The most important understanding students should take from this chapter is the legal differences among obscenity, indecency, and pornography. Students should realize that obscenity is a carefully crafted legal concept. The Miller v. California definition of obscenity is long and complex, but the government must prove that all of the definition applies to the material in question or the material cannot be found obscene.

Indecency is a concept applied only to broadcast radio and television (and inconsequentially to leased access programming on cable television). The U.S. Supreme Court provided a definition of indecency in FCC v. Pacifica Corp. The FCC has contracted and expanded the definition over the years, largely reacting to political pressure. Students should be aware of how the Commission has applied the indecency regulations during the last few years. Given an opportunity in 2012 to clarify how to define and apply the indecency ban on broadcast material, the U.S. Supreme Court punted. It ruled only that the FCC could not retroactively apply a new or revised regulation and that the FCC could choose to modify its indecency regulations. As this text is published, the indecency issue remains at the FCC, still unresolved. Because indecency regulations never have applied to cable television, what is seen and heard on cable may differ markedly from broadcast material.

Pornography is a generic term used popularly but not by courts. The only exception is child pornography, a term defined in the law and applied by courts. However, pornographic material has been regulated. For example, courts allow cities to use zoning laws to regulate the locations of adult bookstores and theaters in ways zoning laws could not be applied to ordinary bookstores and theaters. In 2014, the Supreme Court explored whether or not the U.S. allows child pornography victims to seek restitution from both the person who created the images as well as those who possess the images. A lower court is reconsidering the issues raised in the Court’sParoline decision.

Violence is not obscene, indecent, or pornographic as those words are used. Some people consider it at least as inappropriate for children as is sexual content. As noted in Chapter 3, the U.S. Supreme Court has said that video games communicative content and therefore have First Amendment protection.