American Constitutionalism in Historical Perspective (packet)

Cases narrowing the definition of obscenity:

1. 
   Roth v. US and Alberts v. California, 1957: (p.1096) Brennan distinguishes b/w protected and unprotected speech. Later regrets these distinctions.
   
   1. 
      Protected: history, the most important ideas, focuses on written/oral expression and political criticism, disfavors other forms of expressions (visual image, theatre, dancing, music).
      
      1. 
         Criticized b/c attack of art is at core of totalitarian govt and cutting edge, dissenting art is at the core of free speech and thus should be protected. Much of great art/music is erotic, its sensuality is profound. Feminist worry that great feminist art will not be protected
         
   2. 
      Not Protected: sexual & erotic components of expression, must have redeeming social value.
      
      1. 
         Very subjective & hard to enforce. Need to move to hard core porn analysis b/c some eroticism can be valued. (Harlan)
         
      2. 
         Prob: Obscene is used more broadly than the erotic--can be obscene and NOT sexual (political put downs, protests against Vietnam War called “Ba’s Bonfire,” obscene profits of oil companies, taking pleasure in gratuitous violence) Porn for marriage counseling: not obscene b/c enables couple to feel connection to each other. Eroticism CAN be valued:
         
2. 
   Redrup Reversals: confusion on the court resulting from inaccurate standards for judging obscenity. Led to each justice applying their own test based on the “I know it when I see it” standard. Reversed convictions for dissemination of materials that at least 5 members of the Ct applying separate tests, deemed not to be obscene.
   
3. 
   Memoirs Test: Not protected if:
   
   1. 
      Prurient on balance (characterized by or arousing unusual sexual desire)
      
   2. 
      Offensive (jury needs to find this offensive and unnatural), AND
      
   3. 
      Utterly without real social value (exclusively erotic)
      
4. 
   Stanley: c/n criminalize individs for having obscene material in their homes. Based on rt of privacy, imaginative life of person is impt. Leads to variable standard: if obtrusively put on unwilling audience held to a higher standard; if willing adults viewing have lower standard.
   
5. 
   Miller v. California, 1973: Miller d/n involve consenting adults and was about intrusion on third parties. Criticism of the test, both over and under inclusive, though meets need for more certainty. Good because requires jury judgment at local level, c/n reach mere advocacy of contraception, discussion of homosexual lifestyle.
   
   1. 
      Prurient on balance: blatant content bias
      
   2. 
      Offensive to local community
      
   3. 
      Lacks serious social value, utterly unredeeming
      
   4. 
      Vivid hardcore depiction of genitals coming to climax, mere nudity is not enough
      
6. 
   Jenkins v. Georgia: Carnal Knowledge movie: man can only connect to prostitute b/c of masochinist views. See his face as he climaxes and Georgia says not okay. Ct says its protected b/c d/n see genitals coming to climax so c/n be obscene. Harlan: need to make it hard core porn so have more predictability w/ what is obscene. Protects dissenting sexual voice-broadly speech protective. BUT Mapplethorpe’s art (p. 1103) has a lot of turgid genitals so can be criminally prosecuted for this kind of cutting edge art under this test..
   
7. 
   Paris Adult Theatre I v. Slaton, 1973: criminal obscenity prosecutions will be permitted even though done totally in doors with willing adult participants in order to protect the moral environment. Criticized because disregards rt of privacy. Brennan dissents, believe earlier decisions were a mistake. Now have chilling effect, confusion in courts, lack of notice to defendants about what is and is not obscene. Oregon has overruled this under state law: no longer unprotected speech
   
8. 
   American Booksellers Ass’n v. Hudnut, 1986: strikes down a local ordinance (based on MacKinnon Proposal) restricting obscene materials b/c it was not viewpoint neutral as applied to protected speech. If this statute was allowed would discourage discussion and inhibit work toward changing these attitudes. Too narrow: d/n address porn watched in the home and attitude towards all women. Too broad: d/n address connection w/ women in the workplace and porn