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Obscenity and Pornography

The Supreme Court has always had difficulty distinguishing obscene material, which is not protected by the First Amendment, from material that is merely salacious or titillating, which is protected. Justice Potter Stewart once admitted that he could not define obscenity, but quipped, “I know it when I see it.” Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964). Nonetheless, the Supreme Court has articulated a three-part test to determine when sexually oriented material is obscene. Material will not be declared obscene unless (1) the average person, applying contemporary community standards, would find that the material’s predominant theme appeals to a “prurient” interest; (2) the material depicts or describes sexual activity in a “patently offensive” manner; and (3) the material lacks, when taken as a whole, serious literary, artistic, political or scientific value. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

The Internet added new challenges to free speech regulation by making hardcore pornography readily available to Web users young and old. Congress tried to curb children’s access to indecent and offensive material by passing the Communications Decency Act of 1996 (CDA). Pub.L. 104-104, 110 Stat. 56 (1996). The CDA made it unlawful to knowingly transmit indecent messages or “patently offensive” displays or images to all persons under 18 years of age. But the CDA failed to withstand scrutiny in Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), where the U. S. Supreme Court declared the law violative of the First Amendment. The Court reasoned that the law imposed a blanket restriction on the targeted speech, and thus was not narrowly tailored to accomplish the government’s objective of curtailing minors’ access to obscene material.

Congress attempted to refine its approach by passing the Child Online Protection Act (COPA). Pub. L. No. 105-277, § 231, 112 Stat. 2681-2736 (1999). COPA called for the implementation of an age-verification system that would shield minors from accessing hard core pornography on the Internet. This law was also successfully challenged in court. The U. S. District Court for Eastern District of Pennsylvania issued an injunction barring enforcement of COPA. In affirming the district court’s decision, the U. S. Court of Appeals for the Third Circuit said that the law would allow the most conservative communities in the country to dictate the level of censorship for the rest of the country, a result directly contrary to the Miller test that required a community-by-community approach to obscenity. American Civil Liberties Union v. Reno, 217 F.3d 162 (3rd Cir. 2000). However, the case was appealed to the Supreme Court, which is expected to rule on it in 2002.

Meanwhile, Congress passed Children’s Internet Protection Act (CIPA)in 2000. Pub. L. No. 106-554, 114 Stat. 2763 (2000). The law requires public schools and libraries that receive federal technology funding to block objectionable material on the Internet by installing filtering software. CIPA was challenged in March of 2001 when the American Civil Liberties Unions (ACLU) filed a lawsuit in federal court. However, the trial is not slated to begin until sometime in 2002.

Inside Obscenity and Pornography