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2/21/2024 12:15:36 PM
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Planning Files - Planning File #
1787
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Planning-Other
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Memorandum <br />March 30, 1988 <br />Page 4 <br />Amendment considerations. No Supreme Court case has yet to <br />rule on the extent to which the regulation of indecent or <br />pornographic material on cable television is permissible <br />under the First Amendment. It is likely that standards will <br />be developed by courts in the next few years es more of <br />these issues are litigated. <br />IV. OBSCENITY <br />As stated above, obscene speech is not protected by the <br />United States Constitution. The Federal Cable Communica- <br />tions Policy Act of 1984 prohibits "obscene" programming. <br />In Section 639 of the Act it is stated: <br />Whoever transmits over any cable system any <br />matter which is obscene or otherwise unpro- <br />tected by the Constitution of the United <br />States shall be fined not more than $10,000 or <br />imprisoned not more than two years, or both. <br />While this section clearly prohibits transmission of obscene <br />materials over cable systems, it is not clear how it would <br />affect indecent and similar material. This becomes a par- <br />ticularly difficult discussion when one looks at the Supreme <br />Court's three-part test to determine whether zaterial is <br />obscene. In Miller v. California, 413 U.S. 15 (1973). the <br />court established a three-part test to determine whether <br />material is obscene: <br />(a) Whether the average person, applying <br />contemporary community standards, would find <br />that the work, taken as a whole, appeals to <br />the prurient interest; <br />(b) whether the work depicts or describes, in <br />a patently offensive way, sexual contact <br />specifically defined by the applicable state <br />law; and <br />(c) whether the <br />serious literary, <br />scientific value. <br />413 U.S. at 24. <br />work taken as a whole lacks <br />artistic, political, or <br />All three factors must be present for material to be <br />ruled to be obscene. To the best of my knowledge, the <br />United States Supreme Court has never found material to be <br />obscene using the Miller court standards. <br />
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