Obscenity

Question 1

Kinsey Reports (1948)

Answer 1

Kinsey publish 2 reports on sexual behavior of males and females.

• Kinsey concluded that the sexual behavior of people was a lot more diverse then people thought.
• It challenged the view that american sexuality fit into a confined and normal box.

Question 2

Roth v. U.S. (1957)

Answer 2

published a journal (America Aphrodite) and was convicted under the comstock act.

Court ruled that Roth was guilty but they also decided that we needed a new definition of obesity.

• Utterly without redeeming social importance.
• Average person
• Contemporary community standards
• Dominant theme
• Must appeal to the pruient interest (purely focuses on sex)

Question 3

Progeny of Roth

jacobellis v. Ohio (1964)

Memoirs v. Massechussetts (1966)

Ginzburg v. US (1968)

Mishkin v. NY- (1966)

Redrup v. NY (1967)

Answer 3

jacobellis v. Ohio (1964) - majority could not agree on and opinion, stuart said the only obscenity that ought to be obscenity is hardcore porn. - case sided with free speech. [6/3]

Memoirs v. Massechussetts-protected speech [plurality]

Ginzburg v. US -sent out a journal, was convicted and court upheld decision.(reason for conviction considered pandering even though he was convicted of pandering)

Mishkin v. NY- (1966) Found his books obscene but they had to modify Roth again. (adjust the prurient interest to apply to its attended audience not just the average person)

Redrup v. NY (1967) - term “redruping” came about because of the courts case by case judgment on obscenity.

Question 4

Obscenity is…

Answer 4

a legal concept that has been debated and used in deciding if something is protected speech.

Obscenity is not the same thing as naked pics but naked pics can be seen as obscene.

things can fall under indecency but is not ruled legally obscene.

Question 5

Nixon Commission on Obscenity and Pornography (1970)

Answer 5

had the goal of approving a much more strict rule against pornography. Sociologists, law professors, religious representatives, ect. Were commissioned to find evidence of harm created by pornography. But they found no evidence. As a result Nixon appointed justices that could be relied upon to be tough on pornography.

Question 6

Miller Standard (1973)

Answer 6

• Average person
• Applying contemporary state/local community standards
• work as a whole
• appeals to the prurient interest
• “patently offensive” depiction of sexual conduct
• work lacks SLAPS (serious literary, artistic, political or scientific value)

Question 7

Paris Adult Theater

Answer 7

• court says that their is no burden on the cops to prove that the materials are obscene, the burden of proof now falls into those charged with obscenity.
• There is no burden of proof that the materials are harmful.
• Individual states may chose more liberal definitions of obscenity if they want.

Question 8

SLAPS

Answer 8

serious literary, artistic, political or scientific value

Question 9

Kaplan v. California

Answer 9

court says obscenity can be found in written/oral descriptions. [4/5]

Question 10

US v. 12 200 foot reels of super 8mm film
&
US v. Orito

Answer 10

transportation of obscene materials - US ruled that it is not OK

Question 11

Ward v Illinois (1977
Pinkus v. US (1978)
Pope v. Illinois (1987)

Answer 11

Ward v Illinois (1977 -

Pinkus v. US (1978) - excluded minors from average person standard.

Pope v. Illinois (1987) - determined no longer by the “average person” but a “reasonable person”

Question 12

Commission on Pornography (Regan July 1986)

Meese Commission Report

Answer 12

All the people selected for the commission were already on the side of conservatism and generally against pornography.

Used people from left conservatism and right feminism but they all had the same opinion on prono.

The result was of course that it was harmful.

Question 13

Obscenity vs. Indecency

Sable v. FCC (1989)

Answer 13

phone sex - they got congress to pass a law that prohibited obscene and indecent phone calls.

• law went to supreme court and they struck down the part about indecent speech being illegal.

Question 14

Obscenity V. Pornography

• Feminist “Sex Wars”
• American Booksellers v. Hudnut (1986)

Answer 14

Instead of offensive they argued that porno should be illegal because it degrades and objectifies woman and it increases violence towards them.

Sex Wars- tried to prove that pornography was inherently harmful.

Am booksellers- women that felt harmed by materials could sue. This case tried to turn it into an equal rights issue. The lower court said it was a form of thought control.

Question 15

Conservatives/Fem

Answer 15

Conservatives Fem.
Obs. Porn
Legal Term Lay Term
Miller Standard Non consensus definition
Morality Harm to fem as a class

Question 16

Ny vs. Furber

Answer 16

It creates a new exception to the 1st amendment.

If it is child pornography it is not protected by the first amendment.

Real children are harmed in the making of child porn, there is no matter if it is obscene or not so it is removed from obscenity legally at all.

Question 17

Osborne v. Ohio (1990)

Answer 17

• even if Stanley v. Georgia says you are allowed to have pornography in your home, you are still not allowed to have child pornography because it is still harming a child.

Question 18

Jacobson v. US (1992)

Answer 18

Entrapment- Gov is making child porn available so that they can catch people purchasing it and arrest them.

• Supreme court overturned the conviction says that the gov has to show that the person has a predisposition to commit the crime.

Question 19

U.S v. X-Citement Video (1994)

Answer 19

Accused must have known the person was under age

Question 20

Record keeping

Answer 20

Records needed to keep track of the age of sex workers

Question 21

Young V. American Mini-theaters

Answer 21

Detroit las said that the businesses had to be in certain areas. It was upheld under the

secondary effects doctrine. - the sate is allowed to restrict speech as long as thew goal of the restriction is to control some secondary effects of the speech

Question 22

secondary effects doctrine.

Answer 22

• the sate is allowed to restrict speech as long as the goal of the restriction is to control some secondary effects of the speech rather then the speech itself.

Question 23

Barnes v. Glen theatre (1991)

Answer 23

nude dancing is marginally protected.

Question 24

Erie v. Pap’s A.M. (2000)

Answer 24

loosened the evidentiary burden on the secondary effects.

after this case the gov doesn’t have to prove as much.

Question 25

RICO laws- Racketeering

Answer 25

Goes after the property in order to process people.

ill-gotten gains” of criminal activity.

Question 26

Reno v. ACLU (1997)

Answer 26

Communication Decency Act (CDA) 1996

Internet speech is a highly protected form of speech. because it was the most participatory speech that has yet been developed.

Question 27

Child Online Protection Act (COPA) 1998

Answer 27

Ashcroft v. ACLU (2002,2004)
Mukasey v. ACLU (COPA dead)

they can not outlaw indecent speech on the internet.

Question 28

Contemporary community standards

Answer 28

google defense- based on terms people are searching for on the internet. - it shows how it is difficult to show what are the true contemporary community standards.

jury shopping- prosecutors try to prosecute obscenity cases in more conservative areas. (California based website tried in tampa florida)

Question 29

Indecent Broadcasting

Answer 29

FCC v. Pacifica (1978) - Seven dirty words monologue. Pacifica wanted supreme court to overrule FCC rules. Court ruled that the broadcast times could be determined by FCC

FCC v. Fox (2012)

Question 30

Kingsly international pictures v. Regents (1559)

Answer 30

The film presented a view of sexual morality that had a different opinion then the majority. The supreme court held that immoral ideas are protected speech.

Question 31

Hicklin Rule

Answer 31

had the tendency to deprave or corrupt any person (such as a child or overly sensitive individual) who might happen to see the work, the material was obscene and no person could buy it or see it.

Question 32

Burstyn v. Wilson (1952)

Answer 32

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)[2] (also referred to as the “Miracle Decision”), was a landmark decision by the United States Supreme Court which largely marked the decline of motion picture censorship in the United States.[1] It determined that provisions of the New York Education Law which allowed a censor to forbid the commercial showing of a motion picture film it deemed to be “sacrilegious” was a “restraint on freedom of speech” and thereby a violation of the First Amendment.

Question 33

Stanley v. Georgia (1969)

Answer 33

Stanley v. Georgia (1969) - obscene materials are legal in the privacy of your own home.

Question 34

Miller v. California (1973)

Answer 34

the court redefined its definition of obscenity from that of “utterly without socially redeeming value” to that which lacks “serious literary, artistic, political, or scientific value.” It is now referred to as the Three-prong standard or the Miller test.

In 1971, Marvin Miller, an owner/operator of a California mail-order business specializing in pornographic films and books, sent out a brochure advertising for books and a film that graphically depicted sexual activity between men and women. The brochure used in the mailing contained graphic images from the books and the film.

Question 35

Paris Adult Theatre I. v. Slaton (1973)

Answer 35

upheld a state court’s injunction against the showing of obscene films in a movie theatre restricted to consenting adults. The Court distinguished the case from Stanley v. Georgia, 394 U.S. 557 (1969), saying that the privacy of the home that was controlling in Stanley was not present in the commercial exhibition of obscene movies in a theatre.

Question 36

U.S. v. 12 200 Foot Reels

Answer 36

considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Question 37

U.S. v. Orito (1973)

Answer 37

the Court had upheld federal law prohibiting obscenity from being sent through domestic cargo shippers

Question 38

Ashcroft v. FSC (2002)

Answer 38

struck down two overbroad provisions of the Child Pornography Prevention Act of 1996 because they abridged “the freedom to engage in a substantial amount of lawful speech.” The case was brought against the Government by the Free Speech Coalition, a “California trade association for the adult-entertainment industry;” along with Bold Type, Inc., a “publisher of a book advocating the nudist lifestyle;” By striking down these two provisions, the Court rejected an invitation to increase the amount of speech that would be categorically outside the protection of the First Amendment.

Question 39

United States v. Williams

Answer 39

a federal statute prohibiting the “pandering” of child pornography[1] (offering or requesting to transfer, sell, deliver, or trade the items) did not violate the First Amendment to the United States Constitution, even if a person charged under the code did not in fact possess child pornography with which to trade.