The+First+Amendment+&+Sex

**The First Amendment & Sex**

__**Introduction**__ The first amendment to the United States Constitution states that “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances” (Legal Information Institute, 2011).

This amendment, which grants some of the most significant and contentious civil liberties to the American people, has been brought up and fiercely deliberated upon in court through hundreds of cases since its establishment. Additionally, the first amendment has been applied to cases covering a wide variety of topics including religious practices, flag burning, government criticism, broadcast censorship, and even sex.

__** The First Amendment & Sex **__ Although not specifically mentioned within the words of the first amendment, sex has been the focus of many issues surrounding the amendment and many cases that have reached the Supreme Court for decision. Most notably, issues regarding the first amendment that have had sex as a focal point include those on the obscene nature of pornography and broadcast censorship provided by the Federal Communications Commission (FCC), amongst a number of others.

__** Pornography & Obscenity **__ The explicit sexual imagery that is pornography has, as one may assume, come under much scrutiny since its ability to reach a mainstream American audience decades ago. Throughout its American history, pornography has shown up, in one form or another, in a multitude of media including everything from magazines to video games. Despite its ever-growing presence in our culture, pornography has dealt with a number of legal obstacles on its way to becoming a very profitable industry.

Most of these obstacles stem from challenges to pornography's obscene nature. Obscene is defined as being “disgusting to the senses: repulsive; abhorrent to morality or virtue” (Merriam-Webster's Dictionary, 2011). What's interesting about rulings regarding obscenity in U.S. courts is the fact that obscenity is not completely defined and there are no clear-cut classifications for things deemed obscene. On the subject of obscenity, Justice Potter Stewart famously said “I know it when I see it,” further exemplifying obscenity's subjectivity and difficulty of classification (Gewirtz, 1996).

Although there is no exact definition of what is obscene in a legal context, the Supreme Court has set up guidelines to help them decide if something is obscene or not. These guidelines are also known as the Miller Test. The Miller Test, created in 1973, contains three guidelines as to whether something is obscene: (1) The work appeals to the prurient interest (2) The work is patently offensive (3) The work lacks serious value (First Amendment Center, 2011). The Miller Test has since been the standard for determining obscenity cases in U.S. courts and determining what becomes censored or regulated.

__** Censorship & Regulation of Sex **__ The Federal Communications Commission (FCC) is an agency of the U.S. government that determines what programming and content is censored or regulated when being broadcast over television or radio. In addition to making sure obscene material is not broadcast, the FCC also cracks down and fines broadcasters showing indecent and profane content.

__**Obscene, Indecent, and Profane: What's the Difference?**__ Obscene material is defined by the three guidelines within the Miller Test and is completely prohibited from being broadcast.

Indecent material is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” This material is considered not severe enough to be labeled obscene and may not be broadcast between the hours of 6:00am and 10:00pm (Federal Communications Commission, 2008).

Profane material is “language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.” Similar to indecent material, profane content may not be broadcast between the hours of 6:00am and 10:00pm (Federal Communications Commission, 2008).

__** What's Been Censored and How Does This Affect the Public? **__ After turning on the television and surfing through network and cable programming, you'd be hard-pressed to find sexually explicit material gracing your screen and this is due to the FCC's actions. The content of television shows as well as movies being shown on television are often edited to abide by FCC standards whether it be bleeping curse words or cutting scenes out that contain sexually explicit material. Although precautions such as these may be taken by broadcasters, the FCC may still choose to enforce its standards after content has hit the airwaves.

One of the most famous instances of the FCC's involvement was after the 2004 Super Bowl's halftime show “wardrobe malfunction.” At one point in the show, Justin Timberlake accidentally tore a piece of Janet Jackson's clothing off exposing one of her breasts albeit for a very short moment of time. This led to the FCC proposing to fine CBS (who broadcast the Super Bowl) $3.35 million dollars for airing this portion of the halftime show (Duncan, 2006).



A fine of $3.6 million dollars was proposed to CBS by the FCC in 2006 when it's television show, “Without a Trace”, aired an episode showing a “ graphic depiction of 'teenage boys and girls participating in a sexual orgy' (MSNBC, 2006).

More recently, the FCC proposed a fine of $25,000 aimed at Fox Television Stations, Inc. for an episode of “American Dad” that “featured scenes that suggested a character performed a sexual act on a horse” (Schatz, 2010).

Censorship and regulation of sexual content, as seen through such instances, can have an effect on the viewing public most significantly in terms of sexual culture and how sex is discussed in America. By regulating what kind of sexual content is acceptable to air on television and even radio, the FCC designates what the status quo is and what is common or mainstream in terms of sexual content. The more exposure the viewing public has to certain content, the more common-place it becomes and the more acceptable it becomes to discuss when at one point it may not have been. For example, the depiction of the lives of teenagers on television has changed quite considerably between the 1990s and the 2000s. Shows during the early 1990s featuring teenage issues such as “Saved by the Bell” or “Full House” never discussed things like STDs or teen pregnancies while modern shows like “Degrassi: The Next Generation” or “The Secret Life of an American Teenager” feature such topics quite often and have made such content far more acceptable to be broadcast to the American audience.

__** References **__

Duncan, Andrew. "FCC Crackdown on Profanity, Indecency Marks Shift in Policy, Robinson Says." //Virginia Law//. 16 Nov. 2006.

"FCC Proposes $3.6 Mil Fine for CBS Orgy Scene." //MSNBC//. Associated Press, 20 Mar. 2006.

"First Amendment." //LII / Legal Information Institute//. Cornell University Law School. 2011.

Gewirtz, Paul. "On "I Know It When I See It"" //The Yale Law Journal// (1996). //JSTOR//.

"Obscene, Indecent, and Profane Broadcasts." //Federal Communications Commission//. 08 Oct. 2008.

"Obscene." //Merriam Webster//. Web. 11 Apr. 2011.

Schatz, Amy. "FCC Proposes Fine Against Fox TV Over 'American Dad'" //The Wall Street Journal//. 3 June 2010.

__** Image **__  //Janet Jackson's Super Bowl Strip//. Digital image. //BBC SPORT//. British Broadcasting Corporation (BBC), 2 Feb. 2004.  

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