Early Definitions of Obscenity Roth v. United States (1957) - Does the average person, applying contemporary community standards, find the dominant theme of the material taken as a whole appeals to the prurient interest? Memoirs v. Massachusetts (1966) - State must establish that: The dominant theme of the material taken as a whole appeals to the prurient interest in sex; Material is patently offensive because it affronts contemporary community standards relating to the depiction of sex; & The material is utterly without redeeming social value

Miller v. California (1973) – current definition State must establish that: 1. The average person applying contemporary community standards would find the work taken as a whole appeals to the prurient interest; 2. The work depicts or describes in a patently offensive way sexual conduct specifically defined by state law; and Mo. Rev. Stat (17) – Sexual Conduct = actual or simulated, normal or perverted acts of human masturbation; deviate sexual intercourse; sexual intercourse; or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or the breast of a female in an act of apparent sexual stimulation or gratification or any sadomasochistic abuse or acts including animals or any latent objects in an act of apparent sexual stimulation or gratification. 3. The work taken as a whole lacks serious literary, artistic, scientific or political value.

A brief description of the law re regulation of obscenity State can ban distribution of obscenity (Roth/Miller), including the discrete public display of obscene materials to willing adults (Paris Adult Theatre). State cannot ban possession of obscenity (Stanley v. Georgia). Material that is not obscene to adults can be judged under Miller to be obscene to minors – Ginsberg v. NY But gov’t cannot justify a total ban on materials by claiming that they are obscene to minors if they are not obscene as to adults – i.e., distributor must be able to ply his product (Butler v. Michigan)

What interest does the government have in banning obscenity? Is it because obscenity is low value?  Remember Chaplinsky – low value speech = such slight social value that any benefit is outweighed by interest in order/morality. Does obscenity have no social value? Is it truly valueless speech? What interest does government have in banning the distribution or public display of obscenity (as opposed to pornography and other sexually explicit speech)?

Application of Miller – prongs 1 & 2 Prongs 1 & 2 (prurient interest and patently offensive) can be judged by juries using local community standards. What problems arise with the use of local community standards? How does this work now with the Internet? Ashcroft v. ACLU – did not do away with the local community standard for Internet prosecutions but justices expressed uneasiness Is it reasonable to punish a person who lives in California (& posts material there) in Tennessee because someone accessed their website in Tennessee?

Application of Miller – prong 3 Prong 3 – jury cannot use local standards to judge whether a work lacks “serious... value.” Jury must ask whether a “reasonable person” would find that the material has serious value.” (Pope v. Illinois, 481 U.S. 497 (1987) Usually established by expert testimony from people in the field – i.e., artists, scientists, writers, etc.

Child Pornography – NY v. Ferber NY law prohibited knowing use of child under 16 in a sexual performance. Sexual performance = performance involving sex. conduct by child under 16 Sexual conduct = actual/simulated sexual intercourse, deviate sexual intercourse, bestiality, masturbation, sado-masochistic abuse, lewd exhibition of genitals Performance = play, motion picture, photograph or danc e SCT upheld law even though didn’t meet Miller standards: What are the state interests? How different than with obscenity? What is the value of child porn? Laws regulating child pornography must: Adequately define prohibited conduct Contain scienter (intent) requirement Only apply to “live performance/photographic/visual reproductions”

Ferber and the question of “value” Majority interpreted the NY law as not applying to works having any serious value. Note disagreement between O’Connor & Brennan as to whether distribution of child pornography should still be prosecuted if it does have serious value. What is the right answer? Hypo: A documentary producer filmed the conditions in a state hospital for the developmentally challenged that showed filthy conditions and insufficient care, which also included pictures of poorly cared for and nude teen patients wandering the halls and masturbating. Hypo – scenario p. 601 n.2