Law Commons^™

Indecency Regulation Of The Fcc And Censorship Law In Republic Korea: Comparison And Contrasts, Min-Soo "Minee" Roh

Upper Level Writing Requirement Research Papers

Regulating music on radio or television is not a straightforward process, as the music is comprised of lyrics of words. On top of the lyrics, any music performance has an additional layer of choreography and dress code. If any individual elements or combined elements is obscene or indecent, the government attempts to regulate broadcasting both music and performance. This leads to regulating general speech on communications and it requires this paper to look into regulation of broadcasting in general and specific examples of music broadcasting regulation on radio and television, particularly, in the United States (“States”) and in Republic of …

Ethical Decision Making: Balancing The Rights And Needs Of Stakeholders, Sarah Becker

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

Jess Smith And The Design Firm, Gabriel Tenaglia

Richard T. Schellhase Essay Prize in Ethics

No abstract provided.

Dissonance Between Personal Belief And Professional Values And The Challenge Of Facing Other Conflicting Ideas, Christopher Tan

Richard T. Schellhase Essay Prize in Ethics

It is the recommendation of this author that, in regards to this case, Jess Smith should complete the project despite her misgivings about the ethical nature of the band. However, Smith should ensure that both the client and manager are notified of her concerns along with the specific components of the project with which she took issue. The case of Jess Smith and the Design Firm ultimately highlights the issue regarding how to resolve dissonance between personal belief and professional values and more broadly the challenge of facing other ideas that challenge an individual’s personal convictions.

Freedom Of Speech And The Criminal Law, Dan T. Coenen

Scholarly Works

Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first …

New Media, Censorship And Gender: Using Obscenity Law To Restrict Online Self-Expression In Japan And China, Mark J. Mclelland

Faculty of Law, Humanities and the Arts - Papers (Archive)

The widespread take-up of Internet technologies from the mid-1990s has proven challenging to nation states that seek to limit access to ideas, information or images that the political class considers dangerous or inappropriate for the general population. As a largely deterritorialized technology, the Internet allows access to material that circumvents national legislatures and ignores local ratings systems and in so doing facilitates all kinds of inter-cultural and transnational flows of communication. Different countries have different sensitivities regarding the kinds of material that should not be freely available to their citizens and although the entry of such material is closely scrutinized …

How Do We Know When Speech Is Of Low Value?, Helen Norton

Publications

No abstract provided.

The Semiotics Of Film In Us Supreme Court Cases, Jessica Silbey, Meghan Hayes Slack

Faculty Scholarship

This chapter explores the treatment of film as a cultural object among varied legal subject matter in US Supreme Court jurisprudence. Film is significant as an object or industry well beyond its incarnation as popular media. Its role in law – even the highest level of US appellate law – is similarly varied and goes well beyond the subject of a copyright case (as a moving picture) or as an evidentiary proffer (as a video of a criminal confession). This chapter traces the discussion of film in US Supreme Court cases in order to map the wide-ranging and diverse ­relations …

Deciphering A Duality: Understanding Conflicting Standards In Sex & Violence Censorship In U.S. Obscenity Law, Rushabh P. Bhakta

Political Science Honors Projects

This research examines the division in US obscenity law that enables strict sex censorship while overlooking violence. By investigating the social and legal development of obscenity in US culture, I argue that the contemporary duality in obscenity censorship standards arose from a family of forces consisting of faith, economy, and identity in early American history. While sexuality ingrained itself in American culture as a commodity in need of regulation, violence was decentralized from the state and proliferated. This phenomenon led to a prioritization of suppressing sexual speech over violent speech. This paper traces the emergence this duality and its source.

The Dialectic Of Obscenity, Brian L. Frye

Law Faculty Scholarly Articles

Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.

So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.

But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

All Faculty Scholarship

Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …

Pornography As Pollution, John C. Nagle

Journal Articles

Pornography is often compared to pollution. But little effort has been made to consider what it means to describe pornography as a pollution problem, even as many legal scholars have concluded that the law has failed to control internet pornography. Opponents of pornography maintain passionate convictions about how sexually-explicit materials harm both those who are exposed to them and the broader cultural environment. Viewers of pornography may generally hold less fervent beliefs, but champions of free speech and of a free internet object to anti-pornography regulations with strong convictions of their own. The challenge is how to address the widespread …

First Amendment Martyr, First Amendment Opportunist: Commentary On Larry Flynt's Role In The Free Speech Debate, Rodney A. Smolla

Scholarly Articles

Not available.

Copyright Law And Pornography: Reconsidering Incentives To Create And Distribute Pornography, Ann Bartow

Law Faculty Scholarship

As it moved into the mainstream in the 1970s and early 1980s, pornography obtained copyright protections through judicial fiat, rather than as a result of legislative action. This essay explains how pornography came to be eligible for copyright protections, discusses the social and legal effects of this change, and raises questions about the propriety of according pornography the full benefits of copyright law without taking into account the harms that pornography production can inflict on subordinated or coerced "performers."

The Trials Of Lenny Bruce, Douglas O. Linder

Faculty Works

In the late 1950s and early 1960s, Lenny Bruce was the spirit of hipness and rebellion. His underdog, idealistic humor took on every American sacred cow, from capitalism to organized religion to sexual mores. Fans were attracted to Bruce's dark sexiness and brutal honesty. Kenneth Tyson described Bruce as fully, quiveringly conscious. Bruce's rise to the status of cultural icon began in the mid-1950s in the strip clubs of southern California where Bruce began to develop the iconoclastic edginess that would be his trademark. In his autobiography, "How to Talk Dirty and Influence People", Bruce described the importance of the …

Mapp V. Ohio: The First Shot Fired In The Warren Court's Criminal Procedure 'Revolution', Yale Kamisar

Book Chapters

Although Earl Warren ascended to the Supreme Court in 1953, when we speak of the Warren Court's "revolution" in American criminal procedure we really mean the movement that got underway half-way through the Chief Justice's sixteen-year reign. It was the 1961 case of Mapp v. Ohio, overruling Wolf v. Colorado and holding that the state courts had to exclude illegally seized evidence as a matter of federal constitutional law, that is generally regarded as having launched the so-called criminal procedure revolution.

Law, Literature, And Libel: Victorian Censorship Of Dirty Filthy Books On Birth Control, Kristin (Brandser) Kalsem

Faculty Articles and Other Publications

This article presents a case study of the feminist jurisprudence performed by three early birth control advocates: Annie Besant, Jane Hume Clapperton, and Marie Stopes. In the late nineteenth and early twentieth centuries, the subject of birth control was so taboo that serious efforts were made to keep John Stuart Mill from being buried in Westminster Abbey because of his sympathies with the idea of family limitation. The threat of being charged with obscenity and immorality, whether in a legal indictment, in a literary review, or in the court of public opinion, effectively silenced much public discourse on this important …

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Scholarly Works

No abstract provided.

Anything Goes: Examining The State's Interest In Protecting Children From Controversial Speech, Catherine J. Ross

GW Law Faculty Publications & Other Works

Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by …

Virtual Realities And Virtual Welters: A Note On The Commerce Clause Implications Of Regulating Cyberporn, Glenn Harlan Reynolds

Scholarly Works

This Essay draws an analogy between interstate catalog taxation cases such as Quill and National Bellas Hess, and the impact of disparate state obscenity laws on Internet porn. It suggests that the burden of complaying with disparate state obscenity standards could be, like the burden on catalog sellers of complying with disparate sales taxes and classifications, a burden on interstate commerce sufficient to trigger dormant commerce clause scrutiny. It also suggests that First Amendment doctrine should take account of similar concerns and chilling effects.

Love Speech: The Social Utility Of Pornography, Jeffrey G. Sherman

All Faculty Scholarship

No abstract provided.

A Reappraisal Of Diversification In The Federal Courts: Gender Effects In The Courts Of Appeals, Donald R. Songer, Sue Davis, Susan Haire

Faculty Publications

Prior scholarship on the effect of the increasing number of female judges leads to three contrasting sets of expectations. Early writings and views of affirmative-action activists suggested that female judges would be more liberal than male judges. On the other hand, a series of empirical studies suggest that we should expect no gender differences. In contrast to both of these perspectives, several feminist scholars suggest that women will be more liberal only when that position expresses support for full participation in the community. These contrasting expectations were tested by analyzing the votes of appeals court decisions in three issue areas. …

Girls Should Bring Lawsuits Everywhere . . . Nothing Will Be Corrupted: Pornography As Speech And Product, Marianne Wesson

Publications

No abstract provided.

Harm, Morality, And Feminist Religion: Canada's New -- But Not So New -- Approach To Obscenity, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Abstract Principle V. Contextual Conceptions Of Harm: A Comment On R. V. Butler, Jamie Cameron

Articles & Book Chapters

This comment provides a critique of the Supreme Court of Canada's decision in R. v. Butler, which held that section 163(8) of the Criminal Code, defining obscenity, is a reasonable limit on freedom of expression under section 1 of the Canadian Charter of Rights and Freedoms. Before discussing the Charter, the Court expanded the scope of section 163(8) to include a prohibition against sexually explicit material that is degrading or dehumanizing. Initially, the author is critical of the Court's methodology, which enlarged section 163(8) at the expense of expressive freedom, without even mentioning the Charter. Once the Court had interpreted …

No Harm, No Foul: Pornography (Violent And Otherwise), Victoria M. Mather

Faculty Articles

At the heart of the entire pornography debate is the lack of understanding or agreement of what is regulated. Society does not agree about what pornography means, what is hardcore or softcore, what is obscene, or what is "adult." The disagreement tends to derive from two very different viewpoints—the liberal view, and the feminist view. On the liberal side of the debate, pornography should be protected speech but on the feminist side, society should take into account the feminist perspective and the harmful effects of these graphic depictions.

Applying the Miller-Roth test, liberals believe that pornography is protected speech until …

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Publications

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

Art, Obscenity And The First Amendment, Judith Bresler

Articles & Chapters

Symposium on Law and the Visual Arts: Art, the First Amendment and the NEA Controversy

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

All Faculty Scholarship

The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.

The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.

Obscene Telephone Calls: An Introduction To The Reading Of Statutes, Reed Dickerson

Articles by Maurer Faculty

Members of the legal profession continually confront problems of statutory interpretation. Unfortunately, most lawyers have been inadequately trained to read and to draft statutes, resulting in poorly reasoned judicial decisions and policy choices.

In this Article, Professor Dickerson explores common problems associated with statutory interpretation. In exploring these problems, he describes the cognitive process involved in reading a statute and the large fund of tacit assumptions that condition this process. Through a case study analysis, he suggests a method of approaching problems of statutory interpretation.