Chapter Twelve Obscenity, indecency and the law   George Carlin on stage around 1978. Carlin's "Seven Dirty Words" comic monologue was the subject of the FCC v. Pacifica Foundation case. In the end, the court supported the FCC's restrictions on indecency (as opposed to obscenity). Indecent content, the FCC said, would be restricted to the hours of 10 p.m. to 6 a.m.   UPDATE: March, 2008: The US Supreme Court will review the FCC restrictions on profanity for the first time since the Carlin (FCC v Pacifica) case of 1978.

Obscenity is an area of longstanding social debate.

Obscenity laws are concerned with prohibiting lewd, filthy, or disgusting words or pictures, and there are major disagreements as to what is or isnt obscene and what role the government should play in enforcing social or cultural morals. All fifty states have laws to control obscenity. The state of Virginia's obscenity statute, for example, defines obscenity as:

"... that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value."

The Supreme Court has consistently held that the First Amendment does not protect certain classes of materials, including those declared legally obscene. However the law does protect materials that may be indecent or simply offensive. The issue is, what exactly is the definition of obscene? If a work is legally obscene, it may be censored and its producers may be punished. If a work is not legally obscene it is protected by the First Amendment and can not be censored. The confusion from this issue begins with its foggy definition. Supreme Court Justice Potter Stewart once stated (in Jacobellis v. Ohio) that he could not define obscenity but "I know it when I see it." Stewart's dilemma illusrates the difficulty for the courts in clarifying the ground rules for obscenity.

Gloria Stienem, a feminist scholar and writer, once made a salient point about the problem behind obscenity: "Sex is the tabasco sauce that an adolescent national pallet sprinkles on every dish on the menu."

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Decisions by local, state or federal authorities to suppress obscene or indecent materials are rarely consistent.

One interesting example of this inconsistency involves partial nudity in official symbols. The seal of the state of Virginia, which shows the Roman Goddess Virtus dressed in Amazon garb standing over the body of a tyrant, has remained exposed since the seal was designed in1776. ('Sic Semper Tiranus' means Thus Always to Tyrants).

The state seal was apparently too candid for the city of Radford, Va., where the same Goddess was given a brazier but, strangely, an exposed midriff and panties. (right)

Meanwhile on the federal level, US Attorney General John Ashcroft decided that the statues of Justice at the main hall of the Dept. of Justice in Washington revealed more than they concealed, and were covered by curtains in 2002.

History

Obscenity and pornography are found in many cultures dating back millenia, but were kept from public view. For example, some of the statuary and frescoes preserved under the ashes of the Roman city of Pompeii were so explicit that they were kept in back rooms of royal museums and were seen only by gentlemen who paid an additional fee.

While the church persecuted very early books and engravings of an obscene nature in ecclesiastical courts, by the time Fanny Hill: Memoirs of a Woman of Pleasure by John Cleland was first publishedt in 1749, British authorities took no notice. Trade in erotic literature grew in the 19th century. London's Holywell Street, known as Bookseller's Row, was the home of 57 porn shops by 1834. All had displays that attracted attention from the thrill-seekers passing . Porn novels, erotic prints, etchings, catalogues for prostitutes that contained their 'specialities' were all sold here.

In England, the Society for the Surpression of Vice led to the first of several laws that gave magistrates authority to issue warrants to sieze and destroy obscene materials. Prosecution of "obscene libel" also became common as laws became more explicit in Victorian era.

Queen (Regina) v. Hicklin (1868 L. R. 3 Q. B. 360)- In 1857 the Lord Campbell Act was adopted to set a standard for obscenity in England. This wasnÕt tested until 1868 when Henry Scott was brought up on charges for a lewd anti-Catholic pamphlet called "The Confessional Unmasked," a piece of crude anti-Catholic propaganda that was part of the social turmoil around the Murphy Riots.

Scott appealed to Benjamin Hicklin, a recorder in London, and although Hicklin ruled in ScottÕs favor this ruling was later overturned by Alexander Cockburn, BritainÕs chief justice. Cockburn said:

"The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."

This came to be known as the Hicklin Rule because the case in question was Regina v. Hicklin. It set an early precedent for obscenity and was cited in American court cases in the 1800s and early 1900s. The rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.

In the US, most of the censorship took place on the state level until after the Civil War. State censors tried to ban Memoirs of a Woman of Pleasure in Massachusetts as early as 1821.

The US Tarrif Act of 1842 was the first federal law restricting imports of obscene material. It didn't have much effect, and as the Victorian era dawned in America in the wake of the Civil War, self-styled crusaders set about improving America's moral posture.

The Comstock Laws (1873)- New York crusading moralist Anthony Comstock lobbied Congress for a "decency" bill which outlined a wide range of moral guidelines. The "Comstock Act" banned from all legal publications any information whatsoever about family planning, abortion, venerial disease, contraceptives and so on. Even a printed discussion of birth control was obscene and therefore not protected by the First Amendment. Comstock was named a special agent of the Post Office and given free transportation to go wherever he wanted and enforce the law that carried his own name. He bragged later that he was responsible for sending enough people to jail to fill a 61 coach passenger train .

Comstock was not only concerned about publications with dirty pictures. Comstock and other social conservatives of the era worried that the women's suffrage movement (to give women the vote) and new ideas about "free love" and even spiritualism were undermining American morality. Indeed, propaganda against suffrage workers like Victoria Woodhull was fairly typical. At right, we see Woodhull as the devil with her free love doctrine trying to lure a woman with an alcoholic husband and a crying baby down the path away from salvation, not toward it.

The women's movement reacted to "Comstockery" by insisting on the free speech right to discuss birth control. In 1914, Margaret Sanger published the Woman Rebel, which included frank discussions about contraception, and was indicted for violating the Comstock Acts. (The charges were later dismissed).

** Mutual Film v. Industrial Commission of Ohio, 1915 -- Ohio set up a system of board of censors which, by law, could only approve films that were "of a moral, educational, or amusing and harmless character." The law was upheld and, on appeal, the Supreme Court said that the state has an intereest in public morals and that films "may be used for evil." Noting that audiences were made up of both adults and children, the court said that "a pretense of worthy purpose" might make films "even more insidious in corruption." Freedom of speech does not apply to spectacles and circuses, the court said. It is interesting that the court considered the state constitution's guarantee of free speech here and not the US Constitution's First Amendment. Following this decision, the system of censorship continued on a national level through the Hays Committee and the Motion Picture Association of America through the 1960s, then changed to the current rating system: G, PG, PG-13, R and NC-17.

One Book Entitled Ulysses v. US, 1933, One of the most frequently censored books of the early 20th century, Ulysses was finally brought to trial in 1933. Judge John Woolsey found the book not obscene, and his decision in the case did not apply the Hicklin Rule, which was the standard at the time. One aspect of the Hicklin Rule stated that in order to determine a workÕs obscenity, its effects on the most susceptible members of society had to be determined. In Ulysses v. US, Woolsey said that instead of the most susceptible members of society, its effects on the average person determine a workÕs obscenity. Furthermore, the Hicklin Rule allowed for a work to be judged by individual passages, which could be easily taken out of context. Woolsey based his judgment on the work as a whole. The case was appealed, but the Appeals Court upheld Woolsey's decision, and the Hicklin Rule was abolished in the US on the federal level.

Lenny Bruce (AP Photo from April 1963) changed American comedy and inspired George Carlin, Chris Rock and many others with his wild impromptu performances. But he was convicted of obscentiy and spent his final years struggling with the law.

As late as the 1950s and 1960s, obscenity could be defined by local and state governments as the use of dirty language rather than any appeal to sexual interest. Bruce (1925-1966) became famous for challenging taboos around language. "He had extraordinary ... naivete," said Dustin Hoffman, who played Bruce in the 1974 film Lenny. "He really felt he was going to be protected under the Constitutional [guarantee of] free speech and that what he was doing was not obscene. And it wasnt, if the defintion is to sexually arouse, that's not what he was about." He was convicted of obscenity in November 1964 over his act at a Greenwich Village cafe. He was pardoned posthumously in 2003 following efforts by author Rollin Collins.

The evolution of obscenity law in the US in recent years is traced in this article by David L. Hudson Jr. at the First Amendment Center.

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Recent Cases

** Roth v. US, 1957 -- The court said obscene materials were not protected by the First Amendment. The Roth standard formally replaced Hicklin Rule. Under Roth, obscenity is:

"whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. "

* Smith v. California, 1959 -- A bookstore owner who did not know (or had no reason to know) about obscene materials, was not guilty of knowingly selling obscene material. The case expanded the test of "scienteur" (guilty knowledge) and averted a chilling effect on distributors who might not know about the contents of materials they handled. It would become an importanta case as the responsibilities of Internet Service Providers were examined in the 1990s.

Freedman v. Maryland, 380 US 51 (1965) -- A film called "Revenge at Daybreak" was shown in a Baltimore theater without first submitting it to a state board of censors for approval. The court found that the censorship process was itself an infringement on the First Amendment, but found that a more timely process might be permissible. In effect, the decision was the end of outright state censorship of nationally distributed films.

* Memoirs of a Woman of Pleasure v. Massachusetts, 1966 -- This involved a book written in 1749 about prostitute Fanny Hill. The Supreme Court said it was not obscene, used this three part test:

1) original Roth test
2) Had to be patently offensive
3) Had to be utterly without redeeming social value.

The bottom line: a work could not be considered obscene if it had any redeeming social value of any kind whatsoever. After Memoirs, the court began upholding time place and manner restrictions rather than firming up content tests. Note that Miller (below) changed the social value test.

Side note for contemporary culture connections: This is the case that the grizzled old printer is refering to when Larry Flint says he wants to print a "girlie" magazine in the film "The People versus Larry Flynt."

Ginzburg v. United States 383 U.S. 463 (1966) On June 14, 1968, Ralph Ginzburg and three corporations he controlled were convicted in a federal district court in Pennsylvania for sending through the mail three obscene publications.The prosecution said that these publications were obscene in the context of their publication, sale and attendant publicity. In finding Ginzburg guilty, the trial judge applied the obscenity standards first used in the Roth v. U.S. case. Evidence that the petitioners deliberately represented the material as erotically arousing and commercially exploited them as erotica solely for the sake of prurient appeal amply supported the trial courtÕs determination that the material was obscene under the standards of the Roth case. The trial judge sentenced Ginzburg to five years imprisonment and fined him $28,000. Basically, this case upheld state laws against pandering based on erotic appeal or selling material that was considered obscene to minors even if not obscene for adults.

Stanley v. Georgia 394 U.S. 557 (1969) -- A unanimous court said that the state of Georgia could not send a man to jail for private possession of pornography, even it was illegal to sell the pornography. A person has "a right to satisfy emotional needs in the privacy of his own house." However, in 1990, however, the Court found that protection for private possession of child pornography was illegal.

** Miller v. California (1973) -- New benchmark reflected political changes in the Supreme Court with new Nixon appointees. Community standards replaced national standards, and the court tried to isolate hard core pornography from expression protected by the First Amendment. This is still the main "controlling" case in defining obscenity. In Miller, the court said a work was obscene if it:

1. Meets the Roth test
2. describes sexual conduct in a patently offensive way
3. taken as a whole, lacks serious literary, artistic, political or scientific value

** Pope v. Illinois,1987 -- Attendants at two bookstores in Rockford, Illinois were charged separately with violating an Illinois obscenity statute by selling allegedly obscene magazines. At the trials the jury was instructed to judge whether the magazines were obscene under the 3-part test set out in the state of Illinois inn the Miller v California (how the magazines would be viewed by ordinary adults in the state). Decision: Jury instruction to apply statewide community standard in deciding value of allegedly obscene magazines held to violate First amendment, but remand held necessary for harmless error determinations Appeal: Affirmed convictions, saying that the 3rd prong of Miller test (whether the work taken as a whole lacks serious literary, artistic, political, or scientific value) must be determined on an objective basis and not by reference to community standards. Note: This case modified Miller to the extent that "serious value" was not simply something that could be determined at the community level, but rather whether a "reasonable person" would see a work as obscene. In effect, the community standard of Miller was modified by a national perspective. In practice, it meant that prosecutors and jurors call in experts to help determine whether something has serious value.

** FCC v. Pacifica Foundation, 1978, The court held that the FCC could create time, place and manner restrictions for indecent language, but not broad restrictions. The case involved George Carlin's "Seven Dirty Words" monologue. Over time, FCC standards slipped, but in 1987, FCC tried to re-regulate obscenity on the air, especially in songs (Makin' Bacon), a play (The Jerker) and "shock" radio (Howard Stern). Still, FCC could not define obscene or indecent, or even the term "patently offensive." The FCC tried to fall back on Miller v California, but in the end, fell back on time, place and manner restrictions, setting aside the 12 - 6 am slot as a "safe harbor" for any material because probably there were no children in the audience. Click for Carlin's Seven Dirty Words monologue on YouTube. Warning: This is EXPLICIT. Not for children !!

** Fox v. FCC, 2007 -- New York second district federal court struck down fine by FCC against Fox network for off the cuff indecent remarks during the 2002 and 2003 Billboard Music Awards. The court was concerned that this was a change from previous policy and that it was inconsistent with permission for indecency in news coverage where indecent remarks were made. The end result is that casual indecency will not be punished by the FCC in the future.

For example, Dick Cheney says "fuck yourself" to Sen. Patrick Leahy on the floor of the US Senate. --
(That would be OK said the FCC)

For example, Cher made the following comment (Not OK, said the FCC): 

“I’ve had unbelievable support in my life, and I’ve worked really hard.  I’ve had great people to work with.  Oh, yeah, you know what?  I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So fuck ‘em.  I still have a job and they don’t.”

Another example: During the 2003 Billboard Music Awards, Paris Hilton and Nicole Richie said (and this was Not OK by the FCC):

Paris Hilton: “Now, Nicole, remember, this is a live show, watch the bad language.”
Nicole Richie: “Okay, God.”
Paris Hilton: “It feels so good to be standing here tonight.”
Nicole Richie: “Yeah, instead of standing in mud and [audio blocked].  Why do they even call it ‘The Simple Life?’  Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.” 

**** Reno v. ACLU, 1997, The Supreme Court struck down the 1996 Communications Decency Act (CDA), which they said was an unconstitutional attempt to control communications on the Internet. First, t he court said, the Internet and the World Wide Web should be considered as having full First Amendment protection, such as the print media, and should not be regulated like radio and television broadcasting. While noting that it was within the government's power to set "time place and manner" restrictions on obscene communications, and that obscenity did not have First Amendment protection, the court said that the CDA had problems:

1. Existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.”
2. The breadth of the CDA’s coverage was unprecedented. Its open-ended prohibitions embraced not only commercial speech or commercial entities, but also “all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.” Because the CDA did not define the terms “indecent” and “patently offensive,” the statute “cover[ed] large amounts of nonpornographic material with serious educational value.” Regulated subject matter under the CDA extended to “discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library.”
3. The court found that the law was not narrowly tailored.

** Ashcroft v. ACLU, 2004 -- A second attempt to restrict access to obscene materials, the Child Online Protection Act (passed in 1998) is still in in the courts in 2004. The Supreme Court considered the case but said it "expresses no view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny." The court remanded the case to the Third Circuit "to first examine these difficult issues."

Minor Cases with interesting features

Ashcroft v Free Speech Coalition, 2002 -- Child pornography is illegal because it involves acts that hurt juveniles. But what about virtual child pornography? The Supreme Court was divided in the case.

U.S. v. Robert Allen Thomas, 1996 -- One controversial case involved a California couple who were arrested, taken to Tennessee and convicted of violating Tennessee community standards against obscenity. Nicholas Negroponte of MIT's Media Lab compared this to Iran extraditing Madonna or Michael Jackson because they broke Islamic laws. However, the Sixth U.S. Circuit Court of Appeals said that the use of computer technology does not require a new definition of community based on connections among people in cyberspace rather than the geographic locale of the federal judicial district. In this situation, the court said, the bulletin board operator had knowledge and control over the the geographic distribution of his product because logins and passwords were purchased by check and credit card forms sent through the U.S. mail.The Thomas case does not really resolve the problem of geographic versus wired community standards, since in most cases, the operator will not have control over the geographic distribution of the product. Mainstream Loudon v. Board of Trustees 1999 -- Courts ordered the Loudon County Va. library tostop using internet "filtering" software to protect children from pornography.

Hadnut v. American Booksellers 1986 -- An Indianapolis law banning pornography as an offense against the civil liberties of women was overturned by the Supreme Court. The courts pointed out that the law could be used to ban other works, for example Homer's Illiad, because they depict women as "submissive objects for conquest and domination."

Links to related web sites The saga of "shock jock" Howard Stearn and Clear Channel Communications Also see "Expoloring Constitutional Conflicts"