The First Amendment guarantees freedom of speech by restricting legislations that curtail this freedom. U.S. Supreme Court decisions reinforce respect for the freedom of speech against legislations by the federal and state governments. However, some forms of communication are exempt from First Amendment guarantees. Obscenity is one such exemption. In Roth v. the United States, the U.S. Supreme Court cited a series of cases dating back to 1877 to demonstrate the Court’s consistent regard of obscenity as an expression that is not protected by the First Amendment right to free speech. Since obscenity does not form part of protected free speech, it can be restricted or prohibited by legislation. Obscenity is deemed illegal under federal and state laws. Despite numerous court decisions on obscenity and legislations penalizing obscenity, prosecution of violators remains problematic. Standards set out by the courts are difficult to apply. Constitutionality of laws governing obscenity is raised upon enactment. With the rise of online communication, prosecuting obscenity has become even more challenging. Although The U.S. Supreme Court has found prosecution of violators at present day problematic, these mounting issues necessitate timely revisiting in order to enhance the implementation of laws and judicial principles, especially on obscenity on the Internet.
Federal Laws on Obscenity
Federal laws on obscenity pertain to adults and minors. Provisions governing adult obscenity are contained in Title 18 of the U.S. Code. Provisions covering obscenity involving minors and protecting minors from obscene materials are contained in Title 18 and Title 47 of the U.S. Code.
Federal laws on adult obscenity are contained in Title 18 of the U.S. Code, specifically:
Section 1460-Possession with intent to sell, and sale, of obscene matter on Federal property
Section 1461-Mailing obscene or crime-inciting matter
Section 1462-Importation or transportation of obscene matters
Section 1463-Mailing indecent matter on wrappers or envelopes
Section 1464-Broadcasting obscene language
Section 1465-Transporation of obscene matters for sale or distribution
Section 1466-Engaging in the business of selling or transferring obscene matter
Section 1467-Criminal forfeiture of obscene material proceeds derived from obscene material, and real property used to commit or promote obscenity
Section 1468-Distributing obscene material by cable or subscription television
Section 1469-Presumptions on interstate and foreign commerce
Section 2252B-Misleading domain names on the Internet
Section 2252C-Misleading words or digital images on the Internet.
There are also federal law provisions covering obscenity that involve minors. Section 1470 of Title 18 of the U.S. Code prohibits the deliberate transfer or attempt to transfer obscene materials through the U.S. postal service or any means of interstate or foreign commerce to a minor below 16 years of age. Section 1466A of Title 18 also prohibits the obscene visual representation, production, distribution, or possession with intent to distribute obscene materials depicting minors engaged in sexually explicit conduct. Obscene materials involving minors are those that depict minors involved in sexual intercourse, bestiality, sadism or masochism in materials that lack significant literary, artistic, political, or scientific value.
Other federal laws operate to protect minors from obscene materials. Sections 2252B and 2252C of Title 18 impose penalties on content providers who use misleading domain names, texts, or images on the Internet to deceiving minors into viewing obscene materials. Title 47 of the U.S. Code contains two provisions on protecting minors from obscenity online. Section 223(d), which was derived from the Communications Decency Act of 1996 subject to amendments by the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, made it unlawful for any person to knowingly use interactive computer mechanisms to display obscenity in a manner that makes it available to minors under 18 years of age. Section 231, which was adopted from the Child Online Protection Act of 1998, also made it unlawful to knowingly make a commercial communication using the Internet that includes obscenity that is made available to minors less than 17 years of age. Obscene materials that are considered to be harmful to minors are those that contain nudity, sex or excretion that appeal to the ‘prurient interests’ of minors, ‘patently offensive’ to current standards on materials that adults consider to be appropriate for minors, and lack serious literary, artistic, political, or scientific value to minors.
Violations of obscenity laws specific to minors are subject to harsher penalties when compared to violations of obscenity laws by adults. Penalties imposed upon conviction can comprise of fine and prison sentence. Offenders convicted of violating obscenity laws specific to minors also have to register as sexual offenders. Other laws that operate to protect minors, such as child pornography provisions, may also impose additional penalties on offenders.
Consideration of federal laws shows that there is no outright ban on obscenity. Imposition of a sweeping prohibition on obscenity has been delegated to state legislatures. Federal laws on obscenity govern the distribution of obscene materials, through the mail as well as interstate and foreign commerce, to adults and minors. Radio and television broadcasts of obscenity are also prohibited. Prevailing standards of obscenity for adults and minors differ. Prohibition on using deceptive mechanisms to attract online viewers pertains to minors. Provisions restricting adult obscenity online are largely non-existent. Although laws on obscenity exist, arrests have been minimal in the last decade. Even with laws that punish online content providers who deceive minors to view obscene materials, no violators have been prosecuted. On one hand, broadcast companies and content providers may be exercising self-censorship. On the other hand, the laws on obscenity may be difficult to implement.
All states have enacted laws on obscenity; but more than half of the states only have general laws on obscenity, there are states that have general laws as well as specific provisions, and only a small number of states implement specific provisions without a general statute prohibiting obscenity.
Arkansas, Delaware, Washington D.C., Florida, Georgia, Hawaii, Idaho, Illinois, Kansas, Louisiana, Massachusetts, Minnesota, Missouri, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Virginia, Wisconsin, and Wyoming are states that only implement general laws on obscenity. General laws on obscenity expressly prohibit the distribution, publication, exhibition or other forms of transmission of obscene materials by individuals who know that these materials are obscene. An important element of the prohibition is knowledge by the distributor, publisher or exhibitioner of the obscene character of the materials. Since these general laws were enacted before the popularity of the Internet, obscene materials have been defined as writings, pictures, pictorial representations, films, and sound recordings. Intangible digital materials are not included. General laws also adopted the geographic boundary of local community standards used in determining obscene materials. This has implications on the applicability of the general laws on online obscenity.
Other states have also enacted general statutes on obscenity together with specific provisions or specific provisions only that pertain to minors. Alaska and Mississippi are the two states that do not have general laws governing obscenity. These two states adopted statutes that prohibit the distribution of obscene materials to minors only. Distribution of obscene materials to adults is not prohibited in these states. Maine, South Dakota, and Vermont have general laws prohibiting obscenity and enacted laws that restrict the distribution of obscene materials to minors. Adoption of specific legal provisions prohibiting the distribution of obscene materials to minors was intended to convey the most stringent punishment imposed on parties providing obscene materials to minors. Laws on obscenity in these states are silent on online obscenity. Only California has a specific law prohibiting the electrical reproduction of material showing minors engaged in real or simulated sexual activity. Expansion of the California law to online obscenity involving minors is yet to be tested.
There are states that adopt a general prohibition on obscenity together with specific provisions governing the form of obscene material and/or the means of transmission. Arizona and Connecticut have general laws on obscenity. Arizona also adopted a law prohibiting the transmission of tangible and intangible obscene materials. Connecticut adopted a similar prohibition on transmission, but it is only limited to tangible materials. Mode of transmission has been undefined, which could be extended to the Internet, but it is likely to fail in Connecticut since the prohibition is only limited to tangible obscene materials. Laws prohibiting the distribution of tangible obscene materials have been enacted in Colorado, New York, Texas, and Rhode Island. These laws are not likely to apply to online obscenity. Alabama, Indiana, Iowa, Kentucky, Maryland, Michigan, Nebraska, New Mexico, Oklahoma, Tennessee, Utah, and West Virginia have laws that prohibit the electrical distribution and/or reproduction of obscene materials. The languages used in these laws are permissive, which opens the expansion of these provisions to online obscenity. Again, application of these laws to obscene materials and the applicability of these laws to online obscene materials are also largely untested.
Overall, state laws on obscenity apply a general prohibition on the distribution of obscene materials, with the exception of Alaska and Mississippi. Some states also adopted specific laws pertaining to minors, undefined transmission of obscene materials, tangible and/or intangible obscene materials, and electric distribution and reproduction of obscene materials. Currently, vague state law provisions are likely to be interpreted against the state that enacted the law. Without revisions to unclear state law provisions on obscenity, cases based on these provisions are likely to fail. Future developments in state laws on obscenity are also likely to follow divergent paths. Standardization of state laws on obscenity is unlikely to be achieved in the near future.
Jurisprudence on Obscenity
Jurisprudence on obscenity has influenced legal development on the matter. It is fitting to consider court decisions that influenced federal and state laws. These cases have established the standards for determining obscene materials.
The ruling case on obscenity is Miller v. California. In this case, the U.S. Supreme Court identified the standards for determining whether a form of communication is obscene. First, an average person, applying ‘contemporary community standards’, must find the work, taken as a whole, as appealing to ‘prurient interests.’ In adjudicating cases on obscenity, the jury or the judge, in cases where there is no jury, determines whether a material is obscene according to their knowledge of acceptable material based on prevailing standards of the community. Second, the work depicts or describes sexual conduct, specifically defined by the applicable state law, as ‘patently offensive’. Definitions, descriptions, and distinctions made by state laws are to be used in determining blatantly offensive materials. Third, the work when taken as a whole lacks serious literary, artistic, political, or scientific value. The jury or judge assumes responsibility for determining the value of materials alleged to be obscene.
Standards set out in the Miller case are important for several reasons. First, these categorically reaffirmed that the First Amendment does not protect obscenity. Second, the Court precluded an absolutist approach to the First Amendment, with the effect of preserving the exercise of the constitutional powers of the state. Third, the standards emerged from the concurrence of majority of the Court. In previous cases decided by the Court, it was only in the Roth case that a majority decision was achieved. The decision in the Miller case has merit as the leading case on obscenity. Fourth, the standards confine the elements of obscenity to the average person test, community standards, and prurient interest alongside state law provisions. Fifth, the Miller case modified the ‘utterly without redeeming social value’ standard in the Roth case to ‘lacking serious literary, artistic, political, or scientific value’. The change provided a clearer and more practical criterion for determining obscene material. Sixth, the Court explained that ‘there are, or should or can be, fixed, uniform national standards of precisely what appeals to the ‘prurient interest’ or is ‘patently offensive’’. Although this is a factual issue, the assertion of evidence of national community standard is futile. The Court shuns the use of a national standard to ascertain allegations of obscenity.
Several criticisms have been raised against the standards set out in the Miller case. One criticism is the vague and arbitrary definition of obscenity. Use of ‘contemporary community standards’ to determine whether a material ‘appeals to prurient interests’ and ‘patently offensive’ is based on the erroneous assumption that uniform standards exist for a single community and that a randomly selected jury from that community can apply these standards even if these do not agree with their personal views. Vagueness and arbitrariness of the Miller test, on which laws were based, led to questions on the constitutionality of federal and state laws on obscenity. Critics use these weaknesses to call for the removal of censorship since vague standards are to be interpreted against the enacting state, and subjective standards would create the practical problem for people of not knowing whether they are breaking the law. Since the Miller test is vague and arbitrary, it is more prudent to remove censorship, unless an objective test emerges. Another criticism of the Miller test is the vagueness of the rationale of the Court in using ‘contemporary community standards’ in assessing whether a material ‘appeals to prurient interests’ or ‘patently offensive’ and using the ‘reasonable man test’ in determining the literary, artistic, political, or scientific value of a material. The ‘reasonable man test’ is objective, while ‘contemporary community standards’ are arbitrary. Any disparity in the application of these tests can complicate the prosecution of cases.
In light of the criticisms raised against the standards set out in the Miller case, succeeding Court decisions sought to clarify issues. Cases following the Miller case have provided some clarification to the definition of obscenity by providing the rationale for penalizing obscenity and identifying content not covered by the description of obscenity.
Obscenity is unique for being the only form of speech that the Supreme Court has deprived of First Amendment protection without considering the harms it can cause. In the Roth case, the Supreme Court defined obscenity in terms of its content rather than its effects. However, enforcement of legal restrictions on obscenity is based on its harms. Legal restriction of materials because of obscenity is tied to the expected harm in allowing distribution to the community.
Obscenity can harm communities. The first two prongs of the Miller test suggest the negative nature of obscenity. Violating community standards by distributing materials that appeal to prurient interest in sex and portraying sexual conduct in a patently offensive way harms the community. In Paris Adult Theatre I v. Slaton, The Court recognized multiple ‘legitimate state interests in stemming the tide of commercialized obscenity.’ In Renton v. Playtime Theatres, Inc., The Court upheld a city ordinance prohibiting adult theaters from operating within 1,000 feet from residential zones, churches, parks, or schools. The Court recognized that the ordinance was justified by the intention of the local government to prevent crime, protect commerce, maintain property values, and ensure the safety of the community. In Los Angeles v. Alameda Books, Inc., the Court upheld an ordinance prohibiting more than one adult entertainment business in the same building in pursuit of the interests of reducing crime and maintaining property values.
Obscenity is also connected to other social problems. Pornography has been found to decrease empathy for victims of sexual violence and increases sexually aggressive behaviors, increase violence against women, justify the exploitation of women and children, and trigger or heighten illegal and unacceptable sexual activities.
In clarifying the definition of obscenity, the Supreme Court also refused to broaden the description of obscenity to include violent materials. In the United States v. Stevens, the Supreme Court refused to add depictions of animal cruelty to the categories of expressions not covered by First Amendment protection. In Brown v. Entertainment Merchants Association, the Court held that obscenity does not cover whatever lawmakers find appalling, but only depictions of ‘sexual conduct.’ These cases have set some boundaries in defining obscene materials. Consideration of more cases is needed to clarify further the description of obscene materials.
Court decisions after the Miller case were not able to address the criticism on vague and arbitrary standards, especially ‘contemporary community standards’. In Pope v. Illinois, the Court reiterated that the first and second elements of the test were for the jury to consider. Leaving the jury to perceive the applicable community standards fail to provide some guidance on how the jury should comply with this duty.
Application of Obscenity Laws and Jurisprudence
Mail Obscenity
Community standards for determining obscenity have been applied in the context of mail obscenity. In Hamling v. United States, the Supreme Court upheld the validity of a law that permitted prosecution for obscenity in the federal district where the obscene material was mailed, received, or in other federal districts where the mail passed en route to the destination. Dissenting opinion raised the ‘least tolerant community’ principle that could create jurisdictional issues. A remedy was suggested in Ashcroft v. Civil Liberties Union, which identified the venue for prosecution as the jurisdiction where the material originated or viewed. In case of materials that came from one state and viewed in another state, there remain potential problems pertaining to local community standards applicable to the case, especially if there are conflicting standards. However, an implication of the decision in Ashcroft is the potential for extending state laws on obscenity to obscene online mail, since online obscene mail content passes through a network of computers that may even be located in different countries. Jurisdiction over violators is possible even if the source is in another country, as long as obscene materials are viewed in the United States.
Telephone Obscenity
Another context is telephone obscenity. In Sable Communications, Inc. v. FCC, the Court considered the constitutionality of a federal statute prohibiting the interstate transmission of sexually-oriented commercial telephone recordings or dial-a-porn. The Court dismissed the defendant’s claim that the statute created an ‘impermissible national standard of obscenity’ by compelling content providers to ‘tailor all their messages to the least tolerant community’. The Court held that the prohibition on transmission of obscene telephone messages does not create a national obscenity standard. A provider that wants to offer this content has the burden of adapting it to local standards. Although the burden involves cost, this is not prohibited by the Constitution.
Online Obscenity
Online obscenity is a problem area. Community standards are difficult to determine in the context of the online expression. The requirement of the Miller test that material should be ‘taken as a whole’ is also problematic when applied to the Internet because everything online is interconnected. In Hamling v. United States, the U.S. Supreme Court held that the ‘community’ referred to in the Miller test does not necessarily refer to a defined ‘geographic area.’ An implication of this decision is the extension of the law to materials disseminated through the Internet. Since the Internet has become a popular medium for distributing materials, the extension of laws prohibiting online obscenity is relevant.
In a later case involving the distribution of obscenity in Internet bulletin boards, the case was decided by considering the geographic boundary of the applicable local community standard. In the United States v. Thomas, the U.S. Court of Appeals for the Sixth Circuit extended the reasoning in the Sable case to an online bulletin board. A couple in Northern California were prosecuted for providing sexually explicit material on an Internet bulletin board that investigators accessed in Western Tennessee. The prohibition on electrical distribution of obscene material in Tennessee applied to the couple running the online bulletin board in California because their subscription system gives them knowledge of the addresses of their clients, including Tennessee. Applicability of state laws and local community standards to online content providers depends on whether they know the addresses of their users. If they know the addresses of their users, the burden of applying diverse contemporary community standards to comply with laws on obscenity in states where their users reside is the burden of the content provider. Otherwise, they cannot escape prosecution from the state of residence of their users. Content providers who do not want to expose themselves to liability in less tolerant communities could screen their users and reject users from these states.
Problems arise in case of online content that does not require users to provide content providers with their physical geographic address. In these cases, there is no way to determine which community standard to implement. An objective approach to obscenity has been raised as solution. In United States v. Kilbride, the U.S. Court of Appeals for the Ninth Circuit held that a national community standards test should be employed on Internet pornography. Use of a national community standards test addresses the problem of forum shopping and acknowledges the nature of the Internet as a venue for distributing materials that extend beyond state or national borders. However, national community standards are vague.
A potential way of establishing national community standards is to adopt the ‘evolving standards or decency principle’ from the Eight Amendment. Evolving standards of decency is derived from objective evidence of contemporary social values gained from government surveys and academic or private sector studies. Objective expressions of social standards also identify national consensus on obscenity. Continuous gathering of objective evidence of social values would also ensure the evolution of national community standards according to prevailing social values. In the case of online obscenity, national community standards derived from the evolving standards of decency approach can be used in lieu of local community standards.
Another way of determining national community standards is the pragmatic approach used in constitutional law that focuses on the consequences of particular actions to society. Application of this approach to obscenity involves the determination of the harm to society in distributing a material online. As a fact-based approach, harm to society is based on social science research. Juries and judges no longer have to infer whether an online material is acceptable based on local community standards. This approach can also have application to traditional or non-electronic transmission of obscene materials.
These approaches to determining national community standards applicable to a particular online material alleged to be obscene has not yet been tested in actual cases. National community standards will prove to be valuable as issues on obscene online content emerge. One potential situation that would require national community standards is virtual pornography. Possible virtual rendition of actual people, including minors, for use in sexual fantasies that appeal to prurient interests, patently offensive and lack value creates situations that cause harm to individuals and require the intervention of the state. Revenge porn, which involves the distribution of ‘sexually explicit image without the consent of those featured’, is another situation where national community standards apply.
Conclusion
Federal laws restrict obscenity involving adults and minors, with stronger penalties for obscenity involving minors, as well as interstate and foreign commercial distribution of obscene materials online and offline. Even with the Obscenity Prosecution Task Force under the Justice Department, federal prosecutions were only limited to extreme obscene materials distributed to a small number of people. While prosecution of these cases contributes to the implementation of the law, less extreme obscene materials that are distributed widely should also be addressed. Limitations in the prosecution of less extreme obscene materials can be attributed to the vagueness of obscenity standards that makes it difficult to build cases against violators. State laws on obscenity are important in providing a general prohibition on obscenity and specific provisions on aspects of or contexts of obscenity. States have followed divergent paths in developing laws on obscenity. Some laws are limited to the distribution of obscenity to minors or the distribution of tangible obscene materials. Other state laws apply to tangible and intangible or online and offline obscene materials. The limited prosecution can be attributed to the scope of the law together with difficulties in implementing the standards on obscenity. Jurisprudence has set out the Miller test as the standard for determining obscene materials for the purpose of prosecuting violators. While it is clearer than the Roth test, ‘contemporary community standards’ remain vague and arbitrary. Cases following Miller have clarified, to some extent, the jurisdictional issues in the case of offline obscene materials or online materials when content providers know the physical address of their users. Further consideration of issues and cases involving intra- and inter-state distribution of obscene materials is needed to clarify difficulties in implementing the Miller test. Determination of ‘contemporary community standards’ is most problematic in the case of online obscene materials. Use of national community standards for online obscene materials has been recommended. Again, this system needs to be carefully considered and tested in actual cases.
Perceiving the fact that the United States legislation does not proclaim an outright ban on obscenity, the obscenity as a form of online and offline expression can spread widely across the borders of the states. A number of states have enacted general statutes on obscenity together with specific provisions only that pertain to minors. Alaska and Mississippi are the exceptions to the rule that do not have general laws governing obscenity. With no direct ban present in the US jurisdiction, the population might become exposed to diverse forms obscenity since provisions restricting adult obscenity online are non-existent. Yet, radio and television broadcasts of obscenity are mainly prohibited. That signifies that standards of obscenity for adults and minors exist, although they may differ considerably. Unfortunately, no laws can guarantee absolute order and thus, successful arrests have been minimal in the last decade. Despite that fact that laws were enacted to punish online content providers who deceive minors to view obscene materials, no violators have been prosecuted. This strongly calls for immediate implementation of federal laws on obscenity in the right manner to achieve punitive and deterrent effects. An important element of the prohibition in this light of events is knowledge by the distributor, publisher or exhibitioner of the obscene character of the materials.
Bibliography
Statutes
18 U.S.C. §§ 1460-1469, §§ 2252(B)-2252(C)
47 U.S.C. § 223(d), § 231
Cases
Ashcroft v. Civil Liberties Union, 535 U.S. 564 (2002)
Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011)
Hamling v. United States, 418 U.S. 87 (1974)
Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)
Miller v. California, 413 U.S. 15 (1973)
Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973)
Pope v. Illinois, 481 U.S. 497 (1987)
Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)
Roth v. United States, 354 U.S. 476 (1957)
Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989)
United Stated v. Thomas, 116 F.3d 606 (2d Cir. 1997)
United States v. Kilbride, 584 F.3d 1240 (9th. Cir. 2009)
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