As described in Chapter 4-C, the earliest judicial test for determining legal obscenity was the Hicklin standard, which lacked any acknowledgment of violence as a potential “immoral influence”. Nevertheless, the Comstock era produced laws which targeted materials which contained violent speech. These laws were addressed and struck down in the landmark case Winters v. New York (1948). The statute in question dealt somewhat with sexuality but primarily
with “bloodshed and crime.” In striking it down, the Supreme Court argued that the violent material did not constitute obscenity as it had been previously understood in law. However, they struck it down on a due process violation since the text of the statute was so vague that it was unclear when an innocent act became a criminal act. This lack of clarity arose from the condition in the statute that the violent material had to become so “massed” in stock in a certain store that it would become “a vehicle for inciting violent and depraved crimes.” This essentially meant that under this law there was an invisible stock threshold a shopkeeper could exceed without any way of knowing he or she did where their products became obscenity.
104 Rosenbaum, H. Jon, and Peter C. Sederberg. "Vigilantism: An Analysis of Establishment Violence." Comparative Politics. 6.4 (1974): 541-570.
105S a u n d e r s ( 1 9 9 6 ) .
Winters and Butler (discussed in Chapter 2-E) both struck down statutes that would
produce a chilling effect. Butler clarified that obscenity worthy of censorship was heavily
dependent on audience standards since material that would be legally obscene for youth could be acceptable for adults. This helped defeat absolute statutory bans on certain types of obscene materials. Winters gave violent media some Constitutional protection by establishing a chilling effect and it separated violent speech from legally defined obscenity. The question of violence as obscenity would not be brought back into question until the 2000s but despite the Supreme Court’s focus on sex as legal obscenity in the decades following Winters, another venue opened up the possibility of state censorship of violence.
The 1978 case of FCC v. Pacifica Foundation fundamentally expanded the amount of content and speech that could be restricted or censored without affecting the obscenity standards by addressing the regulation of airwaves rather than just print. Essentially, the 5-4 majority opinion by Justice Stevens determined that although the speech in question did not qualify as legal obscenity under the Miller test, “indecent but not obscene” was sufficient enough to censor it. He argued that the FCC required more authority in restricting certain content during the day hours since vulnerable youth populations would unintentionally be exposed to them without their parent’s wishes. Justice Stevens accepted the state’s argument that it had a compelling
government interest in “shielding children from patently offensive material” and “ensuring that unwanted speech does not enter one's home.” As Justice Stevens put it, “When the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”Also, he argued that since the FCC had already established “safe harbor” hours for undesirable and potentially harmful daytime speech to be aired, no First Amendment violation had occurred. The notion of “indecency” constituting enough grounds for
restriction opened up a new judicial argument by which violence and sex media suppression advocates could argue their cause as it is much easier to prove something to be indecent rather than obscene. However, the facts of FCC revolved primarily around sexuality, the notion that violence could be censored under indecency is only a theory held by legal scholars thus far.106
The subject of indecency reappeared in Reno vs. American Civil Liberties Union (1997), the first Supreme Court case dealing with the regulation of another context based speech – the internet. The 7-2 majority decision was once again delivered by Justice Stevens but this time he struck down indecency based regulations instead of enforcing them. The case involved several provisions of the Communications Decency Act (CDA) of 1996, which sought to restrict access to “indecent and obscene” materials of primarily a sexual nature by criminalization knowing transmission of such materials to children under the age of 18 over the internet. The decision left the obscenity and child pornography based regulations intact but struck down the indecency based ones. Justice Stevens argued that the FCC precedent only applied to situations where the content was so pervasive that there was no way of inhibiting the reception of unwanted material and parental forces could not prevent children from accessing it. However, internet-based speech required a “series of affirmative steps” by the user to access explicit material whereas with television and radio, it may simply appear. This decision clarified the idea of legitimate indecency-based censorship by outlining the importance of audience access and participation when determining appropriate scenarios for state intervention.
Overall, the Court in these cases reaffirmed its stance that violence was not obscenity and that it was afforded at least some protection under the law (in Winters) as legitimate speech.
Furthermore, it ruled that context and forum of speech does have a major bearing on the
106 Smith, Craig R. "Violence as Indecency: Pacifica's Open Door Policy."Florida International University Law Journal.
(2007): 75-90.
threshold of potential harm that needs to be present for censorship. Depending on the medium of speech, indecency could be censored, opening up violence to the possibility of censorship without being argued as legal obscenity.