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Chapter 9

LEGALST 39D Chapter Notes - Chapter 9: Miller Test, Free Speech Coalition, William Rehnquist


Department
Legal Studies
Course Code
LEGALST 39D
Professor
Alan Pomerantz
Chapter
9

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Legal Studies 39D
CHAPTER 9: CHILD PORNOGRAPHY
Kennedy: government must not suppress lawful speech as a means to suppress
unlawful speech?
Roth v. U.S. (1957)
- first time the Court sked to decide the issue of obscenity
- Not within the area of constitutionally protected speech
- But no constitutional definition of obscenity
- Calculated to corrupt and debauch the minds and morals of the average
person in the community
Question remains: what is the constitutional test of obscenity?
Any test that turns on what is offensive to the community standards is too loose/
capricious/ destructive
Literature should not be suppressed merely because it offends the moral code of
censor
Freedom of expression can be suppressed if it is so closely brigaded with illegal
action
Jacobellis v. Ohio (1964)
- Stewart: I know it when I see it
- 2 issues: (1) should the rules be different with children were implicated (2)
were some of the laws punishing thought?
Ginsberg v. New York (1968)
- Ginsberg charged with knowingly selling girlie magazine under 17
- Magazines not considered obscene for adults
- Brennan majority: inquire whether ok for NY to accord minors under 17 a
more restricted right than that assured to adults to judge and determine for
themselves what sex material they may read and see
o Statute is ok: not irrational for legislature to find that exposure to
material condemned by the statute is harmful to minors
- Douglas dissent: regulate sale of literature to children on basis of
reasonableness of the NY law in light of the welfare of the child
o Sees no reason to limit the legislatures to protect children alone
o Modern censor can make out a case for protecting many groups in out
society not just children
o Need constitutional amendment and national board of censorship but
there is no universally accepted definition and any definition is very
subjective
Stanley v. Ohio (1969)
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