Updated Monday, May 06, 2002

Copyright  2002, Janet McMullen

[This site deals with some disturbing information and is not suitable for children.]

In addition, because any non-obscene but perhaps indecent or pornographic communication may indeed be considered speech, regulation of such expression but stand a "strict scrutiny" standard. That means that there has to be a "compelling government interest" for restricting the expression, and any ban must be narrowly drawn.

You need to recognize that there is a difference between obscenity and indecency.  We'll define both as the lecture progresses.

Obscenity:  

Obscene broadcasts are prohibited at all times and are a violation of statute Title 18, Section 1464 (18 USC.1464).  According to this law, one could lose a broadcast license, be fined or even go to jail.  The statute applies only to broadcast obscenity and therefore doesn't apply to cable.  Further, it is a federal statute and the current definition of what is obscene is dependent upon community standards.  So few federal prosecutors are willing to go to court on a statute they fear would lead to a challenge and possibly fail First Amendment scrutiny under appeal.  So basically, the law is in place for broadcast, but no body enforces it.  Other laws concerning non-broadcast obscenity are equally strong, but again, federal prosecutors have been unwilling to pursue  prosecution of pornographers under them for similar reasons.  Local prosecutors have been more willing and more successful, but all face ugly challenges by people who paint them as bigoted, small-minded, holier-than-thou egoist out to ruin the harmless fun of others and impose their puritanical morals on the rest of society.  Few people are ready to face that or the other ugly consequences that can occur when you deal with the people who make, sell and use this stuff.

Keep in mind, that when we're talking about legal obscenity, we're not talking about the R-rated movie or even Playboy , no matter how distasteful it may be.  Hard Core pornography involves explicit depictions of people (most of the time) engaging in all forms of sexual activity, frequently it involves "unusual" behaviors which may include everything from farm animals, garden tools or excretory matter, and often involves downright violent behaviors which result in the emotional and physical injury of one of the participants.  Sometimes those participants are children.  Sometimes they are murdered in the process of the sex act, sometimes before.

So how did we get to a place where our society accepts such material as "normal."  In a February 7th, 2002,  episode of Will and Grace entitled "A Chorus Lie", Grace comes home and announces she wants to watch some "gay porn" because she wants to see some men "abused."  An episode of Friends that same evening had Monica giving Chandler porn, and various characters commenting about how they liked it or watched it.  Now even the abusive stuff is "okay" according to TV characters?  

To better understand this issue, it's good to look at how the law developed concerning obscenity and indecency.  I will also refer you to some additional sites and resources for more information.  

Chronology of regulation of obscenity in the U.S.:   These laws also laid a foundation for indecency laws later, when the two became separate legal concepts.

1727: The first obscenity laws were passed in the U.S. Prior to that, it was seen as a religious issue and not a civil one.

1792 : All fourteen states had laws against blasphemy and/or profanity, but not against obscenity.

1815: First obscenity conviction under Pennsylvania obscenity law.

1821: Another conviction and new law in Vermont against publication or sale of "lewd and obscene material."

1842: Federal Legislation prohibited the importation of lewd and obscene materials.

1868: Reginia v. Hicklin was decided in Great Britain. This case established the precedent for obscenity law for the next 60 years. It was known as the HICKLIN test and it had two parts:

• the material included passages which had the tendency to "deprave and corrupt"
• the influence could effect the "most susceptible" persons in society

NOTE that the work was not evaluated AS A WHOLE, and that even if a very FEW people could be corrupted, it was determined to be unacceptable. Also note that Queen Victoria was on the throne. (i.e the term "Victorian" attitudes toward sexual behavior)

1873: The Comstock Act. The movement which resulted in the law was led by Anthony Comstock, a Congregationalist from New England who was later appointed a special agent to the post office to enforce the law. The law was described as "An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles for Immoral Use." The act is still on the books, in Title 18, Section 1461 of the U.S. Code. Penalties are:

• $5000 and/or 5 yrs. in prison for first offense.
• Further offenses add $10,000 and/or a prison term of not more than 10 years.

1900: At least 30 states were actively prohibiting the distribution of obscene materials.

1933: U.S. v. One Book Called "ULYSSES". This case ended the Hicklin test. A customs official had prevented a person from bring the James Joyce novel into the country. The U.S. District Court judge ruled that any test of obscenity should evaluate a work based on ITS WHOLE, not just passages and the artistic merit of the work. That perspective turned up later in the ROTH case.

1940's: Post Office engaged in actions to revoke 2nd class permits for obscene/indecent materials. Supreme court said that was unconstitutional; mail is like a highway--all have a right to use it.

1957-1969: Postal inspectors made more than 100,000 investigations concerning the use of U.S. mail for the distribution of obscene materials. Nearly 5000 convictions resulted.

1957: ROTH v. UNITED STATES: The Supreme Courts rules that obscenity is NOT constitutionally protected.

THE CASE: Roth had mailed an obscene book and related materials. These materials were determined to make no contribution to the marketplace of ideas. Roth was fined $500 and placed on probation in lieu of 60 days in jail. The Supreme Court affirmed his convention.

The decision is significant because:

• Supreme court ruled for the first time that obscenity was outside the protection of the Constitution because, as Justice Brennan wrote it was "utterly lacking in "redeeming social importance."
• The court ruled that the Hicklin test was too restrictive and was unconstitutional.
•  It articulated a new standard which became known as the ROTH TEST: "Whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."

The Roth Test also was known as the "Depraved and Corrupt Test"

It is significant to note that Justice Earl Warren dissented, urging the court to examine the actions of the defendant, NOT the MATERIAL.. Had the court done as he suggested, the whole future of obscenity law would be very different.

Significant that this test relied on the determination of the AVERAGE person.

1968: Congress passed a law which prohibited "pandering," i.e. the unwanted solicitation by mail to people who had asked not to receive such advertisement. If a requesting individual's name is not removed from mailing lists, an order to halt ALL such mailings can be issued.

1973: MILLER V. CALIFORNIA: Miller was convicted under California law for mailing brochures for pornographic books. As it turned out, a man who owned a diner opened his mail at the counter with his mother looking over his shoulder. They had no idea what was in the envelope. When they opened it, the ad was for four books: Intercourse, Man-Woman, Sex Orgies Illustrated, and An Illustrated History of Pornography and a film, Marital Intercourse. The brochure had pictures of and drawings of men and women participating in various sexual acts, their genitals displayed in clear view. After the man picked his mom up off the floor, he called the police. The Supreme Court applied the three part test and found the materials to be obscene.

The Supreme Court in MILLER was careful to explain the three parts. (See Middleton p. 337)

Patently offensive, means the sexual act depicted was done for commercial reasons, was repeated, demonstrated in excessive detail. Prurient interest basically means the material is designed to be sexually arousing.

1968: Ginsberg v. State of New York: established the constitutionality of "variable obscenity law." I.E. Material which was illegal for a minor could legally be sold to someone 17 years old or more. 6-3 Decision. In 1965,a 16 year old boy bought two "girlie" magazines at Ginsberg's store in Bellmore, Long Island. His mother actually sent him to the store to buy the magazine so she could test the law.

The court found that the law was rational.

By 1969: 36 states had laws which protected children from obscenity.

1969: Stanley v. Georgia: Ruled for the first time that possession of obscene material in the home was not a crime. Under a Georgia law, Robert Eli Stanley was convicted of a crime for having a stag movie in his home. The court distinguished between "mere private possession" and commercial distribution of the material.

In 1970, 18 member President's Commission on Obscenity and Pornography spend $2 Million trying to determine the extent of the problems associated with pornography in the United States. After studying the problem, and deciding that there were no serious negative effects, the commission made the following recommendations:

• All laws concerning obscenity and pornography should be repealed.
• Legislation should be made to protect children from pornography, although not written material. (That was deemed too hard to define.)
• Laws should also to be made to protect people who didn't want the material from advertisements sent through the mail.

Several things should be known about this report:

• President Nixon ridiculed the report as not making sense and being morally bankrupt.
• The Supreme Court also ignored its findings, most obviously in the 1973 in Miller v. California.
• The type of pornographic materials in this country were not the same then as now. Materials were MUCH tamer materials at that time. Absence of violent pornography and ob-gyn shots. That type of material was available in Europe at the time, and immediately began entering this country after the release of the report.
• For the next several years, there was very little attention paid to the issues of obscenity and pornography-- except by those who used it, profited from it, and were abused as a result of it.

1973: LANDMARK CASE: MILLER v. CALIFORNIA

Actually several cases were decided concurrently with Miller, but this is the only case name you need to know. Two major changes occurred in obscenity law as a result of this case:

1. The "utterly without redeeming social value" portion of the Roth test

2. Instead of a national standard, a LOCAL community standard was reinstated

The court emphasized that laws must be specific about what it outlawed. The following language was agreed upon: Obscenity would be defined as:

• " whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
• whether the work depicts or describes, in patently offensive way, sexual conduct specifically defined by the applicable state law; and
• whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value."

In 1987, this part was amended to state "reasonable person" would find.....

The above definition is EXTREMELY important. You should commit it to memory. All parts of the definition must be met in order for the material to be deemed obscene. The idea was to limit hard core pornography and to in face, make it easier to prosecute by being more specific than the previous "utterly without redeeming social value."

The court also said the state

• had the right to stop the transportation of obscene materials even for private use.
• stop interstate transportation of such materials regardless of what its intended use.
• do whatever is necessary to the distribution of such materials to minors

The only place where obscene material is safe from the reach of the law, is the home. (unless the material is made available to children and child welfare agencies find out.)

But by the late 80's, the public outcry against violence and sex in the country, especially against children, led to two significant government actions. In the early 80's McCALL's magazine published a graphic story about children, toddlers and even infants, who were used by pornographers and pedophiles for sexual gratification and profit. Many of the pornographic films resulted in the death of the child, sometime because of outright torture and sometimes because of massive internal injuries caused by an adult sex organ penetrating a child. McCalls' called for the nation to do something, and parents, especially women, all over the country were outraged and vocal. That was the beginning of attention being focused on something NO ONE ever talked about (and something at age 32 I had never even heard about --at least with children that young). .

1986: Congress Passed and President Reagan signed THE CHILD PROTECTION AND OBSCENITY ENFORCEMENT ACT.

The maximum penalty for using a child in the creation of pornography was increased from $10,000 to $100,000 and subsequent convictions increased the fine to $200,000. The need to prove obscenity was removed for a conviction; sexual or lascivious activity were all that was needed for materials to qualify. The law made it much easier for prosecutors to successfully deal with the pornographers. Film makers and photographers must keep careful records of the ages of actors.

This law was made possible by a 1982 Supreme Court Ruling in New York v. Ferber which removed child pornography from First Amendment protection. The court said that was appropriate because:

• The state had a compelling interest in protecting children.
• Miller standard didn't satisfactorily solve child pornography problems.
• Child pornography, like "fighting words", is not compatible with the intent of the First Amendment.

States have additionally passed laws against child pornography. The Ohio law, upheld by the Supreme Court in 1990, makes it illegal to possess such materials even one's own home. The court ruled that the state had a legitimate interest is destroying the market for the abuse and exploitive use of children.

1986: The Attorney General's Commission on Pornography  

In 1985, President Reagan appointed an 11-member commission to re-examine the impact of pornography on our culture. The Attorney General's Commission on Pornography released it report in 1986, concluded that there does exist a causal relationship between sexually violent materials and violent or sexually violent acts against women. They also found that violent pornography perpetuates the "yes means no" rape myth.

92 recommendations were made to limit pornography and aid law enforcement.

• The commission did NOT recommend additional restrictions or redefinitions of obscenity.
• Rather, it pointed out the link between the industry and organized crime, emphasized the evidence collected by the FBI concerning the role of pornography and criminals, and urged that current laws on the books BE enforced.
• It recommended that dial-a-porn services be regulated and that legal obscenity restrictions be enforced for Cable. Recommendations were made to that end.

The commission what attacked on several fronts, by the ACLU, News Media and other. However, the Commission did a credible job, but arrived at what I believe was a politically incorrect conclusion. News reporters who covered the report had not read it, reports they compiled indicated they were not familiar with the limitations of social science, and the industry is overwhelmingly against any type of restriction of freedom of expression. That inherent bias may have influenced the reports, but there were overt efforts to discredit the commission and its work.

Having red all 1960 pages of there report, and having a Ph.D. in Mass Communication Effects, these things were obvious to me, but not, unfortunately to the general public. Never the less, Congress passed nearly (if not all) all of the Commission's recommendations.

Broadcasters weren't really concerned that much about it, because, while shock radio was in its infancy, broadcasters didn't think they were dealing with the same type of content the Commission was talking about, and they were right.

1996: Congress Passed the Telecommunications Act of 1996 which includes The Communications Decency Act which applied broadcast restrictions to cable and telecommunications. The law was immediately challenged, was ruled unconstitutional at the appeals court level and arguments were heard before the Supreme Court in March, 1997. The Supreme Court ruled that it was unconstitutional.

The CDA would have allowed fines up to $250,000 and 5 years in jail for those convicted. Indecency is defined as "any comment, request, suggestion, proposal, image or other communication that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards, sexual or excretory activities organs."

Internet users vigorously opposed the bill, arguing that it would restrict all types of legitimate speech and compromise the character of the internet. Concerns over access by children and the ease with which child pornography can be distributed have urged others to support the bill just as vigorously. Know the arguments on both sides of this issue. You should also know the Supreme Court agreed that the Internet restrictions on content were unconstitutional in 1997.

However, there are those in Congress who are still concerned about the issue. In the Fall of 1998, after some of the most explicit material ever was placed on the internet by the U.S. government (testimony in the Clinton impeachment trial.)

Indecency:

As we have already mentioned, Broadcasting is different:  

According it the Enforcement Bureau web site on indecent and obscene broadcasts, The FCC has defined "broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities."  (Enforcement Bureau, 2002 at FCC.gov)  How that standard has evolved offers some insight into the regulatory challenges in this issue.

1934: Communications Act forbid the use of obscene, indecent or profane language.

1948: That ban was moved to the general criminal code: 18 U.S.C. A. Sec. 1464 (Know this one) "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than 2 years or both." 

Most of the key cases have involved radio stations.

1964: PACIFICA STATION: up for renewal

• five programs generate complaints
• some involved homosexual references and content
• Commission was not concerned with individual programs but with patterns of programming
• FCC ruled that such programs off the air would mean only "bland, inoffensive programming"

1970: EASTERN-EDUCATIONAL RADIO (WUHY-FM)

• Interview with Jerry Garcia of the Grateful Dead.
• He used "colorful" language (including the F- word); Station was fined and paid the fine.

1973: SONDERLING BROADCASTING -- "Topless Radio" WGLD of Oak Park, Ill. had a radio show called "Femme Forum" in which women would call in and describe their sexual fantasies or activities on the air. "Leering Innuendo" was the term that was used by the F.C.C..

Sonderling was fined. FCC said was not saying sex "per se" is forbidden, but that they weren't dealing with works of art in this case. Children and unsuspecting listeners needed to be protected. Standards were made very clear: Broadcasters SHOULD STAY CLEAR of the obscene and indecent. Sonderling denied liability. Sonderling denied liability, but paid the fine.

1973: PACIFICA ( WBAI-FM in New York) Complaint was filed and a fine was levied against Pacifica station for playing George Carlin's "The 7 Dirty Words you can't say on Television."

The seven words were used 106 times in 12 minutes. Played at 2 PM on Pacifica's FM station in NYC. Man driving with his young son, accidentally heard the broadcast and filed the complaint.

The Commission ruled PACIFCA was in ERROR because broadcasting is different, and they gave for four reasons

• access by unsupervised children
• since receivers are in the home/car, privacy is a factor
• unconsenting adults tune in without warning
• scarcity

Some people said, and still say, if you don't like it, turn it off. That response is akin to telling the mugging victim to run away after the first blow, or that he shouldn't have been on a public street in the first place.

The Commission's ruling differentiated between indecency and obscenity.

The Supreme Court in 1978 reversed a lower court ruling which said the FCC had erred in its ruling against Pacifica. The high court said the FCC was justified, the words were "patently offensive and indecent," and in violation of 81 USC Section 1464.

It emphasized that content and context were important in any such analysis and these words were "vulgar," "offensive," and "shocking." Justice Stevens concluded his ruling by saying, "We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."

But by the time that happened, the national tide had been turning......It was more than 10 years before an indecency ruling was made against another radio station.  That's why broadcasters were shocked when in 1987, fines were levied once again on a Pacifica Station. This time it was KPFK in Los Angeles.

1987:

Pacifica Re: "The Jerker" KPFK aired a play, "The Jerker" which was about two homosexuals discussing their sexual fantasies. Another citizen in his car, heard the play and filed a complaint with the FCC. The station was fined.

The FCC cited REGENTS OF CALIFORNIA for a college station which played a song with offensive references to sexual organs.

Howard Stern Show and the entire shock jock movement in radio was drawing major attention.

Stern's show moved from #13 to #6 in the ratings that year. The FCC was swamped with complaints, and Congress was as well. The old dilemma was back: How do you deal with Content regulation w/o butting in on the First Amendment?

The FCC released a policy statement which said

• that indecent material (as defined by Miller but with a national NOT community standard) may not be broadcast when there is reasonable expectation that children may be in the audience.
• Indecency would be actionable if it was established that children were in the audience.
• As a result, the FCC instituted a "safe harbor" which was 10 pm untl 6 a.m. (a previous safe harbor of midnight to 6 a.m. had been in place prior)

July 1988 U.S. Court of Appeals Reversed the Commission: It said the FCC hadn't offered adequate evidence for this "channeling" approach.

August, 1988 Congress Adopted the "Helms law"  which mandated 24 hour enforcement of indecency regulations.

The law was immediately stayed by the Court of Appeals on ground that it

• violated the First Amendment
• chills broadcaster's speech

The FCC asked the Court to remand the issue to the FCC so it could issue an NOI.

It did all of the above and then issued an 8 p.m. "safe harbor."

This was a big break for TV stations because some of them had indecency fines levied against them from the later safe harbor. It also opened up prime time for hard R movies.

The result was

• 51 complaints against stations for showing indecent films were dismissed.
• the commission considered 8 p.m. cutoff reasonable.

• One of the cases dropped was against KZKG (TV) in Kansas City for showing the movie, "Private Lessons" which began at 8 p.m. (Bstg 8-14-89 )

Albert Sikes was then chair of the FCC and when he replaced Dennis Patrick in that position, he made it clear that he had no stomach for indecency. He shocked the industry just weeks after taking office he levied fines against three radio stations. (See Bstg 8/28/89 article --I can't begin to read the offensive transcripts in class!)

FCC took action against several other stations as well:

• KSJO(FM) SanJose, Ca. Perry Stone show (Oct. and Nov. '88) Stone was fired after he refused to clean up his act.
• WLUP(FM) Chicago. Steve Dahl and Gary Meir. Hot afternoon drive program. Problem programs occurred 8/87 and 3/89.
• WFBQ(FM) Indianapolis. Owned by Great American Bstg. Tom and Bob Show. (Bstg. 10/3/89 p. 28)
• KFI(AM) Los Angeles. Fined $6,000 for dialogue on Tom Lyke's Show.

MUSIC LYRICS:

• WLLZ(FM) Detroit. Fined $2000 for "Walk with an Erection"
• WIOD (AM) Miami. $10,000 for five songs: "Jet Boy, Jet Girl," "Penis Envy," "Candy Wrapper," "Butch Beer Commercial" and "Walk with an Erection"
• KLUCK (FM) Detroit. "Erotic City" by Prince (or whatever)
• Letters of inquiry were sent to four others.

October 1989: NOI Issued on a 24 hour ban on indecency in broadcasting. This action was designed to produce a record the would meet the court's procedural requirements. The NOI asked for comments in the following:

• The pervasiveness and accessibility of broadcast media in children's lives.
• Viewing and listening habits of children.
• Comments on possible alternatives to the 24 hour ban
• Channeling into special day parts
• A program code
• Relying on parental supervision
• Pre-broadcast announcements
• Broadcast technologies that could restrict children's access to indecent programs
• Whether indecent material might be made available to adults via non-broadcast means.

Note: You begin to see in this notice of inquiry some of the concepts which were later instituted with the V-Chip.

According to Arbitron more than 1 million children aged 12-17 are alone in NY, CHIC and LA (unsupervised through various parts of the day)

Later, after evaluating responses, the FCC issued a 'safe harbor" restricting indecency to the time period between 10 p.m. and 6 a.m., when children are less likely to be in the audience. The ruling was immediately appealed by opponents.

Jan 7, 1996, the Supreme Court UPHELD the FCC 10 p.m. to 6 a.m. safe harbor for indecency.  Note: this applies to television and radio.

Howard Stern has been the focus of numerous indecency complaints, and merits some discussion at this point:

As a result of numerous complaints, Infinity Broadcasting, Howard Stern's employer and the syndicator of his program, was fined $1.7 Million dollars. Infinity initially refused to pay the fine, but when the company wanted to purchase more radio stations, the indecency fines were a potential problem.

In October, 1995, the FCC worked a deal with Infinity by which the company would make a "voluntary contribution" to the U.S. Treasury in two installments and the FCC would wipe the slate clean of all indecency charges. 9/4/95p.6 The sale went through.

But that wasn't the end of the indecency problems associated with Howard Stern. Two programs, one on Oct 23, 1995 and another on June 3, generated a $10,000 fine against a Richmond, VA station. The $5,000 per incident is considered an appropriate fine (levied in Oct., 1996) as a "first offense" since the 1995 deal with the FCC wiped the slate clean. There is question about whether other Stern affiliates carried the comments in question since some of them use delay-technology. (See BSTG 10/21/96p23)

Broadcasting and Cable reported in March, 1997, that Stern's show was a slow sell across the country. Many markets are resisting putting him on in the morning, when Children might be in the audience. Atlanta, Seattle and Houston are "Stern-less markets." 3/3/97p.39

In the fall of 1997, Stern and company ran into trouble with Canadian authorities. The Canadian Broadcast Standards Council (SBSC) monitored the show in Canada for two weeks and found that The Howard Stern Show breached a number Canadian broadcast standards "every day it was monitored." In an 86 page report, the council criticized the program for several discriminatory remarks against French Canadians as well as other group and found sexist and sexual remarks were unsuitable for children. The council found the program "breached the provision of the industry's Code of Ethics and Sex-Role Portrayal Code." (Meril, 12/1/1998)

The program had generated more than 1100 complaints in the three months after its premier on September 2, 1997. The complaints and the negative report could lead to the programs cancellation on the two stations in Montreal and Toronto. The CBC decision is available on line at www.cbsc.ca. (Meril, 11/17/1998)

In 1998, Stern's radio show attracted more trouble. In July, 1998, a New York state appellate court reinstated the emotional distress claim against Stern. The claim stemmed from a 1995 radio broadcast in which Stern crudely discussed and handled the cremated remains of a dead woman. The family had learned of the plan to take the remains to Stern's studio before the broadcast and they specifically asked that he not use them in his radio program. While a lower court had dismissed the suit, the appellate court reinstated it, saying that a jury might well conclude that Stern's behavior "went beyond the bounds of decent behavior." (Alden, 7/27/99).

Other radio stations have been in trouble for indecency as well. WXTB(FM) was fined $4,000 dollars for remarks made by their air personality, "Bubba, the Love Sponge." The program aired in morning drive, well outside the FCC's 10 p.m. to 6 a.m. "safe harbor" for indecency. (Stimson, 11/16/98)

Howard Stern was not the only "Shock Jock" still getting fined. In October, the FCC fined an East Lansing Michicigan Station $8,000 for a "patently offensive" broadcast. 10/7/97

Of particular note is an EXCELLENT article from the Federal Communications Law Journal summarizing the FCC's Indecency actions. The article is VERY specific concerning the objectionable language.

March, 1997: Supreme Court UPHELD portion of the Telecommunications Act which mandate Cable Companies SCRAMBLE audio and video of "sexually explicit" programming channels so that non-subscribers can not receive them. The legal challenge was brought by Playboy Channel and the Spice Channel. (Bstg 3/31/97p18) 

In the past several years, the FCC hasn't been particularly enthusiastic about enforcing indecency regulations.  In fact, in April, 2001, Commissioner Tristani released a press statement concerning the Commissions disposition of two enforcement complaints.  See her statement at : http://www.fcc.gov/speeches/Tristani/Statements/2001/stgt132.html 

Commissioner Tristani believed the Commission didn't even try to get the information necessary to pursue the complaint.  She wrote: "But, once again, the FCC dismissed complaints without seeking the information needed to answer the factual questions and construed the facts alleged in the complaints in the light most favorable to the broadcaster rather than the complainant.  This conflicts with well-settled principles of civil law...."  Be sure to read her statement, because it clearly summarizes the law on the matter.  (Tristani, 2001)

A few days later, the FCC released its Policy Statement on Broadcast Indecency.   Consider this required reading.  You will find it at http://www.fcc.gov .(specific URL is http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-01-90A1.pdf This is 20+ page file that thoroughly covers the history of industry and regulation in this matter. The Official Title is "Industry Guidance On the Commission's Case Law Interpreting 18 USC 1464 and Enforcment Policies Regarding Broadcast Indecency." 

  The policy statement also provides an excellent and thorough summary of the law on this matter.  That you will already find summarized in these notes.  What you won't find in the notes are the examples included in the policy statement.  They are used to illustrate the kinds of broadcasts the commission finds to be problematic.  Be forewarned this material is graphic and highly offensive.  I don't expect (and don't recommend) that you read them all, but you can't really understand what we're talking about in this lecture without seeing some of these examples.

The Enforcement Bureau was established in 1999 and FCC.gov provides  a chart of Notices and Liability and fines assessed.  You can click on the link and see how these were disposed. http://www.fcc.gov/eb/broadcast/obscind.html  

The policy statement hasn't solved all of the problems.  Even after its publication Commissioner Gloria Tristani was continually frustrated by the commission's unwillingness to enforce indecency regs by refusing to interpret seriously graphic statements as "patently offensive" or by placing the burden of proof on the people who complained.  Those folks frequently heard the offensive content when they were driving down the interstate, and obviously they were unable to tape the show or make a transcript in that situation.  Further, without the tape or transcript (which the station did not have to provide) the FCC determined that there was "no proof" that an offense had occurred.  Commissioner Tristani was very vocal about her disappointment with the Commissions efforts concerning indecency. See http://www.fcc.gov/Bureaus/Enforcement/News_Releases/2000/nren0008.html or http://ftp.fcc.gov/Speeches/Tristani/Statements/2001/stgt147.html  for some good examples.  For many, the straw that broke the camel's back was Citadel case which concerned KKMG(FM) in Pueblo, Colorado and the edited version of the song, "The Real Slim Shady."  The FCC reversed its decision and eliminated a $7,000 fine against the station for playing the  Eminem song.  The FCC decided the sexual references were not "patently offensive" because they weren't graphic or sexual enough and they weren't there to titillate the audience.  Broadcasting  reported that Chairman Powell was relieved at the decision because it was likely to have been appealed and would have dragged out for years.  (McConnell, 1/14/02)  

About that time, Tristani stepped down and Michael Copps became the most vocal opponent of indecency on the Commission.  He is very concerned about protecting children and hopes cable programmers and broadcasters will adopt a voluntary code of conflict if Congress allows.  He also has made it clear that he expects broadcasters to provide transcripts or tapes to establish proof in cases where an indecency violation has been alleged.  (Copps, 1/9/02)  Other commissioners may be willing to pursue the issue now as well.  Early in 2002, the FCC levied hefty fines against two stations, one due to rap song lyrics and the other for a references to "fisting" and oral sex (too graphic for further elaboration here). (McConnell, 1/14/02)

Watch what happens in this area in the next few months. In February, several members of Congress let Commissioner Powell know that they want to know what the FCC is going to do about the problem, and they let him know that Congress may be willing to tackle the issue if the FCC will not.  (McConnell, 2/11/02 

Required Reading:  For an excellent site which reviews the FCC's failure to enforce see: http://cultureandfamily.org/library/2002-01/cfi-23sr001.shtml 

Citizen's Groups have made various efforts against indecency and violence on television and cable:  

1989: CLEAR TV: Coalition of Christian Groups including the United Methodist Church, Southern Baptists, Episcopal Church, Greek Orthodox Church, etc. Very diverse groups. They originated a research project which showed CLOROX and MENNEN to be sponsors the most "offensive" television programs and led a boycott against them. When the Clorox CEO contacted them to inform them that ad agencies had made those "buys" and he would personally see to it that such sponsorship was stopped, the boycott against Clorox was halted. Mennen never responded.

Even the ACLU says boycotts are appropriate. Advertisers DO listen.

Terry Rakolta: A mom who was shocked at content in Married with Children wrote one letter to each of the sponsors of the program and they wrote back! They indicated they were not aware of the content, and pulled their advertising. She became a national talk show guest and founded an organization.

Tipper Gore, wife of then Senator Al Gore, formed an organization to lobby against foul music lyrics and to encourage music companies to label records according to the contents of the lyrics.

1990: The Parents' Music Resource Center was successful in getting Congress to hold hearing on the matter and the industry agreed to a voluntary label identifying objectionable lyrics. Pember reports "a substantial amount of self-censorship within the recording industry" was a result and labeled records had problems with distribution.

1996: Evidently there wasn't THAT much self-censorship, because in 1996, Former Education Secretary, Bill Bennett and Senator Joe Lieberman in conjunction with the organization they formed: EMPOWER AMERICA called for a voluntary CLEAN-UP on the part of parent corporations of music companies. The indicated which companies were owners of which labels which carried which objectionable lyrics. As a result of their pressure, Time Warner divested itself of one company and in December of 1996, Wal-Mart decided not to carry CDs with lyrics or cover art which the company deemed inappropriate. Record companies cried "censorship" and charged the decision would have a "chilling" effect.   

1996: Public Morals: CBS planned to air a new sitcom produced by Steven Bochco (NYPD BLUE, HILL STREET BLUES), concerning a vice squad. The New York Times said the program had a "built-in proclivity toward profanity ...which some viewers will find shocking.....The biggest laugh hinges on the use of the word 'penis.' Several citizen's groups opposed it, and even Bill Cosby (with his own CBS show) publicly criticized the program, "It's hard to imagine nine writers sitting around a table working on this show couldn't come up with something better." KMVT-TV in Twin Falls, Idaho refused to clear the program without having any outside urging to do so. The show didn't last the first half of the season....

Organizations like Media Research and Morality in Media watch media content and publish a variety of resources. For some examples, see:

"The Newest 'Family Values' Hypocrites" at http://www.mediaresearch.org/news/reality/1998/fax19980918.html for a discussion of the Starr Report, The Nanny, Friends, and an episode of Spin City which was devoted to erections. (Graham, 1998).

"Time Warner Still A Major Cultural Polluter." at the Morality in Media Site. Http://pw2.netcom.com/~mimnyc/timewarn.htm   

In the last two or three years, controversial content on television and cable has become more common place. Shows like "Sex in the City"  and "OZ" have pushed the envelope, but since they are both on pay-cable, they are more protected.  Shows like NYPD Blue in the mid-90's caused great concern for its dependence upon foul language and nudity, but in 2000 FOX drew the ire of a number of citizen's groups and citizens because of its Monday night offering, Boston Public. In March, 2002, 24 religious groups filed a complaint to the FCC because of the show, complaining that it attracted young viewers with lurid story lines involving sex, drug use and titillation. (McConnell, 3/29/02)  Another flurry of complaints hit the FCC after ABC aired a Victoria Secret Fashion show which features near naked models parading down a runway, and while the breast and behinds were electronically blurred when necessary, many viewers were outraged.  The FCC didn't find the broadcast indecent. (McConnell, 3/25/02)

Currently, the situation doesn't look a whole lot brighter for television, while some fall pilots seem to be family friendly, there's plenty to be concerned about.  A recent article at Zap2it.com, a commercial website about television, was quoted in the Parents' Television Council E-Alert.  The article quoted Danny Zuker of WB's Off Centre as saying, "This is the first network I've been associated with 'where the higher ups want more riske material....They really want us to push the envelope." (PTC, 4/26/02)  Reality television is pushing for new lows with The Bachelor  trivializing marriage and allowing us to watch as 24 women, some of whom were willing to "do anything" to win the guy, vied to be his choice as a bride.  In one episode we were treated to details of a date which included a plastic sheet, ice cream and lots of chocolate syrup, after which the date in question teased the bachelor with "next time the dessert's on me."  ESPN's recent movie about Bobby Knight featured frequent use of the "F-word" while a documentary about firefighters during the World Trade Center disaster also was punctuated with that and other very strong words. 

The biggest furor seems to be around FX's cop drama, The Shield.  PTC has a web page devoted to content in the program and the effectiveness of the protests against it.  There is grave concern about this show because unlike Sex in the City, this show is on basic cable where children are more likely to have access.  Consider it required reading to view the website at http://www.parentstv.org/main/theshield/main.asp  

Parents Television Council  is a fairly new organization, but his has had significant impact in just a few years.  They have successfully involved parents, teachers and other interested citizens in the fight against indecency on the air. Their key focus is through information and petitioning advertisers to withdraw their support.  One thing I like about the organization is that while it may criticize a program for inappropriate content, it will also praise programs that do a good job -- even those they previously criticized.  In a recent editorial column, Brent Bozell III, President of the organization praised Boston Public for significantly cleaning up its act. "Exploitive themes are not out, but have been significantly reduced, and thought-provoking content touching on such issues as anorexia and drunk driving, is in." (Bozell, 4/16/02)

But what is a broadcaster to do when the news is about the President of the United States, and the topic is inherently "indecent?"

The Clinton sex scandals have caused serious problems for broadcasters and others concerning how to cover the story in an appropriate manner. See the Brill's Content archives for a number of articles about the coverage of that story by a variety of news media.  ( at http://www.brillscontent.com -no longer active)

  A 1998 Doonesbury cartoon strip was pulled from several papers around the country because the strip contained sexual terms in its lampoon of the Clinton controversy. Robert C. Gabordi of the Herald-Dispatch said he didn't run it because he believed the language " offensive and inappropriate for the comics page." (Hudson, 1998) That subject only got MUCH worse before it got better. A recent editorial in Broadcasting and Cable commented on the pressure in 1998 for the FCC to do something about crude talk on the air waves ..."not to be confused with the coarsening language in the Congressional Record, which, frankly, is making it harder and harder to separate the shock jocks from your nightly news anchor..." (Jessell, 10/18/99).

In February, 2001, the non-profit Kaiser Foundation released a study, "Sex on TV: Content and Context."  Its examination of over 1100 television and cable programs in prime time between October 1999 and March 2000 revealed that two thirds of the shows contained either physical or verbal sexual content.  Two years previously, the sexual content was found in only half of the programs.  Additionally the most recent study found that 10% of the programs contained firm suggestions of sexual intercourse, citing the "infamous car-wash/sex scene in Ally McBeal as an example." (Ault, 2-12-01)

MISCELLANEOUS CONTENT REGULATIONS:

One of the Recommendations of the Commission was that RICO laws be applied to obscenity convictions. RICO stands for Racketeer Influenced and Corrupt Organization (Act), and the law allows the Federal Government to confiscate all of the assets of those individuals convicted of racketeering.

1989: Fort Wayne Books v. Indiana --Supreme Court ruled that RICO could be used in the conviction of obscenity statutes. Three adult books stores and nine video rental shops would padlocked and the contents confiscated because the corporation's owners have 15 prior convictions.

Postal Regulations: It is still illegal to send obscenity through the mail regardless of how it is delivered. Comstock Act is the statutory basis, but many other laws apply as well. Postal authorities actively pursue pornographers as several recent arrests in North Alabama have illustrated. See Pember for more thorough discussion.

Use of Nuisance Laws: In a number of cases, the Supreme Court said that nuisance laws could be used to restrict pornography. But in 1980, a Texas law doing that was overruled, and New York case in 1986 reiterated that point of view.

Zoning Restrictions: These have been supported by the Supreme Court, laws to disperse "adult" establishments or to restrict them to specific areas have both been supported. These fall under "time, place and manner" restrictions. See p. 437 in Pember for the Legal Test for Zoning Regulations.

Early in 1998, a New York case seemed to solidify the constitutionality of zoning restrictions for the limiting of adult sex-oriented businesses in communities. In an effort to clean up the 42^nd street area of New York City, the city passed a highly restrictive zoning regulation, forbidding "clustering" of such businesses and restricting them from residential areas, near schools, etc. The Case is Amsterdam Video, Inc. v. City of New York (1998) and Hickerson v. City of New York. (See Spencer, 1998) The New York City effort was upheld by the Supreme Court in early 1999. (Mauro, 1999)

In 1999, the New Jersey Supreme Court found that zoning could be used to ban sexually oriented businesses from within 1,000 feet of churches, residential areas, school and playgrounds even if that meant the business was effectively driven out of the city limits. (Cassidy, 1999)

But not all municipal efforts against sex oriented businesses have been successful. A restriction established by the small community of Cumberland, Wisconsin, banned nude dancing in taverns, was thrown out by a district judge because the language would have included motion pictures like Titanic and The Godfather. (Associated Press, 11/23/98)

Another area to watch involves covers of consumer magazines which are prominently displayed on grocery store isles.  More and more people are finding them objectionable and complaining to store management.  See "Grossin' Out the Grocery" by Rebecca Wyatt at http://www.findarticles.com/cf_natrvw/m1571/41_15/57748147/print.jhtml 
Motion Pictures:

1915: Supreme Court said that motion picture industry was a business, unlike any other, and as such, did not warrant First Amendment protection.

After that, especially in the 1930's after a period of what many felt was extreme sexual and violent content in the films of the earlier decade, films were heavily censored both by local boards and the Hays Commission.

1952: Burstyn v. Wilson. A film, "The Miracle" produced by Robert Rosselline had been deemed unacceptable by the New York Department of Education Commission. The New York Supreme Court upheld the ban, but the Supreme Court overturned it, saying that just because movies were made to make a profit, did not mean that they had no First or Fourteenth Amendment protection. This did not apply to obscenity statutes however.

1965: Freedman v. Maryland. Theater operator refused to submit a film to the State Board of Censors before showing it, as required by law. The Supreme Court overturned his conviction, saying the law was undue inhibition of protected speech. The Court said prior submission wasn't inconsistent with the law, but that there couldn't been more strict restrictions than with other media. As a direct result the MPAA Ratings system was established and local censorship boards disappeared.

Stage Productions:

1975: HAIR -- Supreme Court reversed lower federal court decision which said the City of Chattanooga could not bar the showing of the play in the city-owned theater. It ruled that the city was treating the theater presentation differently than other art forms and procedures used were questionable for a number of reasons. While the justices dissagreed on whether or not prior restraint should ever be used in such a case, they agreed that this one was a problem.

The musical included nudity and simulated sex acts. Theaters need to establish guidelines in advance of situations which arise and judicial revue needs to take place quickly if it is to be effective and credible. (Franciois, p. 435)

Music

RAP MUSIC: 1990

This is the 2 Live Crew, "Nasty as the Wanna Be" album controversy.  A judge ruled the album obscene under Florida State Obscenity laws. After the judge ruled the group performed in a night club and were arrested for violation of the obscenity statute. After a much publicized jury trial, they were found innocent. It was determined that their music contain "political" value and there fore did not meet all the criteria of the Miller standard. Supreme Court refused to hear the case. (See discussion in Pember, Ch 14)

Racist, violent or sexually explicit lyrics

North Dakota legislators introduced a bill which would allow cities to restrict the sale of songs with lyrics which are violent, racist or sexually explicit or which cities would consider "harmful to minors." Kids would have to have the permission of parents to get them and could be limited to adults only sections. (Associated Press, 2/9/99)

Mapplethorpe Exhibit. The director of the Contemporary Arts Center in Cincinnati and the center itself were charged with violations of the obscenity statutes. After much publicity and demonstrations on both sides, the case went to trial and the jury found them not guilty, again because the work was deemed to have some "artistic or political value." (See descriptions of the work in your library packet.) Note: IN CANADA, The Canadian Charter of Rights and Freedoms was ruled by the Canadian Supreme Court to be legal. It ruled that erotic material that is harmful to women could be banned.

A similar attempt in the United States did not fare as well. The ordinances that were the test cases were ruled unconstitutional because they were too vague. (See Pember, p. 428) The court also ruled that the law imposed politically correct speech concerning women.

Advertising:

The DEPARTMENT OF JUSTICE can get into the act. In 1996, a controversial series of Calvin Klien ads prompted an investigation into whether Klien was involved in child exploitation. The probe could result in heavy fines and jail sentences of up to 10 years. Some of the models in the campaign were under 18 years of age. Some TV stations refused to run the ads. There has not been any publicity about the outcome of the investigation, and it is probable that some consent agreement made the "problem" go away. (This would be an excellent paper topic for someone....)

Misc. New developments ...

A bill was introduced to the Tennessee legislature to require the Sports Illustrated Swimsuit edition to have an opaque cover like Playboy or Penthouse. The sponsor withdrew it from the Judiciary committee's schedule.

A Georgia town, Jonesboro, has outlawed the use "of obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years." (Atlanta Journal Constitution 3/15/97)

A Committee in the Illinois House of Representatives supported a bill that would allow each county in the state to establish its own obscenity standards. The new bill would allow smaller communities to establish their own standards, allowing juries NOT to be bound by a state-wide standard. Publishers aren't happy because this would subject them to more than 100 community standards. ( Chicago Sun-Times 3/14/97p61)

Pornography on Military Bases: Consistent with time, place and manner regulations, the U.S. Court of Appeals found that Congress was within the bounds of the Constitution when it ruled that pornography could not be sold on military bases. Sexually explicit magazines and videos were banned. (FTC, 1/98.)

Cursing: In February, 1999, Timothy Boomer, 24 was ordered to stand trial for a "three-minute barrage of profanity" after he had fallen from a canoe. The local sheriff heard him and saw a woman and her two young children within earshot. The judge ruled that those words, while possibly not obscenity, could constitute "fighting words." Boomer could end up with a $100 fine and up to 90 days in the local slammer. (AP, 2/9/99)

INTERNET INDECENCY:  

Everybody understand that the internet is a place where any kind of content can be found.  Sites such as NakedNews.com can draw more hits per day than CNN.  In 2001, the Canadian site went to TV as a pay-per-view show. (Cohen, 9/6/01)

Aside from the CDC, other efforts have been underway to limit use of the internet for obscenity.

Thomas Grundner, founder of the first free community network service was charged with child pornography possession. (USA TODAY 3/12/97) The story was unclear whether or not the materials were received over the Internet.

Maryland is attempting to stop lewd email with the Telephone and Electronic Mail Miss-Use Act which would make it a crime to send "obscene, lewd, lascivious, filthy or indecent" email or online communications. (LAW JOURNAL EXTRA 2/24/97)

New York State had a law prohibiting indecent material on the internet. That law was challenged and found unconstitutional. (Wise, 1998) In addition, other individuals have been prosecuted for distributing obscene materials under existing obscenity and child pornography laws. In addition, if materials are downloaded in Alabama or Tennessee, for example, and found to be legally obscene in the community there, the distributor in California or New York will be in violation of the law even if such materials are not legally obscene according the contemporary community standards at the point of origination. This makes the Illinois legislature's attempt to establish COUNTY standards even more significant. One or two counties could limit content for a much broader area.......As happened in the GTE case in Alabama with home satellite dishes, the area of receipt and community standards there may turn out to be of primary importance. Keep watching.......

Senator John McCain introduced a bill which would require E-Rate funds (those provided by the federal government for purchase of Internet access) to be used for filtering software in the schools and libraries that receive them. Educators don't like it and the ACLU agrees, saying that such software violates first amendment rights. Senator Dan Coats has also sponsored a bill which would make it illegal to distribute Internet material "harmful to minors." It is no more popular than the McCain bill. Both bills, if passed, would most likely face court challenges. There is great concern that the Internet has effect gate-keeping system to protect children and others who do not wish to receive adult content. (Albiniak, 2/16/98)

In the fall of 1998, one year after the Communications Decency Act (which was part of the Telecommunications Act of 1996), bills came before the Congress which would try to restrict the access of children from pornographic internet sites. The Online Child Protection Act (sometimes called "son of CDA", but more often COPA ) would mandate some sites to require users to provide a credit card, special adult access code or some other identification number to be specified. Those who fail to comply face fines of up to $50,000 and six months jail time. It uses the standard "harmful to minors" rather than "indecency" because the Courts found the later unconstitutional. Another Senate Bill would require schools to use filtering software on computers in those school which receive federal funding (Internet School Filtering Act). The ACLU and other groups are opposing these legislative efforts because they contend they restrict speech. (Stein, 9/7/98 p. A10;Cohen, 9/21/98)

The bill was passed in October, 1998, and the ACLU and others immediately filed suit against it. Supporters of the bill believed it would be upheld because the Justice Department examined from every direction to make sure it was consistent with the ruling which ruled the CDA unconstitutional. (Albiniak, 10/26/98 p. 18; Rovella, 1998).

 It was ruled unconstitutional in 1999.  Part of the law was left in tact: a portion mandating Congress study the issue of pornography on the Internet and its impact on kids.  The report encouraged strengthening of existing laws and the use of filters.

Parents have been involved in Internet issues as well. A California mother has brought suit after she learned that her 12 year old son had accessed pornographic sites and downloaded "pictures" at the local library. People are approaching this issue from a number of perspectives, including whether or not providing pornographic sites is a waste of tax payer's money. (Flaherty, 1999)

Congress then passed the Children's Internet protections Law (CIPA) which was designed to protect children from obscene sites while in the library. That law was also challenged but a decision has not yet occurred though the case was set for trial In March, 2002.  (Duffy, 2/22/02) 

In April, 2002, the Supreme Court struck down part of the Child Pornography Prevention Act (1996) which prohibited virtual child pornography. That is pornography which may be created by computer graphics or altered by computer technology.  CGI technology is fast approaching a level where it will be difficult, if not impossible to tell which characters are real human beings and which have been graphically created.  The Attorney General says this will make prosecution of child pornographers much more difficult because prosecutors now have to prove the subjects of the porn really were live minors and not just actors made to look that way or computer-generated characters.  It is possible that parts of a live child could be used, with part of the face or body graphically altered some way, and prosecutors would have a hard time prosecuting such pornography. 

Those who agree with the case ruling in Aschroft v. Free Speech Coalition (U.S. 04/16/02; 525 U.S. ____) argue that Zefferelli's Romeo and Juliet or any film that dealt with teenage sexuality would be liable for prosecution.

 See the following resources:

• Biskupic, Joan.  "'Virtual Porn Ruling Hinged on Threat to Art." USA TODAY 4/17/02 at http://www.usatoday.com/news/nation/2002/04/17/soctus-porn-sidebar.htm 
• Biskupic, Joan.  "Supreme Court Ends Ban on Virtual Child Porn." USA TODAY 4/17/02 at http://www.usatoday.com/news/nation/2002/04/16/scotus-child-porn.htm 
• Brunker, Mike. "Legal child porn' Under Fire"  3/28/02 MSNBC.com at http://www.msnbc.com/news/730491.asp 
• Butler, Paul.  "Depictions of Minors Pose Major Questions." Legal Times. 10/26/01 at http://www.law.com/cgi-bin/AppLogic+FTCContentServer?Pagement=Law/View&...
• "The Child Pornography Prevention Act (CPPA) Ashcroft v. The Free Speech Coalition "  Brief of the ACLJ at http://www.aclj.org/ussc/cppa/amicus.asp 

For those of you who might not thing internet porn is a big deal, you might consider an article in Broadcasting and Cable (Tedesco, 1998) which indicated the online adult business has grown over 40% in the last few years. Forrester Research reports it is a business doing $4.8 BILLION in 1998 alone. Some individual sites are generating $150 to $200 million dollars per year. Playboy drew 2.3 million viewers in just three months in 1998, some of the "harder" sites had up to 5 million viewers. Media Metrix (an internet research firm) estimates that 43% of all web surfers went to sexually oriented sites! Men are the primary customers, paying per-minute charges by credit card. American Express is considering cutting off service to such sites and if they do, other card services will probably going to follow suit. [You can bet they'll get letter from encouraging them to do just that!]

Citizens in 2001 are not any more secure about the issue of indecency on the Internet.  A report released by the Pew Center's Internet Project indicated that "Americans are deeply worried about criminal activity on the Internet, and their revulsion at child pornography is by far their biggest fear.  Some 92% of Americans say they are concerned about child pornography on the Internet and 50% of Americans cite child porn as the single most heinous crime that takes place online." (Pew, 2001)    

In the fall of 2001, the Supreme Court will hear a challenge to the federal law which prohibits computer-generated "virtual" child pornography.  The Child Pornography Prevention Act passed in 1996 could not address technology which didn't exist at the time.  Now computer imaging and rendering can create life-like animated images of children participating in sex acts.  While "real" children may not be used in the production of such material, are they still "harmful" to children?  That's what the court will have to decide.

When Yahoo announced in April, 2001, that it planned to consolidate its "adult" services and sites into one convenient location, the outcry from the public was so strong the company changed its mind within two days. 

The issue of indecency isn't going to go away.  How do we protect our children and ourselves and the First Amendment as well?  How do we do so in this country as we realize that the Internet makes available any thing anyone can create in any part of the world?  These are serious cultural and ethical issues.  You have had the com theory classes. You've seen the Bundy video.  You know the effects of this stuff.  What we have to figure out as a people is what we're going to do with it.  Be sure you give that some thought, because I may ask what you think on your final.......

Be sure to see: http://pw2.netcom.com/-mimmyc/clineart.htm for Dr. Victor Cline's page on effects and symptoms of pornography addiction.

Another good site with lots of interesting links is Enough is Enough at http://www.enoough.org/search.htm.   

I checked the Department of Justice to see if a copy of the Meese Commission Report was online.  It appears it is too old.  They do have some other resources, especially concerning the recent virtual porn decision.  The Violence Against Women Office offers a number of resources.  Find them at : http://www.ojp.usdoj.gov/vawo/publications.htm 

National Criminal Justice Reference Service has all sorts of links and resources about violent crime against women at their "Victims of Crime: Rape and Sexual Assault" page.  It really underlines the seriousness of this problem in our society:  You can find it at http://virlib.ncjrs.org/vict.asp?category=50&subcategory=114 

Resources:

• Albiniak, Paige."ACLU Files Suit Against Internet Porn Act." Broadcasting and Cable. 10/26/98 p. 18.
• Albiniak, Paige. "No Clear Road to A Clean 'Net." Broadcasting and Cable. February 16, 1998, p. 43
• Alden, Bill. "Court Reinstates Claim Against Howard Stern." The National Law Journal. 7/27/98.
• Armentano, John. "New York City's Zoning Scheme Meets Well-Defined Standards." New York Law Journal. March 25, 1998.
• Amon, Elizabeth. "Lawyers Prepare to Challenge Federal Net Filter Law." National Law Journal. 3/13/02
• Associate Press. "County Judge Orders Canoeist to Stand Trial Under Anti-Cursing Law." Free: Freedom Forum Online. 2/9/99.
• Associated Press. "N.D. Senate Panel Considers Barring Sale of Explicit Music to Minors." Free: The Freedom Forum Online. 2/9/99.
• Associated Press. "Wisconsin: Judge Says Local Law Makes Even 'Titanic" Obscene." The National Law Journal. 11/23/98 (p. A23).
• Associate Press. "Yahoo Strips Porn Products From Shopping Site." USA Today. 4/13/01.
• Ault, Susanne.  "Sex and the Survey: Kaiser Foundation Study Says Racy Content is Racing Ahead." Broadcasting and Cable. 2/12/01 p. 24.
• Bauder, David. "Profanity Found in TV Wrestling." The Associated Press. AOL Online. 2/22/99. 
• Biskupic, Joan. "High Court Takes on 'Virtual' Child Porn." USA Today. 1/23/01.
• Bozell, Brent. "Wholesome Fare Springs Up." Parents' Television Council. http://www.parentstv.org/main/publiscations/lbbcolumns/2002/col20020416.asp 
• Cassidy, Padraic. "Town Can Zone Out Smut Shop if It Finds a Suitable Relocation." The New Jersey Law Journal. 2/1/99 (at http://www.lawnewsnetwork.com/stories/feb/e020199l.html.  
• Cohen, Tom. "Naked Newscaster Site to Become Show." Associated Press. 9/6/01 
• Copps, Michael.  "Remarks of Commissioner Michael J. Copps, United States Conference of Catholic Bishops. Washington, D.C." 1/9/02  available at FCC.gov
• Duffy, Shannon.  "LIbraries Tackle Children's Internet Protection Law." The Legal Intelligencer.  3/22/02
• Family Research Council. "Congress and Appeals Court Agree: Remove the Smut." Washington Watch. 1/98, p. 5.
• Federal Communications Commission.  Policy Statement on Indecency.  April 6, 2001 File No. EB-00-IH-0089
• Flaherty, Kelly. "California Mom Refiles Suit Against Library for Failing to Censor Net Porn." The Recorder. 1/13/99 http://www.lawnewsnetwork.com/stories/jan/e01399d.htm
• Franklin, James. "Journalist to be Sentenced for Porn." The Associated Press. AOL Online. 3/5/99.
• Francois, William E. Mass Media Law and Regulation, 6^th ed. Waveland Press (Prospect Heights, Il: 1994)
• Graham, Tim. "The Newest Family Values Hypocrites." Media Reality Check. 9/18/98.
• Hudson, David. "Newspapers pull 'Doonesbury' Cartoons Lampooning Clinton-Intern Controversy." Freedom Forum Online. February 12, 1998.
• Jessell, Mark. Broadcasting and Cable. 10/18/98 p. 90.
• Macavinta, Courtney. "No Free-Press Defense in Porn Case." CNET News.com 7/2/98.
• Mauro, Tony. "Court Oks NYC's Smut Crackdown." USA TODAY. 1/12/99 
• McConnell, Bill. "Indecency Proposals." Broadcasting and Cable. 2/11/02
• McConnell, Bill. "'Slim Shady' slips by." Broadcasting and Cable. 1/14/02 p. 42
• McConnell, Bill. "FCC OK with Victoria's Secret Show." Broadcasting and Cable. 3/25/02
• McConnell, Bill. "Religious Groups Target Boston Public." Broadcasting and Cable. 3/29/02
• Meril, John. "Stern Offends Canadians." Broadcasting and Cable. November 17, 1997, p. 18.Meril, John, "Canadian Stations Air Anti-Stern Decision." Broadcasting and Cable. December 1, 1998.
• Middleton, Kent., Bill F. Chamberlin, and Matthew D. Bunker. The Law of Public Communication, 4^th ed. Longman (New York: 1997) 
• Miller, Leslie. "Panel Agrees: Rethink Net Porn Laws." USA Today. 10/16/00 
• Parents' Television Council. "WB Requires Raunch" 4/2/02 PTC E-Alerts at http://www.parentstv.org
• Pember, Don. Mass Media Law, 1997 Edition. Brown and Benchmark (Madison, WI:1997)
• Peters, Robert. "Time Warner Still A Major Cultural Polluter." Morality in Media Online. At http://pw2.netcom.com/-mimnyc/timewarn.htm  
• Pew Center: Internet and American Life. "Fear of Online Crime." 4/2/01. http://www.pewinternet.org/releases/release.asp?id=19 
• Overbeck, Wayne. Major Principles of Media Law, 1997-8 Edition. Harcourt-Brace (Fort Worth: 1997)
• Puig, Claudia. "'Happiness' Has A Dark Side." USA TODAY. 10/21/97.
• Pines, Deborah. "Cable Act Allows Individual Suit Over Access." New York Law Journal. 7/23/98.
• Rovella, David. "New Internet Porn Law Under Attack." The National Law Journal. 11/16/98 p. A07.
• Spencer, Gary. "Appeals Court Backs City Sex-Shop Zoning." The New York Law Journal, February 25, 1998
• Stein, Lisa. "'Son of CDA' Is New Try at Restricting Cyberporn." The National Law Journal. 9/7/98 p. A10.
• Stimson, Leslie. "'Bubba' Too Hot for AM Drive." Radio World. 9/16/98, p. 3.
• Tedesco, Richard. "Porn Sites Making Hay." Broadcasting and Cable. 10/26/98 p. 64
• Tristani, Gloria. Press Statement Re: Enforcement bureau Letter Ruling on WLAN, (FM), Lancaster, Pennsylvania and WBZZ (FM), Pittsburgh, Pennsylvania Indecency Complaints.  April 5, 2001.
• Wise, Daniel. "Internet Smut Law Declared Unconstitutional." New York Law Journal. 6/11/98.

Copyright, 2001 by Janet McMullen, Ph.D.

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