Here we are viewed here we are. The first class went pretty well. We are being recorded for cspan. For the folks at cspan, i am university of Tennessee College of law professor glenn harlan reynolds. This is our standard law class for 2020 and we are talking about free speech, incitement, true threats and will get started on obscenity. We will be less socratic than usual because the cspan people asked me to be. Here is the textbook we are using, constitutional law, a good casebook. The first time i have used it so we are learning our way. It is going just fine. We have been talking about free speech, equal protection, 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 very highly. To the extent they talked about it, they saw it 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 centuryplus of its existence. Almost all case law comes from the 20th century or the 21st. There are a couple of reasons for that. Many matters were not federal issues for the most part. For example, 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 against the state through the 14th amendment the only limits on what estate could do towhat the state could regulate incitement came from state constitutions. To obscenity, the 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. You could not have obscene movies until movies were invented so that had a lot to do with it. One of the interesting things about this is, much of the law about 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 law, relatively new. Your text talks 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 peaceably the right of the 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. They are all, to some degree, 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 tend to 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. One other side note, freedom of the press, i should mention, 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 regulations of speech. Contentbased regulations of speech are bad. They are presumed invalid and subjected to strict scrutiny. They are uphold upheld only in the strictest of circumstances. An 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 discrimination or viewpointbased regulation, in which you are allowed to talk about something but not from particular viewpoints. So you can talk about politics communistom a viewpoint would be a case of viewpoint discrimination, a subset of content discrimination. Content neutral regulation are not addressed to what the speech is about. 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 people awake. 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, in Different Cases, and sometimes they are contradictory when they are thinking about what the First Amendment and free speech protects. The courts have several different lines of attack. One is selfgovernance. The notion that we need to the able to talk about issues in order to operate as a democratic society. Remember, 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 likely to 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 marketplace of ideas, that by discussing things we see different angles on them, and we understand them more fully and more differently than we would if we did not have free and open discussion. Theres also the notion free speech is necessary to develop moral virtue, that if you unquestioningly accept ideas and do not reason your way to them, you do not deserve credit even when you are right. 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. The president of 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 and 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 . It is worth looking at. Lets go back to content neutral and contentbased as your text book does. Contentbased regulation is very disfavored. 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 into the playboy channel. Sometimes you could kind of fiddle with it and unscramble it and people found that titillating. Congress forced the playboy channel and other channels with content to scramble it or otherwise make it unavailable to 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 it,lating and regulating for example, not delivering it to houses that do not want it , allowing people to block channels so their kids cannot watch it. The town of gilbert is a contentbased case, a sign case. Cities are always regulating signs and getting in trouble for it. If you find yourself in city law, you will probably have to deal with the sign ordinance at least once a year as unconstitutional or so it seems. Gilbert banned signs unless the permit was obtained. They regulated things strictly. Poor mr. Reed with his church with temporary signs to tell people where they were meeting this week because 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. That they were treating temporary directional signs differently and he won. The court said, this is a contentbased regulation and it does not pass strict scrutiny. They disagreed with the city argument that we are regulating speakers, not speech, because we dont care what is on the sign, except you do care what is on the sign because you have rules that are different for different signs about different things. The courses the purpose is not relevant when allies content based on its face. Contentbased regulation is 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. The unprotected categories of speech are obscenity, child porn , 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 a relevant case. It has not had a lot of weight. Incitement is where we get a lot of our cases, especially from the early 20th century. Incitement was used regularly to regulate speech that the government did not like, frequently from communists, anarchists, and other flavors of political undesirables. This led over time 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 you read the case you will see the person involved went to jail. Shank is one case where he is a standard model socialist and he is opposing the draft in world war i, making the argument, which i believe to be correct, that the draft violates the 13th amendment. The Supreme Court said otherwise a few years earlier in the Selective Service cases, but it is a respectable constitutional argument. Piece and 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 then 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 it 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, though 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 a reasonable argument to make cute under the espionage act ,hey upheld the conviction publishing articles in a german 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. Debs involved the conviction and jailing of a prominent socialist. He was a candidate for president three million votes running for the socialist party. Giving a speech that today seems like something you could hear all over the place, talking about how socialism was great. And said 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. Abrams and others who sympathized with the russian revolution, tried to encourage workers in the United States to oppose it. The result was that they went to jail. The Supreme Court says even if their primary purpose was to aid the cause of the russian revolution, they would nonetheless injure 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, disaffection, sedition, riots, and as they hoped, revolution in this country about for the purpose of embarrassing and possibly relegating 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. Holmes 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 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 of a thought to get itself 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. Holmes idea 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. Holmes and brandeis are dissenting and the court is not moving in their direction as we see in gitlow v. Ny. In the defense of people 100 were not afraid of communist revolutions because they were happening. It was a shock when the communists overthrew the czar. The old russian empire, they killed the czar and his ministers, anastasia screamed , 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 around the world, not 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 were 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 straightforward 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. The court was quite unsympathetic. The jury did not find advocated abstract doctrine of overthrowing by force but action to that effect. A single revolutionary spark may kindle a fire that smoldering may burst into a sweeping and destructive conflagration. When courts talk about sparks and fires, that is always a sign someone is going to go to jail and they are worried and upset. Again, we get a holmes dissent. He says this is a clear and present danger tariff and there is no clear and present danger. There is no danger of an attempt 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 that 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 remained unsympathetic to the usually communist or anarchist, and a lot of overlap of those groups. Brandeis added to his theory that there should be serious injury resulting from the speech. Whitney post no such danger but posednvicted whitney no such danger but was convicted. 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 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 communications from soviet spies showed there were quite a few people like that working under directions from moscow. They were not a figment of someones imagination. Nonetheless, in dennis, we had 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 attempted advocacy of the duty, necessity, desirability, or propriety, of overthrowing any government, american government, by force, then you are in violation. End the court held and the court held 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 , and said 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 court later in the 1950s, started to pivot and reverse on a lot of this. Some was because of the implosion of senator joseph mccarthy, though there were communists. A lot of the people he thought were communist were not and he went crazy and discredited the anticommunist cause. Also, the u. S. Was nervous shortly after world war ii, as many countries in Eastern Europe were taken over by communists and as the soviets developed 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. That was a substantial trimming back. Then we get to brandenburg v. Ohio. This brings us to modern law of incitement. This is a sad crowd of ohio ku klux klan members. They had a rally and they invited reporters to come film it, which they did. Much of what they said was unintelligible. One in your text. I do not think they marched on Congress Like they said, there were not 400,000 strong as promised. They were charged with criminal syndicalism and prosecution that 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 . Unmuted . Am i prof. Reynolds you are. Student 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. Prof. Reynolds and likely to succeed as well. The incitement, the action speech has to be erected to inciting imminent lawless action and likely to succeed. That is a stricter test. Student is there any differences between that and get itlow . Or is it just so they change direction . Prof. Reynolds there is a difference with gitlow. They stated it did not have any effect, and no one seemed to think it was likely to have an effect. They were abandoning the spark at kindling the flame theory. If you apply gitlow, the court wouldve said, yes, these guys in ohio are losers, but what they are advocating for is serious violent action and theres always the chance some of them might listen to them. A spark can kindle a flame 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 on an internet site that people should go burn city hall. One is incitement and the others is twitter as usual, probably. Thank you. 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 that to be tested on the bar exam. Says whenncurs and you 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 threats were often loud but puny and made serious only by judges. Critical analysis made them nervous. Black concurred that all 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 antiwar demonstration and some guy yells, we will take the street later. I am leaving out the f word. The court says that is not enough. Naacp against hardware, closer case. There was a boycott of businesses in mississippi. The naacp had encouraged the boycott and threats were made that people would have their ks broken if they did not participate in the boycott and patronize those businesses. But the court 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 aid to terrorist organizations where the court did uphold the statute. It direct specific training, assistance advisor service, almost enough to make one, it would seem, a participant in any crimes involved. The court defers to congress here in a greater degree than it normally defers to state legislatures. That may be put down to the war on terror. The court never got very swept away with that. There is a sub species of incitement called true threat. Inse come up particularly the internet context. A true threat is punishable. Vague statements of potential violence are not. A true threat means you threaten to criminally harm somebody. It has to be sufficiently immediate and credible that a person would be afraid of it. In virginia against black, we see how that plays out. It is a cross burning case. Lots of Southern States have laws against burning crosses. They date back to the ku klux klan era. In this case, we have two sets of crosses burning. One on private property by a guy black, a ku klux klan guy. He had a cross burning on his property. He was convicted under virginia statutes of burning across with the intent of intimidating, and the statute said a jury can infer intent from the fact you burned a cross. The burning of across by itself is sufficient evidence from which you may infer required intent. The other defendant is more violent, burned a cross in the yard of an advocate american an africanamerican who was his nextdoor neighbor. Not very neighborly. It is unclear whether it was racial animus or making too much noise. The court says, well, cross burning, cross burning is intertwined with the history of the ku klux klan as a tool of intimidation and threat of impending violence. This is true. After the brown case, there was a resurgence of the klan, cross burnings again. The symbolism of burning a cross was not always one of intimidation but can reasonably seen as that, so the courts says we have to analyze this virginia statute and see whether virginia is regulating true threat or sweeping in things 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 individual 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 at in the case of mr. Black. He burned a cross on his own property and it seems shaky. The court says where virginia assumes renders it unconstitutional. Burning a cross may mean a person is engaging in an act of intimidation, but it may also be political speech. The ku klux klan has political views that are reprehensible but still political views and 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 to virginia Supreme Court for further proceeding in light of this opinion. That is a pretty good true threat case. In the internet context, it is trickier. I got really nasty threats. It is hard to tell about internet statements if they are really meant to intimidate people are not. There is a lot of hyperbole on the internet. Mr. Watts was an antiwar protester who threatened president johnson, or lbj, he 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. Nobody is going to make me kill my black others. The court said the law under which he was charged with valid, but his comment was protected political hyperbole. That is to say, he was just spouting off. The 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 light of the truth and if this was an intended communicated intended to communicate a threat . If so, where they placed in fear . We have one case, a rapper who 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. The court held that you could convict in a case like this if a reasonable 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. 70 did have a question, did the court apply a reasonable test instead of clear and present danger because it is state Police Powers . I dont think that came into play. No, there is no different test for state police power. I dont think that makes a difference. All right, obscenity. I mentioned obscenity is technologically determinant. The history of obscenity is only rich people could get it because only rich people could afford were what we there consider pornographic painting. Some of which we now consider great art. Only rich or important people were literate or could read, and people who could not read could not corrupt their minds. Photography was far in the future. As a result, there was not a lot of interest in regulating this thing, generally speaking. When they did start regulating it, the original test looked at its ability to appraise the weak minded. There was always a class component. Stuff with explicit sexual content that appeals to tony, highbrow people is art, and explicit content that appeals to the masses is pornography, and that is a view we still see today. Sexually related material is protected by the First Amendment, unless it is obscene. The question is how do we know when it is obscene . The answer is, good freaking question. The courts have a lot of trouble with it. The most honest answer was probably justice powells, 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 invented around 1840, and within 15 minutes of photography being invented, maybe a bit earlier than that, it had been functional when people started making sexually explicit, pornographic photos. I have seen some of those from the 1840s, 1850s, surprisingly like the ones we have today. It is amazing how quickly that the conventions of that artform were established. During the civil war, it became possible to massproduce naked photos, shared among the troops , who were lonely. There was a big backlash after called under a fellow anthony comstock, who got himself posted as post office commissioner. Instead of oppressing obscenity, which human Birth Control and includingeral, pornography. Still not much action in court. The court wasnt interested in dealing with mr. Comstock for mr. Comstocks problems or 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 started really struggling with whether it could carve obscenity out of the First Amendment or somehow deal with it. He was taken for granted that it was ok to regulate obscenity. We are not sure why that is. We sometimes hear obscenity is not speech, but that is not true. What they usually mean is obscenity is such low value speech that it does not matter if we regulate it. That is a little shakier. As we will see. The court also found a way to the court also found it difficult to, with tests that would allow states to regulate materials it regarded as crude, without regulating materials it regarded as art. That has happened throughout. The court tried to develop a standard. You cannot be obscene if you dont deal with sex. It has to appeal to a. Purient interest. It means gets you excited, aroused. Withoutas to utterly be any redeeming social value. I love the utterly. What happened is they would put aristotle in the book and say we are not utterly without social value. Writes the opinion, and i think he never had a heart for regulating vicinity and all obscenity at all. He says free speech appears to protect expression to assure unfettered exchange of ideas , and all ideas have the importance,deeming unorthodox ideas or even those that are hateful, they have protection. Implicit in the First Amendment is the rejection utterly without redeeming social importance. If you are obscene, you idly without redeeming social importance. If you have redeeming social importance, you cant be obscene. They rejected the old british idea. Instead the test is whether to the average person, the dominant theme taken as a whole appeals to prurient interest. So there you have it. If you are a publisher or regulator, super clear, right . Maybe. Says, many readers felt that james joyce was obscene and it would raise a constitutional problem. Congress hassted no role regulating obscenities. It could vary state to state with no great harm being done. Douglas on the other hand he said we are trying to create purity of thought, and that is a bad idea. Roth was hard. Oflishers found a variety amusing ways to add redeeming social value, and courts had no real idea what this stuff meant. So they tried to clarify things in 1966. In memoirs against massachusetts, the plurality says the dominant theme of the material as a whole appeals to a prurient interest in sex, the material is patently offensive because it affronted contemporary Community Standards related to the description of sexual matters, and the material is utterly without redeeming social values. You still have the utterly in there. That turns out to be a burden virtually impossible to discharge. He was loads of fun for the court it was loads of fun for the court. The 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 opinions, which some justices perhaps enjoyed and some refused to participate in. They thought it was too casebycase and inappropriate. That was unsatisfactory. We get miller against california. In this we get a new test, which remains, if there is such a thing as obscenity in a practical matter today, the real test. They now say the test is works which depict or describe Sexual Conduct. The conduct must be specifically defined by the applicable state law as written or authoritatively construed. The basic guidelines must be whether the average person applying contemporary Community Standards would find the work taken as a whole appeals to the prurient interest, whether depicts or describes in a patently offensive way, Sexual Conduct defined by applicable state law, and whether the work taken as a whole lacks serious or scientific value. And one one of the interesting things about obscenity cases is there is much more deference to local standards in these cases than anywhere else in constitutional law. The court says under a national constitution, limitations on the power of the state do not very vary from community to community, but does not mean there cant be fixed uniform National Standards of what appeals to the prurient interest. They say it is neither realistic nor constitutionally sound to read the First Amendment as requiring it, except that conduct found intolerable in las vegas or new york city. Imagine applying this to abortion, Birth Control, gay marriage. Many other things the Supreme Court has regulated. Somehow in the obscenity cases there is more deference to local , standards from the court, and never a clear explanation as why that is. It is just asserted it is obvious. The other thing to note is the redeeming social, artistic, literary value is not a community standard. That is done according to a national standard. Douglas dissents and says there are no constitutional guidelines and nobody knows what this means. Being sent to jail for violating standards they cannot understand would be a monstrous thing to do. There you have it. Paris adult theatre, very similar case. The difference is this was an adult theater. Nobody would see anything unless they wanted to. There was a warning they were showing naked movies inside. No one under 21 or offended by nudity 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 constitutional immunity from state galatian simply because they are exhibited for consenting adults only. Why . They quote Alexander Bickel and say it concerns the tone of the society, the quality of life now and in the future. A man may be entitled to read 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 and gather in public places, accessible to all, then to grant him his right is to affect the world about the rest of us and impinge on other privacies. Compare that to the treatment of other issues the court addresses such as Birth Control or abortion or whatever, which also would affect the tone of society. Its not clear why explicit sexual content is different in the way it affects the tone of society to the point it is constitutionally privileged to regulated when other things cannot be regulated. The court doesnt make any effort to reconcile these. Wennan dissents and says need to admit we have been unable to separate cindy from other sexually oriented but constitutionally contacted speech. We assume it exists, but cant describe it in a way that anyone can use. One of the things that has happened, part of it is a breakdown in consensus. It was probably true in 1940 everybody agreed on what was obscene and society diverged somewhat. What with the sexual resolution revolution and all of that. It is interesting to see how things have changed. If you walk through your supermarket checkout, assuming you are not having all of your few delivered now because you are isolating, when you look at the magazines on the stand, look at a copy of cosmo or redbook, any of those magazines would have been considered obscene in 1950. There are articles on sex, all kinds of things. He teen vogue article on anal sex. Now that has all changed. Some of that is technology, harder to regulate and more pervasive. Also i think we have shown that maybe a lot of the harms people asserted were not so real. People used to think and argue , and indeed the present commission on obscenity under president nixon made this argument, that exposure to pornography made men more likely to be rapists and so on. I read a calm about this a few years ago, we were having this uncontrolled experiment with violent video games and internet pornography and it would turn our teenagers murderers, andd in fact, the rape and murder went down from the 1990s. Maybe people have just gotten used to it. The demographics have changed. Pornography used to be primarily aimed at males almost exclusively. Now men are probably the biggest consumers of pornography, but women have come a long way, baby, to catch up. Pornhublook at the hornh statistics they release about what men and women watch our are fascinating and revealing. We just dont regulate obscenity that much. There is a number of videos for small but lucrative videos,called crush where a woman steps on a small mouse or something, but it is a relatively unused area. Grey is far more than jamesn joyces ulysses. Basically what is left is child pornography, and is still vigorously regulated. In one case, and i should tell you this is a cultural change. It was really before my time, but in the 1960s and such, pornography, including involving children was not unknown, and even and Popular Culture in the 1970s, bookshelves brooke photos did some nude for a glossy magazine when she was 10 years old. That was considered racy, but now it would be a huge outcry. A statute prohibited people from knowingly distributing materials that depict children under the age of 16, not even 18. Here the Court Upholds the regulation even of nonobscene sexually oriented material involving children. What is the difference . The difference really is harm to children. If you make a child pornography video, you necessarily involve children in a sexual act. That implicates a state interest in safeguarding the physical and psychological wellbeing of minors. The court said the protection of children rationale, not from seeing pornography, but being used in pornography on the grounds it is intrinsically harmful for them to be engaging in Sexual Conduct on camera and so on. It is irrelevant to the child who has been abused whether the material has literary, artistic, social value. In addition, there is an economic argument, like you may from another case, the marijuana case, that they have ush the marketr entirely to cut down on the exploitation of children. This the court says is a rare, contentbased restriction, so overwhelmingly outweighing the interests if any, that no process of casebycase adjudication is required. But, the nature of the harm to be combated requires the state offense be limited to works that visually depict Sexual Conduct by children below a specified age. You can write all of the kitty porn books you want and they cannot prosecute. I think traditionally the written word was table 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 reason is the goal is the prevention of harm to real children. They are not concerned about g thecraving depravin minds of consumers and lowering the tone 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. Brennan concurs but says in my view, application of the new york law or similar statute for depictions of children that have serious value would violate the First Amendment. The harm to the child argument has its force with the depiction of a series contribution to art a serious 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 in regulation of pornography that is not feministomes from the efforts to regulate pornography. One law professor and wellknown 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 their Indianapolis City ordinance. They had an interesting alliance with the conservative womens group. And think it was Phyllis Schlaflys group that backed this. They joined to combat this. There was something of a feminist and rightwing alliance on the pornography issue. That happened here. This ordinance was challenged, struck down by the district thet and struck down by seventh circuit. Areerbrook says you regulating nonobscene speech, defining pornography as a practice that discriminates against women, and you regulated it whether it passes the miller test for obscenity. Instead, you ban it if it sends the wrong signal. Ordinancey says the in the ordinance 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. It is in your book. At any rate, the indianapolis ordinance does not defer to the purulent the prurient interest, or standards of community. It is a particular depiction and is irrelevant under the amendment as to whether the act has value. That is a virtue. They say pornography influences attitudes in the way to alter attitudes, rather than to vindicate Community Standards. Easterbrook says that is why you lose, because youre trying to regulate pornography based on the way it makes people think, and when you regulate speech because you dont like the way it makes people think, you are engaging in censorship. You are violating the First Amendment. Speech is there to persuade people to think a particular way