Obscenity and Indecency

Case Name Regina v. Hicklin (1868) Facts Henry Scott, prosecuted under the Lord Campbell Act for reselling copies of an anti-Catholic pamphlet entitled The Confessional Unmasked: Shewing the Depravity of the Romish priesthood, the iniquity of the confessional and the questions put to females in confession. The act prohibited the distribution of obscene material. Chaplinsky was convicted under a state statute for calling a city Marshall a god damned racketeer and a damned facist in a public place. Test What does obscene mean? Hicklin Test A work is obscene if it has a tendency to deprave those whose minds are open to such immoral influences and into whose hands it might happen to fall Significance (1) Defined obscenity in terms of its effect on most susceptible members of society (BTT) (2) Allowed a work to be ruled obscene based on isolated passages taken out of context Evolution

Chaplinksy v. New Hampshire (1942)

Narrowly defined classes of speech that do not fall under 1st amendment protection. Obscenity and fighting words include these areas of speech.

No protection for materials deemed obscene under 1st amendment.

Comstock Cases Patterson/Bennett US v. Roth (1957)

Prurient Interest Test Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest in sex

Miller v. California (1973)

Miller convicted under CA statute prohibiting

Miller Test (1) Whether the avg

Superseded the Hicklin test obscene materials still fall outside 1st amendment. (1) Dominant theme taken as a whole must appeal to prurient interest (2) Material is patently offensive b/c affronts community standards relating to description of sexual matters (3) Must be utterly w/out redeeming social value What constitutes unprotected obscenity

Material offensive to children or overly sensitive persons no longer considered obscene for all. Entire work must now be solely for prurient interest. Deference to legislature to determine obscenity.

knowingly distributing obscene material. He conducted a mass mailing campaign to advertise the sale of his books labeled adult material.

person applying contemporary community stds would find the work, taken as a whole, to appeal to the prurient interest (2) Whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; (3) Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value

Reaffirms obscenity not protected by 1st amendment. Defines w/out social value

FCC v. Pacifica (1978)

Reno v. ACLU (1997)

NY radio station played a monologue by George Carlin that repeated the words you could not say on public airways. Petitioner says the words were indecent, if not themselves obscene. Court strikes down antiindecency provision of the Communications Decency Act Attempt to protect minors from explicit material on the Internet by (1) criminalizing the knowing transmission of obscene or indecent messages to any recipient under 18, or (2) knowingly sending to a minor anything that in context depicts or describes in patently offensive terms as measured by

Miller Test + Narrowly Tailored -Restriction must be narrowly tailored so as not to restrict speech that adults would find valuable so long as a less restrictive manner available.

Draws a distinction between internet communication and that previously considered. Says the provision lacks distinction b/c it suppresses a large amount of speech for adults in an attempt to regulate for minors. EX: Doesnt allow parents to consent to minors seeing the material.

May not reduce the adult population to only what is suitable for a child

community standards, sexual or excretory activities or organs.

Commercial Speech
Case Name Valentine v. Christiensen (1942) Facts Test Primary Purpose Test - Is the expression made primarily for commercial gain? If yes, speech gets less protection Public/Private Concern Test Does the expression deal with matters that are primarily public or private concern? If yes, speech is protected. Listener Interests Test Do potential recipients of commercial information have substantial listener interests served by publication? If yes, then speech protected. Commercial speech that is not fraudulent, coercive, or misleading is not protected. CH Reasonable Fit Test for Commercial Speech (1) Expression protected by 1st amendment? lawful/not misleading (2) Substantial govt interest in regulating the speech (3) Regulation directly advances the interest asserted? (4) Regulation overinclusive or regulates unnecessarily? Greater includes the lesser power Significance Constitution places no restraints on govt regulation of commercial advertising 1st amendment protection recognized for political advertising Evolution First time a distinction between commercial and noncommercial speech was recognized Seditious libel declared unconstitutional.

NYT v. Sullivan (1964)

Political advertisement asking for donations that supported MLK Jr and his march. VA statute prohibiting pharmacists from advertising price or discount of any prescription drugs

Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council (1976)

Recognizes for 1st time that general commercial speech is afforded 1st amendment protection.

Central Hudson Gas v. Public Service Commn of NY (1980)

Involved promotional advertising by an electrical utility company.

Amplified courts determination of commercial speech to include a determination about the importance of regulating the subject matter or activity in question.

Withdrew protection previously extended to commercial speech. Contraction in / narrows protection of commercial speech. Blackmuns Concurrence Regulate the activity, not the speech.

Posadas

Ban on advertisement of casino gambling in Puerto Rico

If they have the power to ban the gambling altogether, then they have the power to do the

44 Liquormart v. Rhode Island (1996)

RI prohibition against advertising alcohol prices outside of the liquor store for (1) vendors licensed in and out of RI; and (2) news media in RI from advertising liquor sales located in and out of RI

CH Reasonable Fit Test Applies the Central Hudson 4 Part Test

lesser, which is prohibit advertising about gambling, while allowing the underlying activity to take place. Strict scrutiny will be applied to prohibitions that are deemed to be overall bans of truthful and non-misleading commercial advertisements when the reason for regulation is unrelated to a fair bargaining process

Overturns Posadas.

Contemporary Criticism of First Amendment Doctrine Intro to Freedom of Religion