Mass Communications Law

 
Masthead Image

Obscenity

  1. U.S. Constitution charges government with responsibility for "domestic tranquility, general welfare" as well as the "blessings of liberty."
    1. Taken together, these "quality of life" mandates lead to laws involving the health and welfare of the "general" population – society at large, community at home.
    2. Among matters traditionally considered to be a threat to the general welfare are pornography and other obscene materials which threaten to corrupt public morals or undermine the family organization, other social institutions.
      1. Socrates was tried in 399 B.C. for corrupting the youth of Athens in his day.
      2. Historian Edward Gibbon (and more recently Will and Ariel Durant) attributed the downfall of Rome to declining morals and disintegration of the family unit.
    3. For historical perspective, see "A History of Erotica Censorship"
    4. Thus the publication (broadcast) of pornography and other obscene materials have led to a confrontation over First Amendment guarantees for the publisher on the one hand and those concerned with "general welfare" (including government) on the other. Courts have tried to establish guidelines for
      1. Defining obscenity
      2. Establishing who will set standards and enforce them
  2. Prior to the Roth case in 1957, the only definition of obscenity we had was borrowed from an 1868 British case, Regina v. Hicklin. Lord Chief Justice Cockburn gave us the Hicklin Rule which said anything is obscene "if the tendency of the matter ... is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall."
    1. Thus even a few passages endangering children or other sensitive people, could doom a whole work.
    2. Among those banned were James Joyce's Ulysses, D.H. Lawrence's Lady Chatterly's Lover, and Theodore Dreiser's An American Tragedy. Even parts of the Holy Bible fail the Hicklin standard.
  3. In 1873 Congress passed the Comstock Law which imposed up to a $5,000 fine and 5 years in prison for mailing any "obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance."
  4. Important obscenity cases
    1. Roth v. U.S. (1957)
    2. Memoirs … v. Massachusetts (1966)
    3. Stanley v. Georgia (1969)
    4. Miller v. California (1973)
    5. Paris Adult Theater I v. Slaton (1973)
    6. Illinois Citizens … v. FCC (1974)
    7. FCC v. Pacifica Foundation (1978)
    8. New York v. Ferber (1982)
    9. Bethel School District v. Fraser (1986)
    10. Reno v. ACLU (1997)