10. Obscenity and indecency

Obscene? Indecent? Or just funny?  

George Carlin’s “Seven Dirty Words” comic monologue was the subject of the FCC v. Pacifica Foundation case of 1978. In the end, the court supported the FCC’s restrictions on indecency (as opposed to obscenity). Indecent content, the FCC said, would be restricted to the hours of 10 p.m. to 6 a.m. 

More detailed regulations against indecency were enacted in 2001, but struck down in a July 2010 case, FCC v Fox, and then resurrected by the Supreme court in 2012.

The case illustrates the twisted and illogical path that the law has taken in the area of obscenity and indecency.

Obscenity is an area of longstanding social debate.

Obscenity laws are concerned with prohibiting lewd, filthy, or disgusting  words or pictures, and there are major disagreements as to what is or isnt obscene and what role the government should play in enforcing social or cultural morals. All fifty states have laws to control obscenity. The state of Virginia’s obscenity statute, for example, defines obscenity as:

“… that which, considered as a whole, has as its dominant theme or purpose an appeal to the prurient interest in sex, that is, a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse, and which goes substantially beyond  customary limits of candor in description or representation of such matters and which, taken as a whole, does not have serious literary, artistic, political or scientific value.”

The Supreme Court has consistently held that the First Amendment does not  protect certain classes of materials, including those declared legally obscene. However the law does protect materials that may be indecent or simply offensive.

The issue is how, exactly, we can define obscenity?   If a work is legally obscene, it may be censored and its producers may be punished. If a work is not legally obscene it is protected by the First Amendment and can not be censored. The confusion from this issue begins with its foggy definition.

Supreme Court Justice Potter Stewart once stated (in Jacobellis v. Ohio) that he could not define obscenity but “I know it when I see it.” Stewart’s dilemma illustrates the difficulty for the courts in clarifying the ground rules for obscenity.

Gloria Steinem, a feminist scholar and writer, once made a salient point  about the problem behind obscenity: “Sex is the tabasco sauce that an adolescent national pallet sprinkles on every dish on the menu.”

Decisions  by local, state or federal authorities to suppress obscene or indecent materials  are rarely consistent.

One interesting example of this inconsistency involves partial nudity in  official symbols. The seal of the state of Virginia, which shows the Roman  Goddess Virtus dressed in Amazon garb standing over the body of a tyrant, has remained exposed since the seal was designed in1776. (‘Sic Semper Tiranus’  means Thus Always to Tyrants).

The state seal was apparently too candid for the city of Radford, Va., where  the same goddess was given a brazier but, strangely, an exposed midriff.

Meanwhile on the federal level, US Attorney General John Ashcroft decided  that the statues of Justice at the main hall of the Dept. of Justice in Washington  revealed more than they  concealed, and were covered  by curtains in 2002.


Obscenity and pornography are found in many cultures dating  back millennia, but were usually kept from public view. For example, some of the statuary and frescoes preserved under the ashes of the Roman city of Pompeii were so explicit that they were kept in back rooms of royal  museums and were seen only by gentlemen who paid an additional fee.

Until the 1700s,  the church might persecute obscene books and engravings  in ecclesiastical courts.  In Protestant England such courts were more concerned with politics than morality, and by the time of Fanny Hill: Memoirs of a Woman of Pleasure by John Cleland was first published in 1749, British authorities took no notice. Trade in erotic literature grew in the 19th century. London’s Holywell Street, known as Bookseller’s Row, was the home of 57 porn shops by 1834.

In the 1830s and 40s, London’s  Society for the Surpression of Vice pushed for  the first of several laws that gave magistrates authority to issue warrants to sieze and destroy obscene materials. Prosecution of “obscene libel” also became common as the law increasingly recognized a problem in the Victorian era.  “Pollution” of the environment, especially sewage and industrial runoff, was often equated with the “moral pollution” from Booksellers Row.  The case that set the Victorian era standard for obscenity was:

Queen (Regina) v. Hicklin (1868 L. R. 3 Q. B. 360)

In 1857 the Lord Campbell Act was adopted to set a standard for obscenity in England. This wasn’t tested until 1868 when Henry Scott was brought up on charges  for a lewd anti-Catholic pamphlet called “The Confessional Unmasked,” a piece of crude anti-Catholic propaganda that was part of the social turmoil
around the Murphy Riots.

Scott appealed to Benjamin Hicklin, a recorder in London,  and although Hicklin ruled in Scott’s favor. The ruling was later overturned by Alexander Cockburn, Britain’s chief justice. Cockburn said:

“The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose  hands a publication of this sort may fall.” 

So — bad tendency — most susceptible — any small part of the work –

This Hicklin  Rule  was cited in American court  cases in the 1800s and early 1900s. The rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out  of context and judged by their apparent influence on most susceptible  readers, such as children or weak-minded adults. The Hicklin rule was the legal foundation of “Comstockery” in America

Comstock  and the suppression of vice in the US — 1870s to 1930s

After the Civil War. reform movements of many kinds emerged. Some we look back on with a certain pride, for example, the women’s suffrage movement that led to womens voting rights; or the environmental movement, which had origins in the desire to preserve and protect life. One of the least attractive of these reform movements was the anti-obscenity movement headed by Anthony Comstock– a crusading moralist  devoted to strict ideas of Victorian morality and censorship.

In theory, the definition of obscenity in the US rested on the state level. For example, Massachusetts censors banned books like Memoirs of a Woman of Pleasure as early as 1821. And the US Tariff Act of  1842 was the first federal law restricting imports of  obscene material. It  didn’t have much effect, and as the Victorian era dawned in America in the  wake of the Civil War, Comstock and other crusaders set about improving America’s moral posture.

The Comstock Laws 
In 1873,  Comstock lobbied Congress to pass  a “decency” bill which outlined a wide range of moral guidelines and penalties for any sexually oriented publication, including information about family planning, abortion, venerial disease, contraceptives or sexual issues of any kind. Even a printed discussion of birth control was obscene and therefore not protected by the First Amendment. Comstock was named a special agent of the Post Office and given free transportation to go wherever he wanted and enforce the law that carried his own name. He bragged later that he was responsible for sending enough people to jail to fill a 61 coach passenger train.

Comstock’s own New York Society for the Suppression of Vice and the Boston Watch and Ward Society were two of the leaders. If you ever hear the phrase “Banned in Boston,” you may find it interesting to know that this is the group that had it banned. Among things they found objectionable: Walt Whitman’s Leaves of Grass (1882); Bocaccio’s The Decameron and Rabelais’ Gargantua and Pantagruel (1903); Elinor Glyn’s Three Weeks (1907); Robert Keable’s Simon Called Peter (1922 ); Floyd Dell’s Janet March (1923); Herbert Asbury’s Hatrack, published in H.L. Mencken’s American Mercury (1926) which led to Mencken’s arrest.  As Steve King writes in “H.L. Mencken and the Booboisie:

Mencken’s most famous literary battle was fought in 1926, over a forgettable short story he published by Herbert Asbury, entitled “Hatrack.” Hatrack was a small-town prostitute whose efforts to reform were indignantly rebuffed. It became her habit to take her Catholic clients to the Protestant cemetery, and vice-versa. The punch line of the story occurs when one of the local gentlemen tenders Hatrack a dollar, to which she responds, “You know damned well I haven’t got any change.”

Reverend Chase of The New England Watch and Ward Society was not amused. He managed to get Mencken’s magazine pulled from newsstands in the Boston area, and he threatened legal action if there were further attempts to sell it. This was a line that Mencken managed to cross in dramatic fashion. He contrived to meet with Chase on Brimstone Corner of Boston Common, with the vice squad and a clutch of photographers in attendance. Mencken sold Chase the magazine and got carted away, but not before getting his picture taken biting Chase’s half-dollar to test it, as Hatrack would have done. The next day the judge ruled in Mencken’s favour, and the case became a small landmark in the campaign for literary freedom, and in Mencken’s headline-grabbing career.

Although its influence began to decline in the 1920s, the Watch and Ward society continued to black list books and movies, amont them: Aldous Huxley’s Point Counter Point, Voltaire’s Candide, Erich Maria Remarque’s All Quiet on the Western Front; Theodore Dreiser’s An American Tragedy; John O’Hara’s Appointment in Samarra; Lillian Hellman’s play The Children’s Hour; and, as late as 1950, Erskine Caldwell’s God’s Little Acre.

Comstockery was not only concerned about publications with dirty  pictures. Comstock and other social conservatives of the era worried that the women’s suffrage movement (to give women the vote) and new  ideas about “free love” and even spiritualism were undermining American  morality. Indeed, propaganda against suffrage workers like Victoria Woodhull was fairly typical. In one engraving, we see  Woodhull as the devil with her free love doctrine trying to lure a woman with an alcoholic husband and a crying baby moving down the path away from salvation.

The women’s movement reacted to “Comstockery” by  insisting on the free speech right to discuss birth control. In 1914, Margaret Sanger published the Woman  Rebel, which included frank discussions about contraception, and was indicted for violating the Comstock Acts. (The charges were later dismissed, but only after Sanger had effectively been in exile in the UK during the war years).

The long hand of censorship reaches for Hollywood

** Mutual Film v. Industrial Commission of Ohio, 1915 — Ohio set up a system of  board of censors which, by law, could only approve films that were “of a  moral, educational, or amusing and harmless character.” The law was upheld and, on appeal, the Supreme Court said that the state has an interest in public morals and that films “may be used for evil.” Noting that audiences were made up of both adults and children, the court said that “a pretense of worthy purpose” might make films “even more insidious in corruption.” Freedom of speech does not apply to spectacles and circuses, the court said. It is interesting that the court considered the state  constitution’s guarantee of free speech here and not the US Constitution’s First Amendment. Following this decision, the system of censorship continued on a national level through the Hays Committee and the Motion Picture Association of America through the 1960s, then changed to the current rating system: G, PG, PG-13, R and NC-17.

One Book Entitled Ulysses v. US, 1933, One of the most frequently censored books of the early 20th century, Ulysses (by James Joyce) was finally brought to trial in 1933. Judge John Woolsey found the book not obscene, and his decision in  the case did not apply the Hicklin Rule, which was the standard at the time.  One aspect of the Hicklin Rule stated that in order to determine a work’s  obscenity, its effects on the most susceptible members of society had to be  determined. In Ulysses v. US, Woolsey said that instead of the most susceptible  members of society, its effects on the average person determine a work’s obscenity.  Where the Hicklin Rule allowed for a work to be judged by individual passages, which could be easily taken out of context, Woolsey based his judgment  on the work as a whole. The case was appealed, but the Appeals Court upheld  Woolsey’s decision, and in effect the Hicklin Rule was abolished in the US on the federal  level.

Post WWII obscenity cases and censorship

Lenny Bruce   changed American comedy and inspired George Carlin, Chris Rock and many others with his wild impromptu performances. But he was convicted of obscenity many times in city and state courts, and spent his final years struggling with the law.

As late as the 1950s and 1960s, obscenity could be defined by local and state governments as the use of dirty language rather than any  appeal to sexual interest. Bruce (1925-1966) became famous for challenging  taboos around language. “He had extraordinary … naivete,” said Dustin Hoffman, who played Bruce in the 1974 film Lenny. “He really felt he was going to be protected under the Constitutional [guarantee of] free speech and that what he was doing was not obscene. And it wasnt, if the defintion is to sexually arouse, that’s not what he was about.” He was convicted of obscenity in November 1964 over his act at a Greenwich Village cafe. He was pardoned posthumously in 2003 following efforts by author Rollin  Collins.

** Roth  v. US, 1957 — The court said obscene materials were not protected  by the First Amendment. The Roth standard formally replaced Hicklin Rule. Under Roth, obscenity is:

“Whether to the average  person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest. “

* Smith  v. California, 1959 — A bookstore owner  who did not know (or had no reason to know) about obscene materials, was not guilty of knowingly selling obscene material. The case expanded the test of “scienter” (guilty knowledge) and averted a chilling effect on distributors who might not know about the contents of materials they handled. It would become an important  case as the responsibilities of Internet Service Providers  were considered in the 1990s.

Freedman v. Maryland, 380 US 51 (1965) — A film called “Revenge at Daybreak” was shown in a Baltimore theater without first submitting it to a state board of  censors for approval. The court found that the censorship process was itself an infringement on the First Amendment, but found that a more timely process might be permissible. In effect, the decision was the end of outright state censorship of nationally distributed films.

* Memoirs of a Woman of Pleasure v. Massachusetts, 1966 — This involved a book written in 1749 about prostitute Fanny Hill. The Supreme Court said it was not obscene, used this three part test:

  1. Roth test (average person, community standards, dominant theme, prurient appeal).
  2. Had to be patently offensive
  3. Had to be utterly without redeeming social value.

The bottom line: a work could not be considered obscene if it had  any redeeming social value of any kind whatsoever. After Memoirs, the court began upholding time place and manner restrictions rather than firming up content tests. Note that Miller (below) changed the social value test.

Side note for contemporary culture connections: In the film “The People versus Larry Flynt,” this is the case that the grizzled old printer is referring to when Larry Flint says he wants to print a magazine with nude photos. The printer says: “But I could get in trouble printing these…  there are laws. You gotta have some sort of text, like Playboy does.”

Ginzburg  v. United States 383 U.S. 463 (1966) On June 14, 1968, Ralph Ginzburg and three corporations he controlled were convicted in a federal  district court in Pennsylvania for sending through the mail three obscene publications. The prosecution said that these publications were obscene in the context of their publication, sale and attendant publicity. In finding Ginzburg guilty, the trial judge applied the obscenity standards first used in the Roth v. U.S. case. Evidence that the petitioners deliberately represented the material as erotically arousing and commercially exploited them as erotica solely for the sake of  prurient appeal amply supported the trial court’s determination that the material  was obscene under the standards of the Roth case.

The trial judge  sentenced Ginzburg to five years imprisonment and fined him $28,000. Basically, this case upheld state laws against pandering based on erotic appeal or selling material that was considered obscene to minors even if not obscene for adults.

Stanley v. Georgia 394 U.S. 557 (1969) — A unanimous court said that the state of Georgia could not send a man to jail for private possession of pornography, even it was illegal to sell the pornography. A person has “a right to satisfy emotional needs in the privacy of his own house.” However, in 1990, however, the Court found that protection for private possession of child pornography was illegal.

** Miller v. California (1973) — New benchmark reflected political changes in the Supreme Court with new  Nixon appointees. Community standards replaced national standards, and the court tried to isolate hard core pornography from expression protected by the First Amendment. This is still the main “controlling” case in defining obscenity. In Miller, the court said a  work was obscene if it:

  1. Meets the Roth test
  2. describes sexual conduct in
    a patently offensive way
  3. taken as a whole, lacks serious
    literary, artistic, political or scientific value

** Pope v. Illinois,1987 — Attendants at two bookstores in Rockford, Illinois  were charged separately with violating an Illinois obscenity statute  by selling allegedly obscene magazines. At the trials the jury was instructed to determine  whether the magazines were obscene under the Miller test.  But the judge made a mistake telling the jury that community standards were the only standards to be used. In the  3rd part of  Miller test  ( which is whether the work taken as a whole lacks serious literary, artistic, political, or scientific value ) the decision has to be objective, not solely based on  community standards. And so, according to the Supreme Court, the initial decision was not in keeping with the First Amendment.

Pope modified Miller to the extent that “serious value” was not simply something  that could be determined at the community level, but rather whether a “reasonable person” would see a work as obscene. In effect, the community standard of Miller was modified by a national perspective. In  practice, it meant that prosecutors and jurors  call in experts to help determine whether something has serious value.

Indecency in broadcasting

Indecency refers to words or images or acts that do not conform to cultural standards, which of course, vary considerably from culture to culture. Legally, indecency refers to words or images or acts that are protected under the First Amendment and yet may still be objectionable in certain contexts, for example, in the presence of children, or in open public situations, or broadcast. The debate in the US has largely been in the area of broadcast indecency. .

** FCC v. Pacifica Foundation, 1978, The court held that the FCC could create time, place and manner restrictions for indecent language, but not broad  restrictions. The case involved George Carlin’s “Seven Dirty Words” monologue. Over time, FCC standards slipped, but in 1987, FCC tried to re-regulate obscenity
on the air, especially in songs (Makin’ Bacon), a play (The Jerker) and “shock” radio (Howard Stern). The FCC faced typical difficulties in defining indecency. They settled on: “Language or material that depicts or describes, in terms patently offensive as measured by contemporary  community standards for the broadcast medium, sexual or excretory activities or organs.” This, of course, is very similar to the language in Miller v California. The more practical effect of the Pacifica case was to create a new time, place and manner  restriction by setting aside the 12 – 6 am slot as a “safe harbor” for any material because probably there were no children in the audience.

The Seven Dirty Words monologue is pretty easy to find on YouTube but various sites keep getting taken down over copyright issues. Here’s a recent one that may or may not still be working:  http://www.youtube.com/watch?v=3_Nrp7cj_tM 

FCC and the fleeting indecency cases of the 2000s …

2001 — FCC has new regulations on indecency and obscenity — Complete with examples of indecency such as  Howard Stern monologues, “I’m Not Your Puppet” Rap Song and “Uterus guy” rap. All in all, a very unusual government document. Here’s a link to a  summary.

2002 — – Billboard Music Awards, Cher gives classic response to critics: “I’ve had unbelievable support in my life, and I’ve worked really hard.  I’ve had great people to work with.  Oh, yeah, you know what?  I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So fuck ‘em.  I still have a job and they don’t.”

2003– Billboard Music Awards, Nicole Richie asks: ” Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

2004 — Janet Jackson “wardrobe malfunction,” Super Bowl, January

2004 — FCC prohibits “single uses of vulgar words” (fleeting expletives)

2005 — Congress approved increasing fines for indecency from $27,500
to $275,000 per incident. Many were gratified, but media professionals felt
they had been singled out by the “ministry of culture” at the FCC.
Twelve major violations that year resulted in $8 million in fines.

* Fox v FCC, 2009 — (Billboard case) The US Supreme Court upholds fine by the FCC against Fox network for off the cuff indecent remarks during the 2002 and 2003 Billboard Music Awards. The court said the FCC was not being arbitrary or capricious, but it did not review the case for First Amendment constitutionality.

** Fox v. FCC, 2012 — (Billboard case take 2) A lower federal appeals court (2nd district) performs the constitutional review and says that the FCC’s rules on indecency are vague and violate the First Amendment. Fleeting explitives or wardrobe malfunctions should not lead to massive multi-million dollar fines. The lower court also said that it was possible that some construction of rules would be constitutional.   The US Supreme Court upheld the FCC in its 2012 ruling.

** CBS v. FCC, 2011 — (Wardrobe malfunction case) A lower federal appeals court (3rd district) finds that the FCC improperly imposed a penalty on CBS for violating a previously unannounced policy. This case started in 2008, was appealed to the Supreme Court, and sent back to the 3rd district.

Obscenity and the internet / web

**** Reno v. ACLU 1997, The Supreme Court struck down the 1996 Communications Decency Act (CDA), which they said was an unconstitutional  attempt to control communications on the Internet. First, t he court said,
the Internet and the World Wide Web should be considered as having full First Amendment protection, such as the print media, and should not be regulated like radio and television broadcasting. While noting that it was within the government’s power to set “time place and manner” restrictions on obscene  communications, and that obscenity did not have First Amendment protection, the court said that the CDA had problems:

Existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.” The breadth of the CDA’s coverage was unprecedented. Its open-ended prohibitions embraced not only commercial speech or commercial entities, but also “all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors.” Because the CDA did not define the terms “indecent” and “patently offensive,” the statute “cover[ed] large amounts of nonpornographic material with serious educational value.” Regulated subject matter under the CDA extended to “discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library.” The court found that the law was not narrowly tailored.

** Ashcroft v. ACLU, 2004 – A second attempt to restrict access to indecent and obscene materials on the web, the Child Online Protection Act (passed in 1998) was remanded in 2004 and struck down in 2007 in a lower court.

Minor Cases with interesting features

Ashcroft  v Free Speech Coalition, 2002 — Child pornography is illegal  because it involves acts that hurt juveniles. But what about virtual child  pornography? The Supreme Court was divided in the case.

U.S. v. Robert  Allen Thomas, 1996 —  One controversial case involved a California couple who were arrested, taken to Tennessee and convicted of violating Tennessee  community standards against obscenity. Nicholas Negroponte of MIT’s Media Lab compared this to Iran extraditing Madonna or Michael Jackson because they broke Islamic laws. However, the Sixth U.S. Circuit  Court of Appeals said that the use of computer technology does not require a new definition of community based on connections  among people in cyberspace rather than the geographic locale of the federal judicial district. In this situation, the court said,  the bulletin board operator had knowledge and control  over the the geographic distribution of his product because logins and passwords were purchased by check and credit card forms sent through the U.S. mail.  The Thomas case does  not really resolve the problem of geographic versus wired community standards, since in most cases, the operator will not have control over the geographic distribution of the product.

Mainstream Loudon v. Board of Trustees 1999 — Courts ordered the Loudon County Va. library to stop using internet “filtering” software to protect children from pornography.

Hadnut v. American Booksellers 1986 — An Indianapolis law banning pornography as an offense against the civil liberties of women was overturned by the Supreme Court. The courts pointed out that the law could be used to ban other works,  for example Homer’s Illiad, because they depict women as “submissive objects  for conquest and domination.”

Links to related web sites

The saga of “shock  jock” Howard Stearn and Clear Channel Communications

Also see “Expoloring Constitutional Conflicts

See Adam Thierer’s interesting comments on Fox v FCC at the CBS website.