Patently offensive
From The Art and Popular Culture Encyclopedia
(Difference between revisions)
| Revision as of 00:27, 4 March 2012 Jahsonic (Talk | contribs) ← Previous diff |
Revision as of 00:28, 4 March 2012 Jahsonic (Talk | contribs) Next diff → |
||
| Line 1: | Line 1: | ||
| {{Template}} | {{Template}} | ||
| - | '''''Miller v. California''''', {{ussc|413|15|1973}} was a Landmark [[Supreme Court of the United States|United States Supreme Court]] case involving what constitutes unprotected [[obscenity]] for [[First Amendment to the United States Constitution|First Amendment]] purposes. The decision reiterated that [[obscenity]] was not protected by the First Amendment and established the [[Miller test|''Miller'' test]] for determining what constituted obscene material. | + | '''Patently offensive''' is a term used in United States law regarding [[obscenity]] and the [[First Amendment to the United States Constitution|First Amendment]]. |
| - | ==History== | + | The phrase "patently offensive" first appeared in ''[[Roth v. United States]]'', referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the viewing public. The ''Roth'' standard outlined what is to be considered obscene and thus not under First Amendment protection. The ''Roth'' standard was largely replaced by the [[Miller test|''Miller'' test]] established by ''[[Miller v. California]]'' (1973). |
| - | The [[appellant]], [[Marvin Miller]], [[Management|operator]] of one of the [[West Coast of the United States|West Coast's]] largest [[mail-order]] [[business]]es dealing in [[pornography|sexually explicit material]], had conducted a mass mailing [[Political campaign|campaign]] to [[advertise]] the sale of illustrated books, labeled "adult" material (also referred to in the vernacular as [[pornography]]). He was found guilty in the [[Superior Courts of California|Superior Court]] of [[Orange County, California]] (the [[State court (United States)|state]] [[trial court]]) of having violated [[California Penal Code]] 311.2 (a), a [[misdemeanor]], by knowingly distributing obscene material. The conviction was affirmed by the [[California Court of Appeals]]. As stated in the preface to [[Chief Justice of the United States|Chief Justice]] [[Warren Burger]]'s majority opinion, the <blockquote>Appellant's conviction was specifically based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in [[Newport Beach, California]]. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures and complained to the police.</blockquote> | + | |
| - | According to the Court's decision, the materials in question ''primarily... consist[ed] of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed.'' Since the Court's decision in ''[[Roth v. United States]]'', 354 U.S. 476 (1957), the Court had struggled to define what constituted constitutionally unprotected obscene material. Under the [[common law]] rule that prevailed before ''Roth'', articulated most famously in the 1868 [[English law|English case]] ''[[Hicklin test|Regina v. Hicklin]]'', any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis. Thus, works by [[Balzac]], [[Flaubert]], [[James Joyce]], and [[D. H. Lawrence]] were banned based on isolated passages and the effect they might have on children. Roth repudiated the [[Hicklin test]] and defined obscenity more strictly, as material whose "dominant theme taken as a whole appeals to the [[wikt:prurient|prurient]] interest" to the "average person, applying contemporary [[community standards]]." Only material now meeting this test could be banned as "obscene." | + | ==Roth standard== |
| + | According to the "Roth Standard" a work is obscene if: | ||
| + | *The dominant theme of the material taken as a whole appeals to a prurient interest in sex, | ||
| + | *The material is ''patently offensive'' because it affronts contemporary community standards relating to the description or representation of sexual matters, | ||
| + | *The material is utterly without [[redeeming social value]] | ||
| - | [[Hugo Black]] and [[William O. Douglas]], who were [[First Amendment]] [[Strict constructionism|literalists]], chafed at the Roth test and argued vigorously that the First Amendment protected obscene material. In subsequent cases the Court encountered tremendous difficulty in applying the Roth test, which did not define what it meant by "community standards." For example, in the 1964 case [[Jacobellis v. Ohio]], involving whether Ohio could ban the showing of a [[Cinema of France|French film]] called ''[[The Lovers (film)|Les Amants]]'' (French for ''The Lovers''), the Court ruled that the film was protected by the First Amendment, but could not agree as to a rationale, yielding four different opinions from the majority, with none garnering the support of more than two justices, as well as two dissenting opinions. In his [[concurring opinion]] in Jacobellis, Justice [[Potter Stewart]], holding that ''Roth'' protected all obscenity except "hard-core pornography," famously wrote, "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But [[I know it when I see it]], and the motion picture involved in this case is not that." | + | ==Miller test== |
| + | {{main|Miller test}} | ||
| - | In ''[[Memoirs v. Massachusetts]]'', 383 U.S. 413 (1966), a plurality of the Court further redefined the ''Roth'' test by holding unprotected only that which is "patently offensive" and "utterly without redeeming [[Value system|social value]]," but no opinion in that case could command a majority of the Court either, and the state of the law in the obscenity field remained confused. | + | The Miller test was developed in the 1973 case ''[[Miller v. California]]''. |
| - | Pornography and sexually oriented publications proliferated as a result of the Court's holdings. The [[Sexual Revolution]] of the 1960s flowered, and pressure increasingly came to the Court to allow leeway for state and [[local government]]s to crack down on obscenity. During his ill-fated bid to become Chief Justice, Justice [[Abe Fortas]] was attacked vigorously in Congress by conservatives such as [[Strom Thurmond]] for siding with the Warren Court majority in liberalizing protection for pornography. In his [[United States presidential election, 1968|1968 presidential campaign]], [[Richard Nixon]] campaigned against the Warren Court, pledging to appoint [[Strict constructionism|strict constructionists]] to the Supreme Court. | + | It has three parts: |
| - | Chief Justice [[Warren Burger]] came to the Court in 1969 believing that the Court's obscenity jurisprudence was misguided and governments should be given more leeway to ban obscene materials. In consideration of ''Miller'' in May and June 1972, Burger pushed successfully for a looser definition of "obscenity" which would allow local prosecutions, while Justice [[William J. Brennan, Jr.]], who by now also believed the ''Roth'' and ''Memoirs'' tests should be abandoned, led the charge for protecting all "obscenity" unless distributed to minors or exposed offensively to unconsenting adults. Decision of the case was contentious, and Miller was put over for reargument for October term 1972, and did not come down until June 1973, with Burger prevailing by a bare 5-4 vote. | + | *Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the [[wiktionary:prurient|prurient]] interest, |
| + | *Whether the work depicts/describes, in a [[wiktionary:patently|patently]] offensive way, sexual conduct or excretory functions specifically defined by applicable state law, | ||
| + | *Whether the work, taken as a whole, lacks serious [[Literature|literary]], [[art]]istic, [[Politics|political]] or [[Science|scientific]] value. (This is also known as the ''(S)LAPS test''- [Serious] Literary, Artistic, Political, Scientific). {{Fact|date=June 2009}} | ||
| - | ==The decision== | + | [[Chief Justice of the United States|Chief Justice]] [[Warren E. Burger]], writing for the majority, included the following definitions of what may be "patently offensive": |
| - | The question before the court was whether the sale and distribution of obscene material was protected under the First Amendment's guarantee of [[Freedom of Speech]]. The Court ruled that it was not. It indicated that "obscene material is not protected by the First Amendment", specially that of [[hardcore pornography]], thereby reaffirming part of ''Roth''. | + | |
| - | + | ||
| - | However, the Court acknowledged "the inherent dangers of undertaking to regulate any form of expression," and said that "State statutes designed to regulate obscene materials must be carefully limited." The Court, in an attempt to set such limits devised a set of three criteria which must be met in order for a work to be legitimately subject to state regulation: | + | |
| - | # whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest; | + | |
| - | # whether the work depicts or describes, in a [[patently offensive]] way, sexual conduct or excretory functions specifically defined by applicable [[state law]]; and | + | |
| - | # "whether the work, [[taken as a whole]], lacks serious [[literature|literary]], [[art]]istic, [[politics|political]], or [[science|scientific]] value." | + | |
| - | + | ||
| - | This obscenity test overturns the definition of obscenity set out in the ''Memoirs'' decision, which held that "all ideas having even the slightest redeeming social importance . . . have the full protection of the guaranties [of the First Amendment]" and that obscenity was that which was "utterly without redeeming social importance." | + | |
| - | + | ||
| - | The ''Miller'' decision vacated the [[Superior Courts of California|Superior Court of California Appeals Court]] decision and remanded the case to that Court for further proceedings consistent with the First Amendment standards established by the opinion. | + | |
| - | + | ||
| - | ==Effects of the decision== | + | |
| - | ''Miller'' provided states greater freedom in prosecuting alleged purveyors of "obscene" material because, for the first time since Roth, a majority of the Court agreed on a definition of "obscenity." Hundreds of "obscenity" prosecutions went forward after ''Miller'', and the Supreme Court began denying review of these state actions after years of reviewing many "obscenity" convictions (over 60 appeared on the Court's docket for the 1971-72 term, pre-''Miller''). A companion case to ''Miller'', ''[[Paris Adult Theatre I v. Slaton]]'', provided states with greater leeway to shut down [[Pornographic movie|adult movie]] houses. Controversy arose over ''Miller'''s "community standards" analysis, with critics charging that Miller encouraged [[forum shopping]] to prosecute national producers of what some believe to be "obscenity" in locales where community standards differ substantially from the rest of the nation. For example, under the "community standards" prong of the ''Miller'' test, what might be considered "obscene" in [[Massachusetts]] might not be considered "obscene" in [[Utah]], or the opposite might be true; in any event, prosecutors tend to bring charges in locales where they believe that they will prevail. | + | |
| - | + | ||
| - | The "community standards" portion of the decision is of particular relevance with the rise of the Internet, as materials believed by some to be "obscene" can be accessed from anywhere in the nation, including places where there is a greater concern about "obscenity" than other areas of the nation. | + | |
| - | + | ||
| - | In the years since ''Miller'', many localities have cracked down on adult theatres and bookstores, as well as nude dancing, through restrictive zoning ordinances and [[public nudity]] laws. These types of actions have been upheld by the Supreme Court. Additionally, in 1982's ''[[New York v. Ferber]]'', the Court declared [[child pornography]] is unprotected by the First Amendment, upholding the state of New York's ban on that material. In the recent ''[[Ashcroft v. Free Speech Coalition]]'' case, however, the Court held that [[sexually explicit material]] that ''appears'' to depict minors might be constitutionally protected. | + | |
| - | + | ||
| - | In ''[[American Booksellers Foundation for Free Expression v. Strickland]]'', plaintiffs American Booksellers Foundation for Free Expression, joined by various publishers, retailers, and web site operators, sued Ohio’s Attorney General and Ohio county prosecutors in United States District Court for the Southern District of Ohio. Plaintiffs alleged that Ohio Revised Code §2907.01(E) and (J), which prohibited the dissemination or display of “materials harmful to juveniles,” unconstitutionally violated both the First Amendment and the Commerce Clause of the Constitution. Plaintiffs specifically challenged the statute's definition of "harmful to juveniles," as well as the provisions governing internet dissemination of those materials. The court held the statute unconstitutional because the statute's definition of "material harmful to minors" did not comply with ''Miller''. Defendants appealed the decision to the Sixth Circuit. | + | |
| - | + | ||
| - | ==References in popular culture== | + | |
| - | [[Gore Vidal]], whose 1967 best-selling novel ''[[Myra Breckenridge]]'' was considered obscene by many in the [[anti-pornography movement]] (but which was not prosecuted), satirized the Miller v. California decision in the 1974 sequel to ''Myra Breckenridge'', ''[[Myron (novel)|Myron]]''. In his introduction to the novel, Vidal says the recent Supreme Court decision "leaves to each community the right to decide what is pornography." Saying that the decision has "alarmed and confused peddlers of smut" by eliminating guidelines, Vidal says he has decided to substitute the names of the five Justices who voted for the decision, plus the names of anti-pornography crusaders [[Charles Keating]] and Father [[Morton A. Hill]], [[Society of Jesus|S.J.]] for the "dirty words." He has done this, he writes, to conform to the Supreme Court's imposition of the "community standards" test, as he wants "to conform with the letter and spirit of the Court's decision. I believe that these substitutions are not only edifying and redemptive," Vidal wrote, "but tend to revitalize a language gone stale and inexact from too much burgering around with meaning." Decades later, in a reissue of the novel, Vidal replaced the names of the five justices and two anti-pornography crusaders with the words their names were chosen to represent.<ref name)"Vidal1974">{{cite book |title=Myron: A Novel |last=Vidal |first=Gore |authorlink= |coauthors= |year=1974 |publisher=Random House |location=New York |isbn=0394494776 |pages= }}</ref> | + | |
| - | + | ||
| - | ==See also== | + | |
| - | * [[List of United States Supreme Court cases, volume 413]] | + | |
| - | * [[Sex-related court cases]] | + | |
| - | + | ||
| - | ==References== | + | |
| - | {{Reflist}} | + | |
| - | + | ||
| - | ==Further reading== | + | |
| - | *{{cite book |chapter=Miller v. California |last=Tuman |first=Joseph |title=Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions |editor=Parker, Richard A. (ed.) |year=2003 |publisher=University of Alabama Press |location=Tuscaloosa, AL |isbn=081731301X |pages=187–202 }} | + | |
| + | *"Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated." | ||
| + | *"Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals." | ||
| {{GFDL}} | {{GFDL}} | ||
Revision as of 00:28, 4 March 2012
|
Related e |
|
Featured: |
Patently offensive is a term used in United States law regarding obscenity and the First Amendment.
The phrase "patently offensive" first appeared in Roth v. United States, referring to any obscene acts or materials that are considered to be openly, plainly, or clearly visible as offensive to the viewing public. The Roth standard outlined what is to be considered obscene and thus not under First Amendment protection. The Roth standard was largely replaced by the Miller test established by Miller v. California (1973).
Roth standard
According to the "Roth Standard" a work is obscene if:
- The dominant theme of the material taken as a whole appeals to a prurient interest in sex,
- The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters,
- The material is utterly without redeeming social value
Miller test
-
The Miller test was developed in the 1973 case Miller v. California.
It has three parts:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. (This is also known as the (S)LAPS test- [Serious] Literary, Artistic, Political, Scientific). Template:Fact
Chief Justice Warren E. Burger, writing for the majority, included the following definitions of what may be "patently offensive":
- "Representations or descriptions of ultimate sex acts normal or perverted, actual or simulated."
- "Representations or descriptions of masturbation, excretory functions, and lewd exhibitions of the genitals."
Unless indicated otherwise, the text in this article is either based on Wikipedia article "Patently offensive" or another language Wikipedia page thereof used under the terms of the GNU Free Documentation License; or on research by Jahsonic and friends. See Art and Popular Culture's copyright notice.
