RECOMMENDATION 17

Part: 
Three
Chapter: 
2

United States Attorneys should use all available Federal statutes to prosecute obscenity violations involving cable and satellite television

The contents of some programs shown on cable and satellite television channels have become a matter of increasing public concern.[224] Some of the feature films shown depict sexual themes, sexual acts and materials which may be obscene under Miller.

The obscenity standard enunciated by the Supreme Court in Miller v. California can be applied to material transmitted over cable television. When the United States Supreme Court declared that obscenity is not protected speech under The First Amendment, no distinction was made as to the medium of expression.[225] As the United States District Court in Utah found in Community Television of Utah v. Roy City,[226]

The Miller standard is applicable. It is a national standard with a core of uniformity which allows for a degree of flexibility at a community level. It may be uniformly applied to almost all forms of publicly available communication. Books, magazines, cassettes, periodicals, movies, and cable television are all treated essentially in the same fashion regardless of numbers. (emphasis added)[227]

The court went on to explain, "The Court finds great difficulty in distinguishing (other than the popcorn) between going to the movies at a theatre and having the movies come to me in my home through electronic transmission over wire. The choice is mine. The location is different. The content is the same."[228]

An individual may possess and view obscene materials in the privacy of his own home.[229] Despite popular arguments to the contrary, it is well established in decisions by the United States Supreme Court that there is no correlative right to receive, import, or distribute the obscene materials. (emphasis added)[230] An argument that in the cable area the obscene materials are exhibited to consenting adults only is not a defense to an obscenity prosecution.[231]

The Court in Paris Adult Theaters I v. Slaton,[232] stated,

Finally, petitioners argue that conduct which directly involves "consenting adults" only has, for that sole reason, a special claim to constitutional protection. Our Constitution establishes a broad range of conditions on the exercise of power by the States, but for us to say that our Constitution incorporates the proposition that conduct involving consenting adults only is always beyond state regulation, is a step we are unable to take.[233]

In addition to the federal obscenity laws codified in 18 U.S.C. S1461, the Cable Communication Policy Act of 1984 provides another avenue for the prosecution of obscenity shown over cable television.[234]

The Act, provides:

Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than 2 years, or both.[235]

This section should be used by federal prosecutors if potential conflicts within such Chapter are resolved. Prosecutors should also vigorously enforce any new legislation enacted in the area.

The inability of law enforcement officials to control obscene cable programming is compounded by the inaction of the Federal Communications Commission in this entire area and makes enforcement efforts by United States Attorneys in each district essential.

Notes

  1. See, The discussion of Child Pornography Regulation for further information.
  2. Kaplan v. California, 413 U.S., (1973), pp. 115, 118-19.
  3. Id., p. 116.
  4. 555 F. Supp., p. 1164 (D. Utah 1982).
  5. Id., p. 1170.
  6. See, Stanley v. Georgia, 394 U.S., (1969), pp. 557, 568.
  7. See, United States v. Reidel, 402 U.S. 351(1971); United States v. 37 Photographs, 402 U.S., (1971), pp. 363, 376.
  8. See, Paris Adult Theater I v. Slaton, 413 U.S., (1973), 49, 57.
  9. 413 U.S., (1972), p. 49.
  10. Id., p. 68.
  11. 47 U.S.C.A. 5559 (West Supp. 1985).
  12. Id. See, The discussion of the difficulties associated with enforcement of this statute.