Obscenity, indecency, and violence are three aspects of media that the United States federal court has tried to formally regulate across the nation for years now. The main problems with each of these three things is how the court defines them, how to protect children, and how to not over step on the First Amendment. The First Amendment, as we all know, essentially gives citizens the freedom of speech. So how does a court decide when freedom of speech is being violated or protected in terms of these three aspects? Many regulations have been put into effect over the years and have since been challenged in many court appearances. With technology being so open today, many of those regulations are being revised with many new regulations being created.
Let’s first start with obscenity.
The idea of obscenity being a problem in the United States didn’t start until after the Civil War when it was brought to the public that citizens lacked morality. This eventually led to the court decision that any obscene cases would be decided on with the Hicklin rule. This rule defined obscenity as material that would corrupt children; if a publication had one portion of obscenity, the entire publication was said to be obscene.
In 1957, the court adopted the Miller test from Miller v. California to determine and define obscenity. This case involved the sending out of brochures with “adult” content to citizens who never asked for the publications. This led into the courts new definition of obscenity from the previous Hicklin definition. This definition takes into the account the lustful thoughts of the reader and whether or not the publication has social important. The definition led the court to create a test for future obscene cases. The test included three elements in which a work had to be considered in its entirety:
- arouses sexual lust
- hard-core pornography
- no social value
These tests are still used today along with other laws that states have adopted on their own terms.
Enforcing these obscenity laws has mainly dealt with keeping minors protected from obscene content. Variable obscenity restricts minors to sexual material even if the material is said to not be obscene for adults. However, federal law has ruled that the making, selling, distributing, and/or possessing of child pornography is illegal. States have their own rules with how to deal with child pornography cases; for example, New York’s child pornography laws are the strictest in the nation. Child pornography is any image that shows a child in a sexually explicit way that does not require nudity. The federal court also ruled that a child’s face after being digitally put onto the body of an adult in a sexual act is also child pornography. The court’s main problem with child pornography is that it effects a child in three major ways–physiologically, emotionally, and mentally.
With the definition of obscenity being more specific since the Civil War, courts have been able to protect children more from obscene content, but also keep it protected in terms of the First Amendment by allowing adults to possess obscene content in the privacy of their home.
Now, indecency. Indecency is protected by the First Amendment in print media, movies, recordings, the Internet, and most cable television channels; it is not protected on broadcast radio or television between 6am and 10pm.
Broadcast indecency is not protected because children are said to have access to this form of media at all times. Think about it. Broadcast television/radio is played in hair salons, restaurants, stores, etc.; even with parents protection at home, children are still susceptible to hearing or seeing indecent actions elsewhere. The Federal Communication Commission (FCC) had formerly defined indecency as “patently offensive material describing or depicting sexual or excretory activities or organs.” Recently, the FCC has been trying to regulate the non-scripted profanities and indecencies that happen during live broadcasts. Examples of this would be a celebrity swearing during an acceptance speech or a celebrity wardrobe malfunction that showed a part of that person’s private areas. So far no regulations have been put into effect because of the broadness and accidentalness (how can media coverage know when someone’s outfit is about to rip open showing a breast?) of the topic. The FCC does regulate the safe harbor policy in which broadcast companies can use indecent content during the hours of 10pm and 6am in hopes that children will not be awake to see. This also allows broadcast companies to practiced the freedom of the First Amendment.
Other than broadcast media, everything else is protected by the First Amendment. Courts have ruled that parents can regulate what their children have access to as far as publications with indecency. For examples, parents can lock certain cable channels that have too much indecent content and regulate child Internet usage. Schools are also required to block or remove certain indecent content if they want to keep getting federal funds. This regulation is especially effective.
Lastly, video games and media violence.
Since video games are pretty new to society, not many constitutional regulations have been put into action. Some gaming industries put together the Entertainment Software Rating Board that rates computer games on violence. The board has over 30 different ways to describe a game and its content. Still, many citizens are concerned that video games are directly correlated to children becoming more aggressive and violent in the future. Courts have continued to rule that this is little evidence to completely ban minors from buying violent video games. Also, under the First Amendment, video games are protected because they are said to have communicative content.
With the Internet and social media being what it is today, journalists need to carefully watch for changing in these laws and social norms. Protection of minors is the most important aspect in these situations.
Journalism & Law 