Indecency and Obscenity

[Excalibre]

Can someone explain to me what the difference is? What's obscene? What's just indecent? Obscene speech is not protected here in the US, right? Does that mean the government can legitimately outlaw porn if it likes, since it doesn't have artistic or literary merit? How is each restricted in the public realm? Are people allowed to trade in obscene materials as they choose? How's all this work?

[AskNott]

It depends on the arena where the question is being argued. In the case of Dale Earnhardt, Jr. saying "...didn't amount to shit..." NASCAR is the judge and jury. In the case of CBS, Jackson, and Timberlake, the FCC gets to decide what's indecent. In cases of obscenity, the government's courts get to ponder the problem.

There are legal differences among terms. Profane speech is religiously offensive, such as, "Jupiter damn it." Obscene speech is limited to sexual titillation, with a very precise set of legal limits. IANA lawyer, and I'd probably screw up if I tried to explain it. "Shit" is neither profane nor obscene, but it is vulgar. The one that's been painstakingly defined in the courts is obscene, and I'll defer to lawyers on that.

[Walloon]

Federal Communications Commission standards:

To be obscene, material must meet a three-prong test: (1) an average person, applying contemporary community standards, must find that the material, as a whole, appeals to the prurient interest; (2) the material must depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable law; and (3) the material, taken as a whole, must lack serious literary, artistic, political, or scientific value. See Miller v. California, 413 U.S. 15 (1973).

The Commission has defined broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities. In applying the "community standards for the broadcast medium" criterion, the Commission has stated, "The determination as to whether certain programming is patently offensive is not a local one and does not encompass any particular geographic area. Rather, the standard is that of an average broadcast viewer or listener and not the sensibilities of any individual complainant." Indecent programming contains sexual or excretory references that do not rise to the level of obscenity. As such, the courts have held that indecent material is protected by the First Amendment and cannot be banned entirely.

[Excalibre]

I'm bumping this in hopes someone legally-oriented can give a more in-depth answer.

[Cliffy]

I wrote a big response to this which the hamsters ate last week. Here's a short version:

"Obscenity" is the only of these terms with real meaning, at least from a constitutional standpoint. In a legal sense, obscenity is material so offensive that it is outside of the protection of the 1st Amendment. Exactly what qualifies as obscene is based in part on local community standards, so what qualifies in Utah might not in Times Square. State and local governments have the power to prohibit obscene matter and make it illegal to possess it. Note that obscene material isn't automatically illegal -- it is contraband only if the local government has so acted. The point of obscenity is that local governments have the power to prohibit it if they so choose. Governments cannot prohibit the creation, sale, or display of non-obscene matter, even if they wanted to. However, if matter is obscene, governments can ban it almost completely, possibly making it illegal to possess or purchase, even in private amongst consenting adults.

Note, however, that non-obscene matter which is offensive, unsettling, pornographic, ostensibly harmful to minors, or so on, while still protected under the 1st Amendment, is subject to reasonable time, place and manner restrictions, giving the government power to limit it such that those who seek it out can get it but those who don't want to deal with it can shield themselves and their children. In my limited understanding, the FCC's concept of "indecency" is a time, place, manner type of restriction -- while the government can't prohibit "indecent" material which doesn't rise to the level of obscenity, it can limit its presentation on the public airwaves, which are granted to broadcasters in order to facilitate the public good. Indecency clearly isn't the same as obscenity -- according to the FCC, a split-second view of a single nipple framed in a long shot is indecent, but it's clearly not obscene (and the Supreme Court agrees, having ruled that Candace Bergen's boobs are protected by the 1st Amendment).

Pornography generally isn't obscene, although since community standards enter into the definition of obscenity, some porn probably qualifies in some places. As the Internet makes a wide variety of pornographic matter available to everyone everywhere such that even the most extreme depravity becomes blase, this may become an area of the law which is revised.

--Cliffy

[Ilsa_Lund]

How is this supported by the SCOTUS? What are the legal precedents for this sort of legislation?

Originally Posted by The Founding Fathers

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I don't see anything there about "unless it's really ooky." How can Congress pass a law that says it can do something that the constitution says that Congress is specifically prohibited from doing?

[Excalibre]

Originally Posted by Ilsa_Lund

How is this supported by the SCOTUS? What are the legal precedents for this sort of legislation?



I don't see anything there about "unless it's really ooky." How can Congress pass a law that says it can do something that the constitution says that Congress is specifically prohibited from doing?

Well, Congress can ban other types of speech. Like the whole yelling-fire-in-a-crowded-theatre thing. Or it can pass laws limited (abridging) one's right to assemble - it's allowed because rights aren't recognized as absolute. If my right to assemble endangers others, then my right is abridged. There's plenty of precedent for that sort of thing.

[Cliffy]

Originally Posted by Ilsa_Lund

I don't see anything there about "unless it's really ooky." How can Congress pass a law that says it can do something that the constitution says that Congress is specifically prohibited from doing?

Here is the first rule of Constitutional (or statutory) interpretation -- things don't always mean exactly what they say. In the case of obscenity and fighting words, these things are thought to be so outside the scope of the 1st Amendment and so unecessary for the expression of ideas that the Amendment was designed to protect that they're not protected. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

--Cliffy