Chapter 10: Obscenity and Indecency

Topic Overview:
In this chapter, we will discuss what is defined by the federal government as obscene and indecent. Miller v. California set the Miller test, which is a three-part test that defines obscenity. Also, it goes further in detail about terms used in the Miller test like, prurient interest and patently offensive. Furthermore, it defines rules for tv and radio broadcasters. Variable obscenity that can be viewed by adults but cannot be distributed to minors.

Defining Terms:

• Pornography: A vague-not legally precise-because it encompasses both protected and unprotected sexual material. 
• Indecency: A narrow legal term referring to sexual expression and expletives inappropriate for children on broadcast radio and television. 
• Obscenity: Defined as relating to sex in an indecent, very offensive, or shocking way. The legal definition comes from Miller v. California-material is determined to be obscene if it passes the Miller test. 
• Hicklin Rule: Taken from a mid-19th-century English case and used in the US until the mid-20th-century, a rule that defines material as obscene if it tends to corrupt children. 
• Prurient Interest: Lustful thoughts or sexual desires. 
• Patently Offensive: Term describing material with hard-core sexual conduct.
• Serious Social Value: Material cannot be found obscene if it has serious literary, artistic, political, or scientific value determined using national, not local/community, standards. 
• Variable Obscenity: The concept that sexually oriented material not obscene for adults may be obscene if distributed to minors. 
• Safe Harbor Policy: A FCC policy designating 10pm to 6am as a time when broadcast radio and tv stations may air indecent material without violating federal law or FCC regulations. 

Important Cases:

Miller v. California (1973): Defendant Marvin Miller sent brochures in a mass mailing to advertise four "adult" books and a film in California. Three-part test that set down the definition of obscenity. 

Federal Communications Commission v. Pacifica Foundation (1978): The Supreme Court said indecent broadcast speech is material in "nonconformance with accepted standards of morality." Broadcasters have First Amendment protection, the Court noted, but the protection is limited because of spectrum scarcity. This allows courts to restrict indecency in broadcasting but not in other media. 

Federal Communications Commission v. Fox Televison Stations Inc. (2012): Supreme Court case that upheld regulations of the FCC that ban "fleeting expletives" on tv broadcasts.

Relevant Doctrine:

The Miller Test:

(All elements must be met)

1. An average person, using contemporary local community standards, finds work, taken as a whole, appeals to prurient interest (morbid interest in sex)
2. The material depicts a patently offensive way sexual conduct specifically defined by state law
3. The material lacks serious literary, artistic, political or scientific value (SLAPS test).

Current Issues or Controversies:
During this last midterm cycle, the Democratic nominee for Senate, Beto O'Rourke of Texas "let loose an obscenity" during his concession speech against Republican nominee Ted Cruz. The news went crazy because O'Rourke dropped the F bomb on network tv.
My Questions/Concerns:

• How are individual programs on networks like CBS or ABC, held accountable if an FCC regulation is broken?

References:

Trager, Robert., Ross, Susan Dente., & Reynolds, Amy (2018), The Law of Journalism and Mass Communication. Thousand Oaks, CA: Sage Publications.