Constitutional Law: Protection of Individual Rights: First Amendment: Regulation of Speech Content: Obscenity
- Obscenity (Miller Test) – obscene material is:
- Material that appears to the prurient interest in sex and is (community)
- Patently offensive and (community)
- Lacks any serious artistic, literary, social, or scientific value. (reasonable person)
- Obscene Speech vs. Merely offensive language.
- Merely offensive language is not obscene under Miller. It is protected.
- “Fuck the draft” is offensive, not obscene.
- Profane language on the radio waves is not protected.
- Broadcasting can be restricted/limited without satisfying Miller. FCC can levy fines, restrict broadcasting.
- Child Porn. This is outside the protection of the First Amendment. May be punished/restricted even if not obscene under Miller because the state has great power to protect its minor children.
- Possession of obscene materials in the privacy of one’s home is protected BUT it has not been extended:
- Public distribution of obscene materials can be punished.
- Obscene films in public theaters may be restricted
- Obscene material can be received in the mail and purchased in stores.
- Regulation of obscenity through zoning and land use. Zoning ordinances may be enacted to regulate the location of adult theaters and bookstores.
- The 21st Amendment may be used to aggressively regulate adult speech in establishments which are licensed by the state to serve liquor.
- Public nudity (erotic dancing). SCOTUS has upheld municipal ban on public nudity because of its harmful effect on community.