Chapter 18 Obscenity & Pornography. Pornography Protected by First Amendment Unless child pornography-not protected PgP BUSA331 Chapter 182.

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Presentation transcript:

Chapter 18 Obscenity & Pornography

Pornography Protected by First Amendment Unless child pornography-not protected PgP BUSA331 Chapter 182

Obscenity Not protected by First Amendment PgP BUSA331 Chapter 183

Question When does pornography become obscenity? Justice Potter Stewart “I know it when I see it” PgP BUSA331 Chapter 184

Miller Test-1973-Nebulous Average person, Contemporary community standards, Dominant theme, Taken as a whole, Prurient interest Describes in a patently offensive way sexual conduct Lacks serious value PgP BUSA331 Chapter 185

Internet Age What is a community standard? Not defined by geographic area anymore per Supreme Court Use Google Trends PgP BUSA331 Chapter 186

Federal Obscenity Statutes

Communications Decency Act §223 Illegal to transmit indecent material on the internet? Violates 1st Amendment-overbroad-1997, Reno Miller obsolete, Supreme Court has not addressed Internet obscenity Supreme Court refused to rule on Nitke S-M case, so result is federal prosecutors select the forum, going for most conservative community PgP BUSA331 Chapter 188

Child Online Protection Act (COPA) 1998 law never took affect Vague- Overbroad- Denied adults access to ‘material harmful to children’ (a vague phrase in itself) But only applied to US websites, not foreign PgP BUSA331 Chapter 189

Children’s Internet Protection Act(CIPA) 2000 law Withholds federal funds unless libraries put filter software on internet accessible computers Some now refuse funds What about free speech, adults needing sex info (AIDS)? PgP BUSA331 Chapter 1810

Obscene Words Classic literature banned before Miller case After Miller focus is on visuals Except website fiction accounts by Fletcher PgP BUSA331 Chapter 1811

Child Pornography Unprotected speech after NY v Ferber, 1982 Child Pornography Prevention Act (CPPA)-1996 Focus child sexual exploitation But also virtual child pornography, no children need be involved! Found unconstitutional Iowa comic book collector pled guilty to possessing comic books with graphic art (not photographs) depicting child sex- under PROTECT PgP BUSA331 Chapter 1812

PROTECT 2003 law-Amber Alert Reinstates virtual child pornography prohibition MO pharmacist automatic 15 year sentence downloading child porn via Kazaa PgP BUSA331 Chapter 1813

Other Statutes Several others like Child Protection and Obscenity Enforcement-1988 Protect Our Children Act-2008 Keeping the Internet Devoid of Sexual Predators Will they withstand constitutional challenge? PgP BUSA331 Chapter 1814

Possession? Distributing obscene material unlawful Possession is lawful Distribution and possession of child pornography is illegal How do you determine possession in internet? Browser cache? Hard drive? Malware did it? Technology is complicated PgP BUSA331 Chapter 1815

Protecting Yourself Be aware of potential problems Malware, viruses that can be downloading child porn to your image cache without your knowledge Neighbors or others piggybacking on your wi-fi to browse obscene material, using your IP address? Are you liable if someone uses your wi-fi to surf obscene material, and you did not password protect your system? PgP BUSA331 Chapter 1816