Indecent materials or depictions, normally speech or artistic expressions, may be restricted in terms of time, place, and manner, but are still protected by the First Amendment.
There are major disagreements regarding obscene material and the government's role in regulation. All fifty states have individual laws controlling obscene material.
Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. Prior to Miller, judges testing for obscenity invoked the wisdom handed down by the Court in Roth v. United States. A landmark case, Roth ruled that obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard.
The Supreme Court has resisted efforts to extend the rationale of obscenity from hard-core sexual materials to hard-core violence. The state of California sought to advance the concept of violence as obscenity in defending its state law regulating the sale or rental of violent video games to minors. The Court invalidated the law in Brown v. Federal obscenity prosecutions increased during the George W.
Bush administration. States continued to pursue obscenity prosecutions against hard-core pornography, but also occasionally against other materials. For example, in a comic book artist was convicted of obscenity in Florida, and in the owner of gay bar in Nebraska was successfully prosecuted for displaying a gay art in a basement.
Although obscenity laws have their critics, they likely will remain part of the legal system and First Amendment jurisprudence. While federal obscenity prosecutions waned during the Barack Obama administration, state obscenity prosecutions continue in the 21 st century.
David L. Hudson, Jr. This article was originally published in Calvert, Clay, and Robert D. Hixon, Richard F. Carbondale: Southern Illinois Press, Hudson, David L. Obscenity is defined as anything that fits the criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written text.
Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene matter. Convicted offenders face fines and imprisonment. Although the law generally does not criminalize the private possession of obscene matter, the act of receiving such matter could violate federal laws prohibiting the use of the mails, common carriers, or interactive computer services for the purpose of transportation.
Federal law strictly prohibits the distribution of obscene matter to minors. Lando, U. Child pornography is material that visually depicts sexual conduct by children. New York v. Ferber, U. It is unprotected by the First Amendment even when it is not legally obscene; i. In Frisby v. Schultz , U.
Playtime Theaters, Inc. Sable Communications of California v. Federal Communications Commission, U. Roth v. United States, U. However, Justice Douglas, dissenting, wrote: "[T]here is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment. In Brockett v.
Spokane Arcades, Inc. Day , U. In Jenkins v. Georgia , U. Ohio , U. Then followed his famous remark: "But I know it when I see it, and the motion picture involved in this case is not that. In Hamling v. United States , U. Georgia , supra note 8, U. Justice Scalia concurred in the result in Pope v.
Illinois , but wrote: "[I]n my view it is quite impossible to come to an objective assessment of at least literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can.
Since ratiocination has little to do with esthetics, the fabled 'reasonable man' is of little help in the inquiry, and would have to be replaced with, perhaps, the 'man of tolerably good taste'—a description that betrays the lack of an ascertainable standard I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no arguing about taste, there is no use litigating about it.
Pacifica Foundation, U. New York , U. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg , amply justify special treatment of indecent broadcasting. American Civil Liberties Union , U. It might appear that regulations could be "narrowly drawn" or "carefully tailored" without being the "least restrictive means" to further a governmental interest.
But Sable , on the same page, also uses the latter phrase quoted above in the text accompanying note 4 , and the Court has elsewhere made clear that the "narrow tailoring" required for content-based restrictions is more stringent than that required for time, place, and manner restrictions see , note 3, supra , where "least-restrictive-alternative analysis is wholly out of place. Rock Against Racism, U. The Court has held that there is no right even to private possession of child pornography.
Osborne v. Ohio, U. A type of business that the ordinance covered that did not engage in First Amendment activity was adult motels, which the ordinance defined as motels that rented rooms for less than 10 hours.
Inclusion of these motels was challenged on two grounds: 1 that the city had "violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for less than 10 hours results in increased crime or other secondary effects," and 2 "that the hour limitation on the rental of motel rooms places an unconstitutional burden on the right to freedom of association The Court rejected both arguments.
As for the first, it found "it reasonable to believe that shorter rental time periods indicate that the motels foster prostitution. As for the second, it found that the associations "that are formed from the use of a motel room for less than 10 hours are not those that have 'played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs. Similarly, a "content-neutral time, place, and manner regulation of the use of a public forum" need not "adhere to the procedural requirements set forth in Freedman.
Chicago Park District, U. The plurality said that, though nude dancing is "expressive conduct" [which ordinarily means it would be entitled to full First Amendment protection], "we think that it falls only within the outer ambit of the First Amendment's protection.
The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Playboy Entertainment Group, Inc.
Justice Stevens also wrote that the plurality was "mistaken in equating our secondary effects cases with the 'incidental burdens' doctrine applied in cases such as O'Brien The incidental burdens doctrine applies when speech and non-speech elements are combined in the same course of conduct"[internal quotation marks omitted], whereas secondary effects "are indirect consequences of protected speech.
Section b provides that a person found guilty of knowingly communicating obscene dial-a-porn "shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both. Dial Information Services Corp. Thornburgh, F. The court noted that the word has been "defined clearly" by the Federal Communications Commission, in the dial-a-porn context, "as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.
The court noted that this definition tracks the one quoted in the text accompanying note 79, infra. See , United States v. Merrill, F. This statute dates back to section of the Communications Act of , 48 Stat.
The term "radio," however, today includes broadcast television; i. In dictum, the Supreme Court quoted the FCC with approval as noting that "the televising of nudes might well raise a serious question of programming contrary to 18 U.
Code, to mean "the transmission by radio of writing, signs, signals, pictures , and sounds of all kinds In this case, the Supreme Court upheld the constitutionality of the Federal Communication Commission's "fairness doctrine," which required broadcast media licensees to provide coverage of controversial issues of interest to the community and to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.
Pacifica , supra , note 74, U. A federal court of appeals subsequently held unconstitutional a federal statute that banned "indecent" broadcasts 24 hours a day, but, in a later case, the same court upheld the present statute, 47 U. Action for Children's Television v. FCC, F. FCC, 58 F. The court wrote: "While we apply strict scrutiny to regulations of this kind regardless of the medium affected by them, our assessment of whether section 16 a survives that scrutiny must necessarily take into account the unique context of the broadcast media.
Chief Judge Edwards, in his dissent, wrote: "This is the heart of the case, plain and simple," as "[t]he majority appears to recognize that section 16 a could not withstand constitutional scrutiny if applied against cable television operators. Note that the court struck down the 10 p. Chief Judge Edwards, in his dissent, commented that "the majority appears to invite Congress to extend the 6 a.
EBIH March 18, For additional information, including an analysis of whether prohibiting the broadcast of "indecent" words regardless of context would violate the First Amendment, see CRS Report RL, Regulation of Broadcast Indecency: Background and Legal Analysis , by [author name scrubbed] and [author name scrubbed].
Fox Television Stations, Inc. Federal Communications Commission, F. United States v. Thomas, 74 F. The court cited another conviction under 18 U. Maxwell, 42 M. American Civil Liberties Union , supra note 11, the Supreme Court noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message.
American Civil Liberties Union , infra note , the Supreme Court held that the use of community standards to assess "harmful to minors" material on the Internet is not by itself unconstitutional. They may have done so because fully blocking or fully scrambling "appears not be economical" id.
This suggests the possibility that the Court might not find a compelling interest in shielding older children from sexually oriented material. The Court rejected another interest as compelling: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.
Reno , supra , note 11, U. The CDA also prohibits the transmission to minors of obscene material, and the Supreme Court, without a written opinion, affirmed the decision of a three-judge federal district court that rejected a claim that this prohibition is unconstitutionally overbroad.
Nitke v. Gonzales, F. In ApolloMedia Corp. Reno , 19 F. The plaintiffs reportedly had appealed because they believed that the fact that the word "indecent" was in the statute could have a chilling effect on indecent nonobscene expression, even if the law was not enforceable against such expression.
Section 3 of P. Section f 2 defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
Section a 1 C makes it a crime for a person, in interstate or foreign communications, to "make[ ] a telephone call or utilize[ ] a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person See , id. The Court wrote: "[A] parent who sent his year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise.
American Civil Liberties Union v. Reno, 31 F. Ashcroft v. American Civil Liberties Union, U. Mukasey, F. Despite the fact that only the first prong of this test refers to "community standards," community standards are also to be used in applying the second prong. See the Supreme Court's first decision in Ashcroft v. ACLU , supra note , U. Section amends section h of the Communications Act of , 47 U. Only sections and insofar as it applies to libraries were at issue in the case before the three-judge district court and the Supreme Court.
Nor does any other section of the U. Code, except 20 U. The provisions affecting schools were not challenged. The district court had found "that when the government provides Internet access in a public library, it has created a designated public forum," and that "content-based restrictions on speech in a designated public forum are most clearly subject to strict scrutiny when the government opens a forum for virtually unrestricted use by the general public for speech on a virtually unrestricted range of topics, while selectively excluding particular speech whose content it disfavors.
The reason the plurality found that Internet access in public libraries is not a public forum is that "[a] public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for authors of books to speak. It provides Internet access, not to 'encourage a diversity of views from private speakers,' but for the same reasons it offers other library resources: to facilitate research, learning, and recreational pursuits by furnishing materials of requisite and appropriate quality.
The three-judge court had found that "At least tens of thousands of pages of the indexable Web are overblocked by each of the filtering programs evaluated by experts in this case, even when considered against the filtering companies' own category definitions.
Many erroneously blocked pages contain content that is completely innocuous for both adults and minors, and that no rational person could conclude matches the filtering companies' category definitions, such as 'pornography' or 'sex. For additional information on the issue of unconstitutional conditions, see CRS Report , Freedom of Speech and Press: Exceptions to the First Amendment , by [author name scrubbed]. Justice Stevens quoted from the district court opinion: "[T]he search engines that software companies use for harvestings are able to search text only, not images.
This is of critical importance, because CIPA, by its own terms, covers only 'visual depictions. This could be the case even in a RICO prosecution based on predicate offenses in a different part of the same state, as the relevant community may be an area less than the entire state.
See , Hamling v. Although the Court uses the word "conviction" in this sentence, there appears to be no reason why a RICO prosecution could not be based on a violation in another jurisdiction that had not previously been prosecuted in that jurisdiction.
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