Regulation of Obscenity
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
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."
Cover of a George Carlin album.
Carlin Monologue at Issue in Pacifica
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?