Legal Guide To Protecting Children From Indecent Material

WHAT CAN I DO ABOUT MATERIAL THAT IS INAPPROPRIATE FOR CHILDREN?

DO MOVIE THEATERS HAVE TO COMPLY WITH THE INDECENT DISPLAY LAWS?

WOULD YOU LIKE TO KNOW WHAT YOUR CHILD WILL BE SEEING AT THE THEATER BEFORE THEY GO?

STATE LAWS

Utah is a family oriented state. Citizens want to maintain communities that are conducive to raising children and most believe parents have the right to teach their children the morals and values they deem appropriate. Many parents are concerned about sexually oriented messages on billboards, signs, advertisements, magazine covers, videos, CDs, TV, radio, and other public information forums. As acknowledged by the Supreme Court of the United States in Ginsberg v. New York, 390 U.S. 629, 640 (1968), "parental control or guidance cannot always be provided and society's transcendent interest in protecting the welfare of children justify reasonable regulation" in order to protect children from material that is inappropriate for them.

Utah has two laws, Dealing in Material Harmful to a Minor, Section 76-10-1206 and Indecent Public Displays, Section 76-10-1228, to assist in protecting children so they might grow "into free and independent well-developed men and citizens."

Dealing in Material Harmful to a Minor makes it illegal for a person to show or give a minor anything that contains nudity or sexual conduct that:

  • For minors, when taken as a whole, appeals to a prurient interest in sex;
  • Is patently offensive according to prevailing standards in the adult community with respect as to what is suitable material for minors; and
  • Does not have serious value for minors.

Example: It is illegal for someone to sell a Playboy magazine or a "cable version" XXX pornographic video to a 15 year old.

Indecent Public Display makes it illegal to display any material in any place where a person under 18 years of age has a right to be:

  • If the material contains nudity, partial nudity or sexual acts; and
  • It has no value for a minor.
  • Nudity or partially denuded means:
    (a) Less than completely and opaquely covered (you can see through the covering):

     

    (i) human genitals;
    (ii) pubic regions;
    (iii) buttock; and
    (iv) female breast below a point immediately above the top of the areola; and

    (b) Human male genitals in a discernibly turgid state, even if completely and opaquely covered (you can't see through the covering).

This law applies to motion picture theaters, plays, video tapes, still photographs, books, CDs, magazine covers and any other public display where the person in the material is posed or presented in a manner to provoke or arouse lust or passion or to exploit lust or perversion.

Example: A grocery store has a Playboy magazine, which contains pictures of nude people in sexual poses, displayed for sale at the checkout stand. The magazine is not in a sealed wrapper so a 13-year-old child is able to look at it while waiting in line.

The Supreme Court of the United States has stated many times that children can be protected from adult material and such protection does not violate the minor's First Amendment rights. Material that is inappropriate for children can be regulated but it cannot be completely outlawed. Michigan passed a law making all material that was inappropriate for children illegal even for adults. The court said the law violated adults' First Amendment rights because it reduces "the adult population of Michigan to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380 (1957).

In another case, Ginsberg v. New York, 390 U.S. 629 (1968), Mr. Ginsberg was convicted for selling two "girlie" magazines to a 16-year-old boy. He challenged the law by arguing it violated a minor's First Amendment right to view material that is not obscene. He also claimed the law was unconstitutional because the standard was more restrictive for children than for adults. The magazines in this case were not obscene for adults, but the court ruled that the State had the right to prohibit their sale to minors and can use a different legal standard for children than for adults. The court also said the law did not violate the minor's First Amendment rights.

Seven years later, Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) was decided by the Supreme Court. They said, "A State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults." However, minors are still entitled to a "significant measure of First Amendment protection." They went on to find a local public display law to be unconstitutional because it banned all nudity. "[N]udity cannot be deemed obscene even as to minors" and so there was no compelling interest to justify a complete ban on nudity. The court gave examples such as pictures of a baby's bare buttocks, the nude body of a war victim, nudity in certain cultures, and others situations that may have value to a minor. Minors can be protected from sexually explicit or erotic nudity.

As a result of these cases, the following is clear:

  • If the adult material is not obscene/pornographic, it is protected by the First Amendment and adults have a right to view it, possess it, and distribute it.
  • Adult material that is not obscene/pornographic can be harmful for minors and the government has a right to regulate its distribution in order to protect children from it.
  • Not all nudity is harmful to minors. The nudity must be erotic or sexual in the way it is posed or displayed.

Examples of nudity not deemed harmful: Anatomy books, medical books which show various parts of the human body, books or news clips on other cultures in which nudity is indigenous (e.g. National Geographic), and artistic pieces such as Michelangelo's statue of David.

WHAT CAN I DO ABOUT MATERIAL THAT IS INAPPROPRIATE FOR CHILDREN? 

  1. If you see material you believe is inappropriate for children, look at it and decide if you believe it violates the Indecent Public Display law. Ask yourself:
    a. Is this material in an area available to minors?
    b. Does the material show nudity, partial nudity, or sexual conduct?
    c. If yes, is the person in the material posed or presented in a manner to arouse lust in a minor?
    d. Do you think the material has any value for a minor?
  2. If you believe the material violates the Indecent Public Display law, file a complaint with the city prosecutor and police department in the city where the display is located. If the display is in an unincorporated area, you may file your complaint with the county prosecutor and sheriff's office.
  3. If you do not believe the display violates the law, but you are still concerned about the impact it will have on your children, you have a First Amendment right to express your concerns. Some ways you can do this are:
    a. Contact the Store Owner/Manager and politely request that the material not be sold in your community or ask that the material be covered or moved so it is not easily viewed or accessible to minors. You may want to ask if the company has a policy on this issue. If they don't, you may want to ask them to adopt one.
    b. Ask Others to write or call the store managers to address concerns about the material being displayed.
    c. Work with a Local Group that is involved in protecting children.
    d. Additional suggestions can be found at Focus on the Family, "Making Your Grocery Store Porn-Free." and American Family Association's pamphlet, "Glossy Garbage" (in PDF): http://www.afa.net/pornography/MagazineLayout.pdf

 

DO MOVIE THEATERS HAVE TO COMPLY WITH THE INDECENT DISPLAY LAWS?

If individuals under the age of 18 are allowed into the theater, then the business must comply with the Indecent Public Display law. In deciding if a movie is appropriate for a minor, you must consider the whole movie and not just one scene. In addition to the questions in #1 above, ask yourself: What is the message of the movie and does it have value for a minor?


WOULD YOU LIKE TO KNOW WHAT YOUR CHILD WILL BE SEEING AT THE THEATER BEFORE THEY GO?

There are many movie review sites you can check to find out about the language, violence, and sexual content in the movie. By going to one of these sites and looking at the review, you can determine if the movie is appropriate for your family. One such site is http://www.screenit.com.

STATE LAWS

The following state laws were specifically written to assist in protecting children from inappropriate material:

76-10-1201(4) Definitions - "Harmful to minors"
76-10-1206 Dealing in material harmful to a minor
76-10-1227 Indecent public displays -- Definitions
76-10-1228 Indecent public displays -- Prohibitions – Penalty

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