COM 530 6-1 Final Project Milestone Three
Case 1: Stanley v. Georgia (1969): Privacy and Obscenity
In 1969, Stanley was convicted of owning three sexually explicit films, found when police executed a search warrant intended to uncover evidence of illegal gambling. Upon viewing these films, the police arrested Stanley for the possession of obscenity. Stanley readily admitted in court that the films seized were in fact obscene, but argued that the First Amendment protects an individual’s privacy, and this extends to materials found in a private home. The Court rejected Georgia’s “gateway crime” argument and upheld Stanley’s privacy concerns. The ruling set the precedent for protection of materials in the privacy of one’s own home, upholding the concept that the personal rights and freedoms encapsulated in the First and the Fourth Amendments trumps government intrusion into one’s privacy.
Justice Marshall’s very eloquently encapsulated the Court’s opinion by stating, “…If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”
It is important to note, however, that this capitulation on the grounds of privacy did not venture to extend into the realm of child pornography: children have long been held to be a protected class, and in New York vs. Ferber (1982), the justices decided that even if the Miller test could not be fulfilled, materials showing sexual activity concerning children were still subject to ban. This idea went further when in Osborne v. Ohio (1990), the Courts held that Clyde Osborn was not immune from prosecution when child pornography was found in his home. This eventually led to the modern-day separation of sexually explicit materials from materials deemed suitable (or at least permissible) for children to access in public businesses such as video rental stores and bookstores. This same idea has propagated to the internet: anecdotally speaking, websites engaged in the sale and distribution of pornography online are usually hidden behind “age” walls, which require some sort of age verification before access is permitted. Even those websites that do not have a digital wall, per se, often state that their materials are for those aged 18 or older. I do not believe that either practice is universal, but it seems to me to be a reflection of the communications standards achieved as a result of the aforementioned legislation.
Case 2: Mishkin v. New York (1966): Obscenity Directed to Deviants
In 1966, Edward Mishkin was convicted of selling obscene books. The books dealt with such concepts as homosexuality and what would today be considered fetishes (while Justice Brennan did use the term “fetish” to describe some of the contents of the books under discussion, it is probable that the same term used today is more generally defined as sexual proclivities that fall outside the purview of strictly mainstream sex, and that the term carries more favorable connotations today than it did in the 1960s). The case argued the concept of “prurient” interest as defined by Roth v. United States (1957); that is, the encouragement of excessive interest in sexual matters. Mishkin’s defense was that the prurient interest clause did not apply, as these materials were targeted toward very specific audiences, and that they would not arouse any interest in the “average” person. The Court’s opinion, however, was that by defining the target audiences of the published materials, Mishkin had determined for himself which “average” person would satisfy the Roth test for prurient interest. In short, the “average” person was the representative member of the audience the materials targeted.
This brings to mind the abandonment of Roth’s test for the test perpetuated by Miller v. California (1973): the books may not have been able to beat the prurient interest test, but they would probably have been able to garner literary and/or political value, and I imagine that such literary works are now protected from ban and their authors from prosecution as a result.
Case 3: Freedman v. Maryland (1965): The Constitutionality of Censorship Boards
A case discussing the constitutionality of censorship boards arouses interest particularly, given an upbringing in two countries in which the media censorship boards play a much larger role than the equivalent organization(s) might in North America. In this case, Ronald Freedman was convicted under a Maryland statute of showing a film before it had been vetted by the state censorship boards. Note that the conviction was not of showing an obscene film (in fact, the censorship board stated that the film would have been cleared had it been submitted to them), but of not submitting the film—whatever its contents—to the censorship boards in the first place. The Court sided with Freedman, calling Maryland’s argument an unconstitutional case of prior restraint in violation of the First Amendment, primarily because the onus of proof was on the exhibitor of the materials and not on the censorship boards. The Court also protested the lack of a speedy judicial process and the lack of an appeals procedure should the censorship boards deny a license to show a film.
While the Motion Picture Association of America (MPAA) predates this case, it is not unreasonable to posit that the voluntary MPAA rating system that was instituted in 1968 (National Coalition Against Censorship) arose out of a need to protect filmmakers particularly and the public generally from the vagaries of the U.S. courts as pertains to obscenity and censorship: the system echoes the separation of sexually explicit materials that came about as the result of Osborne v. Ohio (1990).
The following are a list of legal guidelines and best practices gleaned from the examples above that may be helpful for the employees of a company when creating digital messages.
- Respect your subject’s right to privacy with respect to his or her residence. The First Amendment extends the right to an individual privacy to the (private) home, and by extrapolation, to private materials that the subject has not made public. Refrain from using materials gathered without the subject’s express, written permission: materials gained by accessing an individual’s home without permission, including those materials that were visible during a permissible visit to the individual’s home (e.g., for the purposes of conducting an agreed-upon interview) but to which the subject did not grand viewing or recording privileges, are not to be used in your work, nor distributed to other team members.
- The exception to the above is in the case of child pornography: should you witness or have accessed evidence of child pornography or abuse, notify your supervisor and the Legal team immediately so that the appropriate authorities may be contacted. Children are considered a protected class and therefore their protection is, in most cases, not subject to legal action against the journalist under the First Amendment.
- Keep all communication with your subjects and audience in strictly professional language; sexually explicit, vulgar or threatening language is not acceptable, and may well leave the company open to litigation.
- Refrain from the use of sexually explicit materials or commentary in your work, whether in the publishing or research and discovery phases. You may expect your digital devices (including your company computer, which is the property of the company) to be monitored for such activity. In the event that you require access to such materials in the course of your work, discuss with your supervisor prior to engaging in such access.
- If your work or project involves age-sensitive material, consider prefacing such information with a disclaimer, statement, or permission “wall” (whereby the viewer is required to enter his or her age in order to access the content) to make clear that the content about to be accessed is for mature audiences only.
References
Moore, Roy L.; Murray, Michael D.; Farrell, Michael; Youm, Kyu Ho. (2012) Media Law and Ethics (Routledge Communication Series) (p. 248). Taylor and Francis. Kindle Edition.
National Coalition Against Censorship. (n.d.). A Brief History of Film Censorship. Retrieved from National Coalition Against Censorship: http://ncac.org/resource/a-brief-history-of-film-censorship