Freedom of Speech Notes 2

Freedom of Speech Notes 2 - Chapter 5- Obscenity Not...

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Chapter 5- Obscenity Not protected but what is it? o First definition came from Hicklin v. Regina Known as Hicklin Rule Tariff and Postal Acts made to protect people from obscenity The definition basically applied to children o Vulgar does not always mean obscene o 1913 Judge Learned Hand Mentions that a lot of literature, health science and other important and educational material is obscene or bad for children But you cannot consider these things obscene and unprotected Time for a new definition Hicklin Rule is fading away by 1950s Roth v. US 1957 o The test for speech is still clear and present danger o The question becomes should worthless speech be band? If the speech is worthless and dangerous then yes o Two part test established Worthless- without any redeeming social value Sexually lewd- average person using contemporary community standards of the whole work appeal to prurient interest Prurient interest literally means sexually lewd o Basically if it arouses you it is obscene Jacobellis v. Ohio 1964 o Justice Brennan wants a national standard on obscenity o Justice Stewart-“ I’ll know it when I see it”
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Memoirs of Massachusetts 1966 o Erotic novel o Supreme Court said it had some literary value Ginzburg v. US 1966 o Ginzburg was mailing porn He was doing this trying to persuade people to buy his product o Advertising with worthless and sexually lewd material is illegal Known as Pandering Mishkin v. New York 1966 o Publisher told not to publish a book Book was about sadomasochism and homosexuality o Lawyers argued that it passed Roth Test because it did not appeal to the average person Disgusted the average person, only aroused sick people and gays o Supreme Court denies average person argument Says that the intended group of the lit is the average person Gays and perverts in this case What is legally obscene? o It is the work as a whole, not just a part o It must appeal to prurient interest of your targeted group o Are you advertising in an obscene manner, pandering No clear definition to what is legally obscene o Few things are legally obscene New York v. Ferber 1962 o Child porn is not protected o States given leeway to pass child porn laws
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This is to be regulated because it protects children Barnes v. Glenn Theater 1991 o Indiana Law prohibiting nude dancing Said it led to other crimes Health concerns Upheld by Supreme Court o Nude dancing is marginally protected States interest in morality and health overrides the expression of dancing naked Chapter 6- Fighting Words Cantwell v. Connecticut 1940 o Jehovah Witness played recordings bashing the Catholic Church and it angered some Catholics Considered protected speech Chaplinsky v. New Hampshire 1942 o Jehovah Witness distributing literature o Convicted for speaking offensive language in public o Court finds certain words offensive and not protected
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Freedom of Speech Notes 2 - Chapter 5- Obscenity Not...

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