Obscenity and the Internet
In 1996, the U.S. Court of Appeals for the Sixth Circuit in the case of United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied, 519 U.S. 820 (1996), was presented with the issue of defining "community" in order to determine whether materials that had been transported over the Internet were obscene.
Defendants, a husband and wife, operated a computer bulletin board system (BBS) from their home in California. A postal inspector in Tennessee became a member of their service and subsequently received images by means of a computer and by mail. These materials depicted a wide variety of sexual conduct, including bestiality, torture and excretory fetishism. The couple was convicted by a jury in the Western District of Tennessee for violating federal obscenity laws [18 USC 1462 and 1465] in connection with their operation of their BBS.
The couple appealed the case to the Sixth Circuit. Their appeal was based on the assertion (among other grounds) that the trial venue was improper because it was in Memphis, where undercover Federal agents accessed and downloaded files, not in California; and it was unclear which community's standards should apply in determining whether the contents of a nationally-accessible BBS are obscene.
In upholding the convictions, the Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee. The Court stated (in part): "Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent."
In 2000, the U.S. Court of Appeals for the Third Circuit invalidated the Child Online Protection Act because the law, which restricts children's access to obscene-for-minors material on the World Wide Web, uses "community standards" in determining whether sex material is obscene for minors. In 2002, the Supreme Court reversed the Third Circuit (Ashcroft v. ACLU, No. 00-1293), with five judges concluding that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of community standards.
We realize that not every website is based or hosted by a US ISP and we are reviewing the TOS to those websites, with positive responses.
also, from Morality in Media...
Cliches About Obscenity Law and the First Amendment
1. You are advocating censorship by urging enforcement of state and federal obscenity laws.
Absolutely not. From a constitutional perspective, censorship means prior restraint of First Amendment rights by government. The Federal and state obscenity laws operate after, not in advance of publication. Quoting from an earlier opinion, the Supreme Court said in its landmark 1931 Near v. Minnesota decision that the "main purpose" of the First Amendment provisions regarding free speech and the press are "to prevent all such previous restraints upon publications as had been practiced by other governments, and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare." The First Amendment has never been interpreted as preventing censure for criminal matter when published, and persons can be fined and imprisoned if they disseminate obscene material.
2. But the First Amendment protects freedom of speech and the press.
Of course it does. But despite its unconditional phrasing, the First Amendment was never intended to protect every utterance, and the Supreme Court has consistently held that there are narrow categories of speech which are not protected by the First Amendment, which include obscenity, child pornography, inciting to riot, libel, false advertising, perjury, contempt of court, harassment, threats, copyright infringement and invasion of privacy. Obscenity is not protected speech. It is a crime.
3. Obscenity is difficult to define; there is no clear definition on the books.
False. The United States Supreme Court defined obscenity in its landmark 1973 decision, Miller v. California. The definition isn't perfect, but it is workable when applied in a common-sense manner. Before sexual material can be judged obscene and therefore unprotected by the First Amendment, a judge or jury must determine: 1. that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interest; 2. that the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; and 3. that the work, taken as a whole, lacks serious literary, artistic, political, and scientific value.
4. It is impossible for the owners of Web sites or stores selling pornographic materials to know if the material is obscene.
A. The Supreme Court has repeatedly rejected vagueness challenges to the obscenity definition. For example, in its 1957 decision Roth v. United States, the Court said that the Constitution "does not require impossible standards; all that is required is that the language [of the law] conveys sufficiently definite warning as to the proscribed conduct ... [W]e hold that these [obscenity] statutes ... do not ... fail to give men ... adequate notice of what is prohibited."
B. In its landmark 1973 Miller v. California obscenity decision, the Court said that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined ... We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his ... activities may bring prosecution."
C. What business owner (or manager) doesn't know about the products he sells? You expect, for example, a computer store owner (or manager) to know about computers, or a pet store owner to know about parakeets and tropical fish. How can an owner (or manager) not know that the pornography being sold by his or her business is hardcore? The owner (or manager) also has the responsibility to be familiar with both federal and state obscenity laws.
5. Obscenity laws are impossible to enforce.
This is another excuse provided by prosecutors who are afraid or unwilling to commit the resources necessary to enforce obscenity laws. The obscenity definition provided by the Supreme Court is workable when applied by a judge or jury in a common sense fashion. High-paid defense attorneys will try to pick jurors who are ideologically opposed to obscenity laws and to confuse or mislead other jurors with "expert witnesses," surveys, and distorted arguments about the First Amendment. Properly prepared and motivated prosecutors, however, have proved over and over again that obscenity laws can be enforced.
Morality in Media has many legal materials to assist prosecutors, including the Handbook on the Prosecution of Obscenity Cases, by George M. Weaver, the three-volume Obscenity Law Reporter, and the bi-monthly Obscenity Law Bulletin.
6. I have a right to watch what I choose in my own home.
The Supreme Court has held that obscenity laws cannot be applied to the mere possession of obscene material by the individual in the privacy of his or her own home. There is no such thing, however, as a constitutional right to sell or obtain obscene material in the marketplace. Obscenity laws punish the purveyor, not the home viewer. Possession of child pornography in the home, however, is a crime.
7. What next? Where do you draw the line? A ban on obscene materials today will lead to real censorship tomorrow, with maybe the Bible or Michaelangelo's "David" being banned next.
A. We have enjoyed political and religious freedom for more than two centuries. That is the clearest proof that enforcement of long-established obscenity laws does not threaten our First Amendment freedoms. As the Supreme Court said in its landmark 1973 Miller decision: "We do not see the harsh hand of censorship of ideas -- good or bad, sound or unsound -- and repression of political liberty behind every state regulation of commercial exploitation of human interest in sex."
B. The American people are too intelligent to fall for the "slippery slope" scare tactics that would have you believe that a prohibition against obscenity today will ultimately lead to a ban against everything from the Sistine Chapel to a diaperless Donald Duck. If you believe that, you would believe that a ban against playing loud rock music at 3 a.m. in a residential area would lead to a ban on the right of a symphony orchestra to perform in Carnegie Hall.
C. The question, "What next?" should be asked in the context of what next will happen if the obscenity laws are not enforced. What happens when the dehumanizing, depraved materials are allowed to spread with dazzling speed by means of high-tech advances? What happens when virtually all moral restraint is gone, in significant measure because of pornography?
D. Where do you draw the line? The U.S. Supreme Court, the U.S. Congress, and most state legislatures and state supreme courts have already drawn that line, and it has been repeatedly upheld as constitutional. As former Chief Justice Earl Warren stated in a 1964 obscenity case, Jacobellis v. Ohio: "No government ... should be forced to choose between repressing all material, including that within the realm of decency, and allowing unrestrained license to publish any material, no matter how vile. There must be a rule of reason in this as in other areas of law, and we have attempted ... to provide such a rule."
8. Bad speech should be fought with good speech rather than banned.
This may make good sense when the speech consists of ideas and opinions that can be refuted by better ideas and opinions. For example, the lie that pornography is harmless can be refuted by reason and evidence. Pornography (like illegal drugs), however, draws individuals into destructive addictions.
As the Supreme Court said in its 1973 Miller decision: "To equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment ... It is a 'misuse of the great guarantees of free speech and free press' ... 'The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people' ... But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter."
9. You can't enforce obscenity laws on the Internet.
The laws against obscenity apply even to the electronic transmission of computer files. The medium is irrelevant. In 1996, the Court of Appeals for the Sixth Circuit upheld the sentences of a California couple who had been convicted on Federal obscenity charges in U.S. District Court in Memphis, Tenn. The Court of Appeals rejected defendants' argument that the materials should have been judged by the community standards of California rather than Tennessee. "Federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well established that there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent," the Court stated. (United States v. Thomas). The U.S. Supreme Court refused to review the case.
In May 2002, the U.S. Supreme Court reversed the decision of the Third Circuit Court of Appeals that invalidated the Child Online Protection Act (COPA), which restricts children's access to obscene for minors material on the World Wide Web. In their decision (Ashcroft v. ACLU, No. 00-1293), five of the justices concluded that federal obscenity laws were not unconstitutional as applied to the Internet solely because obscenity laws require application of "community standards."
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