Chapter 11: Obscenity, Indecency & Violence

Overview of the Topic:

Media has been filled with sexual expression since its beginnings. That is why, in order to regulate public displays of obscenity, federal laws have been passed, that ban obscenity production and distribution. Since the definition of obscenity comes from the Miller v. California case, content must pass the Miller test in order for obscenity to be proven in court.

In 1973, the Supreme Court adopted its official definition of obscenity. However, regarding Internet obscenity, the relevant laws are still undefined and vague, as most of those regarding online interactions are.

When it comes to variable obscenity, it is illegal to provide minors with the sexual content that would not be obscene to adults. Nonetheless, the First Amendment protect the possession of obscene materials, as far as it doesn’t categorize as child pornography. There are different ways in which the government can attempt to seize the possessions of the people guilty of distributing obscene material.

The First Amendment protection covers indecent material, except the material on broadcast radio and television. Other than the explicitly sexual material on broadcast television and radio, the FCC and the Supreme Court recently defined fleeting expletives as indecent, therefore equally subjected to indecency regulations. In order to warn parents about the material shown on certain programs, the Congress requires for the manufacturers to set V-chips that read off the ratings of certain programs and television stations.

In terms of online obscenity and indecency, the Supreme Court overturned several congressional attempts to regulate Internet indecency. However, in fear that the regulation of online content will greatly disrupt the freedom of expression given to online users, the Supreme Court chose to leave the Internet with no censorship present, giving it full First Amendment protection.

Because of their communicative content video games are fully protected by the First Amendment. Although some state courts have attempted to regulate the distribution of violent video games to minors, the video industries have voluntarily adopted a labeling system that provides information on the content of certain video games.

Defining Key Terms:

Obscenity: Content relating to sex in an indecent, very offensive or shocking way. Originates from Miller v. California case.

Hicklin rule: A rule taken from a mid-19^th-century English case that was used to define material that corrupts children.

Prurient interest: Lustful thoughts or sexual desires.

Variable obscenity: The concept that sexually oriented material would not meet the definition of obscenity if distributed to adults, but would be found obscene if distributed to minors.

Safe harbor policy: FCC policy designating 10 p.m. to 6 a.m. as a time when broadcast radio and television stations may air indecent material without violating federal law or FCC regulations.

Important Cases:

Millerv. California (1973) – The court ruled Miller guilty for distributing indecent material on brochures mailed to resident of Newport Beach, California. This is the case in which the official definition of obscenity was determined.

FCC v.Fox Television Stations Inc. (2012) – The court ruled that the regulations imposed by the FCC on the fleeting expletives were vague, and could potentially influence the increase of a “chilling effect”.

Relevant Doctrine:

The SLAPS test

In order to prove that some kind of publication/ distribution is obscene, the government must prove all three parts of the Miller test are true. The third part of the test says the material, taken as a whole, must lack serious literary, artistic, political or scientific value (SLAPS).

The Miller Test

1. “the average person, applying contemporary community standards” – whether or not the material causes prurient interests,
2. The work depicts or describes sexual conduct specifically defined by the applicable state law in an offensive way,
3. The work as a whole doesn’t pass the SLAPS test.

Internet censorship

According to the Supreme Court, the interest to avoid the chilling effect through the regulation of the Internet is a priority over censoring the content found online.

Current Issues/ Controversies:

Although the government consistently tries to adjust to the flow of the Internet and the content that finds its way to different websites, the controversies over Internet censorship cannot size. This not only brings the basic obscenity and indecency regulations in questions, but the applicability of the Miller test to the nature of online content.

The vagueness of the majority of the regulations regarding online content is a challenge to narrow down, as the societal standards for obscenity and allowed sexual content also fluctuate constantly. Nonetheless, the Supreme Court and other governmental entities are regularly challenged with the cases of Internet obscenity, indecency and censorship.

Even though the government fears the “chilling effect” that might become one of the consequences of regulating online content, some recent Internet obscenity cases have shown elements of the Supreme Court’s changing directions in terms of allowing full freedom of expression on the Internet.

References:

Trager,R., Russomanno, J. & Ross, S.D. (2016), The law of journalism and masscommunication. Thousand Oaks, CA: Sage Publications.