MMC4200 Quiz 3

Where do we get our definition of obscenity today?

from a case called Miller v. California (1973)—the Miller Test.

Child pornography was thought to be a dead issue until what?

the internet arose. § It became a place where child pornography was traded (Chat rooms) § Now we can see it has worked its way out of chat rooms and onto social media apps.

Are the products that SOBs sell first amendment protected?

Yes, as long as it is not child pornography.

Explain the extent of how zoning is allowed of SOBs?

Zoning is allowed, provided you do not completely zone them out. They have to have some reasonable opportunity to do business.

The Miller Test

1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to a prurient interest in sex. 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3. The work in question lacks serious literary, artistic, political or scientific value.

Expressive Conduct Regulations

- some courts have allowed cities to adopt minimal clothing requirements in adult clubs - municipalities are also allowed to adopt reasonable rules designed to prevent sexual conduct and contact. o As noted earlier, nude dancing is considered speech by the U.S. S.C, yet it and other courts have allowed cities to adopt minimal clothing requirements since these interfere in a very minor way with the erotic message conveyed by dancing. As the S.C. stated in 2000 in upholding an Erie, Pa., ban on public nudity against a lawsuit filed by a nude dancing establishment "any effect on the overall expression is de minimis." o Municipalities also are allowed to adopt reasonable rules designed to prevent sexual conduct and contact such as lap dances between dancers and patrons.

Jurors in Obscenity cases: who do you want as a juror?

-You want someone who is fair and honest. § Prosecution in St. Charles Missouri for an owner of an adult store. · Prosecution was able to obtain an all-female jury. · The prosecution was high fiving themselves, we have a jury full of women, there's no way they are going to say these movies are not obscene. · As it turns out, the jury acquitted in this case. · The stereotype you might think of a female jury may not be right.

An intractable problem is how the SCOTUS Justice John Harlan described regulation of sexually explicit speech in 1966. Sadly, it remains equally problematic today, despite two important facts.

1. The nations high court made it clear more than 60 years ago in Roth v. United States that a narrow category of sexually explicit speech called "obscenity" is not protected by the First Amendment freedoms of speech and press. 2. The Supreme Court articulated in 1973 in Miller v. California a test still used by all courts for determining when speech is obscene.

How many years in prison is a single count of child pornography?

5 years, if convicted. · Child pornography is considered especially heinous.

Warnings about these two types of groups on your jury: Teachers and nurses

Apparently they cannot make distinctions between child pornography and obscenity for adults.

What sexually explicit expression is unprotected by the 1st Amendment?

Child pornography and obscenity

Obscenity

Content made by adults and for adults

Is there an official list of words that are always classified as fighting words?

No, whether any given word amounts to a "fighting word" depends on the context of how it is used and to whom it is addressed.

Is that word used in a book about racism a fighting word?

No. But a neo-Nazi yelling that word directly at someone in the context of a heated political rally constitutes a fighting words scenario.

Has the S.C. ever given us a precise definition of child pornography?

No. Unlike obscenity, where we'll find out the S.C. has given us a precise definition (the Miller Test,) the S.C. has never defined child pornography—left up to the federal and state governments.

Are there federal obscenity prosecutions today?

Not really. Most prosecutions focus on where the real harm is, and that is with minors. People who can't protect themselves and don't know the long-term ramifications. o When it comes to the federal government, very few obscenity prosecutions. The action is really prosecution of child pornography.

Which state protects obscene speech?

Oregon in their state constitution

"Lascivious exhibition of the genitals or pubic area"

The Fifth Circuit has defined "lascivious exhibition" as "a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer."

Did any judge dissent in Snyder v. Phelps?

The lone dissenter was Justice Samuel Alito. o He wrote that "our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case... Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace."

Does the first amendment protect against a heckler's veto?

Yes. § The notion of a heckler's veto stands against everything that the First Amendment stands for. § First Amendment says that we protect speaker's who may have different views that could be censored. § Ex: Nazi's marching through Illinois in the 1970's. · Had a large Jewish population. · There was a great fear that violence would occur. · Initially, the Nazi's were denied a permit to march. They went to the courts and the courts ruled in favor of the Nazi's. § We do not allow a hostile reaction to silence speech because it may be offensive or disagreeable § The government has a BURDEN TO PROTECT these speakers or individuals. o Government has a duty to protect the speaker from being silenced by a hostile reaction.

Secondary effects of SOBs

f

First prong of the Miller Test

o 1. An average person, applying contemporary local community standards, finds 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 S.C. 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 on this decision. § The S.C. has made it clear that only adults—not children or minors—are to be considered under the average person aspect of the first part of the Miller test. § 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. · Second, the definition of prurient interest focuses only on nudity, sex, and excretion. It has nothing to do with violence. § Chief Justice Burger made it clear in the Miller decision that local standards were to be applied. § In most jurisdictions, the term "local standards" has been translated to mean state standards. § All communities within the same state share the same standards. The question of applicable community standards becomes an important factor in cases that involve the shipment of erotic material over long distances within the U.S. and in cases involving the importation of sexually explicit material from outside the U.S. § 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 to decide what the community standards are. § Jurors must speculate about what other adults in their community would accept and tolerate. § Second, the government is not required to present any evidence about community standards. § "Comparables" argument: 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.

Second Prong of the Miller Test

o 2. The work 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. · This is the part of the test that gives states some ability to dictate or control the types of sexual acts in question that it finds obscene. § But the S.C. has put limits on this judgment, ruling that only what it calls hard-core sexual material meets the patently offensive standard, NOT SOFT-CORE. -PATENTLY OFFENSIVE: openly, plainly, or clearly visible as offensive to the viewing public

Third Prong of the Miller Test

o 3. The work in question lacks serious literary, artistic, political or scientific value. -Whatever it is in question will still be deemed not obscene if it possesses serious value in one of these four categories. § 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 tasted 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.

True threats doctrine

o A category of speech not protected by the First Amendment. o I say something to you, and what I say to you puts you in fear of imminent of bodily harm or death or injury. o More than hyperbole—must be about putting a person in fear of imminent bodily harm or death. o The U.S. has distinguished between a political hyperbole (which is protected) and a true threat of violence (which is not protected)

Fighting Words Doctrine

o A legal doctrine that permits prior censorship of words that create a clear and present danger of inciting an audience to disorder or violence. o There are certain well-defined and narrowly limited classes of speech. The prevention and punishment of which have never been though to raise any constitutional problems. These include ... fighting words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit may be derived from them I clearly outweighed by the social interest in order and morality. o A category of speech not protected by the First Amendment. These words are meant to provoke violence and have no political message.

Casey Calvert

o A magna cum laude graduate of the UF CJC earned a 2016 AVN award nomination as a female performer of the year. In 2019, Calvert received more AVN nominations. o She has written columns about sex and the adult industry for the Huffington Post.

Controversial Speakers on campus

o A major issue today at public universities occurs when controversial speakers come to campus. o Because public universities are government entities, First Amendment speech rights generally apply on campus. o And when public universities create auditoriums for speech events such as concerts, TEDx talks, comedy acts and guest speakers, these venues are considered either designated or limited public forums and the government cannot discriminate against a speaker there because of his or her viewpoint.

Heckler's Veto

o A situation that occurs when the audience's negative, adverse and sometimes violent reaction to the message conveyed by a peaceful speakers is allowed to control and silence the speaker. The duty, instead, should be on the government to protect the speaker rather than allow a "veto" of the speech by the audience. o The idea of a Heckler's veto might take place in a comedy club. The audience hates the comedian, boos them, and heckles the comedian.

Categories of Unprotected Speech

o According to the U.S. Supreme Court, unprotected categories include: § 1: Child pornography involving real minors, as well as obscenity. § 2: fighting words under Chaplinsky § 3: incitement to violence under Bradenburg v. Ohio § 4: True threats of violence § 5: certain types of libelous statements § 6: advertising that is false, misleading or about an unlawful product or service. o It is important to notice that "hate speech" does not constitute an unprotected category of expression in the preceding list.

What happened inside the auditorium when Richard Spencer came was a heckler's veto. Why was that allowed?

o Spencer foolishly decided to distribute the ticket's himself to anyone. The ticket's did not have clauses on what could or could not be said during the forum. o Nobody really said anything of value.

Sex toys and obscenity

o Although hard to believe, a few states consider sex toys like vibrators to be "obscene" sexual devices and thus outlaw their sale and distribution. o For example, the 11th U.S. Circuit Court of Appeals in 2007 upheld an Alabama state statute that prohibits the commercial distribution of devices "primarily for the stimulation of human genital organs."- Williams v. Morgan o The 11th Circuit found that protecting public morality was a sufficient reason to justify and uphold the Alabama law. In 2008, however, the 5th circuit struck down a similar Texas statute that made it a crime to promote, sell, or give or lend a sexual device unless done so for a bone fide medical purpose. o The 5ht Circuit, citing the S.C. ruling in Lawrence v. Texas, rejected Texas' public morality justification and found, instead, that the statute "impermissibly burdens the individual's substantive due process right to engage in private intimate conduct of his or her choosing."

United States v. Stevens

o Arguing that speech is political will not protect it if the rest of the context of a message suggests it is a true threat of violence. o For example, the 10th Circuit in United States v. Stevens in 2018 upheld the threats of conviction of Jeffrey Allen Stevens. o He had posted 10 messages on the Tulsa Police Department's online "Citizen Complaint" forum in the days immediately after the killing of Terence Crutcher, an African American, by Tulsa Police Officer Betty Shelby. o The shooting made national headlines. o Among other posts, Stevens wrote that "the psychotic pile of sh*t who MURDERED the unarmed civilian who broke down is going to be executed, as are ALL psychotic sh*tbags you and other PDs hire across this Nation who murder unarmed civilians. They are all going to be killed." o A second post said "the psycho c*nt who never should have been given a badge... [is] going to be executed." o A third message proclaimed, "the Tulsa PD Chief is going to be killed." o The 10th Circuit rejected Stevens' argument that the messages should be protected because they dealt with a larger, national political debate about police treatment of blacks. o In rejecting this argument, the court emphasized that the messages targeted specific individuals and that they described specific deadly acts of violence. o The messages were not mere political hyperbole. o The 10th Circuit, therefore, affirmed the trial court's ruling that reasonable jurors could interpret Stevens' messages as true threats.

Dost Factors

o Courts weigh these six factors to determine if an exhibition is lascivious: § 1. Focal point of the depiction is on the child's genitalia or pubic area - is it unnaturally zoomed or cropped? § 2. Setting for the image is sexually suggestive, that is, a place or pose generally associated with sexual activity. § 3. Child is depicted in an unnatural pose or in an inappropriate attire, considering the child's age. § 4. Child is partially or fully clothed or naked. § 5. Image suggests sexual coyness or a willingness to engage in sexual activity. § 6. The image is intended to elicit a sexual response from a viewer. o Not all of these factors need to be present to constitute a lascivious exhibition; rather, the factors are considered holistically in what courts sometimes call a "totality of the circumstances" approach.

Klen v. City of Loveland

o Does swearing at members of a government committee to express frustration with their actions (or lack thereof) constitute fighting words? o The 10th circuit addressed this question in 2011 in Klen v. Loveland. o Plaintiffs Edward and Stephen Klen were building contractors upset at what they perceived to be unreasonable, deliberate delays over the issuing of permits by officials in the city of Loveland, Colo. o On multiple occasions, the Klens used profane language and insults out of frustration when discussing the permit delays with city officials. o They said such things as "when the hell are you going to get your shit together in this department?"; "where is our damn permit?"; and "what kind of idiot are you...?" o In concluding that this language did not constitute fighting word, the 10th Circuit reasoned that "although the Klens used less-than-polite epithets in delivering their message, and occasionally even employed insulting terms to describe the city's officials, there is no indication that their words were accompanied by provocative gestures or threats. Nor did their use of vulgar or offensive language necessarily make their outburst fighting words." o The appellate court added that the Klens were not trying to provoke a fight but were trying to "express ideas—chiefly that City building department officials were incompetent and were taking too long in processing plaintiffs' application for a building permit." o This decision illustrates the key point that offensive speech is not necessarily the same as fighting words.

United States v. Colhoff

o Does the phrase "snitches get stitches" constitute a true threat of violence when uttered in the lobby of the U.S. Attorney's office by a defendant in a drug trafficking case to a witness testifying the prosecution in a related criminal case? o That was the scenario the 8th Circuit dealt with in 2016 in United States v. Colhoff. o Defendant Lona Lee Colhoff contended her words were "merely a 'political rant' protected by the First Amendment when she told witness Brady Ferguson, "just a bunch of snitches. Do the crime, but can't do the time. Why don't you guys just do the time?... Snitches get stitches." o She is prosecuted for conveying a true threat of violence. · Issue: does the 1st Amendment protect Colhoff when she says this to a witness in a related criminal prosecution. o The 8th Circuit emphasized that context is key in deciding if word constitute a true threat of violence unprotected by the first amendment. o The court found that under the facts before it, Colhoff's words were a true threat. o Why? First, it reasoned "the phrase 'snitches get stitches' may imply that violent reprisal should and will befall those who cooperate with law enforcement." Second, it focused on the fact that Ferguson (the target of Colhoff's words) was at the U.S. attorney's office to potentially testify against a defendant (Susan Schrader) in a criminal case. o As the court put it, Ferguson was "there to snitch—the very act that Colhoff said was deserving of stitches. Ferguson was not acquainted with Colhoff, so he did not know what she was capable of doing or whether she was prone to issue empty threats." o Finally, the 8th Circuit found that "Ferguson rightly surmised that Colhoff was connected to the Schrader family, and he reasonably could have interpreted the statement as a warning that an associate of Schrader's would harm him if he cooperated with the prosecution." o In brief, Colhoff's words were a true threat and her conviction was affirmed.

Jim Morrison

o During a March 1969 concert in Miami, the lead singer for the Doors, Jim Morrison, was arrested and charged with "lewd and lascivious behavior in public by exposing his private parts and simulating masturbation and oral copulation" while on stage. o Morrison whipped it out, as it were, after allegedly asking the audience "do you want to see my cock?" o He was convicted of two misdemeanor counts. o More than 40 years later, in Dec. 2010, the Florida Clemency Board pardoned Morrison at the request of outgoing Gov. Charlie Crist. o It was far too late for Morrison, who died in 1971.

Five problems that exist today in regulating obscenity and sexually explicit speech

o First, the Miller obscenity test leaves much wiggle room for interpretation in its actual application by judges and juries. § this test also embraces the use of contemporary community standards that vary from state to state, leading to the anomalous result that any given adult content might be protected by the First Amendment in one state but not in another. o Second, the Internet and smartphones, as well as cable and satellite TV services such as video-on-demand and pay-per-view movies, have made adult content readily accessible. That's good news for consenting adults who want to view it in the privacy of their homes where no one else in the community needs to see or be offended by it, but it is unfortunate news for parents of minors, as young children may come across it with greater ease. o Third, some people feel that speech considered obscene under Miller nonetheless deserves First Amendment protection. § Not only is sexually explicitly content an incredibly popular form of entertainment enjoyed by many adults, but evidence in inconsistent and conflicting about whether viewing it really causes harm. o Fourth, there is the question of the inefficient use of scarce government monetary resources in prosecuting obscenity cases today when the content involves adults who freely consented to take part in the activities shown. § Many people feel there are greater problems to worry about, such as child pornography—a distinct category of sexually explicit speech that, like obscenity, is not protected by the First Amendment—and terrorism. o Lastly, there is the problem of dealing with sexually explicit content that may not quite rise to the level of obscenity under Miller, but that nonetheless is sexual and is broadcast over the nation's television and radio airwaves.

Hate Speech

o Generally protected by the First Amendment. o The S.C. has carved out many categories of unprotected expression. o There is NO unprotected category called "hate speech." o What most people think of as "hate speech" is only unprotected if its usage falls within the specific context of an unprotected category of speech such as fighting words or true threats of violence. o We call this sometimes an instance of First Amendment exceptionalism that in the U.S. we give exceptional protection to what we call hate speech when other countries do not give that protection. o While we are going about it, should we change the way the court considers hate speech? o In the U.S. we give extraordinary protection to hate speech, when in Europe they do not protect a certain amount of speech. -First Amendment Exceptionalism

Carnal Knowledge

o Georgia courts ruled that the motion picture "Carnal Knowledge," an R-rated film starring Jack Nicholson and Candice Bergen, was patently offensive. o The S.C. reserved this ruling, saying that the Georgia courts misunderstood this second part of the Miller test. o Material that was patently offensive, Justice Rehnquist wrote, included representation or descriptions of ultimate sexual acts, normal or perverted, actual or simulated and representations or descriptions of masturbation, excretory functions, and lewd exhibitions of genitals. o 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." · This movie isn't obscene, you don't really see any sex take place. You see some nudity. There are curse words. § Much more soft-core.

Why should we, under the First Amendment, protect speech of the Richard Spencer's of the world?

o His speech doesn't have much value at all. o It is offensive and disagreeable. o We in the U.S. distrust the gov. to tell us what speech is allowed and which speech is not allowed.

Snyder v. Phelps

o In 2011, the U.S. Supreme Court issued a ruling in Snyder v. Phelps that protected what many people would consider hate speech. o Members of the Westboro Baptist Church (WBC) believe that God hates the U.S. for its tolerance of homosexuality and, in turn, punishes the country by killing American soldiers. o The Westboro Baptist Church finds out where all these funerals for dead soldiers are and they stage their protests there. o Belief system is American Soldiers are killed abroad because that is God's retribution for American toleration of homosexuality. o The head of the WBC is Reverand Fred Phelps. o WBC members expressed these views near the funeral for Marine Lance Corporal Matthew Snyder, who was killed in Iraq in the line of duty, by carrying signs with anti-gay and anti-military such as "Thank God for Dead Soldiers," "Semper Fi Fags," and "God Hates Fags." o The WBC protestors stood on public property about 1,000 feet away from the funeral where they had been told to stand by local police-- this suggests that it will not be a fighting words case because they are 1,000 feet away. o These may be hateful messages about American soldiers, but are they personally abusive to Albert Snyder? Probably not. o Albert Snyder, the father of Matthew Snyder, sued the members of the church for intentional infliction of emotional distress (IIED) and intrusion into seclusion. o The WBC however, argued that the First Amendment protected its right to engage in such speech. § Is it extreme and outrageous behavior for WBC to hoist such signs 1,000 feet away for a dead soldier? · Maybe... · The jury finds it is § Intent of causing Mr. Snyder severe emotional distress? · Probably not. They are just calling attention to their religious belief system. But remember, you do not have to intend... o An 8-justice majority of the U.S. Supreme Court agreed with the WBC, basing its decision on several grounds. o First, the court held that the speech in question, although offensive, dealt with matters of public concern, including "the political and moral conduct of the U.S. and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy." o Second, the court reasoned that "the church members had the right to be where they were," as the "picketing was conducted under police supervision some 1,000 feet away from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence." o Finally, the court concluded by observing that "speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a nation we have chosen a different course—to protect even speech on public issues to ensure that we do not stifle public debate."

Ira Isaacs Case

o In 2012, a federal jury in LA convicted adult filmmaker Ira Isaacs on multiple counts of obscenity for distributing on his Web site fetish films that featured scatology and bestiality. o 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. o 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 two hours in length of a female engaging in sex acts involving human bodily waste and video one hour and 37 minutes in length of a female engaged in sex acts with animals." o Isaacs, in contrast, 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 sentenced to serve four years in federal prison. o By 2019, however, the Ira Isaacs case was the last major federal obscenity prosecution in the U.S. that's partly due to a combination of 1. The mainstreaming popularity of adult content, which makes it harder to win an obscenity conviction; 2. The Obama and Trump administrations' decision to focus resources on prosecuting child pornography and the sexual exploitation of minors rather than obscenity cases; 3. the fact that large scale producers of adult content in the U.S. know what kind of content not to show to avoid prosecutions. o Despite the recent paucity of obscenity prosecutions, sexually explicit content remains highly controversial in some quarters. It is criticized by religious conservatives, anti-pornography feminists, and by some lawmakers. o In 2018, for instance, the Kansas legislature passed a resolution that declared pornography to be a "public health hazard that leads to a broad spectrum of individual and public health impacts and societal harms." o The Florida House of representatives approved a similar resolution in Feb. 2018. The legislator who sponsored the Florida resolution pointed to research that he said shows a connection between pornography use and mental and physical illness. o Additionally, municipalities across the country continue to zone adult bookstores and strip clubs to a few tiny areas of the community and far away from parks, schools and private residences.

Robert Mapplethorpe

o The Cincinnati contemporary Arts Center was prosecuted for obscenity in 1990 for a display of photographs by Robert Mapplethorpe. o Defense attorney Lou Sirkin used experts from the art world to testify before a jury about the serious artistic value of the photos. § Expert photographers testified for the defense of this case and said the photos he took may be sexually explicit, but if you look at the photo of the man, they have serious artistic value. o The testimony was pivotal in gaining an acquittal for the museum. § One of the reasons they acquitted was the third prong of the miller test: · If the speech in question has serious literary, political, scientific OR artistic value, it will be protected...

Richard Spencer

o In 2017, UF was obligated under the First Amendment to host Richard Spencer, a white nationalist and alt-right leader, when Spencer's representatives rented a campus auditorium (the Phillips Center) where concerts and other speech-based events occur. The Phillips Center is government property. o At first, President Fuchs denied him access to speak at the Phillip's Center. o Unlike some other public universities, UF does not require a potential speaker to be invited by a registered student organization or department in order to speak on campus. o Once you open up an auditorium as a public forum, you as the government, cannot engage in viewpoint-based discrimination... so we HAVE to allow him on campus. He went to an attorney, and UF backed down. o If UF had denied Spencer access because of his viewpoint or because some people might be offended by it, UF would have violated Spencer's first amendment rights. o The first amendment prohibits viewpoint-based discrimination. o UF also had to pay more than $500,000 for security costs and personnel to prevent a heckler's veto. § i.e. to allow him to speak without being silenced or attacked by a hostile audience. o UF could not shift that cost to Spencer because charging high security fees can be tantamount to a heckler's veto by making it too cost prohibitive for a speaker to talk on campus. o The Los Angeles Times reported in 2018 that UC Berkeley spent a whopping $3.9 million in just one month in 2017 to cover security costs for three schedules speech events on campus. o When Michigan State University refused to allow Richard Spencer access to its campus, Spencer's representatives sued, claiming his first amendment rights were violated. o MSU ultimately relented and let Spencer talk, albeit during spring break in 2018, when fewer people were on campus. o Spencer also sued the University of Cincinnati over what he claimed were excessive security fees, but he later dropped that lawsuit in 2018. o With many public universities perceived as bastions of liberalism and political correctness, it is doubtful that controversies involving speakers with viewpoints outside the liberal mainstream will disappear in the near future.

Freeman v. Georgia

o In 2017, the Supreme Court of Georgia in Freeman v. Georgia held that silently giving the middle-finger gesture from the back of a church at a pastor during a service without doing anything more does not constitute fighting words. o David Justin Freeman raised his middle finger after "Pastor Jason Berry asked any teachers present to stand and be recognized so that the congregation could pray for them to have a successful school year. About 50 people stood up, and Freeman, who was at the back of the church, stood up as well... [and] raised his middle finger in the air and stared angrily at the pastor." o Freeman was later prosecuted and then found guilty of disorderly conduct under a Georgia statute. · Is that protected speech? · Another doctrine is coming into play... the symbolic speech doctrine. · Is raising a middle finger a type of symbolic speech? Is it intended to convey a meaning? Will the meaning be understood? · In the U.S. today, the middle finger gesture has a negative connotation, which most people will understand. · The question then becomes was Mr. Freeman protected in this scenario when he raised his middle finger at the pastor. o But the S.C. of Georgia found that "a raised middle finger, by itself, does not, without more, amount to fighting words." o Two facts are important to remember: § 1: Freeman was not standing close to the pastor but was at the back of the church away from the pulpit § 2: Freeman did not make any menacing gestures or engage in threatening conduct. o Thus, the court concluded that "Freeman's raised middle finger constituted a constitutionally protected expression, and he could not be found guilty of disorderly conduct... based on having made the gesture in the manner that he did."

Publix Case

o In May 2018, a Public supermarket in South Carolina refused to write "summa cum laude" on a graduation cake. o A mom ordered a cake online from the store for her son's graduation party. o On it she wanted the words "congrats Jacob! Summa Cum Laude..." the phrase is Latin and is used for academic honors to mean with highest praise or distinction. o But Publix's software for its online ordering program apparently censored "cum" because it is considered profane. o When bakers at the store made and decorated the cake, they replaced the word "cum" with three hyphens. o The manager at the store later gave the family a refund for the cake and a giftcard.

Venue shopping

o In prosecutions initiated by the U.S Postal Service, the government is free to choose the venue in which they try the case. o For example, a trial involving a magazine sent from Boston to Dallas might be held in Boston, Dallas or anywhere in between. o So Massachusetts might apply at the trial, or Texas Standards, or even PA or Kentucky standards if the publication passed through or over those states during its shipment. o Venue shopping favors prosecution. § Law enforcement officially could purchase and order adult content in conservative communities in order to drag defendants located in more liberal venues into those conservative communities to stand trial. o If the federal government wants to go after a LA maker of adult content and you want to prosecute this person for obscenity, you can bring the federal obscenity prosecution wherever that person distributes that content—gives you a huge advantage in the internet era. o You find the state and the region in the state that you believe has conservative standards with sexual content. o Get an FBI agent to go on the Internet, purchase the content and have it shipped or downloaded to their hard drive in that community. o Strategy: bring the obscenity prosecution in the most conservative community you can.

Background of the Miller Test

o Marvin Miller was convicted of violating the California Penal Code for sending five unsolicited brochures to a restaurant in Newport Beach. The brochures, which advertised four erotic books and one film, contained pictures and drawings of men and women engaging in a variety of sexual activities. § In Miller, for the first time since 1957, a majority of the S.C. reached agreement on a definition of obscenity, They came up with the standards that must be met. - for the Miller test, all 3 parts must be proven for a work to be deemed obscene. If you can't prove even one, there will be an acquittal.

Deviant sexual intercourse

o Means sexual conduct between not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

Typical efforts on regulating expressive conduct

o Minimum distance requirements between dancers and patrons o Stage height requirements o Railing requirements around stages o Rules against direct tipping o Minimum levels of lighting o Rules prohibiting doors and partitions on booths and VIP rooms o Like zoning regulations, these restrictions affecting expressive conduct inside SOBs are subject to intermediate scrutiny review if they target negative secondary effects on public health and safety such as the spread of sexually transmitted diseases, lewdness and public indecency. Assuming that the authority to regulate SOBs rests with the government entity that is trying to regulate them, all the government needs to prove is that the regulations § Serve a substantial government interest unrelated to the content of speech and § Are narrowly tailored to serve the interest.

Packingham v. North Carolina

o North Carolina statute made it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages." § This swept up things such as Twitter, FB § This applied very broadly. § If you were a registered sex offender in NC, you could not access certain social networking sites. o Lester Packingham was the defendant § He had sex with a 13-year-old girl § Has to be a registered sex offender. o Years go by, he gets a parking ticket after he's done his time... but he is a registered sex offender. § He goes to FB after his ticket is dismissed and says: "Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent... praise be to god, wow! Thank Jesus! § A police officer is monitoring FB, traces it back to Packingham. Under the statute, it makes it a felony for registered sex offenders to use social networking sites. § He is prosecuted under this statute—challenged this and said this law violated his 1st amendment rights of free speech. o So is the law constitutional? NC had an interest in protecting minors against pedophiles. o What is the breadth of this statute? o U.S. S.C. in an opinion by Justice Kennedy: § Strikes down this statute § Says it is overbroad § Not narrowly drafted. § If a municipality wants to adopt a statute that affects someone's free speech rights, it has to have an interest involved: in this case, the interest is protecting minors. § But in drafting that statute, you have to draft it so it doesn't sweep up or ban too much speech. § Kennedy said "the statute here enacts a prohibition unprecedented in the scope of 1st Amendment speech it burdens." "by prohibiting sex offenders from using those website. NC with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." "to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of 1st Amendment rights." § Telling NC to go back and redraft their statute to be more narrow. § You do have a significant impact on protecting minors, but your statute bans ALL sex offenders access to social media. § Kennedy suggested to NC how to make a law better: · It can be assumed that the 1st amendment permits a state to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather info about a minor." § NC does have a legitimate and compelling interest, BUT the problem was on the crafting of it... not narrowly tailored enough.

Lenny Bruce

o Proving that censorship is no laughing matter, the late comedian Lenny Bruce was twice convicted of obscenity in 1964: once for a stand-up performance in Chicago and once for a profane routine in NYC's Greenwich Village. § This was words only! If you've ever been to a comedy club, a lot of performers wear blue which means they swear a lot. § You mostly have to be 18 or 21 to get into a comedy club... shocking to think he was convicted for obscene comedic performances? § Is this really a good use of our fiscal resources? § Lenny Bruce would often swear in Jewish § The government in question would have to have a police officer inside the comedy club writing down exactly what Lenny Bruce was saying, have people translate whatever he said in Yiddish, and then prosecuting from this. § Is this a ridiculous use of our government money? He was prosecuted and convicted twice for obscene comedic performances! o Showing how "contemporary community standards" change, comedians often "work blue", using the same words as Bruce but with little fear of obscenity prosecution.

"Cuties" Texas Prosecution on Netflix

o Real movie on Netflix o Caught up in the culture war storm o A state prosecutor in Texas filed a child pornography dissemination charge against Netflix for making this movie available. o This is not child pornography, the minors do dance... Calvert says it is a little sexually explicit. § The only thing you could maybe go over was the lascivious exhibition. o It is made by a Sengalese filmmaker, screened at sun dance. o It is about the sexualization of young girls, 11 or 12-years-old. As many young girls, they imitate girls who are older in terms of clothing, dancing, etc. o Movie is about: § Technology § The media and how children watch adults § Sexting comes into play § Generational shifts and religion (Muslim descent) · Lives in Paris in a poor section of town. o Prosecutor in Texas has decided to go after Netflix. § Political pandering to go after this o When Netflix decided to market the movie, it showed a photo of the girls in a dance competition. They are competing against older girls and the dancing is sexually explicit. § Nothing that a Laker girl wouldn't do in the NBA, but these girls are very young and that is why it is an issue. o The other image is of the protagonist who is 11-years-old. o The images apparently caused the controversy o Defenders of the film said the company's botched marketing campaign undermined the work of its director who has said part of her reason for making the movie was to show the dangers of encouraging girls to be more sexualized. o Most critics have liked the movie, and Netflix called it a powerful story of the pressures young girls face on social media.

Sexting and Sexting laws

o Sexting among minors first gained national attention around 2008-09 when some prosecutors began charging 14- and 15-year-olds with creating, distributing and possessing child pornography after they were caught trading sexually explicit images of themselves on cell phones. o Children were becoming their own child pornographers unintentionally. o The problem with sexting continues today. o For example, in June 2018, a Maryland court upheld the punishment of a 16-year-old female student for distributing child pornography—a video of herself performing a sex act on someone. o She sent the video file as a text message to two of her friends. One of the friends shared the video with other students and with the school's resource officer. o Starting in 2010 and 2011, some states began adopting new statutes to address sexting between minors because the application of traditional child pornography laws seemed far too harsh, especially when the sexting was consensual and confined between two willing minors. Why? Because a minor convicted on child pornography charges for engaging in sexting is guilty of a felony, can serve five years in prison for a single count of transmitting or possessing child pornography and must register as a sex offender, a stigma that will haunt him or her for life. o By early 2019, more than 20 states had adopted some form of sexting legislation. Louisiana's sexting law, for instance, provides that "no person under the age of 17 shall knowingly and voluntarily use a computer or telecommunication device to transmit an indecent visual depiction of himself to another person." o Most of the new legislation either reduces consensual sexting committed by minors of a certain age to only a misdemeanor offense, rather than a felony, or treats it as a noncriminal offense subject only to monetary fines and/or community service obligations.

Ashcroft v. Free Speech Coalition (2002)

o Simulated child pornography will be as available as ever, so long as it is offered and sought as such, and not as real child pornography. o "the mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it."

Connecticut v. Baccala

o Some people must tolerate more verbal abuse than others, because their jobs reduce the likelihood that they will respond with violence. o In 2017, the S.C. of Connecticut in Connecticut v. Baccala observed that a "majority of courts, including ours, hold police officers to a higher standard than ordinary citizens when determining the likelihood of a violent response by the addressee." o In other words, police must tolerate more verbal abuse than the average citizen. o But Connecticut's high court in Baccala also created a new category of person who must put up with more abuse—grocery store managers. o This case involved an angry supermarket customer named Nina Baccala. She called Tara Freeman, an experienced assistant store manager, a "fat, ugly b*tch" and a "c*nt." o Freeman remained calm and told Baccala to have a good night, after which Baccala left the store. o Freeman then called the police, and Baccala was convicted of breaching the peace on a disorderly conduct charge. o Was Baccala's speech protected by the first amendment? Should the disorderly conduct charge be thrown out? (ISSUE) o Baccala appealed. She contended her words were protected by the First Amendment. The S.C. of Connecticut agreed. o It said the proper focus under a fighting words analysis was on how "an average store manager in Freeman's position" would respond to Baccala's words. o Although the court acknowledged those word were "extremely offensive and meant to personally demean Freeman," this did not make them fighting words. Why? Because "store managers are routinely confronted by disappointed, frustrated customers who express themselves in angry terms... People in authoritative positions of management and control are expected to diffuse hostile situations, if not for the sake of the store's relationship with that particular customer, then for the sake of other customers milling about the store." o Additionally, the court said that a store manager has multiple ways other than violence to responds to such language: "the manager could demand that the defendant leave the premises, threaten to have her arrested for trespassing if she failed to comply, and make good on that threat if the defendant still refused to leave. o With such lawful self-help tools at her disposal and the expectations attendant at her position, it did not appear reasonably likely that Freeman was at risk of losing control over the confrontation." o In brief, the Supreme Court of Connecticut ruled for Nina Baccala and held that grocery store managers (at least in the Nutmeg state) must tolerate a higher level of verbal abuse from angry customers than the average person would have to put up with in a noncustomary/nonmanager scenario. o In December 2017, the U.S. Supreme Court declined to hear the case, leaving the decision intact. · Might ask yourself, does this create a slippery slope? Where do we draw the line next? o Flight attendants? o Bus drivers?

Negative stereotypes about women in the adult industry

o Some women in the adult industry contradict certain negative stereotypes about the kind of women who perform in adult movies. o In 2015, a Duke University student who performed under the name Belle Knox received an AVN Award nomination as a best new starlet. o Some female performers are indeed smart and control the content in which they and others appear.

On deciding whether something is a true threat, we have to decide a couple of things:

o Speaker -> means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. § Some kind of intent here involved, but we do not know precisely what level of subjective intent on the part of the speaker is necessary to constitute a true threat of violence? § Think of it this way: I can intend to convey a message to you, and the message I convey to you may, on its face, may put you in that fear of bodily harm. But my subjected intent inside may be something else. o Speaker -> Need not intend to actually carry out the threat and need not have the means to carry it out. § Who are we protecting? The target of the speech. § Why should it matter whether or not the speaker actually has the physical capacity to carry it out or intends to carry it out if the person at whom it was directed is placed in imminent fear of bodily harm? o Recipient -> put in fear of bodily harm or death. § The speaker's intent does not matter at all. All that matters is an average or reasonable person that is the target of the message is placed in imminent fear—it is an objective standard. § Some courts have applied an objective standard—if a reasonable person would be put at harm, then we can convict the speaker REGARDLESS of what the speaker actually intended.

Variable Obscenity Law

o The S.C. has ruled it is permissible for states to adopt what are known as variable obscenity statutes. § 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. § This allows states to prohibit minors or children from viewing or purchasing sexually explicit content that is non-obscene. That adults, in other words, have a right to look at. § If under Miller, the courts deem it non-obscene, but we still do not want kids to look at it, we have variable obscenity laws. o Variable obscenity laws allow Hustler to be sold to adults but not to minors. same with Playboy. o This concept emerge from Ginsberg v. New York in 1968. In this case, the S.C. ruled that the First Amendment did not bar New York State from prosecuting the owner of a Long Island Luncheonette who sold four so-called girlie magazines to a 16-year-old boy. The magazines, which contained female nudity, could have been legally sold to an adult. o Justice Brennan said the state could maintain one definition of obscenity for adults and another for juveniles because the S.C. recognized the important state interest in protecting the welfare of children.

Child Pornography

o The production, distribution and possession of child pornography is not protected by the 1st Amendment. o Federal statutes outlaw images of minors—people under age 18—engaged in "Sexually explicit conduct," including sexual intercourse, bestiality, and masturbation, as well as images depicting a "lascivious exhibition of the genitals of pubic area." o Laws against child pornography are justified by both the physical and emotional harm minors incur during its creation, as well as by the fact that the images are a permanent record of participation and exploitation that could haunt the children when they grow up if discovered by others. o It is important to note that the kind of material outlawed does not have to meet the test for obscenity outlined in the Miller ruling. o In other words, images of minors engaged in sexually explicit conduct do not need to rise to the level of obscenity under Miller in order for them to constitute child pornography—an illegal product—and fall outside the scope of the First Amendment protection. o A nude image of a child does not always constitute child pornography. There must be a lascivious exhibition of the genitals or pubic area to constitute child pornography, such as a tightly focused or unnaturally zoomed view of those areas. o Thus, a naked picture of you as a baby being washed in the bathtub does not constitute child pornography. o 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, o Under the statute child pornography is defined to include not only actual images of children but also computer-generated images and other pictures that are generated by electronic, mechanical or sexually explicit conduct." o Whereas the original child pornography laws were justified as a means to protect children from being exploited, the 1996 Child Pornography Prevention Act was justified as a means to protect children from pedophiles and child molesters, people whose criminal behavior may be stimulated by such images. o The law specifically states 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.

Chaplinsky v. New Hampshire

o This case involved a man named Walter Chaplinsky, who was a member of the Jehovah's Witness religious sect. o Face-to-face proselytization or confrontation is a part of the religious practice of the members of this sect. o Chaplinsky attracted a hostile crowd as he attempted to distribute religious pamphlets in Rochester, N.H. When a city marshal intervened to protect him from this angry mob, Chaplinsky called the officer a "Goddam*ed racketeer" and "dam*ed fascist." o The Jehovah's Witness was tried and convicted of violating a state law that forbids offensive or derisive speech or name-calling in public. o Chaplinsky denies having said "goddam*ed" o He argues to the S.C. saying that the First Amendment protects that speech. o The Supreme Court ruled against him and affirmed the conviction by a 9-0 vote, saying that this speech constitutes what they call fighting words. o In his opinion for the court Justice Frank Murphy outlined what has now become the fighting words doctrine. o Ruling: those who engage in such incentive are generally protected by the Constitution unless the words are personally abusive epithets used in a face-to-face confrontation. o This is the ONLY time that the S.C. has upheld a conviction for fighting words.

Child Pornography Prevention Act of 1996 (CPPA)

o This was in interesting statute: barred the possession and dissemination of virtual pornography. o·These images didn't actually involve real minors. · They appeared to be of minors, but they were computer-generated. · Congress adopted this because this material could whet the appetite of pedophiles to molest kids. o The images you could generate on a computer could be so lifelike. · Congress adopted this also because defendants in child porn. cases would argue that actually, what I possessed is not real child porn., it is of computer-generated images. o Defendants would have experts in photography come on and testify and say "these images are fake, not of real minors at all; therefore, the defendant would escape liability because there is now a reasonable doubt... "did the defendant actually possess real child porn.?" · 2002, struck down this law as being unconstitutional. o Real minors are not harmed by this content. o Virtual child porn. doesn't involve real minors at all o Much content in today's media portrays minors in a sexual way. o You are creating a thought crime: people would look at these images, fantasize about them. Justice Kennedy said it was a thought crime because no real minors were harmed. · Movie "American Beauty": appears a minor is having sex with an adult o "Appears to be a minor" is a very vague term. o After the S.C. struck down the CPPA, Congress passed the PROTECT act which was, in part, aimed at curbing the promotion of child pornography. o 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. o In 2008, the U.S. S.C. 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." o Writing the majority opinion, Justice Antonin Scalia made it clear that the high court was nor overruling its 2002 decision in Ashcroft v. Free Speech Coalition.

What constitutes fighting words?

o To constitute fighting words, the words must be: § Personally abusive epithets · Homophobic, anti-semetic, racial terms, etc. § used in a face-to-face situation · one on one or one to a few... § directed at a specific individual o Fighting words must be used in a personal, face-to-face encounter—a true verbal assault. o The Supreme Court emphasized this point in 1972 when it ruled that laws prohibiting fighting words must be limited to words "that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." o fighting words are personally abusive epithets directed at a specific individual in a face-to-face situation where the target of speech is likely to swing back and hit the speaker. o It is important to note that the high court has given states permission to restrict fighting words because their utterance could result in a fight, not because they may insult or offend the person at whom they are aimed.

Elonis v. United States (2015)

o What counts as a true threat of violence in an Internet age filled with social media? o In 2015, the S.C. addressed that question in the case of Elonis v. United States that Anthony Elonis, a.k.a "Tone Dougie" said were merely rap lyrics, inspired in part by rapper Eminem. One such post, written about his estranged wife who had obtained a protection from abuse order against him, read: § "Fold up your PFA and put it in your pocket, is it thick enough to stop a bullet? Try to enforce an order, that was improperly granted in the first place. Me thinks the judge needs an education on true threat jurisprudence." o In another example of his violent-themed posts, this one about a female FBI agent who had interviewed and interrogated Elonis about prior postings, Elonis wrote: § You know your shit's ridiculous when you have the FBI knockin' at yo' door. Little Agent Lady stood so close, took all the strength I had not to turn the bitch ghost. Pull my knife, flick my wrist, and slit her throat. Leave her bleedin' from her jugular in the arms of her partner. o For these posts, and others, Elonis was prosecuted under a federal statute that makes it a crime to transmit in interstate commerce "any communication containing any threat... it injure" another person. He communicated a true threat of violence. o When you post on the internet, it is available anywhere-- this gives the feds. jurisdiction to prosecute him for making true threats. · The jury convicts him. At the trial court level, the judge in the instructions said nothing about the subjective intent of Elonis making any difference at all. · All it required was that objective standard, would a reasonable person be put in fear of harm? · The jury was given no instruction, so Elonis' intent didn't matter. · Elonis said his intent was artistic expression, this is cathartic, it is music and expression. o You need to consider my subjective intent because I did not intend it as violence. · Elonis appeals the case... · Issue: does Elonis' subjective intent matter? o Does the statute require some level of mental awareness on the part of Elonis to convict him? o Does the subjective intent of the defendant-speaker (the speaker's state of mind) matter under the First Amendment? · the wrong set of instructions was given, the S.C. then said we no longer need to reach the first amendment issue—judicial minimalism. · The court avoided the constitutional question. · They said they could decide the case on statutory grounds—the wrong set of instructions—then we don't need to reach the larger question. · They simply decide the case narrowly on the statute issue. · The SC then gives it back to the third circuit. · They then say given the nature of his speech, the jury would have convicted him even if there was a subjective intent to it and it would have affirmed it. · The fact that the jury got the wrong instructions wouldn't have mattered in the long run. His speech was so far out there that he obviously knew what he was doing—it was a harmless error on the judge's end to begin with. · Anthony Elonis ultimately had his conviction affirmed. Not initially by the S.C., though. · The S.C. failed to answer the question about the defendant's subjective level of intent. · Notorious RBG came from this case. o The 3rd circuit upheld this conviction, ruling that Elonis' subjective intent—whether or not he actually intended to threaten anyone—did not matter. What mattered instead was that Elonis intended to communicate a message for others to see and that a reasonable person could interpret his speech as threatening. o Elonis appealed, arguing that the First Amendment protected his posts and that the intent of the speaker should matter in deciding if speech amounts to a true threat. o In 2015, the S.C. reversed the 3rd circuit's ruling and remanded the case but without resolving the key First Amendment Issue. o The court instead only addressed the statutory grounds for Elonis' conviction. Premising his conviction under 18 U.S.C. 875(c) solely on how his posts would be viewed by a reasonable person, the Court ruled, was inconsistent with the conventional requirement under criminal law that a criminal needs to have "awareness of some wrongdoing." o So on statutory grounds, the Court reversed and remanded the case. o We still do not know today then whether the First Amendment requires a consideration of the subjective intent of the speaker in a true threats analysis. o On remand from the S.C., the 3rd Circuit in 2016 upheld Elonis' conviction. o The 3rd Circuit court concluded that although the jury instruction at the trial court was wrong because it didn't ask the jurors to consider Elonis' mental state when he posted the comments, Elonis nonetheless "would have been convicted if the jury had been properly instructed." o The 3rd Circuit reasons that "no rational juror could have found Elonis did not have the purpose of threatening FBI agents or did not know hos post about FBI agents would be regarded as a threat." o In brief, the incorrect jury instruction was what courts called a "harmless error" because the mistake would not have made any difference in the outcome. o The case finally came to a close in 2017 when the U.S. S.C denied Elonis' petition for a writ of certiorari to review the ruling.

Stormy Daniels and Nina Hartley

oStormy Daniels Allegedly had an affair with Donald Trump in 2006 and then was paid hush money by his campaign when he ran for president. o Nina Hartley Works as a writer and director

Sexually Oriented Businesses (SOB) and Zoning Laws

o When cities zone SOB's, they use one of two approaches by using the secondary effects doctrine: 1. clustering the business into a single area (called a red-light district or combat zone) 2. or dispersing them across the community, usually to remote industrial areas away from schools and most residential areas. o These zoning tactics are OK if certain criteria are met. o For instance, the S.C. in Renton v. Playtime Theaters, Inc. upheld a municipal ordinance in Washington state prohibiting adult theaters from locating within 1,000 feet of any residential zone, family dwelling, church, park or school. o The high court allows such zoning laws and subjects them to a relatively form of judicial scrutiny if they are designed to decrease and reduce so-called secondary effects of SOBs. Secondary effects of SOBs typically are problems that may go on outside an SOB such as increased crime rates, decreased property value and decreased quality of life. o Other secondary effects may include the spread of STD's inside an SOB that might result from direct contact between dancers and patrons. o 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 § Serves a substantial government interest and § Does not completely ban all SOBs in the municipality and unreasonably limit alternative avenues of communications.

"Pornography" as a term

o While obscenity has a legal definition under the Miller test, the term pornography is without legal significance in the U.S. and instead is commonly used and misused as a catch-all-term by laypeople to describe anything sexually explicit they find offensive or believe is harmful.

True threat defined by Justice O'Connor

o defined by Justice O'Connor in the Virginia cross-burning case, true threats are "those statements where the speakers means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." o She added that "intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." o On the other hand, "political hyperbole" is not a true threat.

Bill Clinton shifted his focus to what when he was president?

o he shifted the focus over from obscenity (Adult content) and rightfully so onto child pornography prosecutions.

What were child pornography laws created to do?

protect minors from pedophiles and those who would abuse and exploit them.

What is the unresolved issue in the true threats doctrine?

what level of intent, state of mind, or awareness must the defendant (the speaker) have?

The 2 Live Crew

§ One of the original rap groups that was successful § Luther Campbell was the live singer § Album: As Nasty as they Wanna Be. § Prosecution in South Florida for obscene lyrics. § This goes to the question in the third prong: serious artistic and literary value. § Initially there was a conviction in South Florida. § 11th Circuit overturned that conviction—the trial judge should have considered more carefully the expert testimony of musicologists. § At the time of the prosecution, rap music had just received a Grammy classification. § 2 Live Crew argued that their lyrics are sexually explicit, but this is their political commentary and it is their reality—there was artistic value. § 11th Circuit said it should have been treated more carefully.

Three Key factors in determining if something is a true threat?

§ 1. Content of the speech. · The words in question, what was actually said. · Sometimes they will look at whether these words were conditional. o That is not really a true threat because there are other things having to happen. This wouldn't put you in imminent fear of bodily harm. · If. The language used is loose, figurative, that may suggest it is more hyperbolic than a precise, concise statement. § 2. Context of the speech. · That can be the physical context where it occurs, but also discussing certain issues o Abortion, immigration, police brutality. o Whatever the issue is today, we expect hyperbole to be used. § 3. Audience reaction to it. · Not simply the target, but the other people who may have heard it? · Did they take it seriously or did they laugh at it? · It is not always going to be very clear. o This doctrine was newly created in 1969.

Why has the U.S. Supreme Court carved out child pornography from first amendment protection?

§ 1. The physical harm to minors... · Anything under 18 years old is going to be child pornography § 2. The emotional harm to the minor... · They would grow up in a skewed world about sex and sexual relations in the future. · Pain and suffering that children will endure. § 3. Participation in child pornography might come back to haunt a minor in life. · Always will be a permanent record of the minor's participation in that act. · Even if you were forced to partake in it. · 30 years later, your boss at work finds this image, it will come back to bite you.

What happened early on is a number of prosecuters were prosecuting minors for becoming their own child pornographers.

§ 15-year-old girl takes a photo of herself, it fits under #5, lascivious exhibition of the genitals or pubic area, sends it to boyfriend. § Now think about what you have done? § You have created child pornography, disseminated it, and someone will possess it. § 5-year sentence for initial offense. o Many states realized there was a problem with this. o The initial intent of these laws was to protect minors, not to prosecute minors in consensual sexting.

Traci Lords

§ 16 years old and starred in adult content § It was child porn., she used a fake license § But they did not know. § She went on to be in Melrose Place. § This triggered a reaction from Congress: 18 U.S.C. 2257 · Age-verification and record-keeping requirements

Federal Statutory Definition of Child Pornography -- 18 U.S.C. 2256

§ 18 is the criminal section of the U.S. Code § "minor" means any person under the age of 18 years; ... § "Sexually explicit conduct" means actual or simulated— § What is sexually explicit conduct? · Sexual intercourse... whether between persons of the same or opposite sex · Bestiality · Masturbation · Sadistic or masochistic abuse · Lascivious exhibition of the genitals or pubic area o The minor then doesn't have to be engaged in a sexual act with someone else. o The image in question, if they are under 18, we would ask if there is a lascivious exhibition of the genitals or pubic area of the minor? If there is, it can constitute child pornography.

What Florida and many other states have done because of the issues with teen sexting

§ Adopted teen sexting statutes—they generally say that if it is consensual sexting from one minor to another minor and it I a first offense, they make it a non-criminal offense so it does not stay on your record forever. · $60 fine · 8 hours of community service · Educational course. o Is that good or bad? Good to have that statute because it says if you are consensually sexting with another minor, we will not treat you with a 5-year prison sentence, we are going to treat you as a minor who was stupid. § Could lead to revenge pornography... o On the other hand, some people say this shouldn't be a criminal or non-criminal offense whatsoever. § Second teen sexting in Florida becomes a misdemeanor, and the third becomes a felony.

Roth v. United States

§ Obscenity is not protected by the first amendment in its production or dissemination. § One caveat to that—it is legal to possess obscenity in the U.S., but you just can't produce it or disseminate it.

Who is not the ideal juror?

§ The flip side they say is the macho, blue collar type of construction worker... you don't want them on your jury. § What role would this guy play on the jury? The protector of the women on the jury... he isn't going to be honest. He wouldn't say what he meant to say.

Who is the ideal juror?

§ The ideal juror in the adult entertainment industry in an obscenity case (content by adults for adults) is a woman who is in her 50s and 60s who is divorced and who has had adult children.

How do you define fighting words?

§ Words by their very utterance inflict injury or tend to incite an immediate breach of peace—this definition has been widdled down over time by the S.C. § What we are really left with is why we really call this fighting words? · Because they are likely to make the target of the speech fight or attack the speaker. § In a fighting words scenario, one-on-one face-to-face situations, these are words where the recipient is more likely to fight the speaker. § The violence doesn't actually have to occur, though. o It is the context in which a word is used that is key—to whom it is said and how it is said.

Example of utilizing variable obscenity in stores

§ when you go to Publix and you are checking out, you notice all those magazines. Some of them are fairly covered up until you get to the top of the magazine · We call those blinder racks § Ex: before we had Netflix, you had to go to a place called blockbuster. · Purchased and rented a video. · A lot of those video stores had separate rooms for adult content. · That is an example of a variable obscenity statute. If they can sell these they are obviously not obscene, an adult can buy or rent them, but we don't want to give minors access to it.

How does the S.C. reach its decision in Snyder v. Phelps?

· Here what we see people expressing is their opinions—they may be hateful, but they are still opinions. · "whether the first amendment prohibits holding WBC liable for its speech in this case turns largely on whether the speech is of public or private concern, as determined by all the circumstances of the case." · In other words, whether or not the S.C. protects the WBC depends on how we characterize their speech? o Matters of public or private concern? o If it is public concern, the court will rule for the WBC. o If it is private matters, then the court will rule for Snyder. · Does the first amendment protect Phelps from tort liability? o We have to determine if the speech is about public or private concern? o "While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the U.S and its citizens, etc.—are matters of public import." · Made no difference to S.C. at all that Snyder was a private figure. · The court made a new rule: o That if the speech in question is about a matter of public concern vs. private, then we prohibit tort liability based upon such speech. § Why do we protect offensive and hateful speech? · Roberts says: speech is powerful. It can stir people to action, move them to tears, and - as it did here - inflict great pain. On the facts before us, we cannot react to the pain by punishing the speaker....

First Prong of Miller Test continued

· If you are a juror in an obscenity case, and the prosecution is going after the X-Mart for selling this video that is obscene. I am going to prosecute you for distributing and selling this content. (indictment) · Now if you are the juror, you are going to have to determine whether it is obscene under the Miller Test—you are asked to take the perspective of an average person. · The S.C. has told us that children are not to be considered in the average person standard. · Look at this movie and say what an average adult would think—then, apply contemporary community standards... o Contemporary means today's standards. o Not the standard when the movie was made, what we care about is now. o What is the community? § The S.C. has told us that the community is not the U.S.—there is not a nationwide community standard in the U.S. under the Miller Test. o The S.C. has left it up to the states to make their own standards. · If this prosecution were to be in California, you would have to take the perspective of an average adult and say today in the community. · How is that weird under the first amendment? A single artifact may be obscene in one state but not in another. · That means if you live in a very liberal state, a particular movie may be deemed not obscene. If you go to a more conservative state, that movie might be deemed obscene there. THAT IS PROBLEMATIC! · When it comes to this, we do not have a uniformed first amendment. · This allows the federal government to go venue or forum shopping... · "Taken as a whole...": o Cant just be a single photo spread or one story, it has to be everything in the Magazine. o This is why magazines such as Playboy would do serious interviews and news stories. o Same thing with Hustler Magazine § Political editorial content. o Why? If they are ever brought up for an obscenity case, you have to take it as a whole. o On the internet this is troubling, because what is the work as a whole on the internet? · "Prurient Interest..." o S.C. told us that this means a morbid or shameful interest in sex. o This is very loaded, value wise. o Normative, value-laden term. o Does it mean the average person should be ashamed while watching this?

Is nudity of a minor child pornography in it of itself?

· No, it is not. · Parents have pictures of their babies in the bathtub. · The mere fact that there is nudity of a child in an image does not make it child pornography. · The mere fact that a child is nude in a picture does not make it child pornography. And on the other hand a child doesn't have to be nude for it to be child pornography either.

Florida Statute 847.001 (2020) Criminal obscenity statute

· Part of Florida's obscenity statute: a mother breastfeeding of her baby is not under any circumstance "obscene." o You can imagine at some point, some mother was prosecuted for obscenity for breastfeeding in a public place—so it was built into the law.

Watts v. United States (1969)

· Robert Watts at a protest in 1966 at Washington Monument. · He is 18, African American. · "the crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality." · Watt's said: "they always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday morning. I am not going. If they ever make me carry a rifle, the first man I want to get my sights is L.B.J. The are not going to make me kill my black brothers." · he is prosecuted under a federal statute—makes it a crime to threaten the president. · He is convicted under this statute. · SCOTUS reverses this and rules for Watts, calls it a "political hyperbole" rather than a "true threat." o The court focused on: § Political context · It is a rally/protest... gathering in D.C. where we expect political hyperbole to take place. § Conditional nature of the speech · If, then statement § Crowd laughed after he made the statement. · This case carved out the true threats exception. · The problem with this case is the S.C. never gave us a definition of a true threat...

What is sexually explicit conduct?

· Sexual intercourse... whether between persons of the same or opposite sex · Bestiality · Masturbation · Sadistic or masochistic abuse · Lascivious exhibition of the genitals or pubic area

Age-verification and record-keeping requirements

· This law was adopted in response to Traci Lords performing underage. · The problem was they didn't even know she was underage. · There were prosecutions of those in the adult industry. · The 2257 regulation said they required age verification. · Any company who produces adult content must verify the age of the performer before filming. · Must bring two ID's with them. · Designed to keep minors out of legitimate adult content. o Not obscene, not child porn. § If you came to the set, you would show two forms of ID and put them next to your head, you would get a picture taken with your IDs, then they would get scanned. § That aspect of the 2257 is still good law about age verification. § Record-keeping: requires whoever produces the film or video, must not only verify the ages but keep records of it all.

The issue with Richard Spencer coming to UF about security

· UF had to spend more than $600,000 to provide law enforcement security to protect Richard Spencer's right to speak at the center. · The burden fell on us to provide that. · Richard Spencer had to pay about $11,000. · Why can't the government shift those higher costs of security, $600,000 on Spencer? o You caused these people to protest against you, you should have to pay that money. Not the general $11,000 that any other speaker has to pay. · The reason is that shifting that burden to a speaker who doesn't have that amount of money is the same thing as a heckler's veto. It makes it too expensive for Spencer to speak here in the first place and therefore, he can't speak. · A potential hostile audience reaction has indeed drowned him out because he cannot afford the funds for security.

Do not confuse child pornography with variable obscenity laws

· Variable obscenity is keeping sexually explicit content out of the hands of minors, which is not child pornography.

Is zoning allowed of SOBs?

· Yes, provided you do not completely zone them out. They have to have some reasonable opportunity to do business. · City of Renton case: o They do not have to have under the 1st amendment a right to be in a desirable location. o You can't say that you can located anywhere you want. o In this case, only 5% of the entire acreage of the town was available. o But a town cannot completely ban them.

What does sexual conduct mean?

· actual or simulated sexual intercourse, deviant sexual intercourse, sexual bestiality, etc... (the acts that are prosecutable under the second prong)