The Supreme Court attempts to deal with changing cultural standards.

1. Obscenity and free speech
The Court attempts to deal
with changing cultural standards

2. Back to Hentoff and Bork
• The Bork view
– The First Amendment was intended to protect
political speech, and not much else
• The Hentoff view
– The First Amendment must protect all forms of
expression

3. Prudery and bad science
• Marjorie Heins cites
fears of harm caused
by masturbation
• Anthony Comstock
(right) led anti-vice
crusade
• “Banned in Boston”

4. The Supremes weigh in
• Charles Evans Hughes
(left), in Near, says
obscenity is not
protected speech
• Common-law meaning
is hazy
• The Court hazards a
definition in 1957

5. Roth v. United States (1957)
• William Brennan
(right) authors a
decision he would
come to regret
• Reaffirms that
obscenity is not
protected
• Sixteen years of
confusion

6. Miller v. California (1973)
• Chief Justice Warren
Burger’s three-part
test
– Community standards
– Patently offensive
– Lacks serious literary,
artistic, political or
scientific value

7. A major cultural shift
• Hardcore porn went
mainstream in the
1970s, even at college
campuses
• Feminism, rising
conservatism in ’80s
• Technology privatized
porn

8. Extreme Associates
• California hard-core
video company
• Prosecuted in
Pittsburgh as part of
John Ashcroft’s
anti-porn campaign
• Zicari (left) and
Romano are
now in prison

9. Other considerations
• No protection for child pornography, even
if it would not be obscene if made with
adults
– Very little protection even for virtual child
pornography
• “Indecency” is a broadcast term and
pertains to what the FCC may regulate