INDECENCY

I. OBSCENITY

Miller v. California (1973)

"prurient interest"

"patently offensive"

"lacks serious artistic, literary, political, scientific value"

 

II. INDECENCY--BROADCASTING

¤326 of the Comm Act of 1934: "whoever utters any obscene, indecent, or profane language by means of radio communications shall be fined not more than $10,000 or imprisoned not more that 2 years, or both."

Indecent=df "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience."

F.C.C. v. Pacifica Foundation (1978)

III. INDECENCY--CABLE

Cruz v. Ferre (11th Cir. 1985)

IV. INDECENCY--DIAL-A-PORN

Sable Communications v. F.C.C. (1989)

V. INDECENCY--INTERNET THE COMMUNICATIONS DECENCY ACT (CDA)

223 (a)(1)(B): Any person in interstate or foreign communication, who "by means of a telecomunications device," "knowingly . . . makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient is under 18 years of age" shall be fined or imprisoned or both (as provided for by Title 18 of the United States Code).

223 (d) (1): criminalizes the use of an "interactive computer service" . . . "to send" or "display in a manner available" to a person under 18 years of age "any comment . . . or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication."

Reno v. A.C.L.U. (1998)

--Some findings of fact, stipulated by the parties

*The internet "is a unique and wholly new medium of worldwide human communication."

*Cyberspace is "located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet."

*"No single organization controls any membership in the Web, nor is there any centralized point from which individual Web sites or services can be blocked from the Web."

*"Once a provider posts its content on the Internet, it cannot prevent that content from entering any community."

*"Sexually explicit material on the Internet includes text, pictures, and chat and extends from the modestly titillating to the hardest core."

*Although sexually explicit material is widely available on the Internet, "users seldom encounter such content accidentally."

*"The odds are slim that a user would enter a sexually explicit site by accident. . . . . The recipient of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial."

*Blocking software is available for words and sites but not images.

*"There is no effective way to determine the identity or the age of a user who is accessing material through email, mail exploders, newsgroups or chat rooms."

*There is technology whereby a credit card or adult password is required for access. This works for commercial but not non-commercial sites.

*Even if such verification is required, there is no guarantee that the user is over 18.

pp. 254-255

*F.C.C. v. Pacifica is not a proper precedent to regulate indecency on the internet.

*Broadcast is not an appropriate model for cyberspace

*The definition of indecency as applied to the internet is vague

*The CDA is not narrowly tailored

Overbroad

The Child Online Protection Act (COPA) of 1998

VI. INDECENCY AND FUNDING BY THE NEA

National Endowment for the Arts v. Karen Findley

The 1990 Amendments to The National Foundation on the Arts and Humanities Act include section 954(d)(1) which requires the Chairperson of the NEA to ensure that "artistic excellence and artistic merit are the criteria by which [grant applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public." They were passed as a response to the controversial art funded by the NEA in 1989: Seranno and Mapplethorpe photos.

The plaintiffs are performance artists. Their applications for grants were made and approved before 954(d)(1) was enacted. The Chairman asked the panel to reconsider after the enactment, and their funding was denied. They are suing, alleging that 954(d)(1) is unconstitutional--a model for viewpoint discrimination. They won in the trial court and in the appellate court.

Supreme Court:

Majority

1. This is not viewpoint discrimination. "Standards of decency" is just a factor to be taken into account when funding projects; "it does not preclude awards to projects that might be deemed 'indecent' or 'disrespectful.'"

2. The requirement is meant to reform procedures for granting funds, not to preclude speech.

3. The terms "decency" and "respect for diverse beliefs and values" are not any more subjective than "artistic excellence" and "artistic merit."

4. In the funding process, it is not possible to be absolultely neutral. "The agency may decide to fund particular projects for a wide variety of reasons, 'such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences. . . .'"

5. But, if plaintiffs were complaining about a particular funding decision, this would be a different case, requiring a different analysis. A constitutional question would arise if the government were trying "to drive certain ideas or viewpoints from the marketplace."

Justices Thomas and Scalia (concurring):

Funding can discriminate according to viewpoint. Artists are still free to speak; they are simply denied taxpayers $$ in support of that speech.

Justice Souter (dissenting):

Section 954(d)(1) constitutes viewpoint discrimination.