Internet Legal Issues (Management 447) Professor Charles H. Smith Obscenity (Chapter 10) Spring 2006

What is Obscenity? Miller v. California (pp ), while recognizing that 1 st Amendment free speech rights do not protect obscenity, promulgated the following three-part test: –Prurient interest and contemporary community standards – whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest. –Patently offensive – whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law. –Lacks serious value – whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

“Prurient Interest” and “Contemporary Community Standards” Prurient interest – “a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters” (Model Penal Code § (2) (Tent. Draft No. 6, 1957). Contemporary community standards – which community’s standards are appropriate in the online context? Case study – United States v. Thomas (pp ).

“Patently Offensive” According to Miller, this includes “hard-core ‘ultimate sexual acts, normal or perverted, actual or simulated’ that include ‘masturbation, excretory functions, and lewd exhibition of the genitals.’” This element is subject to the “contemporary community standards” standard.

“Lacks Serious... Value” Case study – Pope v. Illinois (page 318), which held that the “lacks serious literary, artistic, political or scientific value” element depended on whether a “reasonable person” would find such value in the material, taken as a whole.

Comments re Miller Test All three elements can be very subjective even though they purport to create an objective standard for obscenity. This subjectivity detracts from the predictability and stability inherent in the American common law system. Also, special problems re Internet publications since little or no control over who may view the allegedly obscene material, though access to website can be limited by use of “v” chip, credit card, access code, etc.

“Consenting Adults” Defense Paris Adult Theatre I v. Slaton (page 319) held no such defense for watching pornographic movie in theatre open to the public. However, other cases hold that this defense applies to activity within home; case studies – Stanley v. Georgia (page 319) (defendant had pornographic films stored in bedroom) and Lawrence v. Texas, 539 U.S. 558 (2003) (Texas antisodomy law invalidated re sex acts at home); note that both cases arose out of lawful police searches. Defense available if viewing pornography on home computer? Probably yes, except for child pornography, which is illegal whether in or out of home setting; case study – Osborne v. Ohio (pp ).

Communications Decency Act of 1996 (47 U.S.C. § 223) First attempt by Congress to protect minors from pornography; barred knowingly transporting obscene material through interstate/foreign commerce or through interactive computer service. Case studies – Reno v. ACLU (page 321 and handout) and U.S. v. Playboy (pp ), both of which held certain provisions of CDA unconstitutional.

Child Pornography Protection Act of 1996 (18 U.S.C. § 2256) Prohibits use of computer technology to knowingly produce child pornography using real and “virtual” children. Case study – Ashcroft v. Free Speech Coalition (page 325 and handout) held that: –§ 2256(8)(B) is overbroad in that it covers materials beyond the categories recognized in the Ferber and Miller cases – (1) it extends to images that are not obscene per Miller’s three-part standard, and (2) no crime recorded and no victim created by production of “virtual” children and Ferber did not hold that child pornography is by definition without value. –Lawful speech cannot be limited because it may be used to commit a crime; e.g., an adult’s use of images permitted by § 2256(8)(B) to seduce children. –§ 2256(8)(D) is also overbroad since it requires the jury to assess the material in light of how it is promoted but this assessment would depend on the material’s content.

Child Online Protection Act of 1998 (47 U.S.C. § 231) Narrowed CPPA provisions to include online transmissions by service providers and e-commerce site providers; see five-point “rationale” for COPA on page 326. Case study – Ashcroft v. ACLU (pp and handout); please note that correct case citation is 535 U.S. 564 (2002).

Children’s Internet Protection Act of 2000 (47 U.S.C. § 254) Case study – United States v. American Library Ass’n, 539 U.S. 194 (2003) (issue was validity of CIPA provision withholding federal assistance to library for internet access unless library installed software to filter pornographic computer images). Court ruled this withholding of funds was valid because “(1) Internet access in public libraries was neither a ‘traditional’ nor a ‘designated’ public forum; (2) forum analysis and heightened judicial scrutiny were incompatible with public libraries’ broad discretion to consider content in making collection decisions; (3) any concerns over filtering software's alleged tendency to erroneously ‘overblock’ access to constitutionally protected speech were dispelled by the ease with which library patrons could have the filtering software disabled; (4) because public libraries had traditionally excluded pornographic material from their collections, Congress could reasonably impose a parallel limitation on its Internet assistance programs; (5) public libraries’ use of Internet filtering software did not violate their patrons' First Amendment rights; and (6) consequently, CIPA (a) was a valid exercise of Congress' spending power, and (b) did not impose an unconstitutional condition on public libraries that received federal assistance for Internet access” (case summary on lexis- nexis.com).

Employee Access to Online Pornography Many employees abuse internet access (e.g., by viewing online pornography during business hours) resulting in decreased productivity. Employee’s viewing online pornography could be basis of sexual harassment case by co-worker (hostile work environment), resulting in employer’s exposure to liability and employee’s loss of job. However, could there be any situation where an employee would have valid reason to view online pornography? Can an employer totally prohibit employee’s viewing online pornography? Case study – Urosky v. Gilmore (pp ).