LEWD MUSIC
HISTORY--1A FREEDOM FOR ENTERTAINMENT
Nickelodeon booths
Local and state regulation
Ohio: all films must be submitted to a board of censors. Only those films showing "a moral, educational or amusing and harmless character" were licensed to be shown.
1915 Challenge brought by Mutual Film, a film distribution company. The legislation was upheld on the grounds that the motion picture industry is a business, not part of the press protected by the 1A.
Watershed case: Joseph Burstyn, Inc. v. Wilson (1952)
"The Miracle," a film by Roberto Rossellini, had been shown in Italy to mixed reviews. The film was to open in NY. NY (like Ohio) had a censorship board located in the Dept. of Education. The board screened and licensed films. No license was given to films which were "obscene, indecent, immoral, inhumane, sacrilegious. . . ."
Issue: Are motion pictures protected by the 1A?
*film a "significant medium for the communication of ideas"
*film cannot be denied 1A protection because it is a for-profit business (so are books and newspapers)
*film's greater capacity for bad influences does not justify denial of protection. Appropriate regulation can be taken.
*"sacrilegious" is vague and the government has no interest in protecting "any or all religions from views distasteful to them" which would outweigh the interest in freedom of expression.
*this is a prior restraint on speech
[p. 19]
Case: Interstate Circuit, Inc. v. City of Dallas (1968)
A city ordinance created a Motion Picture Classification Board to screen/classify movies as "not suitable" for children under 16.
The Court found the ordinance vague. p. 26
Response by the MPAA: rating system
*inform parents so they can decide
*avoid censorship by the government
A Rating Board (7-11 parents) choose rating for any film submitted to the MPAA
A filmmaker unhappy with the rating can:
*edit
*appeal to the MPAA Appeal
*release the film unrated
[*sue]
Case: Miramax Films Corp v. MPAA (Sup. Ct. NY 1990)
The film "Tie Me Up, Tie Me Down" was given an X rating. Miramax wants the court to change the rating from X to R, because the rating system is arbitrary and capricious.
The court finds that the rating system is not arbitrary and capricious, but blasts the system. pp. 122, 123, 124, 125 and 126
Consider the rating system for music.
OBSCENITY
TEST: Miller v. California (1973)
*"the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest"
*"measured by contemporary community standards, the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"
*"the work, taken as a whole, lacks serious literary, artistic, political or sientific value."
CASES:
Skyywalker Records Inc. v. Navarro (S.D. Fla. 1990)
appeals to prurient interest, p. 36
patently offensive, p. 37
lacks . . . .value, p. 39
Luke Records Inc. v. Navarro (11th Cir. 1992)
Reversed Skyywalker
Ashcroft v. Free Speech Coalition (2002)
A challenge was made to the CPPA (Child Pornography Prevention Act). This Act proscribes depictions of minors (the person appears to be under 18) engaging in sexual activity.
At issue: virtual child porn (computer generated images; no real persons used).
The Court noted that such depictions are “a fact of modern society” and “a theme of art and literature throughout the ages.” [Romeo and Juliet; Traffic; American Beauty]
In earlier decisions (New York v. Ferber ) the Court proscribed the use of minors in pornography (even if the work is not legally obscene) because “the creation of the material is the crime of child abuse.” But virtual child pornography does not use real persons and is not intrinsically related to the sexual abuse of children.
The Court ruled that the CPPA is unconstitutional.
United States v. Williams (2008)
Reacting to the Ashcroft decision, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (Protect Act) in 2003. This Act criminalizes knowingly advertising, promoting, presenting, distributing and soliciting child pornography “in a manner that reflects the belief that the material is child pornography” whether the material is computer generated or real persons are used. [5 to 20 years]
The Court upheld the Protect Act: “[the Act] prohibits offers to provide and requests to obtain child pornography. The statute does not require the actual existence of child pornography. . . . Rather than targeting the underlying material, this statute bans the collateral speech that introduces such material into the child-pornography distribution network.” This is constitutional.
VIOLENCE
Case: Davidson v. Time Warner (S.D.Tex. 1997)
Davidson, a state trooper, pulled over a stolen Chevy Blazer driven by a teenage boy (Howard) listening to Tupac Shakur's album "2 Pacalypse Now." Howard shot and killed Davidson; he claimed to be "motivated by the lyrics." See p. 80. Davidson's family sues Time Warner, who distributed the album.
McCollum v. CBS (Cal. App. 1988)
Pl. (19 with serious emotional and substance abuse problems) shot himself while listening to Ozzy Osbourne's, "Speak of the Devil." Earlier he had listened to "Suicide Solution" which was on another album. "Shoot, shoot, shoot" are part of the lyrics for 10 seconds.
Issues:
Incitement
*directed and intended to cause immediate unlawful action
*likely to do so
1A interest in free expression, see p. 81. Even if it it "insulting and outrageous," may influence "weak-willed individuals," and is "disgusting and offensive."
James v. Meow Media (6th Cir. 2002)
In May 1997 Michael Carneal shot and killed three students and injured 5 at his private high school. He had seen “The Basketball Diaries,” starring Leonardo DiCaprio. The film contained an 80 second “imaginary dream scene” of shooting a teacher and a student in a classroom. [Carneal was sentenced to 25 years without parole] James, parent of one of the killed students, is suing Meow Media, which distributed movies, video games and internet site with violent content.
1. Negligence analysis (Palsgraf V. LIRR (1928) See pp. 86-87.
* Duty of care
*Foreseeable
There is no clear standard of “foreseeable.” “What makes a projected harm too improbable to be foreseeable?”
2. Incitement analysis(Brandenburg v. Ohio (1969)
The film is neither “intended” nor “likely” to bring about “imminent violent action.