Non-obscene But Sexually Explicit and Indecent Expression

Non-obscene But Sexually Explicit and Indecent Expression.—There is expression, either spoken or portrayed, which is offensive to some but is not within the constitutional standards of unprotected obscenity. Nudity portrayed in films or stills cannot be presumed obscene1143 nor can offensive language ordinarily be punished simply because it offends someone.1144 Nonetheless, government may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court’s view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government’s interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.1145

1143 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975).

1144 E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules apply to broadcast speech, which, because of its intrusion into the home and the difficulties of protecting children, is accorded “the most limited First Amendment protection” of all forms of communication; non-obscene but indecent language may be curtailed, the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Found., 438 U.S. 726, 748 (1978). However, efforts by Congress and the FCC to extend the indecency ban to 24 hours a day were rebuffed by an appeals court. Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. No. 100-459, § 608), cert. denied, 503 U.S. 913 (1992). Earlier, the same court had invalidated an FCC restriction on indecent, non-obscene broadcasts from 6 a.m. to midnight, finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children’s Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). In 1992, however, Congress imposed a 6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight exception for public radio and television stations that go off the air at or before midnight. Pub. L. 102-356, § 16 (1992), 47 U.S.C. § 303 note. This time, after a three-judge panel found the statute unconstitutional, the en banc court of appeals upheld it, except for its 10 p.m.-to-midnight ban on indecent material on non-public stations. Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996).

1145 Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989), suggested that there should be a “sliding scale” taking into account the definition of obscenity: “[t]he more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors.” Barnes v. Glen Theatre, 501 U.S. 560 (1991), upholding regulation of nude dancing even in the absence of threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.

Government has a “compelling” interest in the protection of children from seeing or hearing indecent material, but total bans applicable to adults and children alike are constitutionally suspect.1146 In Reno v. American Civil Liberties Union,1147 the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an “interactive computer service” to display indecent material “in a manner available to a person under 18 years of age.”1148 This prohibition would, in effect, have banned indecent material from all Internet sites except those accessible by adults only. Although intended “to deny minors access to potentially harmful speech . . . , [the CDA’s] burden on adult speech,” the Court wrote, “is unacceptable if less restrictive alternatives would be at least as effective .... [T]he Government may not ‘reduc[e] the adult population . . . to . . . only what is fit for children.”'1149

1146 See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC’s “dial-a-porn” rules imposing a total ban on “indecent” speech are unconstitutional, given less restrictive alternatives— e.g., credit cards or user IDs—of preventing access by children). Pacifica Foundation is distinguishable, the Court reasoned, because that case did not involve a “total ban” on broadcast, and also because there is no “captive audience” for the “dial-it” medium, as there is for the broadcast medium. 492 U.S. at 127-28. Similar rules apply in regulation of cable TV. In Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. 727, 755 (1996), the Court, acknowledging that protection of children from sexually explicit programming is a “compelling” governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate and block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to 30 days’ delay in blocking or unblocking a channel, were not sufficiently protective of adults’ speech and viewing interests to be considered either narrowly or reasonably tailored to serve the government’s compelling interest in protecting children. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-based speech restriction on cable TV, struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed.” Id. at 806.

The Court seems to be becoming less absolute in viewing the protection of all minors (regardless of age) from all indecent material (regardless of its educational value and parental approval) to be a compelling governmental interest. In striking down the Communications Decency Act of 1996, the Court would “neither accept nor reject the Government’s submission that the First Amendment does not forbid a blanket prohibition on all ‘indecent’ and ‘patently offensive’ messages communicated to a 17-year-old - no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government’s interest in protecting minors is not equally strong throughout the coverage of this broad statute.” Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997). In Playboy Entertainment Group, 529 U.S. at 825, the Court wrote: “Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.” The Court also would “not discount the possibility that a graphic image could have a negative impact on a young child” (id. at 826), thereby suggesting again that it may take age into account when applying strict scrutiny.

1147 521 U.S. 844 (1997).

1148 The other provision the Court struck down would have prohibited indecent communications, by telephone, fax, or e-mail, to minors.

1149 521 U.S. at 874-75. The Court did not address whether, if less restrictive alternatives would not be as effective, the Government would then be permitted to reduce the adult population to only what is fit for children. Courts of appeals, however, have written that “[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations.” ACLU v. Reno, 217 F.3d 162, 179 (3d Cir. 2000), vacated and remanded sub nom., Ashcroft v. ACLU, 122 S. Ct. 1700 (2002); Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555 (2d Cir. 1988).

In Reno, the Court distinguished FCC v. Pacifica Foundation,1150 in which it had upheld the FCC’s restrictions on indecent radio and television broadcasts, because (1) “[t]he CDA’s broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet,” (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts “would justify a criminal prosecution,” and (3) radio and television, unlike the Internet, have, “as a matter of history . . . ‘received the most limited First Amendment protection,’ . . . in large part because warnings could not adequately protect the listener from unexpected program content.... [On the Internet], the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material.”1151

1150 438 U.S. 726 (1978).

1151 521 U.S. at 867.

After the Supreme Court struck down the CDA, Congress enacted the Child Online Protection Act (COPA), which banned “material that is harmful to minors” on Web sites that have the objective of earning a profit.1152 The Third Circuit upheld a preliminary injunction against enforcement of the statute on the ground that, “because the standard by which COPA gauges whether material is ‘harmful to minors’ is based on identifying ‘contemporary community standards[,]’ the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.”1153 This is because it results in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. The Supreme Court vacated and remanded, holding “that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment.”1154

Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded the case for trial. The Supreme Court found that the district court had not abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because “[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source.”144 Subsequently, the district court found COPA to violate the First Amendment and issued a permanent injunction against its enforcement; the Third Circuit affirmed, and the Supreme Court denied certiorari.145

In United States v. American Library Association, a four-Justice plurality of the Supreme Court upheld the Children’s Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or “library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them.”146 The plurality asked “whether libraries would violate the First Amendment by employing the filtering software that CIPA requires.”147 Does CIPA, in other words, effectively violate library patrons’ rights? The plurality concluded that it does not, after finding that “Internet access in public libraries is neither a ‘traditional’ nor a ‘designated’ public forum,” and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.148

The plurality acknowledged “the tendency of filtering software to ‘overblock’ — that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block.”149 It found, however, that, “[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled.”150

The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance — in other words, does it violate public libraries’ rights by requiring them to limit their freedom of speech if they accept federal funds? The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), “CIPA does not ‘penalize’ libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to subsidize their doing so.”151

The government may also take notice of objective conditions attributable to the commercialization of sexually explicit but non-obscene materials. Thus, the Court recognized a municipality’s authority to zone land to prevent deterioration of urban areas, upholding an ordinance providing that “adult theaters” showing motion pictures that depicted “specified sexual activities” or “specified anatomical areas” could not be located within 100 feet of any two other establishments included within the ordinance or within 500 feet of a residential area.1155 Similarly, an adult bookstore is subject to closure as a public nuisance if it is being used as a place for prostitution and illegal sexual activities, since the closure “was directed at unlawful conduct having nothing to do with books or other expressive activity.”1156 However, a city was held constitutionally powerless to prohibit drive-in motion picture theaters from showing films containing nudity if the screen is visible from a public street or place.1157 Also, the FCC was unable to justify a ban on transmission of “indecent” but not obscene telephone messages.1158

1152 “Harmful to minors” statutes ban the distribution of material to minors that is not necessarily obscene under the Miller test. In Ginsberg v. New York, 390 U.S. 629, 641 (1968), the Supreme Court, applying a rational basis standard, upheld New York’s harmful-to-minors statute.

1153 ACLU v. Reno, 217 F.3d 162, 166 (3d Cir. 2000).

1154 Ashcroft v. ACLU, 122 S. Ct. 1700, 1713 (2002) (emphasis in original).

144 Ashcroft v. ACLU, 542 U.S. 656, 667 (2004). Justice Breyer, dissenting, wrote that blocking and filtering software is not a less restrictive alternative because “it is part of the status quo” and “[i]t is always less restrictive to do nothing than to do something.” Id. at 684. In addition, Breyer asserted, “filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision.” Id. The majority opinion countered that Congress “may act to encourage the use of filters,” and “[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative.” Id. at 669.

145 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom., American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, 129 S. Ct. 1032 (2009).

146 539 U.S. 194, 199 (2003).

147 539 U.S. at 203.

148 539 U.S. at 205.

149 539 U.S. at 208.

150 539 U.S. at 209. Justice Kennedy, concurring, noted that, “[i]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter . . . that would be the subject for an as-applied challenge, not the facial challenge made in this case.” Id. at 215. Justice Souter, dissenting, noted that “the statute says only that a library ‘may’ unblock, not that it must.” Id. at 233.

151 539 U.S. at 212.

1155 Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of the five majority Justices thought the speech involved deserved less First Amendment protection than other expression, id. at 63-71, while Justice Powell, concurring, thought the ordinance was sustainable as a measure that served valid governmental interests and only incidentally affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance prohibiting location of adult theaters within 1,000 feet of residential areas, churches, or parks, and within one mile of any school. Rejecting the claim that the ordinance regulated content of speech, the Court indicated that such time, place and manner regulations are valid if “designed to serve a substantial governmental interest” and if “allow[ing] for reasonable alternative avenues of communication.” Id. at 50. The city had a substantial interest in regulating the “undesirable secondary effects” of such businesses. And, while the suitability for adult theaters of the remaining 520 acres within the city was disputed, the Court held that the theaters “must fend for themselves in the real estate market,” and are entitled only to “a reasonable opportunity to open and operate.” Id. at 54. The Supreme Court also upheld zoning of sexually oriented businesses in FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990), and City of Los Angeles v. Alameda Books, Inc., 122 S. Ct. 1728 (2002).

1156 Arcara v. Cloud Books, 478 U.S. 697 (1986).

1157 Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975).

1158 Sable Communications of California v. FCC, 492 U.S. 115 (1989).

The Court has recently held, however, that “live” productions containing nudity can be regulated to a greater extent than had been allowed for films and publications. Whether this represents a distinction between live performances and other entertainment media, or whether instead it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,1159 the Court upheld application of Indiana’s public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear “pasties” and a “G-string” rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of “societal order and morality,”1160 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,1161 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.1162 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,1163 but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in “adult” theaters,1164 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.1165 But broad implications for First Amendment doctrine are probably unwarranted.1166 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing.

1159 501 U.S. 560 (1991).

1160 501 U.S. at 568 (Chief Justice Rehnquist, joined by Justices O'Connor and Kennedy).

1161 501 U.S. at 581 (Justice Souter).

1162 501 U.S. at 572 (Justice Scalia). The Justice thus favored application of the same approach recently applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990).

1163 Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557-58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981). Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social “ballroom” dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes, 501 U.S. 560, 587 (1991), recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128-29 (7th Cir. 1990) (Easterbrook, J.).

1164 Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between “live” and film performances even while acknowledging the harmful “secondary” effects associated with both.

1165 The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical “Hair,” in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality’s public-morality rationale would apply equally to the “adult” stage and to the operatic theater, while Justice Souter’s secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between “adult” and theatrical productions. 501 U.S. at 564 n.1 (Chief Justice Rehnquist); id. at 574 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at “the communicative aspect of the erotic dance.” Id. at 591.

1166 The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court is signaling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner’s concurring opinion in the lower court’s disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).

In Erie v. Pap’s A.M.,1167 the Supreme Court again upheld the application of a statute prohibiting public nudity to an “adult” entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter’s position in Barnes, that the statute satisfied the O'Brien test because it was intended “to combat harmful secondary effects,” such as “prostitution and other criminal activity.”1168 Justice Souter, however, though joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe “that the city has made a sufficient evidentiary showing to sustain its regulation,” and therefore would have remanded the case for further proceedings.1169 He acknowledged his “mistake” in Barnes in failing to make the same demand for evidence.1170

The plurality opinion found that Erie’s public nudity ban “regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis,” because Erie allowed dancers to perform wearing only pasties and G-strings.1171 It may follow that “requiring dancers to wear pasties and G-strings may not greatly reduce . . . secondary effects, but O'Brien requires only that the regulation further the interest of combating such effects,” not that it further it to a particular extent.1172 The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.

1167 529 U.S. 277 (2000).

1168 529 U.S. at 292, 291.

1169 529 U.S. 310-311.

1170 529 U.S. at 316.

1171 529 U.S. at 301. The plurality said that, though nude dancing is “expressive conduct,” “we think that it falls only within the outer ambit of the First Amend-ment’s protection.” Id. at 289. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000), however, the Court wrote that it “cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech [”signal bleed” of sexually oriented cable programming] is not very important.”

1172 529 U.S. at 301.

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