Obscenity, Pornography & Indecency
Fall 2021
Former Justice Potter Stewart of the Supreme Court of the United States, in attempting to classify what material constituted exactly "what is obscene," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced ... [b]ut I know it when I see it...."

FCC rules and federal law govern obscenity in broadcast media.

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• Purpose & Authority: Regulates interstate/international communications (radio, TV, wire, satellite, cable) in all 50 states, DC, and U.S. territories.

• Structure: Comprised of five commissioners appointed by the President and confirmed by the Senate, with no more than three from the same political party.

• Core Responsibilities:

  • Spectrum Management: Manages and auctions radio frequencies for radio, TV, and cellular service, raising over  billion for the U.S. Treasury.

  • Licensing: Grants licenses for broadcast stations and wireless services, which must be renewed periodically.

  • Consumer Protection: Addresses consumer complaints, encourages innovation, and ensures public safety.

Anthony Comstock - Spearheaded persuading congress to create The Comstock Laws.A set of federal acts passed by the United States Congress passed  in 1873, as the Act for the "Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use"

Some states have passed laws mandating censorship in schools, universities, and libraries even if they are not receiving government aid that would require censorship in these institutions.





 

In regards to government aid used for art displays, check out Mapplethorpe-  When Art Fought the Law and Won - Cincinatti v. Contemporary Arts Center. In the summer of 1989, Mapplethorpe was slowly dying from AIDS complications. At the time, six museums came together and organized a touring retrospective that included photographs from his X Portfolio, among them was a self-portrait with a bullwhip inserted into his anus. Google his exhibit to see photos of his exhibit and read the articles to see why the center was sued.

Hicklin Test - The Hicklin test was a 19th-century legal standard used to define obscenity, established in the English case R. v Hicklin (1868). It determined material was obscene if it tended to "deprave and corrupt" the most susceptible minds, such as children, regardless of the work's artistic or literary merit. Named after Benjamin Hicklin, a 19th-century British court recorder, it arose from a case concerning a pamphlet critical of the Catholic Church, The Confessional Unmasked.

Roth Test- Know the history - Overturned by Miller

Miller v California - The case involved Marvin Miller, who sent unsolicited, sexually explicit brochures (ads for books/films) to a restaurant in California, leading to his conviction under state law. Miller appealed to the U.S. Supreme Court, arguing the materials were protected by the First Amendment and that the conviction violated his right to free speech. While the Supreme Court created the test, it intentionally designed the first two parts to be applied by local or state courts using "contemporary community standards" rather than a single national standard.

 

 

 

 

 

 

 

Two Live Crew - Nasty as they Wanna Be -At issue a concert at a Florida nightclub where the group performed four songs from the album “As Nasty as They Wanna Be.” The songs contain crude what some said was crude and graphic sexual language.
The group was arrested. A Federal District Judge Jose Gonzalez applied the Miller Test and ruled the album legally obscene. BUT In 1992, the 11th U.S. Circuit Court of Appeals overturned the obscenity ruling. The court found that the sheriff had failed to provide evidence that the album lacked "serious artistic value," whereas 2 Live Crew had presented expert testimony from music critics and academics defending its cultural significance









George Carlin - Seven Dirty Words
(FCC v. Pacifica)
In1973, FM radio station WBAI in New York City aired a broadcast that included a segment which featured the George Carlin routine "Filthy Words" as part of a program about societal attitudes toward language. John Douglas (an active member of Morality in Media) stated in a complaint filed a complaint with the FCC saying that he heard the broadcast while he was driving with his 15-year-old son. 

• "Indecent" vs. "Obscene": The Court clarified that the FCC does not have to prove material is "obscene" (using the Miller Test) to regulate it; if it is "indecent" and aired when children might be listening, it can be restricted.

• Safe Harbor Hours: This case led to the creation of the "safe harbor" period—currently between 10 p.m. and 6 a.m.—during which broadcasters are permitted to air indecent material because children are less likely to be in the audience.

What about Cable?: If you have a television with a functioning antenna, you’re bound to pick up NBC, CBS, and ABC. Cable service, on the other hand, requires a monthly fee. Paying your monthly cable bill is tantamount to acknowledging that you know what you’re getting into, bad words and all. But you still can't be obscene.  

• Obscenity: The FCC prohibits the transmission of obscene material on cable at all times, as obscenity is not protected by the First Amendment.

• Indecency and Profanity: Unlike broadcast TV, the FCC does not regulate indecency or profanity on cable networks (e.g., HBO, FX, CNN). Because cable is a subscription-based service, courts have ruled that the "pervasive" nature of broadcast does not apply, allowing cable channels to air mature content at any time.

Define:

SLAPS Test- The SLAPS Test is the third and final prong of the Miller Test, the legal standard used to determine if something is "obscene" and therefore not protected by the First Amendment.

 

Section 230-  Section 230 of the Communications Act of 1934 (added by the Telecommunications Act of 1996) provides a legal shield for online platforms and users against liability for content created by others. It is widely considered one of the most important laws shaping the modern internet

Indecency-  a narrower legal concept that primarily applies to broadcast radio and television. It refers to material that depicts or describes sexual or excretory organs or activities in a "patently offensive" way, but does not meet the high threshold for obscenity.

Pornography - Pornography" is a broad, non-legal term for any erotic material intended to arouse sexual desire. Most pornography is legally protected for adults. However, a subset of pornography known as obscenity receives no First Amendment protection and can be banned completely.

V-Chip- Blocks channels and is on all TV sets enabling people to block certain channels. The current rule, established by the Telecommunications Act of 1996, requires all television sets with a screen size of 13 inches or larger manufactured or sold in the United States since January 1, 2000, to be equipped with a V-chip. This also applies to personal computers that include a television tuner and an appropriately sized monitor.

Safe Harbor Policy - 10pm to 6am. FCC designated these times when broadcast radio and TV stations may air indecent material without violating federal law. 

The Communications Act of 1934 makes it illegal to broadcast indecent material. However, the courts and the FCC allow broadcast radio and TV nations to air indecent material when it is likely that few children will be in the audience. 
 
Netflix & Cuties: Months after it faced fierce backlash and accusations that it sexualized young girls, Netflix has removed Maïmouna Doucouré's controversial film Cuties. The streamer confirmed in its annual Environmental Social Governance Report for 2020 that the film, about a young Senegalese Muslim girl, was removed from its platform in Turkey. The Indictment: The charges were based on a Texas statute that mirrored the Miller Test, alleging that scenes of 11-year-old girls performing provocative dance routines:The case was ultimately dismissed, and Netflix won a series of legal victories:

Amid the backlash, Netflix eventually issued a statement apologizing "for the inappropriate artwork that we used for this film," which they said, "was not an accurate representation of the film." The streamer also changed the promotional poster as well as the synopsis, which initially read, "Amy, 11, becomes fascinated with a twerking dance crew. Hoping to join them, she starts to explore her femininity, defying her family's traditions," but was later changed to "11-year-old Amy starts to rebel against her conservative family's traditions when she becomes fascinated with a free-spirited dance crew."