Constitutional Law November 29, 2004

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Constitutional Law November 29, 2004

• Freedom of Expression
• Content Based Regulation
• Illegal Advocacy Hostile Audiences
• Fighting Words Offensive Speech
• Defamation Related Issues
• Commercial Speech
• Obscenity
• Introduction
• Rationale
• Definition
• Near Obscenity
• Child Pornography

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Recap LV Speech in Transition

• Originates in Chaplinski
• LV Speech as Unprotected
• Particular State Interest in Regulating
• Erosion
• Decline of Fighting Words Doctrine
• Limits on Defamation Actions
• Protection for Commercial Speech
• RAV
• Not Outside the 1st Amendment
• Regulate Proscribable Content

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Proscribable Content

• Analogy to CN Regulation
• State Interest Unrelated to Suppression
• Target Effects Not Message
• Subcategories
• Must Correlate to Proscribable Content
• RAV and Virginia v. Black
• Regulatory Purposes
• Must Relate to Underlying Justification
• Issue in Lorillard

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E. Obscenity1. Introduction

• Evolution
• On Chaplinski List
• Still Unprotected
• Implications of Recent Decisions
• Issues
• Rationale for Obscenity as LV Speech
• Definition of Obscenity
• Near Obscenity
• Child Pornography

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2. Rationale

• Obscenity as Valueless
• Speech, but not w/in 1st Amendment
• Not Speech
• State Interests
• Protect Unwilling Audience (Minors)
• Protect Morality (Paris Adult Theatre)
• Social Degradation (Paris Adult Theatre)
• Violence Against Women (Feminist)
• Protect Participants (Recent)

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3. Definition

• Importance of Definition
• Historical Struggle
• Roth Test (Utterly w/out redeeming value)
• Redrup Review
• Miller Formulation (link)
• Community Standards (1 2, not 3)
• Defining Patently Offensive

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4. Near Obscenity

• Sexually Explicit, but Not Obscene
• Zoning Regulations
• Electronic Media Children
• Alameda Books (Multiple Businesses)
• Secondary Effects Rationale (link)
• Study Fairly Supports
• Kennedy Avoid Suppressing Speech

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5. Child Pornography

• Distinctive Interest
• Children as Participants
• Encourage Pedophilia
• Different Analysis
• Definition Broader than Miller
• Possession (Compare Stanley w/ Osborne)
• Limits Ashcroft v. FSC (virtual)
• No Interest in Protecting Participants
• Other Interests Fail SS

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Miller Test

• The basic guidelines for the trier of fact must
  be
• 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 a
  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.

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Secondary Effects Rationale

• CB Statute Treated as CN
• Independent Reason for Law
• No Suppression of Message
• Zoning
• Adult Entertainment
• Crime, Prostitution, Decline
• Issues
• Beyond This Context?
• Relation to RAV

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