Chapter 11

Obscenity, Indecency, and Violence – Social Norms & Legal Standards

Administrative laws that apply to sexual expression come from the FCC. Current federal and state laws have stripped obscene material – meeting the U.S. Supreme Court’s definition – of all First Amendment protection. The dictionary defines obscenity simply as “relating to sex in an indecent or offensive way” or “very offensive usually in a shocking way.” Idecency is a narrow legal term referring got sexual expression and expletives inappropriate for children on broadcast radio and television. Pornography is a vague, not legally precise term, for sexually oriented material. In order for the court to find material obscene, they must consider 3 things, known as the Miller – or SLAPS test:

  1. “The average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to prurient interests;
  2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
  3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Sexual expression did not concern most Americans until the late 19th century when Anthony Comstock made it a public issue. Congress adopted the Comstock Act making it illegal to mail obscene or lewd material. Until the mid 20th century, American courts used a broad definition of obscenity, allowing government officials to ban a wide range of material. In 1973, the U.S. Supreme Court adopted today’s current obscenity test; it states that a work must meet every part of the test to be obscene. That is, the government must show a work, considered in its entirety,

  1. Arouses sexual lust – prurient test 
  2. Is hard-core pornography
  3. Has no serious social value

If the government cannot prove any part of these three standards (this new test), then the work is not obscene and the First Amendment protects it. The standard applied (community or national) to Internet obscenity is still unsettled. Variable Obscentiy means it is illegal to provide minors with sexually explicit material that would not be obscene if given to an adult. The federal government and all states have laws making it illegal to make, distribute or possess material showing children in sexual situations. The First Amendment protects indecent material, except on broadcast television and radio. The FCC and the Supreme Court define broadcast indecency as patently offensive material describing or depicting sexual or excretory activities and organs. Attempting to give parents control over the television programming their children watch, Congress required set manufacturers to include V-chips. The chips read ratings information television states, networks and cable systems provide with their programming. When censoring the internet, the U.S. Supreme Court said,

“The record demonstrates that the growth of the internet has been and continues ot be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”

Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act (PROTECT) makes it illegal to provide someone with or request from someone an image that is distinguishable from that of a minor in a sexual situation. Court finds the First Amendment protects video games because the games have communicative content. Courts have consistently found state laws preventing minors from buying or renting violent video games unconstitutional. The video game industry has adopted a voluntary labeling system to alert purchasers and parents about the games’ contents.

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