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The Basics

Obscenity

The production and distribution of obscene material is not protected by the First Amendment.  Courts have struggled to define what, precisely, is considered “obscene.”  While material must have a sexual component to be considered obscene, it is certainly not the case that any sexually explicit material is obscene.  In fact, the vast majority of sexual content – often called pornography – is protected under the First Amendment.

In the 1973 case Miller v. California, the Supreme Court articulated the current three-part test for determining whether material is obscene.  First, the work taken as a whole must appeal to the prurient interest, as determined by an average person applying contemporary community standards.  Second, the work must depict sexual conduct in a patently offensive way; and third, the work, when taken as a whole, must lack serious literary, artistic, political, or scientific value.

The Court held that the “contemporary community standards” at the heart of the first prong of the test referred to the physically local community in which the dispute arose.  When cases involve material sent from one community to another, the Court has generally found that it is the publisher or distributor’s responsibility not to send materials into communities that would consider such materials obscene; this reasoning rests in part on the ability of publishers to review the postal or area codes of the intended recipients of their material, and to determine whether to take the risk of offending those communities’ standards.

The concept of “contemporary community standards” is more difficult to apply to the Internet.  Material posted online can potentially be accessed by anyone in the world, making the geographical location of any individual less important to the exchange of speech and ideas.  Further, it is much more difficult to accurately pinpoint the geographic source of a request for material, and difficult, if not impossible, to prevent people from particular communities from accessing it.

The issue of the relevant community standards to apply to material available over the Internet remains unsettled: while many courts have followed the traditional Miller test and applied the standards of the community in which the recipient of material is located, a federal appeals court in California recently suggested in US v. Kilbride that Internet obscenity cases required consideration of national community standards, not local (and potentially more conservative) ones.  Even under such a proposed national standard, it is unclear how courts would determine such a standard.  These issues have only begun to be considered in the courts, and may come before the U.S. Supreme Court in the next few years.

Indecency and Speech that Is “Harmful to Minors”

In contrast to obscene material – which is illegal for adults – speech that is considered "harmful to minors" or “indecent” is lawful for adults, but may be inappropriate for minors.  Harmful-to-minors or indecent speech is protected under the First Amendment for adults, but in certain cases, access to such speech may be limited or regulated to shield minors from it.  While such speech cannot be banned in the same way as obscenity or child pornography, it can be segregated, and access to it may be limited such as by laws that require adult-oriented movies or magazines to be shielded from minors in retail stores, and not sold to minors.

Much like obscenity, the terms indecent and harmful-to-minors are somewhat difficult to define, and those two terms have are often merged as a practical matter.  Courts have generally found that the government may regulate indecent material to the extent that it is harmful to minors.

To determine whether material is “harmful or obscene as to minors,” courts will apply the same three-part obscenity test discussed above, with the additional consideration of the material’s suitability for minors.  Not surprisingly, this definition runs into the same problems as the obscenity definition: courts must determine the relevant community standards to apply, and must assess the value material may have to minors.

Prior to the advent of the Internet, harmful-to-minors material was policed in relatively simple ways: keeping kids away from indecent content could be reasonably easily achieved by putting material in restricted-access sections of stores, prohibiting broadcast of indecent speech between the hours of 6AM and 10PM, and requiring young people to provide identification when attempting to purchase or access adult content.  These strategies, however, do not translate well into the online context, and to date most laws that sought to prevent harmful-to-minors content from being online have been struck down as in violation of the First Amendment.

Generally, courts have found these law to be unconstitutional because the laws result in over-blocking of protected speech and they unjustly infringe on the rights of adults to access the material.  Critically, the courts have found that the use of filtering and other technical tools by parents is a more effective way to protect children online, thus allowing parents to shield their children from unwanted content without infringing on the rights of others.

Although most laws aimed at regulating speech on the Internet have been struck down, such laws are very popular with legislators and some advocacy groups, and new proposals are introduced frequently.

Contrasting Regulation of Broadcast and Online Speech

There are different standards for different communications mediums regarding what types of regulation are permissible.  With broadcast radio and television, for example, the Supreme Court held in FCC v. Pacifica that the government may prohibit the broadcast of indecent material during times of the day when children are more likely to be watching.  The Court’s decision was based on two characteristics of broadcast radio and television: it is “uniquely pervasive,” being constantly beamed into people’s homes and accessible it at any time, and it is very accessible to children, who could be exposed to indecent content even before they learned to read.  In contrast, indecent material receives a higher level of protection when it is conveyed over the phone, as the Court decided in the Sable Communications dial-a-porn case; when individuals must take specific action to access the material, unsuspecting listeners can easily avoid the indecent material.

In the Reno v. ACLU case of 1997, the Supreme Court was faced with deciding what standard should be applied to government regulation of speech on the Internet.  At issue was the Communications Decency Act, which was aimed at restricting access to indecent material online.  The government argued that, like broadcast radio and television, the Internet was pervasive and easily accessible by children, and thus the government should have the same broad power to limit indecent content online, in order to protect children. 

Fortunately, the Court rejected this argument, finding that the Internet is not pervasive in the way that broadcast TV and radio is, and that users seldom encounter indecent material online accidentally.  The Court recognized that the Internet presented a new communications medium that allowed more people than ever before to communicate about all kinds of topics, and held that the Internet should receive full First Amendment protection.  The material banned by the CDA was clearly protected, and because the effect of the CDA would be to reduce all content on the Internet to the level appropriate for children, the Court overturned the law.

The foundation of broadcast indency regulation, Pacifica, has come under increasing attack in light of the much greater levels of parental control that is available for broadcast television, ranging from the V-Chip to digital video recorders that give parents significant ability to control what their children watch on TV.

Child Pornography

Like obscenity, child pornography is not protected under the First Amendment.  The production, possession, or distribution of child pornography is a crime punishable by imprisonment.

Federal law defines child pornography as “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture . . . of sexually explicit conduct, where the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct.”  Outside of the United States, the term "child abuse images" is used to refer to what is termed "child pornography" in the U.S.

The rationale for prohibiting child pornography is the unquestioned harm that is inflicted on any child who is used in its creation.  The courts have concluded that child pornography is one of the limited circumstances in which the speaker’s rights are vastly outweighed by the harms suffered by children involved in the production of the material. As one of the most egregious crimes, child pornography is understandably a key focus of law enforcement efforts, both at the federal and state level in the United States, as well as internationally.

The concern about the direct abuse of children is less applicable in the context of efforts to ban digital images produced without the involvement of actual children.  In the 2002 case Ashcroft v. Free Speech Coalition, the Supreme Court addressed this issue and found that a federal law prohibiting any depiction that “appears to be ... of a minor engaging in sexually explicit conduct” was unconstitutionally overbroad because it would prohibit non-obscene material that was not created using actual minors.   In 2003, Congress passed the PROTECT Act in response to this decision, making it illegal to create or distribute an image that "appears virtually indistinguishable" from real child pornography.  At least one individual has been successfully prosecuted under this "virtual child pornography" statute for the possession of Japanese anime cartoons depicting minors engaging in sexually explicit conduct.  This conviction (of a defendant named Whorley) has been upheld on an initial appeal, but the Supreme Court has not yet decided whether the "virtual child pornography" provisions of the PROTECT Act meet constitutional standards.

Current U.S. federal law requires many Internet and online service providers to report any child pornography that they become aware of to the National Center for Missing and Exploited Children (NCMEC).  Service providers do not have an affirmative duty to police their networks for child pornography, but if they learn of any child pornography material on their systems, they must file an extensive report with NCMEC, preserve copies of information about the user or subscriber involved, and cooperate with law enforcement requests for the information.



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