Free Speech: Is obscenity protected speech Constitutionally?

Question

What is obscenity? "We know it when we see it." --C.J. Renquist (I think). From Falwell v. Flynt (or vice versa).

Of course I know the answer. Want to see opinions.

Should our children have to hear this trash?

What about laws against Harrassment? Stalking? Threats? Should they apply to the internet?

Good, Prezalex, but didn't it get re-stated in Flynt?

Earnest, Smile. So am I forgiven?

Answer 1

Judicial precedent says OBSCENITY is not protected, and it was Potter Stewart in 1964 who said "I know it when I see it"...indecent material, erotic material, those ARE protected, however.

Note: Obscenity is not totally free; its sale and transportation can be legally limited, but there's no judicial precedent against one having it personally, from what I know.

Answer 2

Obscenity is an obscure term and is measured and defined by the culture. Where one person might find a nude portrait or sculpture obscene another would view it as an art form.
In the case of Falwell verses Flynt I vaguely remember that Flynt had published an obscene cartoon about Jerry Falwell..
Something about Falwell having sex with his mother....

While it was most likely obscene....It was ruled that a public figure such as Falwell does not retain the same rights as a private person...One not in the limelight and as such would have to expect a certain amount of ridicule....If Flynt had done the same caricature about the guy selling newspapers on the street corner.....Then the judgment would have been different....

Answer 3

An interesting question...

As long as it does not causes physical or mental damage to anyone, I have no problem with what anyone says. Obviously yelling "Fire" in a crowded theater, or racial/hate speech can cause a dangerous environment and should not go unpunished. But when it comes to obscenity, it's rather a matter of personal opinion. I think that what is obscene to one is not necessarily so for another. The First Amendment is very vague on what constitutes free speech, perhaps intentionally as to leave it up to interpretation as times change. I mean what was offensive then may be common practice today. I recall from reading about the 'Miller Test', a phrase about what defines obscenity. It was something to the extent of, "Obscenity is something lacking redeemable social value." By this, just about any form of speech is not universally obscene is acceptable. I mean, anything from pornography to violence to political opinion is deemed by some as having a place in society. Context is also an issue. A TV program with violent or sexual content is better suited for later airing when children are less likely to observe it. I feel that public displays should come under censorship for obscene content because it is viewed by all and cannot be suitable material for all who do come in contact with it. Even racist speech and material has a suitable place. In educational and historical contexts racist speech has a higher good. For example, If I were to say, "Whites are superior to *******" that would be obscene and unacceptable. However that if that same phrase was used in a text about life during the 1800's, while still offensive, it has a historical purpose that I feel should be protected.

I believe that anything that does not directly cause harm to others or is otherwise nationally determined as offensive is protected by the Constitution given it is used responsibly and in the proper time and place.

Answer 4

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Answer 5

No Shrink it isn't. Obscenity has very little protection Constitutionally. But it should.
Edit: Unless physical damage results directly from the use of speech, there should be no law restricting it. An example would be yelling "fire" in a crowded moving theater that could result in people being physically injured in the resulting stampede for the exit.
Speech conveys ideas. The subjective offense taken by someone who hears obscenities is due to the meaning that that particular person puts onto to the words. Meaning that each person has different criteria as to what they would consider obscene. Therefore, it must be established whether the person who claims to be offended actually was for the law to be just. In addition to giving good reason as to believe the person who was using the speech knew that it would offend.This is opposed to physical injury, where the damage is physically evident. In other words, a person should not be held accountable for using obscenity since it can't be proven that anyone was actually offended. Because such a law could not be enforced without being abused.

Answer 6

Being "free" or having the "right" or having the "liberty" to say anything does not eliminate the responsibility aspect of one's utterances... I can't just yell, "Fire!" in a crowded movie house or theater... and it doesn't mean that I SHOULD curse and use obscenities in front of minor children... there's also such a thing of docorum. Obscenity...? Define it and we'll discuss it further.

EDITED: Michael J, NO ONE has the right, liberty or freedom legally to put a hand on someone else for speaking publicly or expressing his/her opinion. It's just a point of information that you might want to acquaint yourself with... because people also have the right, freedom and liberty to defend themselves, especially if they "feel" their life and safety is in danger.

Answer 7

All language including obscene words are protected under the 1st amendment. The only time it is not is when there is a "captive audience," Such as school. But at college or pro sport games or in public such as the gas station, people do have the right to say those however immoral they may seem to the rest of us.

Answer 8

For good or bad, the most memorable moments in history are those born from social vulgarity.

I'm not going to get into it, AGAIN, why there is no such thing as objective morality and why those who try to objectify it and validate the objectification by using irrational supernatural beliefs is dangerous to society.

As for protecting children from this kind of obscenity, the only real way to make sure they never hear or see anything that you find obscene is to lock them away until they hit 18. This is because not every child has parents with the exact same ideas for raising children as you do and just as you don't want people telling you how to raise your children, you have no business telling them how to raise theirs. So this means that on almost every playground or schoolyard in America, there is going to be that one kid who comes to school with a mind full of "mature content" taught to it by either a parent or an older sibling. And that student, for the sheer sake of gaining social status with the other kids is most definitely going to share that information with whomever he or she chooses.

Eventually, whether you want it to or not, this information will trickle down to your child. Then as a parent, you can do one of two things. You can tell your child the information is objectively wrong and refuse to discuss it further, leaving your child to go back to his/her classmates for the answers to the questions you planted in your child's mind or you can talk with your child and try to answer any questions about the information your child has obtained in a responsible manner.

Answer 9

according to the case you qoute obscenity was defined. as far as the rest of life we face obscenity daily here and in real life. yet there are some that don't care about obscenity as long as they bash dems or repubs. sadly there are those that get excited over the obscene destruction of America. it is why i watch my children,especially on the internet. this is not a suitable place for children.

Answer 10

What's that? YOU know the answer? "

Well my dear, obscenity is in the eyes and ears of the beholder.

Legally speaking, Miller v California set out the "modern" test for obscenity; what is patently offensive is to be determined by applying community values, but any jury decision in these cases is subject to independent constitutional review.

Of course, what can be broadcast on major TV networks is subject to much greater restrictions than what may be shown on cable, printed (literature or visual images), audibly recorded or performed live.

That being said, what the individual person considers "obscene" can be anything at all. I consider graphic portrayals of human agony or suffering or death to be quite "obscene," but I'm not offended by erotic material.

With the exception of child porn, just about anything goes where adults are concerned, and this is as it should be in a country with a free press and free speech.

Erotica has been around for thousands of years. It began as painting, sculpture and poetry, and eventually evolved into literature, photography, acting, and video.

Erotica is simply an alternative form of sexual arousal; it is harmless fantasy and nothing more.

Both men and women (single and in a relationship) have shown a desire to enjoy erotica in some form.

Women should take note that there is a very successful series of erotic anthologies called "Herotica." The stories are all written by female authors - not male!

The latest estimates are that Americans now spend somewhere around $10 billion a year on adult entertainment, which is as much as they spend attending professional sporting events, buying music or going out to the movies.

Comcast, the nation's largest cable company, pulled in $50 million from adult programming, and an adult spokesperson estimated that DirecTV pulls in a few hundred million annually.

Hilton, Marriot, Hyatt, Sheraton and Holiday Inn all offer adult films on in-room pay-per-view television systems. And they are purchased by a whopping 50 percent of their guests, accounting for nearly 70 percent of their in-room profits. One hotel owner said, "We have to have it. Our guests demand it.”

There are well over 800 million rentals of adult videotapes and DVDs in video stores across the country, and that's not 800 guys renting a million tapes each.

The appearance of Janet Jackson's breast on national TV wasn't so much "obscene" as it was gratuitous nudity; it had no real significance or relevance to the performance.

Nude ≠ Lewd

Most sane, well-balanced adults can make the distinction between simple nudity and eroticism; one is not the other, and they both have their appropriate time and place.

What contributes to shame about nudity is that some people only get nude for two reasons - to shower/bathe or have sex, so they simply cannot conceive of any other reason to be nude, as if one had to "justify" being nude.

These people automatically equate nudity with eroticism (sex), and any mature nudist will tell you that this is a logical fallacy. Thinking about sex takes a conscious effort; it doesn't just "happen" when you see someone nude. Obviously, people think about sex when they're clothed, so nudity is not a "requirement" for being aroused.

National opinion polls in 1983 and 1990 revealed that 72% of Americans approve of designated clothing optional beaches. To date, over 30 million Americans have experienced mixed social nudity.

Nudist resorts and communities in the U.S., reported a 300% increase in the whopping $400 million nude vacationing industry over the past 14 years.

The American Association for Nude Recreation includes nearly 50,000 members and 267 affiliated clubs, RV campgrounds, bed & breakfasts and resorts in the U.S., Canada and Jamaica.

So, in closing, we can list all the legal precedents we like, but the fact remains that what is considered "obscene" varies in extremes, from, say, Mormons who keep their entire body covered, to someone from Germany, who would look at some American erotica and chuckle.