Exam 4 Flashcards
Definition of Legally Obscene
No First Amendment protection for child pornography
Definition of the Hicklin Rule
A work is obscene if it has a tendency to deprave those whose minds are open to such immoral influences and into whose hands it might happen to fall
The material is to be judged by the effect of an isolated excerpt upon particularly susceptible persons
Definition of the Roth Test
3 parts to the test
- The dominant theme of the material taken as a whole must appeal to the prurient interest in sex
- The material must be patently offensive based on contemporary community standards
- The material must be totally lacking in redeeming social value
Definition of the Miller Test
3 parts of the test
- The dominant theme of the material taken as a whole must appeal to the prurient interest in sex
- The material must be patently offensive based on contemporary community standards
- The material must lack serious literary, artistic, political, or scientific value
Facts of Roth v. US
- Samuel Roth ran an adult book-selling business in NYC
- Convicted under a federal statute criminalizing the sending of “obscene, lewd, lascivious or filthy” materials through the mail
- Sold a publication called American Aphrodite, containing literary erotica and nude photography
- David Alberts, was convicted under a California statute for selling lewd and obscene books through the mail
Decision of Roth v. US
6-3 Decision for US
Reasoning of Roth v. US
- The court repudiated the Hicklin Rule
- Only material meeting this test could be banned as “obscene”
Facts of Miller v. California
- Marvin Miller, owner/operator of a California mail-order business specializing in pornographic film and books, sent out a brochure advertising books and a film that graphically depicted sexual activity between men and women
- Five brochures were mailed to a restaurant. The owner and his mother opened the envelop and called the police after seeing it.
- Miller was arrested and charged with violating California Penal Code 311.2
Decision of Miller v. California
5-4 Decision for Miller
Reasoning for Miller v. California
The court held that obscene materials did not enjoy First Amendment protection
Facts of Stanley v. Georgia
- Georgia police suspected Robert Stanley of a gambling operation in his own home.
- They obtained a search warrant but found no evidence of gambling, however, they did find 3 reels of 8 millimeter film containing 50 minutes of a highly sexual porn film
- He was arrested on state obscenity charges
Decision of Stanley v. Georgia
- The court overturned Stanley’s obscenity conviction and struck the Georgia law as unconstitutional
Reasoning of Stanley v. Georgia
- There is a important distinction between legally obscene material being distrusted in a public venue (No 1st protection) vs. Legally obscene material being distrusted in a private venue (1st protection)
- Even if it’s highly explicit, its protected in your own home, not including child pornography
Definition of Trustee Model
- Public Interest
- Convenience
- Necessity
What are the Arguments in Favor of Broadcasting Regulation?
- Trusteeship
- Physical Scarcity
- Right of Audience
- Pervasive Presence
- Accessibility to Children
What is Trusteeship?
The public airwaves belong to everyone and license holders
What is Physical Scarcity?
Two Fold Argument
- One: There are only so many frequencies and you need the federal government to allocate frequencies to license holders or it’ll produce confusion
- Two: Economics. The realization by the Federal government in today’s media world, who owns the majority of radio and television stations
What is Right of Audience?
The federal government needs to protect the rights of the audience to make sure they aren’t inundated by mediated violence, sexuality, disturbing images, etc.
What is Pervasive Presence?
(In relation to TV) Television screens are everywhere! They are a pervasive presence in American homes, inescapable.
What is Accessibility to Children?
You need the role of the federal government to oversee standard practices of radio and tv to protect children from being inundated by mediated violence, sexuality, etc.
What is the Convenience Act of 1934?
- Developed the FCC as the regulatory body
What is the FCC?
Federal Communication Commission
Types of FCC Regulation
- Technical Regulation
- FCC allocates frequencies
to license holders
- FCC allocates frequencies
- Structural Regulation
- FCC Licensing Power:
Grants or denies those
who wish to hold licenses - Cross-Ownership Rules:
Make sure no monopolies
occur
- FCC Licensing Power:
- Content Regulation
- Fairness Doctrine
- Personal Attack Rule
- Equal Time Rule
What is the Fairness Doctrine?
The license holder has to show they covered issues of public importance and your station granted equal time to show opposing viewpoints
What is the Personal Attack Rule?
Anyone who had been critically attacked on the airwaves, it was required that radio and tv stations seek out the person who was attacked and offer them the opportunity of free airtime to rebut the allegations
What is the Equal Time Rule?
When a regular tv station give airtime to a legally qualified candidate, all other legally qualified candidates for that office must be contacted na given access to make their campaign messages
Facts of Red Lion v. FCC
- RLB owned WGCB radio station in Pennsylvania
- Broadcaster Billy James Hargis denounced journalist Fred Cook, who had written a book attacking conservative Republican Arizona senator Barry Goldwater
- Hargis called Cook a communist sympathizer and said that he’d been fired from an NYC newspaper when he hadn’t
- Cook cited the fairness doctrine and demanded he be given free air time
Decision of Red Lion v. FCC
Unanimous 8-0 decision in favor of the FCC
Reasoning of Red Lion v. FCC
- Supreme Court found the Fairness Doctrine to be constitutional
Facts of FCC v. Pacifica
- Radio station WBAI in NYC aired a broadcast including a segment featuring George Carlin’s monologue “Filthy Words”
- John Douglas, stated in a complaint filed with the FCC that he heard the broadcast while he was driving with his 15-year old son.
- Stating that it was inappropriate for that time of day (Around 2p.m.)
- Pacifica received a letter of reprimand from the FCC, censoring them for allegedly violating broadcast regulations
Decision of FCC v. Pacifica
Upheld the FCC’s actions with a 5-4 decision
Reasoning of FCC v. Pacifica
- Ruled it was ‘indecent but not obscene’
- Court stated that the FCC had the authority to prohibit such broadcasts during the hours when children were likely to be among the audience
Definition of Indecency on the Airwaves
Words that involve nonconformance with accepted standards of morality
Definition of Commercial Speech Doctrine
- First Amendment DOES NOT protect advertising unlawful activities
- First Amendment DOES NOT protect false, deceptive or misleading advertising
What is the Federal Trade Commission (FTC)?
The regulatory body that oversees advertising
- Job: To make sure that the advertisers are not promoting illegal activities or engaging in false, deceptive or misleading ads
Facts of Valentine v. Chrestensen
- F.J. Chrestensen attempted to distribute handbills advertising his business – tours of his privately owned WW1 submarine
- Police Commissioner Lewis Valentine warned him that the city sanitation code prohibited him from handing them out.
- Chrestensen remade his handbill, removing the admission fee from the front side and added a reverse side to protest against the City Dock Department’s refusal
Decision of Valentine v. Chrestensen
Supreme Court reversed the first courts ruling of ruling in Chrestensen’s favor
Reasoning of Valentine v. Chrestensen
The Constitution did not prevent the government from regulating purely commercial advertising
Facts of Bigelow v. Virginia
- Jeffery Bigelow, managing editor of the Virginia Weekly, was convicted for printing an abortion ad from a clinic in New York, where abortions were legal
- Virginia law prohibited persons from encouraging or procuring abortions
- Lower court convicted Bigelow and fined him $500
Decision of Bigelow v. Virginia
Supreme Court invalidated Bigelow’s conviction with a 7-2 decision
Reasoning of Bigelow v. Virginia
- Determined that the abortion ad at issue was not pure commercial speech
- Also noted that some advertising was entitled to a degree of First Amendment protection
Facts of Virginia State Board v. Virginia Citizens Consumer Council
- Virginia had a law that prohibited pharmacists from advertising information about prescription drug prices.
- It was considered to be unprofessional conduct
- Several drug companies opposed the state law and were joined by the VCCC
- The Trial Court agreed with the drug companies and the consumer advocacy group that the law was unconstitutional
Decision of Virginia State Board v. Virginia Citizens Consumer Council
8-1 upholds the trial court decision
Reasoning of Virginia State Board v. Virginia Citizens Consumer Council
Agreed with the trial court that the law is illegal and unconstitutional, violating the first amendment
