Mass Media Law CH 13 Textbook

"artistic value"

Film Censorship: The First Amendment does a pretty good job of protecting films people want to censor as usually they have _______________________ even if sexually explicit.

violence

*Prurient interest has been defined by courts to mean a shameful or morbid interest in nudity, sex or excretion.* Two things are key here. First, 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). Second, the definition of prurient interest focuses only on nudity, sex and excretion; it has nothing to do with ____________. Thus obscenity law deals only with sexually oriented content, not violent stories or violent images.

red-light district Secondary effects

*When cities zone SOBs, they use one of 2 approaches-* clustering the businesses into a single area (called a ________________ or combat zone), or dispersing them across the community, usually to remote industrial areas away from schools and most residential areas. These zoning areas are OK if certain criteria are met. The high court allows such zoning laws and subjects them to a relatively relaxed form of judiciary scrutiny if they are designed to decrease and reduce so-called ______________________ of SOBs. Secondary effects of SOBs typically are problems that may go on outside an SOB such as increased crime rates, decreased property values and decreased quality of life. Other secondary effects may include the spread of sexually transmitted diseases inside an SOB that might result from direct contact between dancers and patrons. If a municipality proves that it is targeting such negative secondary effects ostensibly caused by SOBs, and, conversely, is not targeting the actual speech inside the SOB, then the ordinance is considered content neutral and the municipality simply must prove that the zoning law: 1. serves a substantial government interest 2. does not completely ban all SOBs in the municipality and unreasonably limit alternative avenues of communications

time-consuming; expensive

Although owners of SOBs may counter such evidence and have done so successfully in some recent cases as courts grow more skeptical of alleged secondary effects, this is a ______________________ and ______________ task in terms of hiring expert witnesses and commissioning their own studies, and the evidence SOBs produce must cast direct doubt on that offered by the municipality.

Comstock Act

As the 19th century progressed, obscenity laws and prosecutions became more common, ebbing and flowing with major reform movements in the 1820s and 1830s and in the wake of the Civil War. The first federal obscenity statute, a customs law regulating the importation of obscene articles, was adopted in 1842. The most comprehensive federal statute adopted during the century became law in 1873. Known as the __________________ because of the intense pressure applied on Congress by Anthony Comstock, the law declared that all obscene books, pamphlets, pictures and other materials were nonmailable. No definition of obscenity was provided by Congress, however. The Comstock law, as amended, remains the federal law today.

Obscenity Indecent Material Pornography

Common Terms: _____________ - A narrow class of material defined by the Supreme Court in the Miller test. Material that is obscene is not protected by the First Amendment. Obscene material is sometimes referred to as hard-core pornography. _______________ - Material that may be sexually graphic; often referred to as adult or sexually explicit material. This material is protected under the First Amendment. However, such material may be barred in works available to children (variable obscenity laws) and in over-the-air (as opposed to cable or satellite-generated) radio and television broadcasts. _____________________ - This term has no legal significance but is often used by laypeople and politicians to describe anything from real obscenity such as a passionate love scene that is simply offensive to the viewer. The overuse (and misuse) of this imprecise term adds more confusion to an already muddled legal landscape.

chilling effect

Communication Decency Act (1996)- 2004 upheld the ruling; 2007 court held a permanent injunction; 2008 court upheld the injunction; 2009 Supreme Court denied petition then went back to 3rd Circuit Court so then law said to be invalid (biggest reason - it limited more speech than necessary/had a ________________ on free speech.)

scienter

Controlling Obscenity: In almost all cases, __________ must be proven as well.

38; District of Columbia

Florida is one of ____ states plus the ____________________________ that now makes cyber-sexual harassment, aka revenge porn, a crime.

"comparables" argument

How does one prove what contemporary community standards are when it comes to sexually explicit content? It is not easy. First, it is for the jury (or the judge if there is no jury) to decide what the community standards are. Jurors must speculate about what other adults in their community would accept and tolerate. Most people, of course, don't talk with their neighbors about what, if any, adult DVDs they watch or which adult magazines they buy. Imagine, then, the difficulty in guessing what the standard is in a city with hundreds of thousands of people or a state with millions. Second, the government is not required to present any evidence about community standards. An obscenity defendant, however, may put on evidence of what the community standards allegedly are. One way to try to demonstrate this is a "_______________________" _____________. In particular, a defense attorney will demonstrate that sexually explicit material that is exactly comparable to that being targeted for prosecution is freely sold at stores in the community, and, by extension, the community tolerates the material being prosecuted.

privilege; right

In 1878 the U.S. Suprmee Court ruled that the use of mail in the U.S. is a ________________, not a ________. This ruling has given the Postal Service substantial power to control the content of the mail. Although the government cannot legally tamper with first-class mail, it is still illegal to send obscenity through the mail regardlesss of how it is delivered. Magazine sellers, book distributors and others who use other postal classifications (second class, fourth class) to ship their goods and face even more serious problems. Postal inspectors also police the Internet.

Child Pornography Protection Act

In 1996 Congress adopted an amendment to the original federal child pornography law that barred the sale and distribution of any images that "appear" to depict minors performing sexually explicit acts. Under this statute child pornogrpahy is defined to include not only actual images (photos, videotapes, films) of children but also computer-generated images and other pictures that are generated by electronic, mechanical or other means in which "such visual depiction is, or appears to be, a minor engaging in sexually explicit conduct." Whereas the original child pornogrpahy laws were justified as a means to protect children from being exploited, the 1996 ____________________________ (CPPA) was justified as a means to protect children from pedophiles and child molesters, people whose criminal behavior may be stimulated by such images. The law specifically stated that no prosecution can be maintained if the material was produced by adults and was not advertised, promoted, described or presented in such a way as to suggest children were in fact depicted in the images. In 2002 the Supreme Court ruled that important segments of the law violated the First Amendment. Justice Anthony Kennedy wrote that the CPPA "prohibits speech that records no crime and creates no victims by its production." Instead, he said, "the statute prohibits the visual depiction of an idea-that of teenagers engaging in sexual activity-that is a fact of modern society and has been a theme in art and literature throughout the ages." The court also ruled that the justification for the law was insufficient since Congress failed to produce any evidence of more than a remote connection between speech that might encourage thoughts or impulses and any resulting child abuse. "The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it," Kennedy added. After the court struck down the CPPA, Congress passed the PROTECT Act (short for Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act of 2003) which was, in part, aimed at curbing the promotion (or "pandering") of child pornogrpahy. By its terms, the PROTECT Act prohibits a person from knowingly advertising, promoting or soliciting material "in a manner that reflects the belief, or that is intended to cause another to believe" that the advertised material is child pornography involving real minors, even if the underlying material does not, in fact, include real minors or is otherwise completely innocuous. In 2008 the US Supreme Court in United States v. Williams upheld the PROTECT Act, concluding that it was neither overbroad nor vague and finding that a crime is committed under the act "only when the speaker believes or intends the listener to believe that the subject of the proposed transaction depicts *real* children.

obscenity; bestiality

In April 2012, a federal jury in Los Angeles convicted adult filmmaker Ira Isaacs on multiple counts of ________________ for distributing on his Web site fetish films that featured scatology and ________________. The videos, with titles such as "Hollywood Scat Amateurs 7," went far beyond the type of content found in mainstream adult content produced by the likes of Wicked Pictures and Vivid Entertainment. As described by the U.S. Department of Justice in a press release trumpeting the conviction of Isaacs, "the obscene videos included a video approximately 2 hours in length of a female engaging in sex acts involving human bodily waste and a video 1 hour and 37 minutes in length of a female engaged in sex acts with animals." Isaacs, in contrast, had testified that his movies were a form of "shock art" that merely "explored the darker side of the human condition." In 2013, the 61-year-old Isaacs was sentences to serve 4 years in federal prison.

6 3 1

In Hillsborough County and Palm Beach County ____ cases filed. Pinellas County and Martin County ______ cases filed. While Southwest Florida (Collier County and Charlotte County) is barely on the board (with ___ case filed). According to the state attorneys office, in the big city of Miami (Miami-Date County) revenge porn hasn't produced a single criminal charge.

Roth vs. U.S. Roth-Memoirs test

In abandoning the Hicklin rule, the high court was forced to fashion a new definition of obscenity, beginning with the case of __________ in 1957. Over the next 9 years, in a variety of obscenity rulings, what was called the _____________________ was developed by the Supreme Court. The test had 3 parts: 1. *The dominant theme of the material taken as a whole must appeal to prurient interest in sex.* 2. *A court must find that the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters.* 3. *Before something can be found to be obscene, it must be utterly without redeeming social value.* While this entire test was far narrower than the Hicklin rule, it was the 3rd part of the test that continually bedeviled government prosecutors. If a work had even the slightest social value, it could not be deemed to be obscene.

scienter

In addition to determining whether the material is obscene, jurors are also called on to answer the question of whether the defendant was knowledgable about the contents of what was being sold, distributed or published. This is called __________________, or guilty knowledge. The high court has ruled that it is sufficient that the government prove that the defendant had a general knowledge of the contents of the material, that a movie contains sadistic scenes, for example. In the mid-1990s the prosecutor of Whatcom County, Washington, brought obscenity charges against two persons who operated a newsstand in the city of Bellingham for selling a publication called Answer Me! a magazine devoted to the discussion of rape. The newsstand operators insisted that the contents of the magazine, though sexually graphic, were nevertheless a satire. The prosecutor disagreed. But in the end that issue proved to be irrelevant. The jury acquitted the couple because, jurors said, the state had failed to prove that the newsstand operators were aware of the contents of the publication. There was insufficient evidence of scienter, or guilty knowledge.

1952

Motion pictures were not granted First Amendment protection until _________. During the 1960s and 1970s courts scrutinized several local film censorship ordinances and established rigid guidelines to force local communities to conform to First Amendment principles. Generally, censorship boards and the courts make prompt rulings on whether a film may be exhibited, and the government bears the burden of proving that a film is not protected by the First Amendment.

relocation

On the requirement of not completely banning all SOBs and not unreasonably limiting the space in the community in which they can be located, courts are clear that the land available for SOBs does not need to be the most commercially favorable and that there does not, in fact, need to be much space available. A municipality cannot enact a zoning law the provides for fewer available locations than there are presently operating SOBs in the municipality, and an SOB forced to move by a new zoning law must have ample opportunity for __________________.

Hicklin rule everyone

Outlawing obscenity is one thing; defining it is something else. 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 _______________. 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 _____________, under this definition. In addition, if any part of the work, regardless of how small, met this definition, the entire work was regarded as obscene. 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.

Comstock Act

The 1873 __________________ provides the basic authority for the U.S. Postal Service to regulate the flow of erotic material in the mail. But many other laws are also applicable. For example, postal patrons who have received unwanted solicitations for what they define as obscene material can request the Postal Service to inform the mailer that they no longer wish to receive such material. Once this notice is sent by the Postal Service to the mailer, any subsequent mailing to that particular patron is a violation of the law. Because the mail patron decides whether the material is obscene, this law can affect a broad range of solicitations. The Suprmee Court upheld the constitutionality of this law, in a 1970 ruling. The section of this law of the U.S. Code permits a mail patron to block the delivery of sexually oriented advertising, even if her or she has never received such a mailing.

*variable obscenity statutes* Ginsberg v. New York

The 3-part test developed in Miller v. California is the legal test for obscenity in the U.S. today. But the Supreme Court, lower courts and other elements of the government have with varying degrees of success attempted to raise additional standards by which to judge erotic material. Here is a brief outline of some of these standards: The Suprmee Court has ruled it is permissible for states to adopt what are known as _________________________. Material that may be legally distributed and sold to adults may be banned for distribution or sale to juveniles, usually anyone under the age of 18. In other words, variable obscenity laws allow Playboy to be sold to adults but not to minors. Variable obscenity means a state can have 2 standards for obscenity, one for adults and one for minors. This concept emerged from _____________________ in 1968. In Ginsberg the Supreme Court ruled that the First Amendment did not bar New York state from prosecuting the owner of a Long Island luncheonette who sold 4 so-called girlie magazines to a 16-year-old boy. The magazines, which contained female nudity, could have been legally sold to an adult. Justice Brennan said the state could maintain one definition of obscenity for adults and another for juveniles because the Supreme Court recognized the important state interest in protecting the welfare of children. But even variable obscenity statutes are not without constitutional limits. In 1975 the Supreme Court struck down such a law in Erzonznik v. City of Jacksonville because the definition of material that could not be distributed to juveniles was not specific enough. A city ordinance barred drive-in theaters from showing films in which either female breasts or buttocks were exposed if the theater screen was visible from the street. The ordinance was justified as a means of protecting young people from exposure to such material. "Only in relatively narrow and well-defined circumstances may government bar dissemination of protected material to children," Justice Lewis Powell wrote. Banning the exhibition of nudity is simply not narrow enough; only materials that have significant erotic appeal to juveniles may be suppressed under such a statute, he added. A simple ban on all nudity, regardless of context, justification or other factors, violates the First Amendment.

contemporary community standards 2004 2006 2007 2008 2009

The Child Online Protection Act: The following year Congress tried again when it adopted the Child Online Protection Act (COPA). The statute prohibits commercial Web sites from knowingly transmitting to minors (people under 17 years of age) material that is harmful to minors. Harmful material was defined as material that, with respect to minors, is specifically created to appeal to prurient interests, that graphically depicts lewd or sexual behavior, and that lacks serious literary, artistic or scientific value. The law requires jurors to apply "______________________________" when assessing material. A fine of $50,000 and a six-month jail sentence may be imposed for each violation. But the law includes provisions that bar any prosecution of a Web site operator who has restricted access to the site to those with credit cards, debit accounts, adult access codes or adult personal ID numbers. The idea of this provision is that only adults would have access to one of these items, and therefore the site operator could honestly believe he or she is communicating with an adult, not a minor. In ________, after the case bounced around the federal courts for 5 years, the U.S. Supremem Court upheld on First Amendment grounds a lower-court preliminary injunction against enforcement of COPA in Ashcroft v. ACLU. Examining COPA as a content-based restriction on speech subject to strict scrutiny review, the high court noted the the government must prove that COPA restricts no more speech than is necessary to achieve the goal of making the Internet safe for minors. Concluding that the government had not yet demonstrated that COPA is the least restrictive alternative available to protect minors, the majority sustained the preliminary injunction preventing enforcement of COPA and remanded the case for a trial on the merits. In late __________, the government was back in federal court in Pennsylvania trying to resuscitate COPA, with the case now called ACLU v. Gonzales. But in March _________, U.S. District Court Judge Lowell A. Reed Jr. again rebuffed the government, issuing a permanent injunction against the enforcement of COPA and holding, among other things, that COPA is "not narrowly tailored to Congress' compelling interest" in protecting minors and that "COPA is impermissibly vague and overboard." Amazingly, the federal government did not give up on COPA; it went back to court in _______ (a full decade after COPA became law) to ask the 3rd U.S. Circuit Court of Appeals in Philadelphia to overturn Judge Reed's March 2007 ruling that had permanently enjoined the measure. Predictably, the 3rd Circuit in July 2008 affirmed Reed's injunction and concluded that "COPA cannot withstand a strict scrutiny, vagueness, or over breadth analysis and thus is unconstitutional." The appellate court extolled the virtues of filtering software rather than government regulation, writing that "filters and the Government's promotion of filters are more effective than COPA." The case finally came to a close in January __________ when the U.S. supreme Court denied the government's petition for a writ of certiorari to revisit the 3rd Circuit's opinion. The bottom line? After more than a decade of litigation, *the COPA never took effect* and the First Amendment triumphed.

obscene

The Supreme Court articulated in 1973 in Miller v. California a test still used by all courts for determining when speech is ___________.

"obscenity"

The nation's high court made it clear more than 55 years ago in Roth v. United States that a narrow category of sexual explicit speech called "____________" is not protected by the First Amendment freedoms of speech and press.

pornography; obscenity

The term "_________________" is not the same thing as ____________.

could

To be obscene a work must lack serious literary, articistc, political or scientific value. While not as broad as the "utterly without redeeming social value" element in the Roth-Memoirs test, this 3rd criterion in the Miller test nevertheless acts as a brake on judges eager to convict on the basis of the 1st two parts of the test. The judge is supposed to play a pronounced role in deciding whether a work has serious value. The serious value element is not judged by the tastes or standards of the average person. This test is not whether an ordinary person in the community would find serious literary, artistic, political, or scientific value, but whether a reasonable person ________ 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.