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� 1 Memorandum • March 30, 1988 Page 4 Amendment considerations . No Supreme Court case has yet to rule on the extent to which the regulation of indecent or pornographic material on cable television is permissible under the First Amendment . It is likely that standards will be developed by courts in the next few years as more of- these issues are litigated. IV. OBSCENITY As stated above, obscene speech is not protected by the United States Constitution. The Federal Cable Communica- tions Policy Act of 1984 prohibits "obscene" programming. In Section 639 of the Act it is stated: Whoever transmits over any cable system any matter which is obscene or otherwise unpro- tected by the Constitution of the United States shall be fined not more than $10,000 or imprisoned not more than two years, or both. • While this section clearly prohibits transmission of obscene materials over cable systems , it is not clear how it would affect indecent and similar material . This becomes a par- ticularly difficult discussion when one looks at the Supreme Court ' s three-part test to determine whether material is obscene. In Miller v. California, 413 U.S. 15 (1973) , the court established a three-part test to determine whether material is obscene: (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 contact specifically defined by the applicable state law; and (c) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. 413 U.S. at 24. • All three factors must be present for material to be ruled to be obscene. To the best of my knowledge, the United States Supreme Court has never found material to be obscene using the Miller court standards.