SEXUALLY EXPLICIT SPEECH

I. OBSCENITY

Miller v. California (1973)

"prurient interest"

"patently offensive"

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

[even obscene speech has some protection (Stanley v. Georgia (1969)): "A State has no business telling a man sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."]

II. INDECENCY--BROADCASTING

Sec. 326 of the Comm Act of 1934 prohibited obscene or indecent speech.

18 U.S.C. sec. 1464 of the Criminal Code (1948): "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. [$27,500>>>>>>>$500,000 (limit $3mil)]

" 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)

PP. 152-153

VIDEO

Action for Children's Television v. F.C.C. I-IV (D.C. Cir. 1988-1995). Issue: Safe Harbor

Penalties are usually fines:

Infinity settlement (1995): $1.7 mil

Clear Channel settlement (2004): $1.75 mil

"Fleeting and isolated" profanity/indecency not fined, until

Golden Globe Awards

Bono: "This is really, really f***ing brilliant."

GO TO: Fox vs FCC ppt

 

III. INDECENCY--CABLE

Cruz v. Ferre (11th Cir. 1985)

United States v. Playboy Entertainment Group, Inc. (2000)

The Telecomm Act of 1996:

Sec. 504 (opt-out): Cable operators must block channels that a subscriber requests to be blocked (at all times, including times when children are not expected to be in the audience)

Sec. 505 (opt-in): Cable operators providing channels “primarily dedicated to sexually-oriented programming” must

“fully scramble or otherwise block”
or

“adopt time channeling”—show programs unscrambled only between 10pm and 6 am
(most cable operators chose this option because
scrambling was not 100% effective and was expensive)

Playboy Ent. Is challenging Sec. 505 as unconstitutional.

Kennedy for the Court (5-4):
*This is a content restriction of speech, therefore it can stand only if it passes strict scrutiny

*There is a compelling state interest—protecting children from indecent speech

*NOT narrowly tailored—there are less restrictive alternatives that would be equally effective for protecting children, i.e. blocking requested by parents. “Blocking is less restrictive than banning”
Granted that many parents (through stupidity, inertia p. 161) would not request blocking, “the Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority” p. 160
In addition, time channeling is unlikely to work. Children watch programming in their rooms with no parental supervision, even after 10 at night.

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. 166-167

Findings of law

*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

[therefore, it is unconstitutional]

VI. CHILD PORNOGRAPHY

New York v. Ferber (1982)

Child pornography has no First Amendment protection even if it does not meet the standard for obscenity set in Miller v. California.

CPPA [Child Pornography Prevention Act]

Forbids virtual depictions (photo, film, video, computer generated images) that are or appear to be of a minor engaging in sexually explicit activity.

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.

 

VII. FUNDING AND BLOCKING SOFTWARE

(CIPA) [Children's Internet Protection Act]

A library may not receive E-rate or LSTA assistance unless "it has a policy of Internet safety for minors that includes" software that blocks or filters "visual depictions" that constitute "obscenity," "child pornography," and visuals "harmful to minors."

United States v. American Library Association, Inc. (2003)

[CIPA is constitutional]

VIII. ANIMAL CRUELTY VIDEOS

United States v. Stevens (2010)

The law at issue (18 U.S.C. sec. 48): forbids visual or auditory depictions "in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed," if the physical act is forbidden where the "creation, sale, or possession takes place." There are laws against animal cruelty in all 50 states, and there is an exceptions clause for depictions with "serious religious, political, scientific, educational, journalistic, historical or artistic value." The legislative history shows the law was aimed at "crush videos," sexually explicit videos in which women crush animals with their feet (usually spike heels).

Mr. Stevens was a self-described expert on pit bulls. He did not participate in dog fighting, but sold DVDs of such fights, and was sentenced to 37 months in prison. The Court overturned the conviction:

*depictions of animal cruelty are NOT a category of speech (like obscenity or child pornography) without 1A protection

*the Court rejected the government's claim that animal cruelty DVDs were analogous to child pornography DVDs

*the statute is not narrowly tailored--it rules out protected speech (like hunting videos sold in Washington, DC--where hunting is illegal)