Media Law and Ethics 1. Media Law and Ethics Obscenity in the Media. Maggie Miller

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1 Media Law and Ethics 1 Media Law and Ethics Obscenity in the Media Maggie Miller COMM 400 Jason McKahan October 31, 2008

2 Media Law and Ethics 2 Media Law and Ethics Obscenity in the Media Over the past 50 years the rules and regulations on obscenity and indecency have changed significantly. Congress has given the Federal Communications Commission (FCC) the responsibility for administratively enforcing the law that governs these types of broadcasts. There are three great court cases that changed the way the FCC looks at obscenity and indecency. These three main cases are: 1. Roth v. United States 2. Memoirs v. Massachusetts 3. Miller v. California. Before we talk about any cases we much clarify the difference between obscenity and indecency. Obscene material is material which deals with sex in a manner appealing to prurient interest. According to It is a violation of federal law to air obscene programming at any time. It is also a violation of federal law to air indecent programming or profane language during certain hours. Indecency can most easily be described as what makes a PG-rated movie PG instead of G. Indecency is material that is

3 Media Law and Ethics 3 protected under the First Amendment, even though some people find it offensive to one degree or another. Roth v. United States The first important case is Roth v. United States. Samuel Roth operated a business in New York in the publication and selling of books, photographs and magazines. He was convicted by a jury in the District court for the Southern District of New York upon 4 counts of a 26-count indictment (Brennan 1957) of mailing obscene circulars and an obscene book in violation of a federal obscenity law. Roth questioned the constitutionality of obscenity laws which he said conflicted with First Amendment guarantees of free speech and a free press (Ray 69). The main cause Roth was convicted was because the obscenity is not protected by the First Amendment. In response to the case the Supreme Court has observed that obscenity is serves such little good to society that it is not part of the freedom of speech protected by the First Amendment. The FCC website also states that The courts have held that indecent material is protected by the First Amendment and cannot be banned entirely. It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience. Memoirs v. Massachusetts The second important case in regulations on obscenity and indecency is Memoirs v. Massachusetts. This was a United States Supreme Court decision that attempted to clarify a holding made in Roth v. United States. This case included a book Memoirs of a

4 Media Law and Ethics 4 Woman in Pleasure, commonly known as Fanny Hill, written by John Cleland. The Memoirs test has three elements: a) The dominant theme of the material taken as a whole appeals to the prurient interest in sex; b) The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and c) The material is utterly without redeeming social value. The Court, applying the test for obscenity established in Roth v. United States, held that the book was not "utterly without redeeming social value." The Court reaffirmed that books could not be deemed obscene unless they were unqualifiedly worthless, even if the books possessed prurient appeal and were "patently offensive (Brennan 1966). Miller v. California The third case is Miller v. California and remains the court s current definition of obscenity (Ray 69). In this case the accuser knowingly distributing obscene matter. Miller s conviction mainly conducted in Causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. (Mill v. cal court case) The envelope was opened without knowledge of the content inside. Four of the books enclosed were entitled Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography. As you can guess

5 Media Law and Ethics 5 from the titles, the brochures were very explicit. In a 5-to-4 decision, the Court held that obscene materials did not enjoy First Amendment protection. The Court then modified the test for obscenity established in Roth v. United States and Memoirs v. Massachusetts. a) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole appeals to the prurient interest b) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and, c) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. As you can see Roth v. United States, Memoirs v. Massachusetts and Miller v. California have changed the way the FCC has regulated obscenity and indecency. They have set the standards for what is obscene and indecent in media. A hard fact is that as much as the FCC regulates obscenity it will always cause controversy in the lives of everyday Americans.

6 Media Law and Ethics 6 References BRENNAN, J (1957). Cornell University Law School. Retrieved October 28, 2008, from Supreme Court Collection Web site: #354_US_476n22ref Brennan, J (1966). US Supreme Court Media. Retrieved October 28, 2008, from Memoirs v. Massachusetts Web site: Federal Communications Commission. (2008). Regulation of Obscenity, Indecency and Profanity. Retrieved October, From Miller v. California. 413 U.S 15 (1973) Ray, W (1990). FCC: The Ups and Downs of Radio-TV Regulations. Iowa State: Iowa State University Press.