Class for 2020 and we are talking about free speech, incitement, tree threats and will get started on obscenity. True threats. We will be less socratic than usual because the cspan people asked me to be. And heres a task text we are using, demings constitutional law, a good casebook. The first time i have used it so we are learning our way. Today we talk about free speech and we havent talked about it will protection and race discrimination, gender and things like that. Now we are pivoting to a core part of the bill of rights, a different section about free speech. The framers valued free speech highly. Itthe extent they talk about , they saw as mostly political, more than artistic or expressive. The interesting thing about the First Amendment is the courts did little with it for the First Century of its existence. Fromt all case law comes the 20th century or that when he first. R the 21st. Or that when he First Century. 21st century. E many matters were not federal issues incitement was considered a local criminal matter, dealt with by state courts. If there were constitutional restraints on it in the days before the First Amendment was incorporated to the 14th amendment the only limits on what estate could do to regular incitement, came from state constitutions. On what a state could do. With regard to in obscenity they technology was not there. There were books regarded as obscene for a long time. The ability to mass produce sexual images, which seems to set people off, did not appear until the middle of the 19th century and did not take off the big way until the 20th century. Obscenecould have movies until movies were invented so that had a lot to do with it. Muchnteresting thing is, of the law and the First Amendment is younger than me. It is from the second half and far into the second half of the 20th century. As a result, we feel it is old settled law but it is, by the standards of constitutional, relatively new. About the Free Expression of ideas. That is not a phrase found in the constitution. We derive it from the things the constitution does protect. The First Amendment says Congress Make no law abridging the freedom of speech or of the press, or the right of the piece of dutch people peaceably to assemble and to petition the government for a redress of grievances. It is worth noting these are separate free speech rights. Each has its own clause. We have freedom of speech. Freedom of the press. Right of assembly. And right of petition. Those are analytically distinct. Enough so that when youre writing a brief or other document to a court, you want to keep that in mind. As a practical matter we lump them together as free speech or free press. But we also derive a right of association from assembly and petition and speech, that is not contained in the text at all. Press, madison originally called it freedom of the use of the press. It is freedom to print things and publish things. It is not a freedom for what we now refer to institutionally as the press, the media. It is the same for everybody, media or not. In Free Expression, theres a big category that is probably the single most important distinction we are going to deal with. That is between content mutual regulations of speech and contentbased reg elections of speech. Contentbased regulations of speech are bad. They are presumed invalid and subjected to strict scrutiny. They are upheld only in millie strictest only in the strictest of circumstances. Abased example might be, no discussion of the bachelor. I could go for that. Picking a topic and placing it offlimits. A subset of contentbased speech is viewpoint is combination, or viewpointbased regulation, in which you are allowed to talk about some thing but not from particular viewpoints. So you can talk about politics but not from a commonest viewpoint, would be a case of viewpoint this coming nation, a subset of contents combination. Content neutral regulation are not addressed to what the speech is about. Subset of contents combination. Content neutral might set you cannot operate trucks between 8 00 p. M. And 8 00 a. M. It is content neutral because they do not care what youre saying but they do not want you keeping people awake with a sound truck. The framers did not talk about why we have free speech, but the courts do. The courts have a number of ideas which come to the front in different ways, inDifferent Cases. Contradictory,re when they are thinking about what the First Amendment and free speech protects. The courts have several different lines of attack. One is selfgovernance. Thenotion that we need to able to talk about issues in order to operate as a democratic society. In the american system the voters are sovereign and the people are sovereign. If they cannot talk about issues that confront the government and society, then they cannot run the society as the people who are sovereign are intended to do. And also has the beneficial effect that people are more put up with losing and politics if they feel they have had their say and can grumble about it as people do today. Theres also the notion of the search for truth, the market place of ideas, that by discussing things we see different angles on them, and we understand them more fully and it differently than we would if we did not have free and open discussion. With miltons area jenna, it is worth reading today. Notion free the speech is necessary to develop moral virtue, that if you unquestioningly sapped ideas accept ideas and do not resume your way, you do not deserve credit even if you are right. Do not reason. Theres also the notion that we boost tolerance in society by having open discussion of ideas. If people are forced to confront , to hear and be aware of people who have very different ideas, and approaches to life, than they do, they will develop tolerance. Ofp ballinger, the president columbia who used to be a law professor, has a good book on this from many years ago that makes that point well. And autonomy, expression. People want to express themselves. They want to let other people know what they think and feel. Free speech allows them to do that. All of these come into play in different degrees in Different Cases at a different settings. You should, as you read a case, and read what the court does with it, think about what vision of free speech is the court applying here . And why is it applying that one and not one of the others . To content neutral and contentbased as your text what does. Regulation is very disfavored and the playboy case is a good example of this. In the old days before cable went digital, they would scramble stuff. I remember when i was in law school we went to rudys bar and they had a tv with cable and people would turn it to the playboy channel. If you fiddled with the horizontal and vertical hold could unscramble it and people found that titillating. Congress forced the playboy channel and other channels with semi sexually expose it content to scramble it or otherwise make it unavailable to hassles with children. The court two households with children. The court said this is content based regulation. Your regulating sexually explicit, not of, thus the statue has to pass strict scrutiny and the court says it does not pass strict scrutiny. There are less restrictive as of regulating it, for exam on not delivering it to houses that do not want it allowing people to block panels so their kids cannot watch it. Gilbert is a contentbased case, a sign case. Cities are regular signs and getting in trouble for it. If you find yourself a city law directorate you will probably have to deal with the sign ordinance at least once a year as unconstitutional or so it seems. Gilbert band signs banned signs unless the permit wasnt taint was obtained. They regulated things strictly. At mr. Reed with his church with temporary signs to tell people where they were meeting since it floated from one location to another, kept getting cited for not taking his signs down within an hour of the event ending. He sued on the grounds this was contentbased. They were treating temporary rectal signs differently temporary directional signs differently and he won. The court said, this is a contentbased regulation and it does not pass tricks to which any it is not pass strict scrutiny. Regulating speakers not speech because you do not care what is on the sign but you do care because you have rules that are different for different signs about it for things so the court said there purpose is not relevant when allies content based on its face. Galatian isd unusual, but not unknown. One place where it has traditionally come up that gives us a lot of our cases is the incitement. Incitement is when you encourage someone to commit a crime. That is one of the unprotected categories the court has set out. Obscenity. Child part. Incitement. And fighting words. Although i warn you you hear talk in public discussion about fighting words as an exception to free speech, but that comes from the 1942 case against new hampshire, and the Supreme Court has never upheld another regulation of speech on the grounds of fighting words, so it is not really irrelevant case. It has not had a lot of weight. Incitement is where we get a lot of our cases, especially from the early 20thcentury. Incitement was used regularly to regulate speech that the government did not like, frequent a communists, anarchists, and other flavors of political undesirables. This led, over time come to the development of a doctrine called clear and present danger. A couple things worth noting in these cases. First, if you look at what people are actually saying today, none of this would seem controversial or subject to regulation. Second, much of this doctrine has been dealt with Oliver Wendell holmes and Louis Brandeis in dissent and frequently you hear cases quoting that dissent and when he read the case you will see the person involved went to jail. Where he is aase standard model socialist and he is opposing the draft in world ,ar i, making the argument which i believe to be correct, that the draft violates the 13th amendment. The Supreme Court set otherwise a few years earlier in the Selective Service cases, but it is a respectable constitutional argument. Form confined itself to peaceful measures, such as a petition for the repeal of the Selective Service act. So, shank loses is the bad news. The court says he would not have sent these documents unless it had been intended to have an effect and we do not see what effect it could be expected to have upon person subjected to the draft except to influence them to obstruct carrying it out. That is, if you tell people youre drafted and the draft as unconstitutional than that is bad. That would only be done if you have some sort of intent to obstruct the draft. And that is good enough. The most stringent protectionist, famous line, most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. That is a famous holmes line and you hear all the time, though people often say you cannot shout fire in a crowded theater. It is important to remember the falsely part of the statement. It is fine to shout fire in a crowded theater if there is a fire, the maybe not the most constructive approach. Shank is an unfriendly case to free speech. The court takes the position that if you Say Something that may have a bad consequence, the government can shut you up. Even if, as in this case, it is erasable argan and to make. Dutch a reasonable argument to make even if it is a reasonable argument to make. Under the espionage act they upheld her conviction under semler grounds, from publishing articles and adjournment language newspaper, talking about how the draft was illegal. Circulation of the paper was tiny but the court said it might produce disaffection among germanamericans and that is that. The conviction and gelling of a prominent socialist. He was a candidate for president with 2 million or 3 million votes running for the socialist party. Forgiving of speech that seemed four giving a speech that today seems like something you could hear all of the place, talking about how socialism was great. And set i cannot say everything i would like to say here and apparently that was considered enough to justify the inference that he would have said things that were illegal, and that would place thoughts and listeners minds that were the same as if he had said things that were illegal and therefore debs could go to jail, which indeed, he did. Really quite different from today. Abrams against the United States , most americans do not remember that toward the end of world war i, the United States and other western countries invaded russia. The russians do remember. In a way it is too bad it did not work. They wanted to put on the communist revolution there and had they succeeded, it would have saved the world and russia a world of pain and hurt. But it was a failure. Who sevenththers eyes with the russian revolution, tried to encourage workers in the United States to oppose it. 27 thighs. Who sympathized. The result was that they went to jail. If Supreme Court says, even their primary purpose was to aid the cause of the russian revolution, they would nonetheless enter the war effort with germany. The plan of action they adopted necessarily involved that. Therefore the purpose of the propaganda was to excite at the supreme crisis of the war, disaffections, sedition, rights and as they hoped, revolution in this country about for the purpose of embarrassing and possibly relating and defeating military plans of the government in europe. Again, nowadays we see all kinds of antiwar activism that is mundane. At the time it was controversial. Homes and brandeis dissent. They say you should not be able to punish speech unless it is proven to intent the actual consequence you are punishing it for, and that it should probably be likely to. Congress certainly cannot forbid all efforts to change the mind of the country. This is the famous passage from this dissent. Persecution to the expression of opinion seems to be perfectly logical if you have no doubt of your premises or power and want a certain result with your heart, you naturally respect express your wishes and law and sweep away opposition. But when men have realized time has upset many fighting fates they may come to believe the ultimate good desire is better reached by free trade in ideas, that the best test of truth is the power to get a self accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That is the theory of our constitution. When you hear people talk about the marketplace of ideas that is where this theory came from. That i did should have to pay with other ideas in a marketplace and that truth would be arrived at. And his notion that it makes sense to suppress people who disagree with you if you are sure that you are right, but you can be wrong. Indeed you could. And brandeis are dissenting and the court is not moving in their direction as we see and get low against new york. Ny. N gitlow v. They were not afraid of communist revolutions because they were happening. It was a shock when the communists overthrew the czar. And the old russian empire. In the old russian empire. They killed the czar and his ministers, anastasia screamed and vein as the song says. Everyone was shocked by that. This country seen as huge and powerful with an established monarch could be turned upside down overnight. It made people afraid and there were communist and countries , notd the world exclusively in the west, who desired to bring about a similar result themselves. These red scares were not the result of fantasy, exactly. But they were quite extensive and swept an awful lot of people in who are no real danger. Getlow was a good example of that. He published the leftwing manifesto and the revolutionary age, containing writing advocating, advising and teaching the doctrine, that organized government should be overthrown by force, violence and unlawful means. He was pretty straight for about what he believed. Clearly to do that would be illegal. However, as the court itself says, there is no evidence of any effect resulting from the publication and circulation of the manifesto, which is typical. Your text has extracts from it which sound like typical leftist revolutionary boilerplate, which remains the same hundred years later. Panic s onto the unsympathetic. They said the jury did not find the jury advocated abstract doctrine of overthrowing by force but action to that effect. A single revolutionary spark may kindle fire that smoldering may burst into a sweeping and destructive conflagration. When courts talk about sparks and fires, that is assigned someone is going to go to jail and they are worried and upset. Dissent. Get a holmes he says this is a clear and present danger test and there is no clear and present danger. There is no danger of an effort to overthrow the government by force of the part of the small minority who share the defendants use. In some sense and incitement if you believe you will act accordingly, but we do not throw people in jail for having ideas. He said at the publication of this document had been an attempt to induce an uprising and not at some indefinite time, it would have presented a different question but there is insufficient definiteness in terms of the time. We had a lot of cases after this where the court remained on to pathetic to the usually communist or anarchist, and a lot of overlap there groups. When he against california. Brandeis added to his theory that there should be serious injury resulting from the speech. Whitney post no such danger but was convicted. Posed. Brandeis argued for test that the danger from the speech must be clear, eminent, substantial or serious, but the court did not adopt it. The court said later being a member of a group that has as a syndicalism,inal was enough to make you level. We see similar stuff in cases involving the communists after world war ii. There were lots of communists after world war ii and many were in the government, and many were directly connected to the soviet union. Back in the 1990s, some previously unknown material from a project called vanilla intercepting comedic asian from soviet spies in the sub union, showed there were quite a few people like that working under directions from moscow. They were not a figment of someones imagination. We hadless in dennis leaders of the american communist party. They were not spies, they were out in the open. They were convicted for violating the smith act, which said if you engage in knowing, advocacy, or tempted advocacy of the duty, necessity, desirability, or propriety, of overthrowing any government, american government, by force, then you are in violation. And the court help they could be convicted. In essence the court adopted almost a learned hand test where they said more serious the people the government is trying to event, the less likelihood there needs to be to justify preventing the danger. Black and douglas dissented saying this seems to be at departure from the clear and present danger role. Douglas said, theres no evidence they did anything but advocate ideas and that should be ok. The 1950s,ter in started to prevent and reverse on a lot of this. Some was because of the implosion of senator joseph though there were communist. A lot of the people he thought were communist were not and he went crazy and discredited the anticommunist cause. Nervouse u. S. Was shortly after world war ii, as many countries in Eastern Europe were taken over by communists and as the soviets ballot an atomic bomb sooner than anyone thought they would. By the late 1950s people felt safer and the court began trimming that back. In yates against the United States, they held you had to have proof that advocated action for the overthrow of the government. In scales, they said if you want to punish someone belonging to an organization that advocated illegal conduct you had to show that defendant intended to accomplish those illegal ends. They invited reporters to come film it which they dead. Much of what they said was unintelligible. They did. I do not think they did marked on congress and there were not 400,000 strong as promised. They were charged with criminal thatcalism and prosecution was a recapitulation of whitney. The court said we are not going to apply whitney here. That is not the test now. Ms. Honeycutt, can you tell us what the test is . My unneeded . Mi on muted . The element they added is now you have to show they were directly trying to incite or produce imminent lawless action. Or do such action. And likely tos succeed as well. Be incitement, speech has to erected to inciting imminent lawless action and likely to succeed. That is a stricter test. Has to be directed. Is a just so many years later they decided to change their direction . Prof. Reynolds there is a difference with gitlow. They stated it did not have any affect because no one seemed to think it was likely to have an effect. Sparkere abandoning the at kindling the flame theory. The courtly gitlow, wouldve said, yes, these guys in ohio are losers, but what they are advocating for, is serious, violent action. And theres always the chance somebody might listen to them. A spark and candle aflame and therefore needs to be punished. In fact it is the opposite. They said he has to direct to seek immediate lawless action and it has to be likely to succeed. None of that is the case here. They are talking about stuff that is in the future. They are not likely to succeed at any of it because no one is likely to listen to them. It is very different. The difference between me standing in front of a mob saying, lets burn down city hall, and me sitting in my bedroom typing that people should go burn city hall. One is incitement and the others twitter as usual. And the other is, twitter as usual, probably. Brandenburg is the modern test if youre highlighting things in your book for the exam. You should highlight the test in brandenburg on page 849. That is the test for incitement today. It is not uncommon for thats be tested on the bar exam. Douglas concurred and says, when he read the opinions closely and see how the clear and present danger test was applied, it was never much of a clear and present danger. The press were always loud and puny and made serious only by judges so wedded to the status quo that kregel analysis made them nervous. That allcurred restrictions of speech were unconstitutional under the First Amendment. He does not think there should be a clear and present danger. After brandenburg, courts have been more willing to overturn convictions for incitement or Disorderly Conduct or other things like that. As you see, for example in hess versus indiana. Police are cleaning the streets from an antiwars commission and some guy yells, we will take the street later. I am leaving out the f word. The court says that is not enough. Hardware, closer case. There was a boycott of his noses in mississippi of businesses in mississippi. The naacp had encouraged the boycott and threats were made that people would have their next broken if they did not participate in the boycott and patronize those businesses. Said, it was not sufficiently direct or imminent threat or indication of lawless action. So it did not support a conviction, or in this case a judgment awarding damages. We have holder against humanitarian law project, case involving a do terrorist organizations where the court did uphold the statute. Involving aid to a terrorist organization. It directs assistance, advice or service, almost the court defers to congress here and such. That may be put down to the war on terror. Everyone got swept away with that. Sub species called true threat. Particularly in the internet context. Punishable. T is bake statements of potential violence or not. Tot means you threaten criminally harm somebody. In virginia, we see how that plays out. It is a cross burning case. States havehern laws against burning crosses. Have two sets in this case. One on private property by a guy guy. Black, a ku klux klan he had a cross burning on his property. He was convicted under virginia statutes, with the intent of intimidating, and a jury can infer from the fact you burned a cross. Cross isng of the sufficient evidence from which you may infer required intent. Is morer defendant violent, burned a cross in the yard of his nextdoor neighbor, whether its unclear was racial animus or making too much noise. The court says, well, cross burning isoss intertwined with the history of a tool ofx klan as intimidation and threat of impending violence. This is true. After the brown case, there was klan,urgence of the cross burnings again. The symbolism of burning across can reasonably seen as that, so the courts says we have to analyze this virginia statute and see whether virginia is thingsing true threat or beyond the limit of the true threat doctrine. True threat encompasses statements where the speaker means to communicate intent to commit an act of unlawful violence towards a particular visual or group of individuals. Notice the characteristics. You have to mean to communicate this expression. It has to be an intent to commit an unlawful act of violence. And it has to be against an individual or identifiable group. It protects people from the fear of violence. It is not about preventing violence, as such. Intimidation is a type of true threat, where a speaker directs a threat with the intent of placing the victim in fear of bodily harm or death. So is burning a cross this kind of threat . That is what the court looks black the case of mr. It seems shaky. Where virginia assumes that a tent renders it unconstitutional. Person across may mean a is engaging in an act of intimidation, but it may also be political speech. Their political views are just as protected by the First Amendment as anybody elses. In that case of black, they vacated the position. The other case, they sent it back for further proceeding in light of this opinion. Will, that is a pretty good true threat case. In the internet context, it is trickier. Got really nasty threats from amsterdam. Et cafe in whether they are likely to intimidate or not, people get carried away. There is a lot of hyperbole. Watts was an antiwar protester who threatened lbj, het johnson, or said i have to go for my draft physical. If they make me carry a rifle, the first man i want in my sites is lbj. Law undersaid the which he was charged with valid, but his comment was protected political hyperbole. He was just spouting off. Naacp claimed imminent, he said if we catch up going into those racist stores, we will break your neck. A week later, somebody fired shots into the window of people who violated the boycott. The court said there was not enough immanence. These are sometimes hard questions to analyze because they frequently turn on the facts. You have to analyze them in if this the truth and was an intended communicated threat. If so, where they placed in fear . , a rapper whose put a lot of threats on the internet to a lot of people, but claimed they were part of his persona as a rap artist. Reasonableeld if a person would consider the communication of threat, this is problematic, but that is the law. It would be hard to address any other way, really. Well, that gets us out of incitement. Somebody did have a question, a reasonable test instead of clear and present danger because it is state Police Powers . I dont think that came into play. Testhere is no different for state police power. I dont think that makes a difference. Obscenity. I mentioned obscenity is technologically determinate to some degree. Is onlyory of obscenity rich people could get it because only rich people could afford as whatg, and their w we consider pornographic painting. Only rich or important people read,iterate or could, far in theaphy was future. There was an interest in regulating this thing. Original test the looked at its ability to depraved the mind. Class, stuff some content toit sexual highbrow people is art, and explicit content that appeals to the massess pornography, and that is a view we still see today. Isually related material protected by the First Amendment, unless it is obscene. The question is how do we know when it is obscene. Good freaking question. The courts have a lot of trouble with it. The most honest answer is, i know it when i see it, which isnt very helpful to most of us. The growth of obscenity is a technological phenomenon. Photography, of course, was withind around 1840, and of photography being functionalt had been when people started making sexually explicit, pornographic photos. I have seen some of those from surprisingly850s, like the ones we have today. It is amazing how quickly that artform was established. It became civil war, possible to massproduce naked photos, shared among the troops who are lonely. There was a big backlash after the war, anthony comstock, who as postelf posted office commissioner. Still not much action in court. The court wasnt interested in dealing with mr. Comstock for his issues. We didnt start to see a lot of action until the sexual revolution was beginning to take off, actually. That is when the Supreme Court carveled whether it could obscenity out of the First Amendment or deal with it. We sometimes hear obscenity is in speech, but that is not true. Is lowey mean is it value speech and doesnt matter if we regulated. That is shakier. The court also found a way to allow states to regulate materials it regarded as crude, without regulating materials it regarded as art. The court tried to develop a standard. A particulareal to interest. I means a gets you excited, aroused. Be without any utterly redeeming social value. Is they would put aristotle in the book and say unredeemingrly and social value. As free speech appears to protect expression to assure unfettered exchange of ideas unorthodox ideas, controversy ideas, the prevailing opinion has four protections. Implicit in the First Amendment is the rejection utterly without redeeming social importance. If you have redeeming social importance, you cant be obscene. Idea of the british. Instead, whether the average person, the dominant theme taken as a whole appeals to prurient interest. So there you have it. Super clear, right . Maybe. It was suggested this should be congress has no role regulating obscenities. Ary state to state with no harm. Douglas said we are trying to create purity of thought, and that is a bad idea. Ways to addound , andming social value courts had no idea what this stuff meant. So they tried to clarify things in 1966. In massachusetts, the plurality says the dominant theme of the mirror appeals to a prurient interest in sex, patently offensive because it affronted contemporary Community Standards related to the description of sexual matters, and the material is utterly without redeeming social values. Be a burdenut to virtually impossible to discharge. Court said it became so casebycase that they wound up watching allegedly obscene movies in the Supreme Court building to decide if they were obscene or not, then issuing which some justices enjoyed, and some refused to protest paidin. Refused to participate in. That was unsatisfactory. We get miller against california. Remains new test, which the real test. Cases. Is unchecked worksow say the test is which depict or describe Sexual Conduct, specifically defined by the applicable state law as written or construed, the basic guidelines must be whether the average person applying contemporary Community Standards fine the work taken as a whole appeals to the prurient interest, whether described, depict or describe in a patently offensive way, Sexual Conduct defined by applicable state law, and whether the work as a whole scientificary, value. One of the interesting things is there is much more deference to local standards in these cases then anywhere else in constitutional law. The court says under a national constitution, limitations on the power of the state do not very from community to community, but does not mean there cant be fixed uniform National Standards of what appeals to the prurient interest. Toy say these are realistic read the First Amendment as it, except that conduct found intolerable in las vegas or new york city. Imagine applying this to abortion, birth control, gay marriage. Casesw in the obscenity there is more deference to local standards from the court, and never a clear explanation as why that is. The redeeming social, artistic, literary value is not a community standard. Dissents and says there are no constitutional guidelines and nobody knows what this means. Descendent for jail for violating standards they cannot understand would be a monsters thing to do. Paris adult theatre, very similar case. The difference is this was an adult theater. Nobody would see anything unless they wanted to. They were showing naked movies inside. No one under 21 should go. Nonetheless, the court said that is not enough. Obscenity can be regulated, even between consenting adults. We categorically disapprove of the theory that obscene, pornographic films require state relations because they are exhibited for consenting adult only. Why . It consumes the tone of the society, the quality of life now and in the future and man may be entitled to, and obscene book in his room and we should protect his privacy, but if he wants to exchange the books and pictures in the market accessible to all, then to grant him complete right is to affect the world about the rest of us and impinge on other privacies. Other issues such as birth control, abortion, its not clear why explicit sexual is different in the way it affects the tone of society was other things cannot be regulated. The court doesnt make any effort to reconcile these. Says we have been unable to separate obscenity from other speech. Assume it exists, but cant describe it in a way can be used in advance. One of the things that has happened, part of the breakdown in consensus, it was probably society diverged somewhat. It is interesting to see how things have changed. , yousupermarket checkout look at the magazines , any ofitan, redbook those magazines would have been considered obscene in 1950, articles on sex, all kinds of things. Now that has all changed. Technology, is harder to regulate and more pervasive. People used to think and argue the argument that exposure to pornography made men more likely to be rapist and so on. , there was an article , wecally a few years ago were having this uncontrolled experiment with violent video games and internet pornography that would turn our teenagers into rapist and murderers, and in fact, it was down. Maybe people have just gotten used to it. The demographics have changed. Now men are probably the biggest consumers of pornography, but women have come a long way, baby, to catch up. About what men and women watch our fascinating and revealing. We just dont regulate absented that much. Obscenity that much. There is a number of videos for market, but it is a relatively unused area. 50 shades of grey is far more obscene than james joyces ulysses. Basically what is left is child pornography, and is still vigorously regulated. Case, and i should tell you this is a cultural change. It was really before my time, pornography was not unknown, and even in popular culture, Brooke Shields did new photos for a glossy magazine when she was 10 years old. That was considered racy, but now it would be a huge outcry. Statute prohibited people from y distributing materials that depict children. Here the Court Upholds the nonobsceneeven sexually oriented material involving children. What is the difference . The differences really harm to children. If you make a child pornography video, you necessarily involve children in a sexual act. That implicates a state interest in protecting minors. The protection of children rationale, not from seeing pornography, but being used in grounds it is the intrinsically harmful for them to be engaging in Sexual Conduct on camera and so on. Childirrelevant to the who has been abused whether the material has value. In addition, there is an economic argument, like you may recall from another case, that they have to crush the market to cut down on the exploitation of children. This the court says is a rare, restriction, so overwhelmingly outweighing the noerests if any, that casebycase adjudication is required. Harm to nature of the be combated requires the state to works that visually depict Sexual Conduct by children below a specified age. You can write off the child pornography books you want and you cant prosecute. I think traditionally the written word was capable of obscenity. I think to modernize, it is hard to imagine anything in written form qualifying as obscene, and the court specifically limits the child pornography exception to visual depictions. The goal is the prevention of harm to real children. Theyre not concerned about the paving the minds of consumers and lowering the town of society , their concern with the actual harm to actual children used in these actual cases. As we will see in the next assignment, when there are no children involved, the court comes down differently. , in mys one that concurs view, application of the law or similar statute for depictions that have series value would violate the First Amendment. The argument has its force with the depiction of a series contribution to art or science. That is an interesting statement. Im not sure i agree with that, but it is interesting statement coming from justice brennan. The final frontier and regulation of pornography that is not obscene comes from the feminine efforts to regulate pornography. And wellknownor feminist activist, their goal in regulating pornography from a feminist perspective was very much to make people think of women differently. That was the purpose of the Indianapolis City ordinance. They had an interesting alliance with the conservative womens group. They join to combat this. Something of a feminist and rightwing alliance on the pornography issue. That happened here. This ordinance was challenged, struck down by the District Court then the seventh circuit, youra judgment said regulating nonobscene speech, defining pornography as a practice that discriminates against women, and you regulated that whether it passes the miller test for obscenity. It if it sendsn the wrong signal. It depicts the subordination of women and pictures of words and includes one or more of the following im not going to read all of this. At any rate, the indianapolis ordinance does not defer to the miller case, the pure in interest, or standards of community. Depiction andular is irrelevant under the amendment as to whether the act has value. The state says that is a virtue. Say it influences attitudes in the way to alter attitudes, rather than to vindicate Community Standards. Easterbrook says that is why you do it, because youre trying to regulate pornography based on the way it makes people think, and you regulate speech because you dont want like the way it makes people think, you are engaging in censorship. You are violating the First Amendment. It is there to make people think in a particular way. That is why we have a First Amendment. He says the state may not ordain preferred viewpoints in this way , the constitution forbids the state to declare one perspective right and silence opponents. He talks about all the harm they say pornography does in terms of attitudes and behaviors. This way demonstrates the power of pornography in speech. It depends on mental mediation. It depicts how they see the world, social relations. If it is or does, so is other speech. He gives other examples of changes in how people think, sometimes an emotional reaction. Institutionsolling of culture, the great director of what thoughts are good for us. So that is the Supreme Court summarily affirmed this case. I think it is fair to say they agreed. Ont is where we stand efforts to regulate nonobscene speech. So obscenity still exists as a concept, but as a practical matter in our society today, we are surrounded by material that would have been thought of as extremely obscene not that long it i dontof know much of it could be prosecuted under the miller standard, may be, although maybe it is that Community Standards have shifted to the point were nothing counts as that offensive to most people. In the last few months, interestingly, there has been a Campaign Among social conservatives to get the Current Administration to go after pornography, which has found no traction. There is not much interest in that. Most people seem at least excepting of where we are today, and there are certainly no great political careers to be made by prosecuting obscenity, which means it is not likely to happen. The one exception people do seem to coalesce around his child pornography, where there is a very Strong Social stigma attached to it in a powerful desire to regulate it, which the court has allowed to be done, but other than that, obscenity is a concept is found more in constitutional casebooks. For the bar exam, it would be useful to know the miller test and apply it, and to understand the child pornography exception. That is something they do test and you may want to Pay Attention to. That might even be true for my exam. Easy to test is better to be tested more than things not easy to test. Well, we finished a bit early. I found things online go a little bit faster. It is an exceptionally beautiful day. My advice is try and enjoy some fresh air and sunshine. It is good for you and good for your health. You should be enjoying your life. Enjoy every sandwich. Do it. I will see you next class. Announcer you can watch lectures in history every cspan3. N that is saturday at 8 00 p. M. And midnight. Up next on American History tv, from the western history Associations Annual meeting, Outgoing WesternHistory Association president Martha Sandweiss gave an illustrated talk about how historians can use photographs and the stories behind the photographs to study and understand the american west. Professor sandweiss has been studying and writing about photographs for 40 years and argues that more historians should use photographic archives in their work