Miller and Pacifica: From Obscenity to Indecency

1
Miller and Pacifica From Obscenity to Indecency

• November 2, 2004
• The beginning of the end or the end of the
  beginning?

2
The significance of Miller

• It is the prevailing precedent
• It marks a real rarityfive judges on the Supreme
  Court were able to agree on a definition for
  obscenity
• It marks a rejection of a national standard for
  obscenity

3
The Miller test

• whether the average person, applying the
  contemporary standard of the state or local
  community find the work taken as a whole, appeals
  
• whether the work depicts in a patently offensive
  way sexual conduct specifically defined by the
  applicable state law
• whether the work lacks serious literary,
  artistic, political, or scientific value (SLAPS)

4
Tumans analysis of Miller

• The approach in Miller reinforces the notion of
  the marketplace of ideas
• Thresholds of what is acceptable may be rising,
  that is, obscenity standards may be more
  difficult to enforce because of widespread
  availability

5
Pacifica and George Carlin

• We all know the seven dirty words, dont make me
  say them!
• FCC agrees that Carlins words do not fit the
  legal definition of obscenity no prurient
  appeal and that it had literary value (Miller)
• Routine found to be indecent because it depicted
  sexual and excretory function in a patently
  offensive manner.
• Pacifica Broadcasting appeals and loses, 5-4

6
Pacificas impact

• Enforcement is largely dependent on political
  will rather than legal principle
• Not really used as basis for enforcement until
  1987
• Language or material that depicts or describes,
  in terms patently offensive as measured by
  contemporary community standards for the
  broadcast medium, sexual or excretory functions

7
Pacificas impact

• So exactly what are the hours of safe harbor?
• Why is the indecency standard a national one, but
  even the Supreme Court acknowledges the
  impossibility and the undesirability of having a
  national standard for obscenity?
• What has Bono got to do with this?
• What is a wardrobe malfunction anyway?