Prof. Reynolds hello and welcome to a second episode of lot 2020, Global Pandemic edition. The first class went pretty well. Law 2020. 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 introductory law class for 2020 and we are talking about free speech, incitement, true threats and we will get started on obscenity. We will be less socratic than today because the cspan people asked me to be. Is textbook we are using constitutional law. Its a good casebook. The first time i have used it so we are learning our way. It is going just fine. Today we talk about free speech and we havent talked about it we have talked about 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 highly. To the extent they talk about it, they saw as mostly 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 Century of its existence. Almost all case law comes from the 20th century or the 21st. There are a couple of reasons for that. One is that many of the matters touched on were really 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 to the states in the 14th amendment, the only limits on what a state could do to regulate incitement came from state constitutions. With regards to obscenity, the technology was not there. There were books regarded as obscene for a long time. And for that matter paintings, i suppose. But the ability to massproduce images is what set people off didnt really appear until the middle of a 19th century and did not take off in a big way into the 20th century bring you couldnt have obscene movies until movies were invented. That has 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. Half andm the second 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. 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 Shall make no law abridging the freedom to speech or the press or the right of the to peaceably assemble or petition the government for the address 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. One other side bar. Freedom of the 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 regulations of speech. Contentbased regulations of speech are bad. They are presumed invalid and subjected to strict scrutiny. They are upheld only in the strictest of circumstances. Contentbased example might be no discussion of the bachelor. Picking a topic and placing it offlimits. A subset of contentbased speech is viewpoint is combination, or viewpoint discrimination or viewpoint based 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 a communist viewpoint would be a case of viewpoint discrimination. Content neutral regulation are not addressed to what the speech is about. A content neutral regulation might be you cannot operate trucks in a neighborhood between 8 00 p. M. And 8 00 a. M. That is content neutral because they did not care what youre saying but you cant keep people awake. Framers did not talk about why we have free speech very much, but the courts do. The courts have a number of ideas which come to the front in in differents, cases. And sometimes 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. If 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. It also has the beneficial effect that people are more likely to put up with losing and losing in politics if they feel they have their say and can grumble about it afterwards. 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 differently than we would if we did not have free and open discussion. It has to do with miltons area and so on. Which is worth reading today. Theres also the notion free speech is necessary to develop moral virtue, that if you simply 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 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 . Lets go back to content neutral and contentbased as your text book does. Contentbased regulation is very disfavored and the playboy case is a good example of this. In the old days before cable and 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 you could unscramble it and people found that titillating. Congress forced the playboy channel and other channels with semi sexually expose it content explicit content to scramble it or otherwise make it unavailable to households with children. The court said this is content based regulation. You are regulating sexually obscene, and the statute thus has to pass strict scrutiny and the court says it doesnt pass strict scrutiny. There are less intrusive ways of regulating it. For example not delivering it to houses that do not want it allowing people to block panels so their kids cannot watch it. The town of gilbert is a contentbased case, a sign case. Cities are regular signs and 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 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. His 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 they 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 with two or three million votes running for the socialist party. For 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 years ago, they 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 in vain, 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. They said 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 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 posed 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 purpose criminal 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. 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. It is footnote 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 . Student am i unmuted . 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 gitlow . 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 other 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. Douglas concurs and says when 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 necks 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. These come up particularly in 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 named barry 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 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 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 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. Somebody 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 to some degree technologically determinant. The history of obscenity is only rich people could get it because only rich people could afford painting, and there were what we 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 andinvented around 1840, within about 15 minutes of butography being invented, photography had been functional for about 15 minutes before people started making sexually ive seen some, photos in the 1840s, 1950s. They were surprisingly like the ones that have today. Its amazing how quickly that was established. War, it becamel popular to massproduce naked photos and they were shared among the who were lonely. Big backlash a after the war, with information on Birth Control and sex in general as well as titillating material. So not much action in court. The court wasnt there interested in dealing with mr. Comstocks problem or issues. We really didnt start to see a lot of action until the sexual revolution, when that was beginning to take off. Thats when the Supreme Court started really struggling with whether it could carve a obscenity out of the First Amendment, because it was ok to regulate obscenity. Its not clear why that is. We sometimes share the fiction that obscenity isnt speech, but thats not true. What they usually mean by that is that it has such low value stage that it doesnt really matter if we regulate it, and that is a little shaky, as we will see. The court also found it to develop aficult task that would allow the state of the federal government to regulate material that it regarded as crude without also allowing them to regulate material which it regarded as art. Through ofppened United States and california. Where the court tried to develop a standard of content having to do with sex. Appeal to interest the a Community Standard. Something that gets you excited, to bed, and it has utterly without redeeming social value. And i just love the utterly part. You would be shocked to know that what happened, they put a few pages of aristotle in the back of some of these magazines, so they were not utterly without value. I think he never had his heart and regulating a vicinity obscenity at all. To assure unfettered interchange of ideas, the furthest redeeming , unorthodox ideas, even ideas hateful have full constitutional protection, but implicit in the history of the First Amendment is the rejection of a vicinity as utterly without value. They reject the old british and instead, that the test applies to contemporary Community Standards. The dominant theme of the material appeals to those interests. So, there you have it. If youre a publisher or regulator, its super clear. Worries, hes as many juries might find that james was a scene and yet the conviction of a defendant remains the greatest constitutional problem. That thiso suggests really should be left to the states, that congress has no Great National goal of regulating obscenity, it very is from state with no great harm being done. We are really trying to create. He of thought. Of thought. Purity of thought. They found a variety of amusing ways to try to read redeeming social value and courts had no real idea what all this stuff meant and perhaps the court didnt either. Things,tried to clarify in memoirs against massachusetts where they say the dominant theme of the material appeals to the materialn sex, is patently offensive because consider fronts temporary and they standards material is utterly without redeeming social value. Be ahat turns out to burden virtually impossible to discharge. It was lots of fun for the court that it became so casebycase that they literally wound up watching allegedly obscene movies in the Supreme Court building with the justice watching them to decide if they were obscene or not and then which somenions justices perhaps enjoyed, and some justices refused to participate in. Some stuff in the book that talks about this, he said i would know it when i see it. We get a new test which remains to the extent there is such a thing that remains a real test. Just a bunch of cases they brought back, they now say the test his works which the paper describes Sexual Conduct, the conduct must be specifically defined by the applicable state laws as written or construed. The basic guidelines must be whether the average person, applying contemporary Community Standards, would find that the work taken as a whole appeals to those interests, whether the work describes, it takes Sexual Conduct specifically defined by state law, and whether the work lacks serious literary artistic political or scientific value. And they specifically get rid of the utterly without redeeming social value test. And one of the interesting things about the obscenity case, it is much more disparate to local standards than anywhere else in constitutional law. The court says under a national constitution, limitations on the powers of the state do not vary from community to community. Niform National Standards now, imagine applying this to abortion or Birth Control or gay marriage or many other things the Supreme Court has regulated. This much more deference theres standards, and never a very clear explanation on why that is, its just asserted that is obvious. Another thing is redeeming literary value is not a Community Standard. That is done according to a national standard. Says there are no constitutional guidelines here, nobody knows what this means. To send them to jail for violating standards of they cannot understand would be a monstrous thing to do in a nation dedicated the fair trials and due process. Well, there you have it. A very similar take. The difference is this is an adult theater. Nobody was going to say anything unless they wanted to, they have warnings they were showing naked movies inside, no one under 21 or who was offended by nudity should go. Obscenity can be regulated even when its between consenting adults. They categorically disapproved of the theory that this of seeing film would require constitutional immunity for the state regulations simply because they are exhibited for consenting adults only. Why . A man may be required to read and of seeing book at his privacy, but if he demands a right to obtain the books and pictures he wants from the market and gather in public places, but accessible to all, with others who share his fate, to impinge on other practices. Compare that to the treatment of other issues in the court such as Birth Control or abortion or whatever, which also affect the tone. Other things that affect the tone of society cannot be regulated. The court doesnt make any effort to reconcile these. He says you know, weve been unable to separate obscenity from constitutionally protected speech. We assume it does exist, we just cant describe it in a way that anyone can use. One of the things that has happened here, i think it was 1940,ly true that, in most everybody did consider obscene, and society diverged somewhat then with the sexual revolution and all that. Its also interesting to see how things have changed. When you look at a magazine on a stand, look at a copy of cosmo for redbook, any of those would have been considered scene. There articles on all kinds of things, the howto guide on anal sex, i promise you that what they considered obscene. Now, that has all changed. Pornography has just become vastly more acceptable, which made it both harder to regulate and more pervasive. Also, a lot of the harm that , ande were asserting indeed, the commission obscenity made this argument, that exposure to pornography made men. I thousands of people had said in the 90s, they were having an experiment with violent video games. It was going to turn all our teenagers into murderers. In fact, they all went down. Pornography most primarily aimed at males, almost exclusively between now, men are probably the biggest consumers, but women have come a long way. Pornhubook at the statistics on what men and women watch, its fascinating and revealing. Now, we just help regulate obscenity. If somebody even tries to prosecute a case for obscenity, there were a couple of efforts in the obama administration, making videos were women in high , but its a relatively unused area of law now. Its just a cultural change. 50 shades of grey is far more of scene then james joyce and that was banned nowhere. What can we regulate fraternity . Basically, what is left is child pornography. That is still vigorously regulated and upheld by the courts. And i should tell you, this is a cultural chain. Time, really before my pornography including children even in Popular Culture in the 70s, Brooke Shields they mostly took a bunch of nude photos for her son when she was like 10. That was considered a little racy, but now it would be a huge outcry. A statue that prohibit people from knowingly promoting sexual performances by children under the age of 16 by distributing materials depicting sex. And here, the Court Upholds the even not obscene sexually material involving children, and what the difference . Well, the difference really is harm to children. Video,make a child born you must necessarily involve children in a sexual act, and that implicates the states in safeguarding the physical and psychological wellbeing of minors. This protection of children, they are not protecting children porn. Theyre protecting children from being used in it. On the grounds that it is intrinsically harmful for them to be engaging in Sexual Conduct on camera. Irrelevant whether or not the material has a literary artistic political or social value. In addition, theres an economic argument. You may recall the marijuana that they have to crush the market for this entirely to cut down on the exploitation of children. This is a rare, contentbased regulation of speech that can be upheld under strict scrutiny. The evil to be restricted so that no process of casebycase. But the nature of the harm to be combated requires that the state offenses be limited to work that visually depicts Sexual Conduct by children below a specified age. You can write all the kitty porn books you want, theyre not prosecutable as obscene. Wordtionally, the written is capable of obscenity. I think to modernize, it is hard to imagine anything in written form qualifying as it seemed as obscene. It specifically limits the child porn exception. The goal is the prevention of harm to real children. They are not concerned about the printing the minds of the consumers, lowering the tone of our society. They are concerned with the actual harm, the actual children used in these actual cases. See, when there are no actual children involved, things are done differently. In my view, application of the new york law or any similar statute divisions of children that in themselves to have theous value would violate First Amendment. The heart of a child argument has a serious contribution to our or science. Thats an interesting statement. ,m not sure i agree with that but it is an interesting statement. The final frontier and regulation of pornography that is not obscene comes from efforts to regulate pornography. The goal in regulating feminism or regularly 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 women, the joined together to back this, something of a feminist and rightwing alliance on these pornography issues. This ordinance was challenged and struck down in District Court and then by the seventh circuit by judge frank easterbrook. You areook says regulating not obscene speech, you are defining pornography as a practice that discriminates against women and you regulate it regardless of whether it passes the test for obscenity. Instead, you ban it if it send the wrong signals. It is a graphic, sexually explicit support mission of women whether it is pictures or words that also includes one or more of the following. Im not going to read all this. At any rate, the indianapolis not theoes standards of the community. It commands attention and particular depiction. Whether the act has literary or artistic, political value, and they say that is a virtue. Influenced attitude. Rather than to vindicate Community Standards. And easterbrook says thats why you lose. Because you are trying to regulate pornography based on the way it makes people think, but you should regulate speech because you are engaged in censorship, speech is there to make people think it particular way, to try to persuade people to think in particular way. Thats why we have a First Amendment. Not ordain state may preferred viewpoints in this way. The constitution forbids the states declaring one perspective right. And he talks to all the harm that they say pornography does in terms of attitudes and behaviors and says it sadly demonstrates the power of speech. All of these unhappy effects depend on intermediation. Pornography affects how people see the world, social relations. And he gets a bunch of examples of how changing how people think , sometimes the emotional reaction. Is there any other answer . Supreme court summarily affirms this case. Business of record opinion on it, but i think it is fair to say. And thats where we stand on the efforts to regulate not obscene speech. Concept,exists as a but as a practical matter in our society today, we are surrounded by material that would have been thought of as extremely of scene extremely obscene not that long ago, and much of it well, i dont know. Much of it to be prosecuted maybe, although perhaps it is just a Community Standard that is shifted to the point where nothing counts to most people. There is just in the last few months, a little bit of a campaign to try to get the Current Administration to go after pornography, which has found no traction. Theres just really not much and mostin that, people seem at least accepting of where we are today and there certainly are no great political careers to be made by trying to prosecute obscenity which means it is not likely to happen. The one exception that people do seem to have coalesced around whereild pornography, there is a very Strong Social stigma attached to it and a powerful desire to regulate, which of course is allowed to be done. Other than that, vicinity as a is found more in casebooks than the actual legal world. It would be useful to know the miller test and to be able to apply it and to understand the child pornography inception. Something they sometimes do test, which you might want to pay some attention to. That might even be true for my exam. Stuff is easy to test ends up being tested more. You should apply in all your classes everywhere. We finished a little earlier. It is an exceptionally Beautiful Day outside, and my bias to you if you have time, try to enjoy a little fresh air and sunshine. You should be enjoying life as you can. Enjoy every sandwich. Do it. Ill see you next class. Think very much. Announcer was and lectures on history on the go by stripping our podcasts anywhere, anytime. 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