Sexual expression is a highly debated and controversial topic amongst the courts. There is a fine line between what each individual in society and the justices sitting on the court believe should be protected and what should be illegal; and this is completely based on people's line of morals. Currently, all federal and state laws have removed obscene material - meaning obscene material does not receive any First Amendment protection.
Important in this rule, was the distinctions made my the Court about obscenity, pornography, and indecency. The Miller v. California case helped develop the Miller Test which is now used to identify what is obscene for what is not. Included in all of this is the constitutional laws which establish the limits of government interference in obscenity. As well as administrative laws which are determined by the Federal Communications Commission and applied to media - broadcast, cable and the Internet.
Defining Key Terms:
pornography: A vague - not legally precise - term for sexually orientated material.
indecency: A narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television.
obscenity: The dictionary defines it as relating to sex in an indecent, very offensive or shocking way. The legal definition of obscenity comes from Miller v. California - material is determined to be obscene if it passes the Miller Test.
Hicklin rule: A rule taken from a mid- 19th century English case and used in the United States until the mid-20th century that defines material as obscene if it tends to corrupt children.
prurient interest: Lustful thoughts or sexual desires.
patently offensive: Term describing material with hard-core sexual conduct.
serious social value: Material cannot be found obscene if it has serious literary, artistic, political or scientific value determined using national, not local, standards.
variable obscenity: The concept that sexually orientated material would not meet the definition of obscenity if distributed to adults but would be found obscene if distributed to minors.
child pornography: Any image showing children in sexual or sexually explicit situations.
safe harbor policy: A Federal Communications Commission (FCC) policy designating 10pm to 6am as a time when broadcast radio and television stations may air indecent material without violating federal law or FCC regulations.
Important Cases:
Miller v. California (1973) - Marvin Miller after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statue prohibiting the distribution of obscene material. Some unwilling recipients of Miller's brochures complained to the police which initiated the legal proceedings. The question before the quart was, is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?
The Court held that obscene materials do not hold First Amendment protection. The guidelines for this would be a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic political, or scientific value.
Federal Communications Commission v. Fox Television Stations Inc. (2012)- In 2002 and 2003, Fox Television Stations broadcast the Billboard Music Awards. During the broadcasts, one musician used an expletive in his acceptance speech and a presenter used toe expletives. The Federal Communications Commission (FCC), although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language.
The Second Circuit held that the FCC's liability order was "arbitrary and capricious" under the governing Administrative Procedure Act because the FCC had completely reversed its position on fleeting expletives without giving a proper justification. The Second Circuit also failed to find evidence that the expletives were harmful.
The question before the Court was is the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?
Relevant Doctrine:
1. The SLAPS Test - To show a book, movie, magazine or other material is obscene, the government must prove all three parts of the Miller v. California test. The third part of the test says the material, taken as a whole, must lack any serious literary, artistic, political or scientific value. This is called the SLAPS Test.
2. The Miller Test - Under the Miller Test to find material obscene, a court must consider whether:
- "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to prurient interests;
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- the work, taken as a whole, lack serious literary, artistic, political or scientific value.
3. Censoring the Internet - The U.S. Supreme Court said: The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
My Questions/Concerns:
1. Is it the individual who posts the material, or the website or broadcast medium that obscene content is shown on the one who gets in trouble?
No comments:
Post a Comment