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The First Amendment was designed 'to invite dispute,' to induce 'a condition of unrest,' to 'create dissatisfaction with conditions as they are,' and even to stir 'people to anger.' The idea that the First Amendment permits punishment for ideas that are 'offensive' to the particular judge or jury sitting in judgment is astounding.
No greater leveler of speech or literature has ever been designed.
The idea that the First Amendment permits government to ban publications that are 'offensive' to some people puts an ominous gloss on freedom of the press.
That test would make it possible to ban any paper or any journal or magazine in some benighted place.
The difference between erotic art and (protected) commercial pornography, vs. is highly unusual in that not only is there no uniform national standard, but rather, there is an explicit legal precedent (the "Miller test", below) that all but guarantees that something that is legally obscene in one jurisdiction may not be in another. 1996)) Even at the federal level, there does not exist a specific listing of which exact acts are to be classified as obscene outside of the legally determined court cases. had used the Hicklin standard sporadically since 1868, it was not until 1879, when prominent federal judge Samuel Blatchford upheld the obscenity conviction of D. Bennett using the Hicklin test, that the constitutionality of the Comstock Law became firmly established. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Massachusetts (1966) (dealing with the banning of the book Fanny Hill) the Court applied the Roth-Jacobellis test to determine that though the other aspects of the test were clear, the censor could not prove that Fanny Hill had no redeeming social value. California established the three-tiered Miller test to determine what was obscene (and thus not protected) versus what was merely erotic and thus protected by the First Amendment.
that which is legally obscene (and thus not covered by 1st Amendment protection), appears to be subject to decisions within local US federal districts and contemporary moral standards. In effect, the First Amendment protections of free speech vary by location within the U. With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and community standards has created significant controversy in the legal community. Title 18, chapter 71 of the USC deals with obscenity, the workings out of the law described in this article, most notably the aforementioned Miller test. Delivering the opinion of the court, Chief Justice Warren Burger wrote: The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Its prime function was to keep debate open to 'offensive' as well as to 'staid' people.
and 10 p.m.: language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities. Lawrence, Henry Miller, Samuel Beckett, and the Marquis de Sade. As articulated in several sections of 18 USC Chapter 71, the Supreme Court has ruled that it is constitutional to legally limit the sale, transport for personal use or other transmission of obscenity.
Comstock was appointed postal inspector to enforce the new law.
However, the legislation did not define "obscenity", which was left to the courts to determine on a case by case basis.
Issues of obscenity arise at federal and state levels.
The States have a direct interest in public morality and have responsibility in relation to criminal law matters, including the punishment for the production and sale of obscene materials.