Ch 11: Obscenity, Indecency, and Violence

Topic Overview
Aside from the Supreme Court's legal definition of obscenity there is little agreement as to what should be protected and what should be illegal. Some argue for the criminilization of such material whereas others support it as a form of expression that should be protected under the First Amendment. This chapter covers the historical context and laws surrounding obscenity, indecency, and pornography.

Defining Key Terms
Pornography: A vague not legally precise term for sexually oriented 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.

Prurient Interest: Lustful thoughts of sexual desires.

Patently Offensive: Term describing material with hard core sexual conduct.

Seriously 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 oriented 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 FCC policy designating 10 p.m. to 6 a.m. 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): Concerning the distribution of adult material. Ruled in favor of California, finding Miller guilty. Redefined obscenity.

FCC v. Fox Television Stations Inc (2012): Concerning obscene language on Fox Television networks. The Court found the FCC regulations to be unconstitutionally vague.

Relevant Doctrine
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. 

Miller/SLAPS Test for Obscenity (absolute): The government must show a work, considered in its entirety, 

• 1) Arouses sexual lust 
• 2) Is hard core pornography 
• 3) Has no serious social value

Pacifica Test for Indecency: The material must

• 1) Describe or depict sexual or excretory organs or activities and 
• 2) Be patently offensive as measured by contemporary community standards for broadcasting. 
• Several factors for determining if content is patently offensive: 
• 1) How explicitly or graphically the material describes sexual activities, 
• 2) Whether the material dwells on sexual activities 
• 3) Whether the material is meant to shock or sexually excite the audience.

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act: Makes it illegal to provide someone with or request from someone an image that is indistinguishable from that of a minor. 

Children's Internet Protection Act (CIPA): This law stops money from going to schools and libraries that do not install "technology protection measures" on their computers accessing the Internet. 

Current Issues or Controversies

The balancing of freedom of expression and decency. At what point does one begin to infringe upon the other? Can the two co-exist? Should one have priority over the other?

My Questions & Concerns
1. This chapter focused heavily on video games, cable, and the internet. How is music content regulated? 

2. The way the internet and increased exposure to scandalous material is changing our definition as to what should be considered obscene. Are we becoming desensitized?
3. The punishment for autopornography doesn't seem fitting to the crime.

References

Trager, R., Russomanno, J. & Ross, S.D. (2012), The law of journalism and mass communication. Thousand Oaks, CA: Sage Publications.