayed in more “tolerant” ones.

Question 18

What was the issue behind Ashcroft v. ACLU?

Answer 18

Whether the Child Online Protection Act’s requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive?

Question 19

What was the outcome of Ashcroft v. ACLU?

Answer 19

Whether the Child Online Protection Act’s requirements violate the First Amendment by restricting speech and also violates the First Amendment by using a method that is not least restrictive?
Held: Yes. The Court held that Internet content providers and civil liberties groups were likely to prevail on the claim that COPA violated First Amendment by burdening adults’ access to some protected speech. Affirmed and remanded. Justice Anthony Kennedy, in the majority opinion, wrote that the district court’s injunction “was not an abuse of discretion, because on this record there are a number of plausible, less restrictive alternatives to the statute.” The majority also emphasized that barring the statute’s enforcement during the trial would be less harmful than allowing it, because allowing it would be likely to prevent online publishers from publishing certain material. The Supreme Court ruled that the “community standards” provision alone did not make the act unconstitutional and sent the case back to the Third Circuit. Upon revision, the Third Circuit again prohibited implementation of the act, holding that it was likely to fail the “strict scrutiny” test due to the fact that it was not narrowly tailored – that is, it prevented online publishers from publishing some material that adults had a right to access – and because it did not use the least restrictive means possible to protect children (the court found that blocking software installed on home computers by parents would do as good a job without preventing free speech). For similar reasons, the panel found that the act was unconstitutionally “overbroad” – that is, it applied to too much protected material.

Question 20

What is the background behind Ashcroft v. Freespeech Coalition?

Answer 20

The Congress enacted the CPPA in 1996 to prohibit the use of images which appear to show minors engaged in sexual acts but which were, however, produced without the use of real children. The possession or distribution of images so produced, whether by virtual technology methods or by using adults who look childish or are made to look so, was prohibited in specific conditions by this Act. This was challenged by the Free Speech Coalition (P), which is a trade union for the adult-entertainment industry, and other parties. They challenged the Act in federal district court on the grounds that the terms “appear to be” and “conveys the impression that” as used in the impugned statute are too vague and broad to prevent the Act from being improperlyused to prevent them from producing works under their constitutional rights guaranteed in the First Amendment. The district court granted summary judgment for the Government (D). The decision was reversed by the federal court of appeals, and the Government (D) appealed.

Question 21

What is the issue behind Ashcroft v. Freespeech Coalition?

Answer 21

Does the Child Pornography Prevention Act (CPPA) of 1996 cut down freedom of speech, by preventing speech which is neither obscene nor child pornography, and does it so violate the constitution?

Question 22

What was the outcome of Ashcroft v. Freespeech Coalition?

Answer 22

Virtual child pornography cannot be regulated based on tenuous enforcement assumptions

Yes. The CPPA violates the right to free speech and is therefore unconstitutional, insofar as it holds speech which is neither obscene nor child pornography to be proscribed under law. When the child pornography does not show an actual child, the government’s interest in preventing harm to the children involved in the production of child pornography cannot be said to be served by the application of the Act. In such a case, the CPPA goes beyond the Supreme Court’s decision making a distinction between child pornography and other forms of sexually explicit speech. The Act reaches beyond obscenity to include all depictions of minors or even the appearance of minors engaged in what would appear to be sexual acts, from Hollywood film (filmed without the actual use of children) to Renaissance paintings, regardless of whether the production process used children to obtain the images. Similarly the Act cracks down on all such depictions irrespective of context, whether they are educational or not, as in a psychology manual or in a documentary movie meant to impress viewers with the negative impact of child abuse. The Court held the CPPA prohibitions to be too broad and violatory of the constitutional freedoms. The judgment was reversed.

Question 23

What is the background behind Reno v. ACLU?

Answer 23

At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. The District Court made extensive findings of fact about the Internet and the CDA. It held that the statute abridges the “freedom of speech” protected by the First Amendment of the United States Constitution (Constitution).

Question 24

What is the issue behind Reno v. ACLU?

Answer 24

Whether the two CDA statutory provisions at issue are constitutional?

Question 25

What was the outcome of Reno v. ACLU?

Answer 25

Judgment of the District Court affirmed. Under the CDA, neither parents’ consent nor their participation would avoid application of the statute. The CDA fails to provide any definition of “indecent” and omits any requirement that the “patently offensive material” lack serious literary, artistic, political or scientific value. Further, the CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. CDA applies to the entire universe of the cyberspace. Thus, the CDA is a content-based blanket restriction on speech, as such, cannot be properly analyzed as a form of time, place and manner restriction. The CDA lacks the precision that the First Amendment of the Constitution requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the statute suppresses a large amount of speech that adults have a
constitutional right to receive. The CDA places an unacceptable burden on protected speech, thus, the statute is invalid as unconstitutional.
Concurrence. The constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes with the First Amendment rights of adults. Because the rights of adults are infringed only by the “display” provision and by the “indecency transmission” provision, the judge would invalidate the CDA only to that extent.

Question 26

What is the background behind US v. Williams?

Answer 26

Williams was accused of misrepresentation of his character, which was allegedly effected through two financial statements. The prosecutor did not present, however, evidence which showed that Williams was always candid with his financial information. After he was indicted, Williams sought to have that indictment overturned because the grand jury was not presented with all the information by the prosecutor. The District Court overturned the indictment and appeals ensued.

Question 27

What is the issue behind US v Williams?

Answer 27

Whether a district court may dismiss an otherwise valid indictment because the Government failed to disclose to the grand jury exculpatory evidence.

Question 28

What was the outcome of US v Williams?

Answer 28

A prohibition against the advertising of child pornography is constitutional

Question 29

What is the background behind US v. Stevens?

Answer 29

Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls, compiled and sold videotapes showing dogfights. Though he did not participate in the dogfights, he received a 37-month sentence under a 1999 federal law that banned trafficking in “depictions of animal cruelty.”

Question 30

What is the outcome of US v. Stevens?

Answer 30

District Court proceedings[edit]
Public Law No: 106-152 was a federal criminal statute that prohibited the knowing creation, sale, or possession of depictions of cruelty to animals with the intention of placing the depiction in interstate or foreign commerce for commercial gain. The law had been enacted in 1999, primarily to target “crush videos”, which depicted people crushing small animals to gratify a sexual fetish. It excluded from prosecution “any depiction that has serious religious, political, scientific, educational, journalistic, historical, or artistic value;” this language tracked the “Miller test” the U.S. Supreme Court used to determine whether speech could be prosecuted for obscenity or was protected by the First Amendment.

In 2004, Robert J. Stevens was indicted under 18 U.S.C. § 48 for creating and selling three video tapes, two of which depicted pit bulls engaged in dog fighting. The third tape depicted a pit bull attacking a domestic pig as part of the dog being trained to catch and kill wild hogs; this video included “a gruesome depiction of a pit bull attacking the lower jaw of a domestic farm pig.”[2] Although Stevens’ criminal prosecution concerned only three tapes, he had made $20,000 in two and a half years from selling nearly 700 videos.[3] Stevens was not accused of engaging in animal cruelty himself, nor of shooting the original footage from which the videos were created. However, the footage in each of the videos “is accompanied by introductions, narration and commentary by Stevens, as well as accompanying literature of which Stevens is the author.”[4]

Stevens filed a motion to dismiss the indictment, arguing that the federal statute abridged his right to freedom of speech under the First Amendment. The District Court denied his motion in November 2004.[4] In January 2005, Stevens was convicted by a jury after a deliberation of 45 minutes.[5]

Third Circuit decision[edit]
Stevens appealed, and the Third Circuit vacated his conviction, holding that 18 U.S.C. 48 violated the First Amendment. The court stated that dog fighting, or the use of dogs to hunt hogs, may be made illegal to protect animals from cruelty. However the court ruled that the law in question, prohibiting the depiction of animal cruelty, violates the First Amendment, as it would create a new category of speech not protected by the free speech provision of the Amendment.[2]