Obscenity and Free Speech
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Obscenity and Free Speech

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The Supreme Court attempts to deal with changing cultural standards.

The Supreme Court attempts to deal with changing cultural standards.

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Obscenity and Free Speech Obscenity and Free Speech Presentation Transcript

  • Obscenity and free speech The Court attempts to deal with changing cultural standards
  • Back to Hentoff and Bork• The Bork view – The First Amendment was intended to protect political speech, and not much else• The Hentoff view – The First Amendment must protect all forms of expression
  • Prudery and bad science• Marjorie Heins cites fears of harm caused by masturbation• Anthony Comstock (right) led anti-vice crusade• “Banned in Boston”
  • The Supremes weigh in • Charles Evans Hughes (left), in Near, says obscenity is not protected speech • Common-law meaning is hazy • The Court hazards a definition in 1957
  • Roth v. United States (1957)• William Brennan (right) authors a decision he would come to regret• Reaffirms that obscenity is not protected• Sixteen years of confusion
  • Miller v. California (1973)• Chief Justice Warren Burger’s three-part test – Community standards – Patently offensive – Lacks serious literary, artistic, political or scientific value
  • A major cultural shift • Hardcore porn went mainstream in the 1970s, even at college campuses • Feminism, rising conservatism in ’80s • Technology privatized porn
  • Extreme Associates • California hard-core video company • Prosecuted in Pittsburgh as part of John Ashcroft’s anti-porn campaign • Zicari (left) and Romano are now in prison
  • Other considerations• No protection for child pornography, even if it would not be obscene if made with adults – Very little protection even for virtual child pornography• “Indecency” is a broadcast term and pertains to what the FCC may regulate