Political Law Review Case Digests

OBSCENITY CASES
HATCH VS SUPERIOR COURT
Petitioner David Irving Hatch challenges his being held to answer on many charges of transmitting harmful
matter over the Internet to a child in an attempt to seduce the child.
Title 47 United States Code section 223(a), set out earlier, provides in pertinent part for a prison term for one
transmitting interstate or foreign telecommunications containing "any comment, request, suggestion, proposal,
image, or other communication which is obscene or indecent, knowing that the recipient ... is under 18 years of
age." The statute did not however define "indecent" fn. 27 as therein used, nor require that the prohibited
material be that "utterly without redeeming social importance for minors.
[10] The requirements for defining that matter which may be prohibited were set out in Miller v. California (1973)
"(a) whether 'the average person, applying contemporary community standards' would find that the work, taken
as a whole, appeals to the prurient interest ; (b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."
The central point here is that a person charged with violation of section 288.2 is not a "discourser" seeking
merely to communicate indecency to other adults and innocently running afoul of an overbroad statute. Rather,
the statute punishes those who seek not discourse, but intercourse and other sexual activity, and who have
identified intended victims for pursuit and seduction.
It is precisely this distinction in the basic type of the communication which is crucial. An overbroad statute chills
classical forum fn. 32 communications, such as those that occur in the chat rooms frequented by Hatch. Section
288.2, in contrast, only addresses those communications in which an adult seeks to seduce a child.
In the case of forum communications, an overbroad statute necessarily chills protected adult communications by
permitting the heckler's veto asserted by or on behalf of a minor. In the case of that species of dialogue in which
a pedophile stalks an identified minor child by sending him or her direct Internet messages, no content-restricting
rules permitting a heckler's veto are involved. fn. 33 The distinction, as we have noted earlier, is critical. The
statutes rejected in Reno and Pataki involved cases where the rights of adults to receive material could have
been diminished by a statute prohibiting certain communication to children. No such danger exists under section
288.2
The activity prohibited by the California statute is far more akin to conduct than communication. As the California
Supreme Court has recently determined, in the context of review of an ordinance prohibiting the "aggressive
solicitation" of money, although "some recent decisions of the California and federal intermediate appellate
courts have concluded that, under the California Constitution, ordinances directed at solicitation should be
viewed as [having to] satisfy the strict scrutiny test," those decisions were erroneous.
Instead, characterizing the ordinance as "directed at activity", and noting the long-standing California precedents
treating statutes on solicitation as regulating the time, place and manner or conduct of the solicitor rather than
the content of his or her speech, the court went on to hold that "a court should avoid a constitutional
interpretation that so severely would constrain the legitimate exercise of government authority in an area in
which such regulation long has been acknowledged as appropriate. Thus, the court held that "regulations ... that
single out the public solicitation of funds for distinct treatment, should not be viewed as ... constitutionally
suspect.
The above reasoning, we believe, is fully applicable to the circumstances of this case. Section 288.2 is not
directed at speech, but at the activity of attempting to seduce a minor. While one might argue that under Reno
adults are free to address indecencies to an Internet audience while indifferent to the presence of children in that
audience, it is only when the focus has shifted to the use of such communicated indecency in the attempted
seduction of a child, a process we apprehend will be accomplished by direct, one-to-one communication that the
present statute's prohibitions are violated. Thus, the only chilling effect of section 288.2 is on pedophiles who
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intend that their statements will be acted upon by children. Given the intention with which they are made, such
statements are not entitled to the extraordinary protection of the First Amendment
Finally, we note that the California Supreme Court has not only stressed the strength of the state's interest in the
area, but also noted that section 288.2 prohibits "criminal sexual misconduct." fn. 38 Because it is
primarily conduct rather than speech that is subjected to regulation, the statute does not infringe upon the First
Amendment.

RENO VS AMERICAN CIVIL LIBERTIES UNION

At issue is the constitutionality of two statutory provisions of "Communications Decency Act of 1996" (CDA)
enacted to protect minors from "indecent" and "patently offensive" communications on the Internet.
Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful
materials, we agree with the three judge District Court that the statute abridges "the freedom of speech"
protected by the First Amendment.
Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities
concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance,
each of the two parts of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U. S. C.
A. 223(a) (Supp. 1997), while the second speaks of material that "in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards, sexual or excretory activities or organs,"
223(d). Given the absence of a definition of either term, [n.35] this difference in language will provoke
uncertainty among speakers about how the two standards relate to each other [n.36] and just what they mean.
[n.37] Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality,
the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape
would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored
to the congressional goal of protecting minors from potentially harmful materials.
The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based
regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of
its obvious chilling effect on free speech. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1048-1051
(1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction,
the CDA threatens violators with penalties including up to two years in prison for each act of violation. The
severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably
unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494 (1965). As a practical
matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations,
poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area
Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. ___ (1996).
Because the CDA's "patently offensive" standard (and, we assume arguendo, its synonymous "indecent"
standard) is one part of the three prong Miller test, the Government reasons, it cannot be unconstitutionally
vague.
The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test--the purportedly
analogous standard--contains a critical requirement that is omitted from the CDA: that the proscribed material be
"specifically defined by the applicable state law." This requirement reduces the vagueness inherent in the open
ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct,"
whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and
excretory nature.
We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates
the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively
suppresses a large amount of speech that adults have a constitutional right to receive and to address to one
another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective
in achieving the legitimate purpose that the statute was enacted to serve.
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In evaluating the free speech rights of adults, we have made it perfectly clear that "[s]exual expression which is
indecent but not obscene is protected by the First Amendment." Sable, 492 U. S., at 126. See also Carey v.
Population Services Int'l, 431 U.S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently
held that the fact that protected speech may be offensive to some does not justify its suppression"). Indeed,
Pacifica itself
admonished that "the fact that society may find speech offensive is not a sufficient reason for suppressing it."
438 U. S., at 745.
It is true that we have repeatedly recognized the governmental interest in protecting children from harmful
materials. See Ginsberg, 390 U. S., at 639; Pacifica, 438 U. S., at 749. But that interest does not justify an
unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may
not "reduc[e] the adult population . . . to . . . only what is fit for children." Denver, 518 U. S., at ___ (slip op., at
29) (internal quotation marks omitted) (quoting Sable, 492 U. S., at 128). [n.40] "[R]egardless of the strength of
the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be
limited to that which would be suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75
(1983).
The District Court was correct to conclude that the CDA effectively resembles the ban on "dial a porn" invalidated
in Sable. 929 F. Supp., at 854. In Sable, 492 U. S., at 129, this Court rejected the argument that we should defer
to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising
youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a
statutory regulation of speech was enacted for the important purpose of protecting children from exposure to
sexually explicit material does not foreclose inquiry into its validity. [n.41] As we pointed out last Term, that
inquiry embodies an "over arching commitment" to make sure that Congress has designed its statute to
accomplish its purpose "without imposing an unnecessarily great restriction on speech." Denver, 518 U. S., at
___ (slip op., at 11).
It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent
speech who might simply log on and inform the would be discoursers that his 17 year old child--a "specific
person . . . under 18 years of age," 47 U. S. C. A. 223(d)(1)(A) (Supp. 1997)--would be present.

ASHCROFT VS CIVIL LIBERTIES UNION

In Reno v. American Civil Liberties Union, 521 U.S. 844, this Court found that the Communications Decency Act
of 1996 (CDA)Congress first attempt to protect children from exposure to pornographic material on the
Internetran afoul of the First Amendment in its regulation of indecent transmissions and the display of patently
offensive material. That conclusion was based, in part, on the crucial consideration that the CDAs breadth was
wholly unprecedented. After the Courts decision in Reno, Congress attempted to address this concern in the
Child Online Protection Act (COPA). Unlike the CDA, COPA applies only to material displayed on the World Wide
Web, covers only communications made for commercial purposes, and restricts only material that is harmful to
minors, 47 U.S.C. 231(a)(1). In defining material that is harmful to minors, COPA draws on the three-part
obscenity test set forth in Miller v. California, 413 U.S. 15, see 231(e)(6), and thus requires jurors to apply
contemporary community standards in assessing material, see 231(e)(6)(A). Respondentswho post or have
members that post sexually oriented material on the Webfiled a facial challenge before COPA went into effect,
claiming, inter alia, that the statute violated adults First Amendment rights because it effectively banned
constitutionally protected speech, was not the least restrictive means of accomplishing a compelling
governmental purpose, and was substantially overbroad. The District Court issued a preliminary injunction
barring the enforcement of COPA because it concluded that the statute was unlikely to survive strict scrutiny. The
Third Circuit affirmed but based its decision on a ground not relied upon by the District Court: that COPAs use of
contemporary community standards, 231(e)(6)(A), to identify material that is harmful to minors rendered the
statute substantially overbroad.
Held: COPAs reliance on community standards to identify what material is harmful to minors does not by itself
render the statute substantially overbroad for First Amendment purposes. The Court, however, expresses no
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view as to whether COPA suffers from substantial overbreadth for reasons other than its use of community
standards, whether the statute is unconstitutionally vague, or whether the statute survives strict scrutiny.
Prudence dictates allowing the Third Circuit to first examine these difficult issues. Because petitioner did not ask
to have the preliminary injunction vacated, and because this Court could not do so without addressing matters
the Third Circuit has yet to consider, the Government remains enjoined from enforcing COPA absent further
action by the lower courts.

ROTH VS UNITED STATES

The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth,the primary
constitutional question is whether the federal obscenity statute [n1] violates the provision of the First Amendment
that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . . In Alberts, the
primary constitutional question is whether the obscenity provisions of the California Penal Code [n2] invade the
freedoms of speech and press as they may be incorporated in [p480] the liberty protected from state action by
the Due Process Clause of the Fourteenth Amendment.
The dispositive question is whether obscenity is utterance within the area of protected speech and press.
We hold that obscenity is not within the area of constitutionally protected speech or press.
It is strenuously urged that these obscenity statutes offend the constitutional guaranties because they
punish [p486] incitation to impure sexual thoughts, not shown to be related to any overt antisocial conduct which
is or may be incited in the persons stimulated to such thoughts. In Roth, the trial Judge instructed the jury:
The words "obscene, lewd and lascivious" as used in the law, signify that form of immorality which has relation to
sexual impurity and has a tendency to excite lustful thoughts.
(Emphasis added.) In Alberts, the trial judge applied the test laid down in People v. Wepplo, 78 Cal.App.2d Supp.
959, 178 P.2d 853, namely, whether the material has "a substantial tendency to deprave or corrupt its readers by
inciting lascivious thoughts or arousing lustful desires.
Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us
or for the State courts, to consider the issues behind the phrase "clear and present danger." Certainly no one
would contend that obscene speech, [p487] for example, may be punished only upon a showing of such
circumstances. Libel, as we have seen, is in the same class.
However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a
manner appealing to prurient interest. [n20] The portrayal of sex, e.g., in art, literature and scientific
works, [n21] is not itself sufficient reason to deny material the constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing
interest to mankind through the ages; it is one of the vital problems of human interest and public concern. As to
all such problems, [p488] this Court said inThornhill v. Alabama, 310 U.S. 88, 101-102:
The freedom of speech and of the press guaranteed by the Constitution embraces at the least the liberty to
discuss publicly and truthfully all matters of public concern without previous restraint or fear of subsequent
punishment. The exigencies of the colonial period and the efforts to secure freedom from oppressive
administration developed a broadened conception of these liberties as adequate to supply the public need
for information and education with respect to the significant issues of the times. . . . Freedom of discussion, if it
would fulfill its historic function in this nation, must embrace all issues about which information is needed or
appropriate to enable the members of society to cope with the exigencies of their period.
The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might
well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive
of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate
to withstand the charge of constitutional infirmity.
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In summary, then, we hold that these statutes, applied according to the proper standard for judging obscenity, do
not offend constitutional safeguards against convictions based upon protected material, or fail to give men in
acting adequate notice of what is prohibited.

SORIANO VS LAGUARDIA
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on
UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.1 x x
x
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),2 against
petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly
alluded to in petitioners remark, was then a minister of INC and a regular host of the TV program Ang
Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation
to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.4
It is settled that expressions by means of newspapers, radio, television, and motion pictures come within
the broad protection of the free speech and expression clause.25 Each method though, because of its
dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in
the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser
degree of protection.26 Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g.,
judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability,
whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the
freedom of expression. Prior restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.27 The freedom of expression, as with the
other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent
to serve important public interests, some forms of speech not being protected. As has been held, the limits
of the freedom of expression are reached when the expression touches upon matters of essentially private
concern.28 In the oft-quoted expression of Justice Holmes, the constitutional guarantee "obviously was not
intended to give immunity for every possible use of language."29 From Lucas v. Royo comes this line: "[T]he
freedom to express ones sentiments and belief does not grant one the license to vilify in public the honor
and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard
for the rights of others."30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and narrowly
limited classes of speech that are harmful, the prevention and punishment of which has never been thought
to raise any Constitutional problems." In net effect, some forms of speech are not protected by the
Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the
freedom of speech clause.32 A speech would fall under the unprotected type if the utterances involved are
"no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and morality."33
Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application
of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of
weighing competing values,34 or, with like effect, determining which of the clashing interests should be
advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value
expression refers to libelous statements, obscenity or pornography, false or misleading advertisement,
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insulting or "fighting words", i.e., those which by their very utterance inflict injury or tend to incite an
immediate breach of peace and expression endangering national security.
The Court finds that petitioners statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless
stated the ensuing observations on the matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards
would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it
would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in
determining what is "patently offensive." x x x What remains clear is that obscenity is an issue proper for
judicial determination and should be treated on a case to case basis and on the judges sound discretion.35
Following the contextual lessons of the cited case of Miller v. California,36 a patently offensive utterance
would come within the pale of the term obscenity should it appeal to the prurient interest of an average
listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal that to an
average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!" may not
constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a
play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The
problem with the challenged statements is that they were uttered in a TV program that is rated "G" or for
general viewership, and in a time slot that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children could
hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such
language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term
"putang babae" means "a female prostitute," a term wholly inappropriate for children, who could look it up
in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner
further used the terms, "ang gumagana lang doon yung ibaba," making reference to the female sexual
organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by
using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is
different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of
the words used, young minds, without the guidance of an adult, may, from their end, view this kind of
indecent speech as obscene, if they take these words literally and use them in their own speech or form
their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioners
words, when speaking of the average person in the test for obscenity, we are speaking of the average
child, not the average adult. The average child may not have the adults grasp of figures of speech, and
may lack the understanding that language may be colorful, and words may convey more than the literal
meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as
such. In this sense, we find petitioners utterances obscene and not entitled to protection under the
umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements
were made in a medium easily accessible to children. With respect to the young minds, said utterances are
to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is
veritably one of first impression, it being the first time that indecent speech communicated via television
and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal
Communications Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited in
Eastern Broadcasting Corporation v. Dans, Jr.38 and Chavez v. Gonzales,39 is a rich source of persuasive
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lessons. Foremost of these relates to indecent speech without prurient appeal component coming under
the category of protected speech depending on the context within which it was made, irresistibly suggesting
that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected
speech that is content-based and that which is content-neutral. A content-based restraint is aimed at
the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time,
place, and manner of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-based restraint to strict
scrutiny.
Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech
tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The
doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken
words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear
and present danger of bringing about a substantial evil which the government has the power to prohibit.46
Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when
necessary to prevent grave and immediate danger to interests which the government may lawfully protect.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect,
conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting
interests demands the greater protection under the particular circumstances presented. x x x We must,
therefore, undertake the "delicate and difficult task x x x to weigh the circumstances and to appraise the
substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.

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