Ethan Englert

COMM 494
First Amendment Essay
The First Amendment of the Constitution gives us freedoms as Americans, and one of
them being the freedom of speech. This freedom also grants us protection with more than
what we say, granted the said material is not considered obscene. According to the book, the
word speech in the First Amendment sometimes (but not always) encompasses and includes
conduct, not simply what we might think of as pure speech (p. 43). With conduct included in
the freedom of speech, there have been many instances that have risen protest and questions
in what is to be protected, one of them being sexual expression. We live in a world filled with
sexual temptation, and many laws and rules were established to regulate the way we express it.
Some forms of sexual expression are considered to be obscene. What is considered to
be obscene? America first adopted the Hicklin Rule to define obscenity, which stated a work
was considered obscene if it has a tendency to deprave and corrupt those whose minds are
open to such immoral influences and into whose hands it might fall (p. 491). The Supreme
Court later abandoned this rule because it was very vague. However, the adoption of this first
law paved the way to what we use today to define obscenity, the Miller Test. Under the Miller
Test, the work in question must undergo a three part test to define if it is obscene: The work in
question must be sexually arousing to the average person, must be displayed in a patently
offensive manner, and lack serious literary, artistic, political or scientific value. Although
obscene sexual expression is not protected by the First Amendment and is illegal to broadcast,

the ruling in Stanley v. Georgia grants Americans to keep obscene sexual materials at their
home, as long as they are not in possession of a minor.
Although it is illegal to broadcast any type of obscenity over public airwaves, indecent
material is allowed to be broadcast. At first, indecent material was broadcast with very little
regulation. It was not until the 1978 case of FCC v. Pacifica Foundation that the Supreme Court
ruled that barring indecency during certain times of the day did not violate our First
Amendment rights. How does the FCC define indecency? Indecency is language that describes
in terms patently offensive as measured by contemporary community standards for the
broadcast medium, sexual or excretory activities and organs, at times when there is a
reasonable risk children may be in the audience (p. 629). Adhering to their definition, the FCC
established safe harbor hours. Between the hours of 10 p.m. and 6 a.m. indecent material
may be broadcast because it is not likely that children will be listening to the broadcast.
Obscene and indecent behavior is regulated even further. For example, under the
Comstock Act of 1873, it became illegal to send all obscene material through the mail. Sexually
oriented businesses are also subject to zoning and expressive conduct regulations. Some states
require that strip clubs or adult book stores be located within a certain distance away from
residential areas or schools. However, these zoning laws must prove that it serves a substantial
government interest, and it does not ban all sexually oriented businesses and does not strictly
limit their means of communications.
I believe that the regulation of sexual expression will slowly become more liberal as time
goes on. Recently, the Supreme Court of the United States ruled against the FCCs policy of
fleeting expletives being broadcast. Some stations argued that the FCC can hand out harsh

fines with little direction on how to avoid them, the wide availability of cable, satellite and
internet television which the FCC does not regulate, and the parents of the children have many
tools they can use to protect children from these types of programs. This decision tells us that
even to this day what the FCC defines as indecent is still unclear. However, we are not going to
know whether the FCC plans to tighten what it considers indecent, become more lenient, or
keep the rule the same. I think it will become more liberal because the case went against an
FCC policy that has been in practice for years. I also agree that there are plenty of tools that
parents can use to monitor what their children watch on television, and they should be able to
decide what is inappropriate for their children to watch. We are becoming more of a liberal
society every day, becoming accepting of controversial issues such as gay marriage, something
that was seen as completely unacceptable no more than twenty years ago. Sexual expression
has brought about many lawsuits, questions, and conflict, and will continue to remain a
controversial topic in American broadcasting.