Romper bomber stomp er boo tell me tell me tell me do magic mirror tell me today which media law subject should my paper cover today? Why don’t we talk about f#@ %n obscenity? That sounds good to me. It also sounds like the magic mirror needs its mouth washed out with soap, this being just my opinion. Surprisingly the magic mirror has only displayed only one forum of what is considered obscenity. Obscene language is certainly one issue I feel I am surrounded by everyday, both as a user and a receiver, but there are also images and gestures which are considered obscene. Now an obvious image of obscenity is pornography, but surprisingly even the masters of art have been and some still accuse them of creating obscene images. Now I am not a prude by any stretch of the imagination, I have been known to use language that would make my mother slap the back of my head.
I must say though that I use it in the confides of designated areas where it is more readily accepted. As we tell children as they grow up,” you have an indoor voice and an outdoor voice.” I would say, as we create our personality we have a selection of words and images we allow at different places and times. One of these selections of words and images contain obscene words, images and gestures we either use or choose to ignore or avoid depending on what meaning we have adopted for these things into our own lives. As we look at the world from a myopic viewpoint you would think obscene images, ideas, paintings, writings, etc… would easily stick out. However when you use a broader view of the world you realize that there are billions of people on the face of the earth, and each and every one of them has their own view and opinion and no two are exactly the same.
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This being the case what one may find obscene and improper, another may find acceptable, and let us not forget about all those who dwell in the infinite shades of gray on any given subject. Webster’s defines obscenity this way: (b-s n -t, b-), n. pl. 1.
The state or quality of being obscene. 2. Indecency, lewdness, or offensiveness in behavior, expression, or appearance. 3. Something, such as a word, act, or expression, that is indecent or lewd. 4.
Something that is offensive or repulsive to the senses: “What had once been a gentle hill covered with lush grass turned into a brown obscenity of bare earth and smoke” (Tom Clancy).
A more “Legal” definition of obscenity is a follows: OBSCENE, OBSCENITY – Such indecency as is calculated to promote the violation of the law and the general corruption of morals. History shows that in the 1957 Supreme Court decision ROTH v. the UNITED STATES “Obscenity is not within the area of constitutionally protected freedom of speech or press – either (1) under the First Amendment, as to the Federal Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as to the States.” Now we have a precedent. No one can just go out and mail or distribute obscene material. But how are we to notice the beast when we have no rule to fully judge it by.
Just because I call something obscene, does not make it so. Would there not be confusion, because ROTH v. the UNITED STATES only really dealt with the protection from selling / distributing material of an obscene material. There needed to be a litmus test to say what is or is not obscene, but with in reason of course. We needed a set of rules.
Well lo and behold wouldn’t you know there would be another case that would eventually come to the forefront to help meet those needs. In the 1973 MILER v. CALIFORNIA we see that test we need in order to be able to test we need for more readily defining what obscenity is. For something to be ‘obscene’ it must be shown that the average person, applying a set of community standards and viewing the material as a whole, would find (1) that the work is created to arouse sexual thoughts and intent; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value. The first test of whether the purpose of the material is an appeal to the interest of the ‘average person of the community as a whole’ is a “judgment” which must be made according to the standards as would be applied by an “average person” with an “average and normal attitude toward, and interest in, sex.” Community standards are set by what is accepted in the community as a whole. This is to say, obscenity is not a matter of individual taste or how the material affects an individual juror.
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It is instead a test is how an average member of the community as a whole would view the material. The second test in determining whether something is obscene is if it in a patently offensive way depicts or describes, sexual conduct such as ultimate sexual acts, normal or perverted, actual or simulated; masturbation; bodily fluid functions or exchanges; exposure of genitals if the material is patently offensive by contemporary standards. Customs can and do change and a community as a whole may from time to time adjust what it deems acceptable and unacceptable. The third test in determining whether material is obscene is when the material, taken as a whole, does it not show significant literary, artistic, political or scientific value.
All three of these tests must be proven in order for the material in question to be found obscene. If any single point is not met the material would not be considered obscene within the confines of the law. So now we know that if it looks like a duck, it fly’s like a duck, and it quacks like a duck, it must be a duck. If however it doesn’t do all three of these things at the same time, it is not a duck, believe it or not.
Now for the most part to this point we have talked about standard published or produced and distributed materials, what about general broadcast. The FCC has stated “indecent material is protected by the First Amendment to the Constitution and cannot be banned entirely. It may be restricted, however, in order to avoid its broadcast when there is a reasonable risk that children may be in the audience. Between 6 am and 10 pm – when there is the greatest likelihood that children may be watching – indecent material is prohibited by FCC rules. Broadcasters are required to schedule their programming accordingly.” Even with these rules in place there are still many out there who are finding fault with the broadcasters. They feel that there is too mush obscene language on TV.
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They note the rise in many cases of the amount of cursing words, used during primetime hours on certain networks. They in some cases have seen certain time slots on a network go up by a frequency of over 500%. Is this a violation, no but could it be so some day? As the customs change could this issue become more glaring or less glaring over time? Are people going to be affected in the same way in the future? The question should not be if people in general will be as affected by these ever changing values, but will the courts and regulatory agencies become more or less numb to these issues. During the ”Golden Globe Awards” program on January 19, 2003 the Singer for U 2, Bono, may have changed the broadcasting obscenity in a most amazing way. Bono uttered the phrase “this is really, really, fucking brilliant,” or “this is fucking great.” Now the fact that this was broadcast over the open airwaves is amazing in that this term has been viewed as one of the most lewd of terms one could use in conversation. More shocking thought is the FCC’s Response.
“As a threshold matter, the material aired during the “Golden Globe Awards” program does not describe or depict Sexual and excretory activities and organs. The word “fucking” may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities. Rather, the performer used the word “fucking” as an adjective or expletive to emphasize an exclamation.” This being such a fresh ruling will no doubt push the envelope of what could and may be allowed to be said in the future over the public airwaves.
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