Speech

Question 1

Test for Obscenity

Answer 1

1. The work, taken as a whole, must lack serious literary, artistic, political, or scientific value. (the “SLAPS” test)
2. The work, taken as a whole and applying contemporary community standards, must appeal to prurient interest in sex.

3 The work must portray sexual conduct in a patently offensive way, applying contemporary community standards.

Obscenity guidelines:

• Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest,
  
  • Average person = “a single perspective is derived from the aggregation or average of everyone’s attitude in the area, including persons with differing degrees of tolerance” (Skyywalker)
  • Relevant community standard = determined on an individualized basis (Skyywalker)
  • Prurient interest, look at (Skyywalker):
  • 1. Lyrics and Title (are they salacious?)
  • 2. The frequency and graphic description of the sexual lyrics
  • 3. The focus of the song (is it the lyrics?)
  • 4. The manner of commercial exploitation (is it calculated to make a salacious appeal?)
  • 5. Were there two identical album, with the only difference being the sexual lyrics, which album sold significantly better?
  • 6. Did the album actually cause physical excitement to anyone who heard it?
• Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
  
  • Measured by contemporary community standards (Skyywalker)
  • Two examples of patently offensive (Miller):
  • a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated,
  • b) Patently offensive representation or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.
  • Patently offensive, look at (Skyywalker):
  • Whether the recording depicts sexual conduct in graphic detail
  • The frequency of the sexual lyrics
  • Are there “dirty words” and depictions of female abuse and violence WITH explicit sexual descriptions?
  • Is the form music (which can be more intrusive to the unwilling listener?)
  • Consider the commercial exploitation of sex to promote sales.
• Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value
  
  • Not measured by community standards; reasonable person standard (Skyywalker)

Question 2

Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstance

Answer 2

No, From FCC vs. pacifica. FCC has broad athority.

Broadcasting receives the least amount of constitutional protection

Would censorship “serve the public interest, convenience, and necessity”?

In radio, individuals do not have as much of an opportunity to avoid the speech

No prior warnings available

No opportunity to not hear; the harm has already occurred

Uniquely available to children

Question 3

Incitement exception to free speech

Answer 3

1. speech which advocates the use of force or of law violation
2. . such advocacy is directed to inciting or producing imminent lawless action
3. and is likely to incite or produce such action.” [

However, tspeech does not lose its First Amendment protection merely because it has “a tendency to lead to violence.