MEJO 341: MODULE 3 [Class 9-11]
Miller Test: [Example] Applying Community Standards
Law enforcement officials will purchase and order adult content in conservative communities (typically today by logging on to a Web site while situated in a conservative community) in order to drag defendants located in more liberal venues into those conservative communities to stand trial. For example, Los Angeles-based adult filmmaker Paul Little (a.k.a. Max Hardcore) was dragged across country and prosecuted for obscenity in 2008 in Tampa, Fla. Why Tampa? 1. Because that's where law enforcement officials purchased his content from a Web site. 2. Because the community standards that applied were local ones in Florida, including a large swath of conservative areas stretching well outside of Tampa (Florida does not use statewide community standards in obscenity cases, but rather more local ones, in this case the U.S. Middle District of Florida that includes some very conservative counties). Why not Los Angeles? 1. Because it is the capital of the adult industry in the United States, with the nearby San Fernando Valley known as Porn Valley. 2. The strategy worked. Little was convicted on multiple counts of transporting obscene matter by use of an interactive computer service and of mailing obscene matter into Florida. He was sentenced to more than three years in prison.
Obscenity & Prior Restraint: **Miller 3-prong Test for Obscenity
"The basic guidelines for the trier of fact must be: (a) whether 'the average person, applying contemporary community standards' would find that the work taken as a whole appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Why does freedom of expression deserve protection?
1)It aids the search for truth (marketplace of ideas) 2)It advances self-governance 3)It provides a check on government abuse of power 4)It offers a safety valve for social discontent 5)It aids the ability of minority groups in society to be heard 6)It encourages the development of a tolerant society
Miller Test: Understanding the Miller Test III
1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. In most jurisdictions the term "local standards" has been translated to mean "state standards." Generally, all communities within the same state share the same standards.
Miller Test: Understanding the Miller Test II
1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. Prurient interest has been defined by courts to mean a shameful or morbid interest in nudity, sex or excretion. 1. In determining if material appeals to a prurient interest, the work must be taken as a whole (a single scene from a DVD cannot be considered in isolation or standing alone; all of the contents of the DVD must be viewed in the aggregate). 2. The definition of prurient interest focuses only on nudity, sex and excretion; it has nothing to do with violence. Thus obscenity law deals only with sexually oriented content, not violent stories or violent images.
Miller Test: Understanding the Miller Test I
1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. The first element of the Miller test asks if an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to a prurient interest in sex. It is the trier of fact who makes this determination. - This can be the trial judge, but more commonly it is the jury. The Supreme Court expects the trier of fact to rely on knowledge of the standards of the residents of the community to decide whether the work appeals to a prurient interest. - The juror is not supposed to use his or her own standards in this decision. The Supreme Court has made it clear that only adults—not children and minors—are to be considered under the "average person" aspect of the first part of the Miller test.
Miller Test: Understanding the Miller Test IV
2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. The second element of the Miller test says that a work is obscene if it depicts in a patently offensive way sexual conduct specifically defined by applicable state law. Patent offensiveness is also to be judged by the trier of fact, using contemporary community standards. But the Supreme Court has put limits on this judgment, ruling that only what it calls hard-core sexual material meets the patently offensive standard.
Miller Test: Understanding the Miller Test V
3. The work in question lacks serious literary, artistic, political or scientific value. The serious value element is not judged by the tastes or standards of the average person. The test is not whether an ordinary person in the community would find serious literary, artistic, political or scientific value, but whether a reasonable person could find such value in the material. - Jurors are supposed to determine whether a reasonable person would see a serious value in the work. - Both the state and the defense will frequently introduce expert testimony to try to "educate" the jury on the relative merit of the material in question.
Obscenity & Prior Restraint: Applying Miller
A Philadelphia school district sought to ban bracelets with the message "I ♥ Boobies! (Keep a Breast)" In 2013, a 9-to-5 majority of the Third U.S. Court of Appeals found the ban to be unconstitutional: - Plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, - Speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and - Speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted. The Third Circuit found that the bracelets were "not plainly lewd" and addressed "a social issue," i.e., raising breast cancer awareness. Hence, the school district could not prohibit (i.e., ban) its students from wearing the bracelets.
Speech in Schools: Censoring speech for pedagogical reasons
A school administrator can censor student newspaper material (i.e., stories on teen pregnancy and divorce). In Hazelwood School District v. Kuhlmeier (1988), the Court held (5-to-3) that schools must be able to set high standards for student speech disseminated under their auspices, and that schools retained the right to refuse to sponsor speech that was "inconsistent with 'the shared values of a civilized social order.'" Educators did not offend the First Amendment by exercising editorial control over the content of student speech so long as their actions were "reasonably related to legitimate pedagogical concerns."
Speech in Schools: Regulating to serve the school's educational mission
A school may prohibit student speech that may be interpreted as advocating or celebrating the use of illegal drugs ("BONG HiTS 4 JESUS") during a school-supervised activity (e.g., a field trip). - In Morse v. Frederick, 551 U.S. 393 (2007), the Court held, 5-4, that the First Amendment does not prevent educators from suppressing, at or across the street from a school-supervised event, student speech that is reasonably viewed as promoting illegal drug use. - At a school-supervised event, Joseph Frederick held up a banner with the message "Bong Hits 4 Jesus," a slang reference to marijuana smoking. - Principal Deborah Morse took away the banner and suspended Frederick for ten days.
Obscenity & Prior Restraint: Comstock Laws
Anthony Comstock founded and directed the New York Society for the Suppression of Vice, which was instrumental in lobbying state and federal legislators to enact statutes strictly regulating obscenity. The statutes were popularly known as "Comstock laws." Aimed at prohibiting a distribution of "obscene, lewd, or lascivious" material through U.S. mail The federal law was enforced primarily by the U.S. Post Office, which had the authority to bar the mailing of obscene materials and to prosecute violators.
Obscenity & Prior Restraint: In Miller, the Court
Cited examples of what a state could define under the second prong. - These included "(a) Patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Indicated that only hardcore sexual conduct was to be punished under the new test: "Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed." Held that "obscenity is to be determined by applying 'contemporary community standards,' ... not 'national standards.'" In fact, the Court held that the requirement under California's statute that the jury evaluate the materials with reference to the "contemporary community standards of the State of California" was constitutional. As the Court had indicated earlier, "It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City."
The Three C's
Context Content Categorization
1st Amendment Doctrine: What is Doctrine?
Doctrine is a set of principles used to sort out issues and guide courts in making decisions. It attempts to categorize situations and ideas in a meaningful way.
Due Process
Due process means there are certain substantive and procedural considerations that must be applied when evaluating the constitutionality of a law. Laws must not be vague, overbroad, or viewpoint-discriminatory, nor may they be applied in an arbitrary or capricious manner.
Due Process: Applied Fairly to All
Government regulations are supposed to be applied fairly to all persons, and not applied in an arbitrary or discriminatory manner. - Laws that give too much discretion to public officials may be unconstitutional. For example, in City of Lakewood v. Plain Dealer Pub. Co. (1988), the Supreme Court struck down an ordinance requiring newspaper publishers to get a license to put news racks on public sidewalks; the Court found that the law gave too much discretion to public officials in granting or denying an application.
Speech in Schools: Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
Facts: - John Tinker, 15 years old, his sister Mary Beth Tinker, 13 years old, and Christopher Echardt, 16 years old, decided along with their parents to protest the Vietnam War by wearing black armbands to their Des Moines schools during the Christmas holiday season. Upon learning of their intentions, and fearing that the armbands would provoke disturbances, the principals of the Des Moines school district resolved that all students wearing armbands be asked to remove them or face suspension. When the Tinker siblings and Christopher wore their armbands to school, they were asked to remove them. When they refused, they were suspended until after New Year's Day. Issue: - Does a prohibition against the wearing of armbands in public school, as a form of symbolic protest, violate the First Amendment's freedom of speech protections? Holding: - The Court decided that the wearing of armbands was "closely akin to 'pure speech'" and protected by the First Amendment. School environments imply limitations on free expression, but here the principals lacked justification for imposing any such limits. The principals had failed to show that the forbidden conduct would substantially interfere with appropriate school discipline
1st Amendment Doctrine: Evolving Doctrine
First Amendment doctrine has evolved over time - At one point in American history, advertising received no First Amendment protection, any sexual content could be banned, and speech could be punished by the government if it had a "bad tendency" to cause harm. Now, advertising receives some presumptive protection and can be regulated only in narrow circumstances, spelled out in a four-part test - Sexual content may be banned only if it is deemed to be "obscenity," as defined in a three-part test - Speech may be punished only if it is likely to imminently incite violence
1st Amendment Doctrine: Theory vs Doctrine
First Amendment theory explains the reasons why we support freedom of speech in general First Amendment doctrine explains how we will decide whether a particular instance of speech should be protected or not
Speech in Schools: Not a Public Forum
Generally, schools and school-sponsored activities are not public forums. Thus, speech (and association) in schools may be reasonably regulated to serve the school's educational mission.
Miller Test: [Example] Applying Patently Offensive Standard
Georgia courts ruled that the motion picture "Carnal Knowledge," an R-rated film starring Jack Nicholson and Candice Bergen, was patently offensive. The Supreme Court reversed this ruling, saying that the Georgia courts misunderstood this second part of the Miller test. Material that was patently offensive, Justice Rehnquist wrote, included "representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated" and "representations or descriptions of masturbation, excretory functions, and lewd exhibition of genitals." - Rehnquist acknowledged that this catalog of descriptions was not exhaustive, but that only material like this qualifies as patently offensive material. - The second part of the Miller test was "intended to fix substantive constitutional limitations . . . on the type of material . . . subject to a determination of obscenity," he added.
Obscenity & Prior Restraint: Privacy and Obscenity
In 1969, the U.S. Supreme Court unanimously held that individuals could not be punished for the mere possession of obscene materials in their own home. In Stanley v. Georgia, the justices reversed the conviction of a suspected bookmaker for violating a state statute that barred the knowing possession of obscene works, even in one's personal residence. The Court said that just as the state cannot prohibit the possession of chemistry books on the ground that it may lead to the manufacture of home-made spirits, it cannot prohibit the mere possession of obscenity on the basis that it may cause antisocial conduct.
Obscenity & Prior Restraint: [The Modern Obscenity Test] Miller v. California
Marvin Miller had been convicted of a misdemeanor for violating the California Penal Code by conducting a mass mailing campaign advertising the sale of illustrated, sexually explicit books Reaffirmed the holding in Roth and subsequent cases that "obscene material is unprotected by the First Amendment" Formulated a new three-prong conjunctive test for obscenity
Obscenity & Prior Restraint: Obscene History
Obscenity has been suppressed and prosecuted throughout history, always somehow managing to survive even when it was forced to go underground, and it has actually thrived during some eras. Until 1957, the U.S. Supreme Court avoided getting embroiled in defining obscenity, relying instead on lower courts to enunciate the boundaries of acceptable sexually oriented speech. Between 1957 and 1977, the Supreme Court heard arguments in almost 90 obscenity cases and wrote opinions in nearly 40 of those cases. In contrast, as of 2019, the Supreme Court has not heard a single obscenity case in the 21st century involving whether or not a particular movie, book, magazine, Web site or other media product was obscene. The Court has, instead, considered other issues since the year 2000, such as the constitutionality of statutes regulating child pornography, virtual (computer-generated) child pornography, and nonobscene sexual content on the Internet.
Obscenity & Prior Restraint: Finding the Line with Obscenity
Obscenity remains one of the more colorful, controversial and confounding areas of First Amendment jurisprudence. It caused Justice Potter Stewart to exclaim "I know it when I see it." - Jacobellis v. Ohio, 378 U.S. 184, 197 (Stewart, J., concurring). Justice Stewart also described the Court's task of trying to determine what is obscene as being "faced with the task of trying to define what may be indefinable."
Context/Forum Analysis: Limited Public Forums and Nonpublic Forums
Other than streets, sidewalks, parks, and designated public forums, most public property is considered to be a limited public forum (e.g., government property opened up for a specific speech activity, such as a school gym opened on a particular night to host a debate on a particular community issue) or a nonpublic forum (e.g., military base). The government can regulate speech in such forums to reserve them for their intended use.
1st Amendment: Private Action
PRIVATE ACTION IS EXCLUDED The First Amendment does not apply to private action. Private companies, private schools, private employers, and your mom all may censor you, and such censorship is entirely outside the scope of the First Amendment. There is no government action, and thus, there are no First Amendment protections.
Miller Test: Licensing & Zoning
Perhaps because of the difficulty of obscenity prosecutions, governmental regulators turned to the licensing, zoning and other administrative methods to regulate adult businesses.
Obscenity & Prior Restraint: Sexual Expression
Pornography and sexual expression historically have received scant free-speech protection. Government officials consider such expression at the periphery of the First Amendment circle. Pornography is not even a legal term.
Context/Forum Analysis: Public Forums
Public property that has historically been open to speech-related activities (e.g., streets, sidewalks, and public parks) is called a public forum. The government may regulate speech in public forums with reasonable time, place, and manner regulations.
Context/Forum Analysis: Limited/Designated Public Forum
Public property that has not historically been open to speech-related activities, but which the government has thrown open for such activities on a permanent or temporary basis, by practice or policy (e.g., school rooms that are open for after-school use by social, civic, or recreation groups), is called a designated or limited public forum. The key is that the government has, either explicitly or by implication, invited the public to express itself in that "space." - Property-law ownership by government isn't required - If the government uses a space or activity and opens it to expression, it can become a "designated" forum
Context/Forum Analysis: Reasonableness
Regulation of speech and assembly in nonpublic forums need only be rationally related to a legitimate governmental objective. Example: - A city bus is not a public forum. The city, therefore, may constitutionally sell space for signs on the public buses for commercial and public service advertising while refusing to sell space for political or public issue advertising in order to minimize the appearance of favoritism and the risk of imposing on a captive audience. - Lehman v. Shaker Heights, 418 U.S. 298 (1974)
Context/Forum Analysis: Where is the speech happening?
Regulations involving public forums (i.e., forums historically linked with the exercise of First Amendment freedoms) must be narrowly tailored to achieve an important government interest - E.g., a prohibition against leafletting--justified as a means of preventing littering--on city streets and sidewalks Regulations involving nonpublic forums must have a rational basis or reasonable relationship to a legitimate regulatory purpose - E.g., a law regulating speech in places such as jailhouses, public hospitals, and military bases.
Context/Forum Analysis: [Test] Legal Standard for Limited Public Forums & Nonpublic Forums
Regulations of a limited/designated public forum or nonpublic forum will be upheld if they are: (i) Viewpoint neutral; and (ii) Reasonably related to a legitimate government purpose
Context/Forum Analysis: Viewpoint Neutral
Regulations on speech in nonpublic forums need not be content neutral; i.e., the government may allow speech regarding some subjects but not others. However, such regulations must be viewpoint neutral; i.e., if the government allows an issue to be presented in a nonpublic forum, it may not limit the presentation to only one view. Example: - If a high school newspaper is a nonpublic forum, a school board could decide to prohibit all articles in the paper regarding nuclear power. However, it may not allow an article in favor of nuclear power and prohibit an article against nuclear power.
Obscenity & Prior Restraint: [An Obscenity Standard] Roth v. U.S.
Samuel Roth was convicted by a jury in the U.S. District Court of the Southern District of New York for violating federal obscenity statutes - More specifically, the Comstock Act, which barring the mailing of obscene materials Roth had allegedly mailed obscene circulars, ads, and a book, American Aphrodite - The majority decision, written by Justice William Brennan, offered broader protection for sexual expression than had been previously granted In Roth, the Court made it clear that obscene speech did not fall under the First Amendment, and set forth a constitutional test for judging obscenity In 1957, the Supreme Court abandoned the Hicklin rule, declaring that because of this rule American adults were permitted to read or watch only what was fit for children. - "Surely this is to burn the house, to roast the pig," Justice Felix Frankfurter noted. In abandoning the Hicklin rule, the high court was forced to fashion a new definition of obscenity, beginning with the case of Roth v. U.S. in 1957.
Speech in Schools: Regulating to serve the school's educational mission
Schools can control the content of student speeches for legitimate pedagogical concerns. - In Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), a student was suspended for making a speech with sexually suggestive double entendres at a school assembly. - At an assembly of approximately 600 high school students, Matthew Fraser made a speech nominating a fellow student for elective office. - As part of its disciplinary code, Bethel High School enforced a rule prohibiting conduct which "substantially interferes with the educational process . . . including the use of obscene, profane language or gestures." - Fraser was suspended from school for two days. - The Supreme Court held that his suspension did not violate the First Amendment.
Context/Forum Analysis: [Example] Limited/Designated Public Forum
Schools generally are not public forums. However, if a public school or university allows private organizations and members of the public to use school property for meetings when school programs or classes are not in session, the property is a designated public forum for that time, and the school cannot deny a religious organization permission to use the property for meetings merely because religious topics will be discussed. Such a restriction would be content discrimination. - Widmar v. Vincent, 454 U.S. 263 (1981); Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993)
Due Process: Overbroad Regulation is INVALID
Since the purpose of the freedoms of speech and assembly is to encourage the free flow of ideas, a regulation will be struck down if it is overbroad (i.e., prohibits substantially more speech than is necessary).
Obscenity & Prior Restraint: Roth Test
The 4-prong test for judging obscenity: 1. Whether to the average person 2. Applying contemporary community standards 3. The dominant theme of the material taken as a whole 4. Appeals to prurient interest The Supreme Court has spent the decades since this 1957 decision attempting to define terms such as: average person, contemporary community standards, and prurient interest. The Court made a good faith but unsuccessful effort to distinguish sex from obscenity: [S]ex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. - This Roth test was far narrower than the Hicklin rule, but application of the test continued to bedeviled government prosecutors.
1st Amendment: State Action
The First Amendment applies to what is called "state action." - The First Amendment restricts government power; it does not restrict private parties. The Constitution outlines the powers of government, and the Bill of Rights was attached to set forth specific limits on those powers.
Obscenity & Prior Restraint: The Hicklin Test
The Hicklin test had two basic problems. First, it allowed a work to be judged obscene based on isolated passages as opposed to evaluating the work as a whole. - This meant that one racy passage could doom a work to the dustbin of obscenity. Second, the test had a lowest-common-denominator element, looking at whether the material would cause lustful thoughts in the most susceptible persons. - This partially explains why such a test led to the suppression of even literature as unprotected obscenity.
Context/Forum Analysis: Forum Analysis
The extent to which government may regulate speech-related conduct depends on whether the forum involved is: 1. a public forum 2. a designated/ limited public forum 3. a nonpublic forum
Context/Forum Analysis: Alternative Channels Open
The law must leave open alternative channels of communication Other reasonable means for communicating the idea must be available
Context/Forum Analysis: Narrowly Tailored
The regulation must be narrowly tailored In other words, it may not burden substantially more speech than is necessary to further the significant government interest
Context/Forum Analysis: [Justification] Important Interest
The regulation must further an important government interest. Such interests include: - traffic safety - orderly crowd movement - personal privacy - noise control - litter control - aesthetics
Obscenity & Prior Restraint: Types of Sexual Expression
There are different types of sexual expression. Two categories of sexual expression—obscenity and child pornography—receive no First Amendment protection at all. - These are classic unprotected categories of speech similar to fighting words, incitement to imminent lawless action and true threats. Indecency is a protected category, but it often can be off limits for minors.
Obscenity & Prior Restraint: Hicklin's influence on the Comstock Laws
This very broad and loose definition made it possible for both federal and state authorities to wage an aggressive and highly successful war against erotic materials in the first half of the 20th century. Under this rule a work is obscene if it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall. - If something might influence the mind of a child, it was regarded as obscene for everyone, under this definition. - If any part of the work, regardless of how small, met this definition, the entire work was regarded as obscene.
Context/Forum Analysis: [Test] Legal Standard Regulating Speech in Public Fora
To be valid, government regulations of speech and assembly in public forums must: (i) Be content neutral (i.e., subject matter neutral and viewpoint neutral); (ii) Be narrowly tailored to serve an important government interest; and (iii) Leave open alternative channels of communication.
Context/Forum Analysis: Content & Viewpoint
Viewpoint neutral means government regulation are not supposed to punish speech depending on one's stance toward an issue. "Content-neutral" refers to laws that do not depend on the content of one's speech. For example: - A law that regulates speech about abortion is content-based and not content-neutral, but it can nevertheless be viewpoint neutral if it takes no position with respect to the speaker being pro-life or pro-choice. - A law that bans pro-choice speech about abortion is content-based and viewpoint based.
Obscenity & Prior Restraint: Interpreting Comstock Laws
When American courts, in the wake of the adoption of the Comstock Act in 1873, first began considering what is and what is not obscenity, they borrowed a British definition called the Hicklin rule. The Hicklin rule provided the following test for obscenity: "whether the tendency of the matter ... is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall." This test allowed material to be judged obscene by looking at the effect of isolated passages of a work upon particularly susceptible persons.
Miller Test: [Example] Applying Serious Value
When the Cincinnati Contemporary Arts Center was prosecuted for obscenity in 1990 for a display of photographs by Robert Mapplethorpe (some photos featured homoerotic and sadomasochistic images), defense attorney Lou Sirkin used experts from the art world (museum directors/curators) to testify before the jury about the serious artistic value of the photos. The testimony was pivotal in gaining an acquittal for the museum. When adult movies are prosecuted as obscene, defense attorneys often call sex therapists and experts from places like the Kinsey Institute for Research in Sex, Gender and Reproduction to describe how the content is used by normal couples to stimulate their own sex lives, learn about different sexual practices and open up discussion about their sexual habits. In other words, adult DVDs and videos can have educational value.
