Obscenity and free speech

The Court attempts to dealwith 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’santi-porn campaign

• Zicari (left) and Romano arenow 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