3A.2 Pornography and Obscenity

3A.2 Pornography and Obscenity

Pornography is big business in cyberspace. In an October 23, 2000 article, The New York Times provided some useful data:

1. Two Web ratings services estimated that about one in four Internet users, or 21 million Americans, visited one of the more than 60,000 sex sites on the Web once a month.

2. Analysts from Forrester Research say that sex sites on the Web were generating at least $1 billion a year in revenue.

3. A single successful sex-related Web site was bringing in between $5 and $10 million a year - about the same amount a federal study thirty years previously estimated to be the total retail value of hard core pornography in the entire country.

Of course, pornography on the Web is only the latest step in the interplay between technology and pornography. The video cassette recorder began a trend towards using technology to provide increasingly anonymous - and thus less inhibited - access to pornographic materials. Viewing pornographic films no longer required a very public visit to a particular type of cinema, merely a brief stop at one of many "adult" video rental stores. Cable television and its pay per view options soon made even visits to video stores unnecessary. Now, pornography is not only available on the Web, it is often inescapable as pornographers take advantage of Internet technology to bombard users with unsolicited e-mail (spam) and unwanted pop-up advertisements.

As noted above, pornography is protected as speech under the First Amendment to the Constitution. Obscenity is not - for purposes of First Amendment analysis, "speech" includes all sorts of expression including, obviously, photographs. Pornography may be freely distributed and possessed. Obscenity may be legally possessed in the privacy of a person's home, but its distribution is illegal. The Miller test, the source of the "community standards" issues raised by Robert and Carleen Thomas, is used to determine whether expression has crossed the line from pornography to obscenity. The test, as articulated by the Supreme Court in the 1973 case of Miller v. California, is as follows:

1. Would the average person, applying contemporary community standards, find that the work, taken as a whole, appeals to the prurient interest?

2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law?

3. Does the work, taken as a whole, lack serious literary, artistic, political, or scientific value?

Justice William Douglas, in his dissenting opinion in the Miller decision, pointed out a serious flaw and danger with any test to determine obscenity. Douglas asked how could the Court sustain a conviction for distribution of materials prior to the time when those materials were deemed obscene? In other words, a person cannot know he or she is distributing obscene materials until convicted - at which point, obviously, it is too late. Nonetheless, the Miller test is still the standard used to differentiate unprotected obscenity from protected pornography.

As we have seen, Robert and Carleen Thomas discovered the dangers of national distribution of material that, probably, would have been considered pornographic, but not obscene, by their local community standards, but the aspect of Internet access to pornography that has most troubled legislators is the ease of access by children. Congress first tried to address this problem in the Telecommunications Act of 1996. Title V of the Act, known as the Communications Decency Act (CDA), contained provisions intended to regulate the dissemination on the Internet of material that was felt to be inappropriate for minors. Section 223(a) prohibited the "knowing transmission of obscene or indecent messages to any recipient under 18 years of age." Section 223(d) prohibited the "knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age."

The CDA was almost immediately challenged in court as being unconstitutional. In 1997, in the first true landmark decision involving cyberspace, Reno v. American Civil Liberties Union et al., the Supreme Court struck down Sections 223(a) and (d), primarily because the lack of clear definition of the terms "indecent" and "patently offensive" would make speakers uncertain about what sort of speech might violate the statute, thus chilling free expression. Would speakers, for example, know if discussions about birth control or homosexuality violate the CDA? Adult speech, the court found, could not be restricted to a level of discourse suitable for children.

In the course of the Reno decision, the Court took into account specific attributes of Internet technology and communication, comparing these with attributes of other communications technology and media, such as broadcasting. In particular, the Court revisited its 1978 decision, FCC v. Pacifica Foundation, in which it held that the FCC did have the power to regulate a broadcast that was "indecent" but not obscene. The Reno Court emphasized differences between broadcasting and Internet communication. Broadcasting has traditionally been regulated because of the scarcity of broadcast frequencies. Licenses are required for broadcasters. There is no scarcity of frequencies for communication on the Internet. Furthermore, a key factor in the Pacifica decision was that court's perception that radio was a "pervasive" medium, easily accessible to children, and one in which a listener might easily tune in unexpectedly to material the listener might find offensive. The Reno Court saw the Internet as less pervasive, requiring affirmative steps for access to pornography or other material that might be inappropriate for children. Ironically, Internet technology has now been successfully exploited by pornographers so that it is actually difficult to use the Internet without encountering potentially objectionable material.

Congress returned to the issue of Internet access by children to inappropriate material in 1998 by passing the Child Online Protection Act (COPA). COPA's language was intended to rectify the vagueness of the CDA's "indecent" and "patently offensive" terms by creating a "test" relying very closely on the language of the Miller test for obscenity. COPA prohibited persons from knowingly making a communication for commercial purposes that is available to any minors and that includes material that is "harmful to minors." COPA defines "material that is harmful to minors" as

any communication, picture, image, graphic image file, article, recording, writing, or other matter that is obscene or that

1. the average person, applying contemporary community standards, would find, taking the material as whole and with respect to minors, is designed to appeal or pander to the prurient interest;

2. depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals of post-pubescent female breast; and

3. taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

A month before COPA was to go into effect, its constitutionality was challenged in the federal district court by the American Civil Liberties Union and others, arguing that some material contained on Web sites, although valuable for adults, might be construed as "harmful to minors" by some community standards, thus leading to the same burden on protected adult speech that was found unacceptably broad by the Supreme Court in its Reno decision regarding the CDA. The District Court, focusing on the plaintiffs' argument that the statute was overbroad and not the least restrictive means of preventing minors from accessing material that was "harmful to minors," enjoined the government from enforcement of COPA until the merits of the constitutional challenge had been adjudicated.

The government appealed to the Court of Appeals for the Third Circuit, which affirmed the lower court. However, the Court of Appeals completely ignored the District Court's rationale for the injunction, basing its analysis instead on the ground that COPA's use of "contemporary community standards" likely rendered the statute unconstitutionally overbroad. Web publishers, the court reasoned, are unable to limit access to their sites based on the geographic location of the users accessing them. Thus, COPA would require that any material potentially "harmful to minors" would be subject to the standards of the most puritan of communities in the nation and would have to be shielded behind an age or credit card verification system.

The case made its way to the Supreme Court which in May 2002, in Ashcroft v. American Civil Liberties Union et al., held that the use of contemporary community standards in COPA's definition of "material harmful to minors" did not by itself make the statute unconstitutionally overbroad. The court carefully limited its holding and deferred any consideration of the statute's potential unconstitutionality for other reasons. The court left the injunction against enforcement of COPA in place, but remanded the case for further action by the District Court and the Court of Appeals.

The COPA decision makes it clear that the Supreme Court is evolving in its attitude towards the Internet and the potential for use of "community standards" to regulate conduct in cyberspace. The Miller court flatly rejected the idea that there might be some sort of national standard to determine obscenity, stating that it is "neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." The Reno court suggested that use of "community standards" to regulate Internet conduct would be unwise, since it would impose the most restrictive standards on communities everywhere. But in Ashcroft, it is possible to see some shift towards the notion that use of community standards to regulate conduct on the Internet might be a difficult, but possibly not insurmountable, problem. As with so many questions in cyberlaw, the answer to whether pornography and obscenity can be controlled on the Internet and, if so, how is a work in progress.

3A.2.1 Child Pornography

Like obscenity, child pornography is not expression protected by the First Amendment. Like obscenity, its distribution is illegal. However, unlike obscenity, its mere possession is criminal.

Historically, courts have given the states and the federal government more leeway in regulating child pornography. Attempts at the federal level to deal with the problem of child pornography have an extensive history. The original federal legislation on this topic was the Protection of Children Against Sexual Exploitation Act of 1977. In the following 14 years, four other Acts of Congress were targeted at the problem of child pornography. These included the Child Protection Act, the Child Sexual Abuse and Pornography Act, the Child Protection and Obscenity Enforcement Act, and the Child Protection Restoration and Penalties Enforcement Act.

The "compelling interest" that made all of these statutes constitutional was preventing the exploitation and abuse of the children used in making the pornography. Congress has always defined the problem of child pornography in terms of real children. In the case of New York v. Ferber, in 1982, the Supreme Court limited criminalization of child pornography to works that "visually depict explicit sexual conduct by children below a specified age." The Ferber court specifically stated that depictions of sexual conduct "which do not involve live performance or photographic or other visual reproduction of live performances, retain[s] First Amendment protection." Sketches from the imagination or literary descriptions of children engaged in sexual activities remained protected. Even the use of persons who looked younger than their actual age would be permissible.

However, digital technology now makes it possible to create "virtual" child pornography that is essentially indistinguishable from photographs of actual children engaged in sexual activities. Congress sought to prohibit the distribution of digitally created child pornography by passing the Child Pornography Prevention Act (CPPA) in 1996. The focus of the regulation shifted at this point radically from harm to real children to a determination that child pornography was evil in itself. The basis of the new law was the asserted impact of such images on children who view them and the notion that child pornography, real or virtual, increases the activities of pedophiles and child molesters. The law criminalized depictions that "appear to be" of a minor, or that "convey[s] the impression that the material is or contains a visual depiction of a minor" engaged in sexual activities.

Decisions by various federal appellate courts regarding the constitutionality of the CPPA differed. The Court of Appeals for the First Circuit decided in 1999 in United States v. Hilton that the statute was not unconstitutionally vague. In the same year, the Ninth Circuit Court of Appeals, in Free Speech Coalition v. Ashcroft, held that "the First Amendment prohibits Congress from enacting a statute that makes criminal the generation of images of fictitious children engaged in imaginary but explicit conduct."

The Supreme Court reviewed the Ninth Circuit's decision to clarify the legal situation. It agreed with the Ninth Circuit that the assertion that virtual child pornography makes children who may view such images more susceptible to engaging in such acts, and that virtual as well as real child pornography increases the activities of child molesters and pedophiles were not adequately substantiated and did not meet the required standard of a compelling government interest. Therefore, the CPPA was unconstitutional. The Court was careful to point out that distributors of virtual child pornography might still be prosecuted successfully under laws prohibiting distribution of obscenity, emphasizing that the apparent age of the participants in the allegedly obscene materials is an acceptable factor to be included in a jury's application of contemporary community standards. Interestingly, the possibility of obscenity prosecution of those trafficking in virtual child pornography does not satisfy those wishing to define it as child pornography. Quite probably, this is because, if merely obscene, virtual child pornography, unlike actual child pornography, could be legally possessed in the privacy of a person's home. This suggests that the existence of such materials, not the harm being done to children used in creating it, has been the true target of child pornography laws. Technology has once again significantly changed the legal landscape.

As discussed in Chapter 19, the Internet makes solicitation of children by pedophiles and child molesters significantly easier than it is in the physical world. The Internet gives these offenders access to a greater number of victims in chat rooms and other "public" online venues. The anonymity possible on the Internet emboldens potential offenders who might never have approached a child in a physical world playground. On the Internet it becomes clear that other people share the same obsession and this tends to "validate" it, lowering their inhibitions. Furthermore, cyberspace's intangible nature removes the sort of physical indications children are told to be wary of when dealing with strangers. It is impossible to tell what percentage of Internet users might be engaging in the solicitation of children for sexual activity, but the fact that successful sting operations by police are extremely common suggests that another very serious problem has been exacerbated by new technology.