The document discusses the Supreme Court's attempts to define obscenity and determine what types of expression the First Amendment protects. It provides background on key court cases like Roth v. United States and Miller v. California that established obscenity as an unprotected category. It also describes how cultural standards around pornography shifted significantly in the 1970s and 1980s with the rise of hardcore porn and feminism. More recently, technology has privatized pornography consumption while some extreme porn producers like Extreme Associates have faced prosecution.

1. Obscenity and free speech
The Court attempts to deal
with changing cultural standards

2. 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

3. Prudery and bad science
• Marjorie Heins cites
fears of harm caused
by masturbation
• Anthony Comstock
(right) led anti-vice
crusade
• “Banned in Boston”

4. 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

5. 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

6. Miller v. California (1973)
• Chief Justice Warren
Burger’s three-part
test
– Community standards
– Patently offensive
– Lacks serious literary,
artistic, political or
scientific value

7. A major cultural shift
• Hardcore porn went
mainstream in the
1970s, even at college
campuses
• Feminism, rising
conservatism in ’80s
• Technology privatized
porn

8. 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

9. 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