Regulation of Obscenity & Indecent Speech

Introduction

Regulation of Obscenity

One of the most perplexing of all speech-related problems has been the issue of obscenity and what to do about it. A wide variety of tests have been employed by individual justices to determine what is constitutionally proscribable obscenity, and for long periods of time, no single approach commanded the support of a majority of the Court. The difficulty of defining obscenity was memorably summarized by Justice Stewart in a 1964 concurring opinion when he said: "I know it when I see it." Two presidential commissions have been formed to make recommendations on a national response to pornography. The first commission, The 1970 Lockhart Commission, recommended eliminating all criminal penalities for pornography except for pornographic depictions of minors, or sale of pornography to minors. Another commission appointed under President Reagan, the Meese Commission, came to a different conclusion, recommending continued enforcement of laws regulating hard-core pornography, even when only adults were involved.

For the past three decades, the courts have been concerned almost exclusively with obscene visual images, not graphic verbal descriptions of sexual activity, but such was not always the case. The early and celebrated legal battles in this country sometimes involved what are now recognized as great works of fiction that included sexual themes: books such as James Joyce's Ulysses or D. H. Lawrence's Lady Chatterly's Lover. But it is important to remember that obscenity issues can still involve non-visual material, as demonstrated by a Florida prosecutor's decision to (unsuccessfully) try the rap group Two Live Crew for violating Florida's obscenity statute by singing rap songs with graphic sexual lyrics.

The Supreme Court, in 1957, announced its decision in the important obscenity case of Roth v United States. In Roth, Justice Brennan writing for the Court concluded that obscenity--at best--only slightly furthered the values behind the First Amendment. The government's interest in preserving a decent society, the Court concluded, allowed it to prescribe obscenity. Nonetheless, the decision proposed a more speech-protective test for obscenity than the test used in earlier cases in which the government was allowed to focus on isolated passages. The Court required the government to prove that the average person, applying community standards, would find that the dominant theme, in the work taken as a whole, applied to prurient interests. In a subsequent opnion (Memoirs, 1966), the Court went so far as to say the work, to be found obscene, must be "utterly without redeeming social value," but that loose test proved unworkable when pornographers began sticking in a passage or two of Shakespeare.

Miller v California sets out the "modern" test for obscenity. After years in which no Supreme Court opinion could command majority support, five members of the Court in Miller set out a several-part test for judging obscenity statutes: (1) the proscribed material must depict or describe sexual conduct in a patently offensive way, (2) the conduct must be specifically described in the law, and (3) the work must, taken as a whole, lack serious value and must appeal to a prurient interest in sex. What is patently offensive is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review.

Regulation of Four-Letter Words

Certain words, the most notorious of which contain four-letters, are offensive to many people. Many other people, of course, are not offended by these same words and may in fact frequently use these words themselves. These very different reactions to indecent words, as well as to other references to sexual or excretory functions, make for potential conflict and--why else would I be typing this?--First Amendment conflicts. (Public attitudes to certain words and phrases even affects how this introductory note is written: merely by using a word such as "f- - -" in this note might cause certain Internet filtering software to render this educational page unavailable in certain homes, schools, and libraries.)

The Supreme Court first confronted the issue of indecent (as opposed to obscene speech, which appeals to prurient interests) in the 1971 case of Cohen v California. Paul Cohen was convicted and sentenced to 30 days in jail for wearing in a courthouse corridor a jacket which, on its back, said "F - - - THE DRAFT" The Court reversed Cohen's conviction, finding his speech protected by the First Amendment. Writing for the Court, Justice Harlan noted that "one man's vulgarity is another man's lyric" and suggested that the First Amendment protects not just the intellectual content of speech, but the emotive content as well.

In FCC v. Pacifica Foundation, the Court considered whether the Federal Communications Commission could, consistent with the First Amendment, punish a broadcaster who chose to play over the air at 2 o'clock on a weekday afternoon a twelve-minute "Filthy Words" monologue by George Carlin. In a narrow 5 to 4 decision, the Court upheld the FCC's authority to channel broadcasts containing indecent words to late-night broadcast hours when children are unlikely to comprise much of the audience. The Court based its holding on the lower level of First Amendment protection extended to broadcasting, the ability of broadcasts to zap listeners without warning in the privacy of their own living rooms, and the need to protect children from harmful speech. The dissenters, meanwhile, complained that the Court majority demonstrated "acute ethnocentric myopia."

The Cases

Miller v. California (1973)
Cohen v. California (1971)
FCC v. Pacifica Foundation (1978)

Carlin Monologue at Issue in Pacifica
"Seven Dirty Words"

JUSTICE POTTER STEWART:
HE KNEW PORNOGRAPHY WHEN HE SAW IT

 

Questions

1. Could Paul Cohen have made his opposition to the draft as clear without using "the F word"? Would the message "I hate the draft" carry the same power and reach the same audience?
2. What result if Cohen had been arrested for shouting these three words in the courthouse corridor? What result if he had been arrested for repeating these three words over and over on a street corner?
3. If you were arguing Cohen's case before the Supreme Court would you use "the F word" during your oral argument? Why or why not?
5. The Supreme Court subsequently interpreted its decision in Pacifica as being about time channeling, suggesting that the First Amendment might have been violated had the FCC not allowed the Carlin monologue to be played at, say, 2am rather that at 2pm as it was. Is this the only plausible interpretation?
6. Given the Court's treatment of the privacy/sensibilities concern in Cohen and Pacifica, is there the suggestion that aural communications can be more offensive than visual?
7. Was it the words themselves, or the words in context, that was the key to the Court's conclusion in Pacifica that the Carlin broadcast could be the basis for FCC administrative punishment? What result if a broadcast station airs an interview in which the President uses a four-letter word?
8. Do you agree with the Pacifica plurality that Carlin's monologue lies at the "periphery" of First Amendment protection?
9. Is the Miller test sound? Because juries are free to apply community standards in determining what is obscene, speech that will be protected in say, California, may be punishable in
Mississippi? Is that inconsistent with the notion that we all live
under the same First Amendment?

Account of Announcement of Cohen Decision in The Brethren

"[Chief Justice] Burger was still angry [about the Court's decision in Cohen v. California] on June 7 when the case was set for announcement. In the light-oak-paneled robing room, a messenger--selected for the task because he was taller than any of the Justices--was helping Harlan [author of the Cohen opinion] into his robe.
"John, you're not going to use 'that word' in delivering the opinion are you?" Burger asked.
Harlan had been deeply amused at Burger's concern. He had no intention of uttering the word aloud in open court, but he sidestepped the question. He enjoyed 'twitting' the Chief, as he called it.
"It would be the end of the Court if you use it, John," the Chief asserted.
Harlan chuckled. It was time for Court. They paraded out the door after the Chief in order of seniority-- Black, Douglas, and then Harlan--along a red carpet placed in the hall between the robing room and the courtroom. As the case was announced, Harlan bent over in his chair to review his notes, his forehead almost touching the bench as his eyes strained to read. He straightened up and repeated most from memory. His occasional sideways glances to see if the Chief was still paying attention were almost imperceptible. The Chief sat in rigid and pained stoicism, waiting for the offending word. Harlan paused, glanced again at the Chief, and proceeded, still without uttering the word. Finally, he finished without ever using it."
--Woodward & Armstrong, The Brethren (1979), p. 133.