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MMC 4200, Week 11 Notes

by: Deena Acree

MMC 4200, Week 11 Notes MMC 4200

Deena Acree
GPA 3.87

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Chapter 9: Obscenity Pornography, First Amendment, obscenity law, the Miller test, online pornography legislation, sexting, revenge porn, sexually oriented businesses, indecency, FCC regulation,...
Law of Mass Communications
Sandra Chance
Class Notes
media law, Law, mass communication, law of mass communication, first amendment, court systems, SCOTUS
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This 10 page Class Notes was uploaded by Deena Acree on Tuesday March 29, 2016. The Class Notes belongs to MMC 4200 at University of Florida taught by Sandra Chance in Winter 2016. Since its upload, it has received 56 views. For similar materials see Law of Mass Communications in Journalism and Mass Communications at University of Florida.


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Date Created: 03/29/16
Class Eighteen (Chapter 9) — 3/22/15 Exam Statistics: • Average was an 82 • No one got a 102; a few people got a 100 • There are still times available to sign up to review exams Chapter 9: Regulation Of Obscene And Other Erotic Material Pornography • STORY: UF alumna porn star takes stage name from UF journalism professor o CJC Professor Clay Calvert (also teaches MMC 4200) o Student had learned that pornography is not illegal in h is class; decided to become a porn star and made her stage name after him (because it "seemed right") • Obscene or indecent? o We'll be talking about the difference between obscenity and indecency, what each are, and the differences. o Pornography can fall unde r both sections o Hierarchy of Protected Speech o Political & Social Expression o Commercial & Sexual Expression o Categories of Unprotected Speech: Obscenity • What’s the difference? o Obscenity falls under the bottom category • Receives no First Amendment protectio n • Court shave decided that it's of so little value it shouldn't be protected o Indecency • Usually "soft core" pornography • Falls into the middle category (with commercial expression) • It gets some protection, but not as much as other expression • You only need to prove that there is a rational need for restrictions • Interest only has to be substantial, not compelling • The hierarchy shows how easy it is to regulate the types of speech • Paul Little aka "Max Hardcore" o Tampa federal jurors convicted Litt le in June 2008 on 10 counts of selling obscene material on the Internet and 10 counts of shipping it to Tampa through the U.S. mail. o Served almost 4 years in prison o This is an example of how obscene material can be regulated and punished o Jurors came to the decision after watching 8.5 hours of extreme porn in the courtroom on a large screen o Witnessed many different acts First Amendment Issues • Different rules for different media? o There are different rules for different media o Red Lion v. FCC • There's no right for individual users to use the broadcast spectrum • This was the case about the equal time for politicians to access broadcast (been criticized, etc.) • No First Amendment right to broadcast? • Right of the viewers and listeners, not the rights of broadca sters, paramount? o The rights of the viewers and listeners is what's most important here • Government can adopt regulations which inform the public so people can govern themselves. • No individual right to discuss public issues. (on the airways) • Ultimately, this means that broadcasters are charged with serving the public interest First Amendment Considerations • Physical limitations in the broadcast spectrum justify government licensing of broadcasters who can then be required to serve the public interest. Red Lion v. FCC (1969) (Overview of the case) • U.S. Supreme Court upheld FCC’s right to regulate broadcasters because of spectrum scarcity. • Broadcasters required to operate in public interest. • First Amendment rights of viewing and listening public, and not the broadcasters, which are paramount. • Broadcast was such an invasive medium in the past; this is the rationale behind several of the cases that use indecent speech Obscenity Law • Several legal definitions throughout history o Hicklin Rule (1873) • Essentially, a work is obscene if it has the ability to warp the mind of someone who's innocent • Basically, adults could only watch things that are fit for children • This is putting speech outside of First Amendment protection • It completely ignores certain aspects of media that could have other value which adults should be able to consume & the FA should protect • Adults permitted to watch only what was fit for children o Roth-Memoirs Test (1957) • • Similar to cotemporary Miller Test, but still overbroad • Miller v. California (1973) • Case is "the golden rule of obscenity today" o Facts • was found guilty by California Supreme Court for distributing material o “I know it when I see it!” — Justice Potter Stewart • Jacobellis v. Ohio (1964) • Before the Miller test came along, everything was judged on a case by case basis • This is a problem for precedent and because of the subjective -ness of determining based on each case • Definition of Obscenity The Miller Test (1973) • Developed in Miller v. California . Material is obscene if: o An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. o The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. o The work in question lacks serious literary, artistic, political or scientific value . • Part 1: An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. • Average person o Does not include children o Material must not be judged on the basis of a juror’s “personal opinion nor by its effect on a particularly sensitive or insensitive person or group” – • Although can be taken into consideration as part of the community at large • In some cases, the community at large can be represented by a single community standards (average person in a small community more sensitive to obscene material than a large one) • Basically they are asked to step outside of their own head and asked what the average person in their community would think • Community Standards o Most jurisdictions consider these “state standards” • Most of them look at the state as a whole (the entire state of Florida's opinion on the material) o For the jury to decide (judge if no ju ry present) o Venue shopping § Selecting a jurisdiction/site where a conviction can be most easily obtained • Cases involving shipping of sexually explicit material § Inter-state or inter-jurisdiction shipping § Where do you choose where the jurisdiction is? § If you're the plaintiff you want a more conservative jurisdiction § If you're the defendant you want a more liberal jurisdiction • Cases involving the Internet § Very important when talking about online jurisdiction § Where is the jurisdiction? Where it was uploaded? Viewed? Server location? o A national community standard only exists in the 9th Circuit • This is the only court that accepts cases from anywhere • It's in California • Prurient Interests o A shameful or morbid interest in nud ity, sex or excretion • It's really focused on excretory material o Work must be taken as a whole • This is an important part • You can't determine that a movie is obscene because of one single scene in it • Also why a lot of pornography falls outside of the Mille r test (especially soft core porn, porn with storylines) o Does not include violence • Violence is not considered obscene (it's an entirely other thing) • Women's rights activists have tried to fight to get this violence (degradation of women), but it is not inc luded • Part 2: The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. • Patent Offensiveness o To be determined by trier of fact (jury/judge), using community standards o Only hardcore pornography meets this standard • This is important • In order for any material to be considered obscenity, it has to at least be considered hardcore o Justice Rehnquist’s definition in Jenkins v. Georgia (1974) • "Ultimate sexual acts" • "Normal or perverted, actual or simulated" • Some soft core porn has "lewd exhibitions of genitals" etc. (also part of definition) 3. Part 3: The work in question lacks serious literary, artistic, political or scientific value . • Serious Value o Not judged by the standards of the average person o Not if an ordinary person in the community would find serious literary, artistic, political or scientific value, but if a reasonable person could find such value • This is where the Miller test fails most of the time • Defendants hire expert witnesses who say that vid eos "might have educational value for couples who are trying to revamp their sexual life" • This is considered to be a valid argument; many sex experts recommend that their clients try new things • Other expert examples would be arguing that the artistic value is important • This is really the standard here; if they can prove this, the work fails the test completely Variable Obscenity • Laws can regulate material sold and distributed to minors harsher than they can for adults o Every state except 1 has anti-obscenity laws o Federally, obscenity enjoys zero obscenity protection; there is only 1 state that gives • Two standards for what is obscene o There are two standards: what is considered obscene for children o And what is considered obscene for adults • Examples: o Blinder racks • Magazine coverings in stores, etc. • These are required by law because the content is considered obscene for children o “Adults Only” movie section • This is required to exist if there is anything in movies that is considered to be obscene or harmful to minors • Florida has variable obscenity, “harmful to minors” standard o Anything that is "harmful to minors" is considered obscene for minors, but is fully protected to be sold to adults Obscenity • Courts have upheld laws against making, distri buting, selling and exhibiting obscene material • Supreme Court said First Amendment protects the right to have obscene material in the privacy of your own home • This means you can have obscene materials in your home because it's a privacy issue • You have a FA right to keep the materials if you want them • This protects you from liability for just consuming material in your own home • Words alone aren't considered to be obscene (indecency is a different matter) o Except child pornography • You aren't allowed to even have it in your possession • Every state has different laws as to how you're supposed to deal with the unwanted reception • You have to knowingly possess the child pornography (can't be liable if you aren't aware of it) Child Pornography Legislation • Child Pornography Prevention Act (CPPA) - 1996 o Restricted sale/distribution of images that “appear” to depict minors performing sexually explicit acts • This relates to videos where all participants are over 18 but it appears that they are younger • "Teen" porn genre, etc. o Includes computer-generated images • Even though/if images are computer generated o Ashcroft v. Free Speech Coalition U.S. Supreme Court ruled it violated First Amendment • All of it was struck down • Considered to be too broad • PROTECT Act- 2003 • "Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today" o Prohibits a person from participating in the promotion or “pandering” of child pornography • Prohibits someone from advertising/soliciting material in a way that implies that it includes minors (even if it doesn't) o United States v. Williams SCOTUS upheld (not overruling Ashcroft) Online Pornography Legislation • Communications Decency Act (CDA) o Made it a crime to transmit indecent material over public computer networks that can be accessed by minors o Reno v. ACLU (1997) held unconstitutional • Gave Internet speech the same First Amendment protection as print • This is really important when it comes to obscenity and indecency • Indecency is restricted completely in broadcast, but protected in print • Child Online Protection Act (COPA) o Prohibits websites from knowingly transmitting to minors material that is harmful to minors • Very similar to the provision in the CDA that was held to be unconstitutional o Ashcroft v. ACLU (2004) SCOTUS held unconstitutional • Did not meet strict scrutiny standards • This means that there is of course a compelling interest to stop it • The restriction should be on the receiving end (ways to stop types of b rowsing with filters, etc.), not at the source • Children’s Internet Protection Act (CIPA) o Requires public libraries to install anti -pornography filters on all their computers o United States v. American Library Association (2003) SCOTUS upheld CIPA o Adults must be allowed to still have free range upon request • These filters catch a lot of things that aren't actually pornography • Adults must be allowed to have access if they are looking for information Sexting • Minors who take, possess or distribute sexually e xplicit photos of other minors or themselves are not exempt from child pornography statutes • 20 states have passed statutes against sexting (as of July 2015) o These laws are only talking about photos; words are not part of this • Florida legislation passed in 2011 o 1st offense: 8 hours community service or $60 fine or sexting training class o 2nd offense: misdemeanor o 3rd offense: felony o Multiple images within a 24 -hour period is considered one offense Revenge Porn • 26 states have adopted revenge porn laws o Typical situation is an angry ex -SO who posts sexually explicit photos/images/personally identifying info online for others to see o A lot of First Amendment advocates have said that these laws are dangerous o They claim that other laws can cover this area (e xamples: copyright law, privacy laws) • Florida lawmakers attempted to pass 2 bills against revenge porn - both failed o Until now! o Gov. Rick Scott signed into law on May 14, 2015 “sexual cyberharassment” bill • First offenses are misdemeanors • Repeat offenses can be felonies • VIDEO • First major criminal prosecution in California o VIDEO: • First person convicted of posting photos with the intention of causing emotional harm • Some argue that the First Amendment is in danger with these laws • Opinion of panelist: maybe t here's a way to have protection for news organizations in newsworthy events • ACLU has come out against these laws as being "overbroad" § Think that there are other laws that cover this and give protections to people § helps to inform people on how to protect themselves when it comes to these situations Extra Credit • UFID & Name • Last Week, Gawker lost a huge privacy case to which wrestler? Class Nineteen (Chapter 9) — 3/24/15 Review: • Speech that passes the Miller Test is considered to be obscenity o Obscenity is the only speech in this chapter which is NEVER protected Obscenity & Indecency • Obscenity o NO First Amendment Protections o Never allowed on air • Indecency o Protected by First Amendment o Illegal to broadcast on public airwaves • Radio, ABC, CBS, NBC, Fox, The CW are examples of public Sexually Oriented Business (SOBs) o Sexually oriented businesses: any business where the main business falls under sexually explicit conditions o Examples: Adult-only stores, strip clubs, etc. o Any media that exists in these businesses cannot be completely banned (no different than banning books, it's a form of free speech) • Two types of laws: o Zoning regulations • Cities can restrict these businesses to a certa in area • Typically purposes is to keep these businesses away from minors • Also has to do with aesthetics: keeping adult stores from being near town centers, etc. where families and tourists go § If it turns out that there is no place in a city which this store can physically be placed, it's unconstitutional (because of intermediate scrutiny) § This is merely a place restriction, but if there is no place that it will be allowed then it is in effect being banned which is unconstitutional o Expressive conduct regulati ons • This is the reason strict scrutiny doesn't apply • What typically happens is that the SOBs cause secondary effects § These secondary effects include prostitution, drugs, etc. § These effects are what municipalities are typically arguing against • Must meet intermediate scrutiny if it is a content -neutral regulation • Make sure to READ this section in your textbook (pp. 519 - 523) First Amendment Considerations • Physical limitations in the broadcast spectrum justify government licensing of broadcast ers who can then be required to serve the public interest. • Remember Red Lion v. FCC? Indecency 1. Language that describes in terms patently offensive by contemporary community standards for the broadcast medium sexual or excretory activities or organs at times when children may be in the audience. (definition; this is very narrow) 2. Patent Offensiveness: o Explicitness/graphic nature o Material dwells on/repeats at length descriptions of sexual or excretory organs/activities o Material is used to shock, titill ate or pander • Safe Harbor 10 p.m. to 6 a.m. o Broadcast stations can have indecent material during this time o This is because it is assumed that children are asleep during this time • FCC v. Pacifica Foundation (1978) o It's a great case to talk about; the ruling is outdated and doesn't make much sense, but is still good law FCC v. Pacifica (1978) o A radio station broadcast the entirety of one of George Carlin's monologues called "filthy words" o The station did proceed the show with a disclaimer • A father riding in car with his "young son" (who was a late teenager) was offended by the airing (despite the disclaimer) and filed a complaint with the FCC o Pacifica ignored a complaint to the station and said that they were protected because they had used the disclaimer. o He took his complaint to the FCC, who disagreed with the station and considered it to be indecent. o VIDEO: Listened to the word • Rule of Law: o The FCC has the “authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.” • Reasoning: o “Of all forms of communication, broadcasting has the most limited First Amendment protection.” • This is the first case in which the court made this opinion o “Pervasive presence” • This is the reason why they said that broadcast has the most limited FA protection • They said this because you can't control what's coming out of the waves; you aren't in control of what comes out at you o “Uniquely accessible to children” • Even a child that can't read can turn on the te levision or the radio • The reasoning for this is that children can't read other types of media, but they can listen to and view broadcast FCC — Antiquated Guardian of Broadcast? • 60,000 households (just over 50%) of Americans subscribe to cable • 34,500 (30%) satellite users • 11,000 (<10%) rely only on broadcast • >85% Americans use the Internet • Is broadcast still “pervasive” and unique, or has it become only “one voice in the chorus?” FCC Regulation • 2001- FCC Policy Statement o Indecency found within broadcasts in times when a network had repetitively and persistently focused “on sexual or excretory material.” o “Passing or fleeting” expletive not usually found indecent • It would have to be repetitive and persistent for the FTC to punish the broadcaster for it BUT then… • Bono’s speech at 2003 Golden Globe Awards • He said "This is really fucking brilliant." o FCC: “any broadcast of the ‘F -Word’ could subject [broadcasters] to monetary penalties.” o Profane language can also be fined • Language that is “so grossly offensive to members of the public who actually hear it as to amount to a nuisance." o Their rationale was that the "core meaning" behind the 'F -Word' is so "inherently sexual" that it's nearly obscene • FCC issued fines addressing several complaints o Cher (Fox) • "Said one curse word, once" o Nicole Richie (Fox) o NYPD Blue (ABC) • There was a shot of someone's butt on the show • FCC v. Fox Television Stations (2012) • This was an opportunity for the SCOTUS to overturn Pacifica • They didn't even address the First Amendment o SCOTUS ignored First Amendment concerns (judicial minimalism) • Narrowed it down to the smallest issue in the cause to make a judgment on o No “fair notice” under Due Process Clause of Fourteenth Amendment • The FCC had not yet published their change of policy, so they couldn't punish the networks before publishing the policy o FCC free to modify current indecency policy • And they then did • The Freaking FCC


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