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Obsceneflowchart - in sex Self-realization theory supports...

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Prof. Manheim Constitutional Law II Fall, 2006 Overbreadth doctrine does not apply 1st Am Zoning: State may restrict time, place & manner Indecent speech Secondary effects doctrine State has extraordinary inter- est in protecting children Special case of child pornography 2d & 3d prongs based on objective/national standards Community values pro- vide nominal standards Protects social interest in order and morality Legislature may act on unprovable assumptions Miller elements are mixed law-fact questions Statute must be narrowly drawn May be lower- valued "adult" speech If all 3 elements are satisfied State may regulate or prohibit No 1st am purpose Injurious utterance Not speech, but action Where the average person, applying contemporary commun- ity standards, would find that it: Taken as a whole, does not have serious literary artistic, political or scientific value Portrays sexual conduct in patently offensive way Appeals to the "prurient interest"
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Unformatted text preview: in sex Self-realization theory supports artistic speech, but not porn; not within intent of framers Fails to serve any 1st am purpose Erosion of community moral values; offends sensibilities of involuntary viewers Its very utterance inflicts injury There is an argu-able correlation between obscenity and violent crimes against women Obscenity incites lawlessness The purpose and effect of obscenity is to arouse physical response by way of prurient appeal to sex Obscenity is action not speech Theories of exclusion from 1st Amendment Miller test Is the speech obscene? OBSCENITY Gov't may not restrict access to adults ( Reno v. ACLU ) CDA If 1 or more ele-ments are missing but Gov't may ban real but not virtual child porn ( Ashcroft v. FSC ) These theories focus on the instrumental nature of obscene speech Interpellative effect Works depicting or describing sexual conduct but...
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