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Chapter 13: Regulation of Obscene and Other Erotic Material
Chapter 13
Regulation of Obscene and Other Erotic Material
What’s the Big Picture for Chapter 13?
Chapter 13 tends to be extremely popular with most students. It has broad appeal if you are
teaching to an audience of communications students spread across a variety of majors or if you
are teaching students who do not pursue communications-related majors. Today’s college
students have grown up on the Internet and most have, as a result, seen adult entertainment
content. It is no longer a taboo to many of them (but it certainly still is taboo to some). Some
students, in fact, may create their own sexually explicit content when they “sext” pictures of
themselves (the topic of “sexting” is discussed in this chapter).
What’s New in Chapter 13 for the 20th Edition?
In light of the lack of recent obscenity prosecutions in the United States (as of early 2017, the Ira
Isaacs case from 2012 was the last major federal obscenity prosecution in the United States), as
well as comments from some reviewers and users of the book who don’t cover obscenity during
class and to reduce pages where possible, Chapter 13 has been streamlined for this edition. The
authors deleted the sections on controlling obscenity, postal censorship, and film censorship,
among other content. The key rules and tests regarding obscenity, child pornography, and the
zoning of sexually oriented businesses, however, remain in the textbook and they have been
updated where needed.
Some of the new items in Chapter 13 for the 20th edition of the book are as follows:
1. A new lead to the section on child pornography highlighting examples of convictions for
distributing and possessing child pornography via the Internet and smartphones in 2016
2. Updated discussion of the legal implications for minors who are involved in sexting
3. Discussion of four 2015 court decisions involving the secondary effects of sexually
oriented businesses (SOBs)
Why Study the Regulation of Obscene and Erotic Material?
Sexually explicit expression is one of the most controversial forms of speech in the United
States, and thus, it is a target of censorship by the government, religious conservatives, and
feminist liberals. In addition, it is an incredibly lucrative form of expression.
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Chapter 13: Regulation of Obscene and Other Erotic Material
One issue that students love to debate is as follows: Is it (or would it be) an effective use of
taxpayer dollars to prosecute the producers of adult movies—movies made by adults, with adults
and for adults to watch, and that are not child pornography—when no one is forced to watch the
movies?
The three key points tied to this issue that students should understand are as follows:
1. There is a precise legal definition of obscenity (it is the three-part test in Miller v.
California).
2. Obscenity is not the same thing as child pornography.
3. The term “pornography” itself has no legal definition in the United States (in contrast,
there is a precise legal definition of obscenity).
If you can get your students to understand this trio of points and to know the three-part test for
obscenity under Miller, then you will have succeeded in teaching this chapter.
Finally, cities and towns all across the country constantly attempt to zone adult bookstores and
strip clubs to locations far away from schools, parks, and residences. In addition, municipalities
attempt to regulate what goes on inside strip clubs. The textbook addresses these topics.
What Is Critical for Students to Understand in Chapter 13?
First, as noted above, students should understand that there is a precise legal definition of
“obscenity” that has three parts, and this definition is embodied in the 1973 U.S. Supreme Court
case of Miller v. California. If speech is found to be obscene under the Miller test, then it does
not receive First Amendment protection. Students should learn the three-part test for obscenity in
Miller.
Second, and in direct contrast to “obscenity,” there is no legal definition of “pornography,” and
students should learn not to use this term when discussing legal issues surrounding sexually
explicit expression. “Pornography” is a loaded term that means different things to different
people—and it has no legal meaning in the United States. The authors encourage the use of the
more neutral term “sexually explicit expression” for dealing with material discussed in this
chapter; if “sexually explicit expression” is declared “obscene” under Miller or if it constitutes
child pornography (described in this chapter), then it receives no First Amendment protection.
But if it is not declared “obscene” in the Miller test and does not constitute child pornography,
then it is protected by the First Amendment (even if some find it offensive). You might point out
to students here that while many people might find the content in magazines like Hustler and
Barely Legal offensive and degrading to women, the content is not obscene to the extent that
these magazines are sold freely within a particular community.
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Chapter 13: Regulation of Obscene and Other Erotic Material
Third, sexually explicit expression that is not obscene (and thus protected by the First
Amendment) nonetheless can be regulated in a number of ways, from variable obscenity statutes
to zoning regulations affecting sexually oriented businesses (that take the unfortunate acronym of
SOBs). These matters are covered in this chapter.
“Children As Child Pornographers and Sexting”: What Is New That May Be
of Particular Interest to Students?
The book discusses the concept of “sexting” in which many minors (and college students) today
engage. The problem is that when minors take sexually provocative images of themselves and
send them to their boyfriends or girlfriends, they can be prosecuted for creating and
disseminating child pornography. The irony is rich; child pornography laws, which are discussed
in Chapter 13, are designed to protect minors from sexual abuse and exploitation by adults and
pedophiles, not to prosecute them. The heading titled “Children as Child Pornographers and
Sexting” addresses this issue. It might make for a good class discussion to ask students whether
they know of people who are involved in “sexting” and to get their views about whether minors
who voluntarily take, transmit, and possess such images should be prosecuted as child
pornographers.
What Material Might be Used in Class beside the Book?
You might (depending, of course, on the comfort level of you and your college and university)
play excerpts from Lenny Bruce monologues like “Thank You Mask Man” and “To is a
Preposition; Come is a Verb” to show how standards for obscenity have changed over time.
(Bruce, who is mentioned in this chapter, was actually convicted for giving obscene
performances based on these routines and others.) These two routines are very, very bland by
today’s standards, and students might find it shocking to think that courts (before the Miller test
was adopted in 1973) once found them obscene.
You might also show excerpts from the movie “Carnal Knowledge” starring Jack Nicholson and
Candice Bergen. This movie was actually found to be obscene in Georgia in the early 1970s.
All of these examples illustrate the importance of the phrase “contemporary community
standards” in the Miller test. In other words, what is obscene at one point in time and in one
place may not be obscene at a later point in time or in another place.
Problem Questions
1. The state has adopted a variable obscenity ordinance that makes a wide range of material
that “appeals to a minor’s prurient interest in sex” inaccessible to persons under the age of
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Chapter 13: Regulation of Obscene and Other Erotic Material
18 years. It is illegal for a retail record shop, bookstore, magazine store, or other such
distributor to permit minors to buy or have any access to such indecent material. It is also
impermissible under the law for stores to display any material for sale in a store window
that is unacceptable for minors.
Gail’s Books is a large bookstore in Riverside. It stocks a wide range of both fiction and
nonfiction works that are suitable for readers of all ages. Shortly after the new state law
was adopted, the Committee to Undermine the Sale of Smut (CUSS) complained to the
local prosecutor that Gail’s Books was in violation of the law. CUSS members say that
they inspected the bookstore and found material that is unacceptable to minors in the
following sections of the bookstore: art, photography, social science, natural science,
mystery, fantasy, general fiction, and humor. Gail Storm, the owner of the store, admits
that some of the books in all those sections might not be suitable for children. She also
admits that she simply does not have the room to have an “Adults Only” section for all of
these categories of books. She said that minors are prohibited from buying such books and
that her sales staff, who work on the floor of the store, observe that young people are not
reading books that would be covered by the new state ordinance.”
CUSS insists that the state prosecute Gail, so a criminal complaint is issued against the
store, alleging a violation of the state’s new law.
a. Are such variable obscenity laws constitutional? Why, or why not?
b. Is this law acceptable under the First Amendment?
Answer: The law will probably fail to pass if it is administered in the manner that
CUSS wants it administered. The two most serious problems with such laws are as
follows: the kinds of material unacceptable to minors must be clearly defined and the
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Chapter 13: Regulation of Obscene and Other Erotic Material
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court would either have to interpret this law in a way that does not result in these
problems or declare the statute unconstitutional because it is overbroad.
2. The city of Winston in 2016 adopted a zoning ordinance regulating the location of adult
businesses. The definition of an adult business is one that derives more than 50 percent of
its revenues through the sale or rental of adult materials, be it books, magazines, movies,
videos, or sexual paraphernalia. Adult material is defined as any matter that includes full
frontal nudity, representations of sexual or excretory functions, sexual perversions and
other sexual activities, and other similar kinds of matter. The same definition is used by
other communities in the state, and it has been held to be constitutional when challenged in
the federal court. All enterprises that meet the definition of an adult business must be
located within a five square block area in downtown Winston. There are 15 such business
in this area now, about the same number that existed before the zoning ordinance went into
effect.
Donald Quasar has rented a small warehouse in a business park in Winston and uses the
space to make adult movies. The movies are not obscene. They are shot and edited in the
warehouse and then sent to a location in another state where they are copied, transferred to
video, and distributed to buyers who order the movies from an Internet catalog. Quasar has
about 14 employees working at the warehouse. Occasionally, when a movie is being shot,
three or four actors are also at the site. The public is specifically excluded. This is a
working movie studio, not a retail outlet.
The Winston city attorney has filed an order with Quasar declaring that his adult business
must be located within the five square block area set aside in Winston for such businesses.
If he fails to move the studio, then it will be shut down for failure to comply with the city
zoning code. Quasar challenges the order, claiming that the law does not apply to his
operation.
a. What is the test that a court would use to determine whether a city zoning law is
constitutional?
b. Would the Winston law apply to Quasar’s studio?
Answer: The law is obviously constitutional. It has not reduced the number of adult
businesses. The definition of adult businesses has been accepted by the courts, which
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Chapter 13: Regulation of Obscene and Other Erotic Material
have also approved of the city’s argument that a substantial interest was being
3. Citizens and civil leaders alike expressed dismay when Van Nuys Video announced that it
would be opening a store in little Mill Creek. The town, a quiet suburban refuge from
nearby Seattle, prides itself on its reputation of clean living, clean air, clean streets, and
clean minds. Van Nuys Video, which calls itself the “supermarket of video stores,” stocks
thousands of titles, including a large selection of NC-17 and unrated adult videos. The
town council quickly passes a new ordinance prohibiting the sale or rental to any person of
any video material that is “grossly indecent or offensive” and that “might be harmful to
persons under the age of 18.” Town leaders say that such material is readily available in
Seattle and other communities, and there is no need to permit such material in Mill Creek.
Two days after the opening of Van Nuys Video, the store manager is arrested for violating
the new ordinance for renting a copy of “Midnight Cowboy” to an adult customer. The
movie, the story of a male prostitute, is the only X-rated movie to win the Academy Award
for best picture (1969). Although unchanged, the movie was re-rated several years ago to
an “R” or restricted status. City officials argued that the content of the motion picture
clearly meets the definition in the ordinance of material that is grossly indecent or
offensive and could be harmful to adults as well as young people. Attorneys for Van Nuys
argue that the town’s ordinance is invalid because it violates the First Amendment. City
officials say the First Amendment doesn’t protect movies and point to the Motion Picture
Association of America (MPAA) movie rating system in effect at theaters as evidence that
filmmakers do not have the same constitutional freedoms as authors.
a. Is the city ordinance the only test that could be used to determine whether or not such
a video can be rented to adults, or is there another more appropriate test that the court
will use? If so, name this test.
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Chapter 13: Regulation of Obscene and Other Erotic Material
Answer: The city ordinance violates the First Amendment. The Miller test could be
b. What are the basic provisions of this test?
Answer: The Miller test is used today by American courts to determine whether
something is obscene. It has three parts. Material is obscene under the following
conditions:
c. What is the likelihood that the video will be determined to be obscene?
Answer: There is no likelihood that the court will make such a finding. The video