Many courts apply the so-called Dost test to determine if a given image is considered to be "lascivious" under the law. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) set forth a six factor test:
- Whether the genitals or pubic area are the focal point of the image;
- Whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity, such as a bed);
- Whether the subject is depicted in an unnatural pose or inappropriate attire considering her age;
- Whether the subject is fully or partially clothed, or nude;
- Whether the image suggests sexual coyness or willingness to engage in sexual activity; and
- Whether the image is intended or designed to elicit a sexual response in the viewer.
This test requires a case-by-case analysis and is devoid of bright line rules. Nudity is not enough for a finding that an image is lascivious, but clothing does not mean a photo is in the clear: "a photograph of a naked girl might not be lascivious (depending on the balance of the remaining Dost factors), but a photograph of a girl in a highly sexual pose dressed in hose, garters, and a bra would certainly be found to be lascivious." United States v. Villard, 885 F.2d 117, 124 (3d Cir. 1989).
Setting is critical, but must be taken in context. For example, "while the setting of a bed, by itself, is some evidence of lasciviousness, it alone is not enough to support a finding of lasciviousness." Id. One should consider not just the bed, but how the person is posed on the bed (i.e. sleeping vs. posing seductively).
Context is also important in determining "whether the image is intended or designed to elicit a sexual response in the viewer." For example, in jury instructions approved by the Ninth Circuit, the court asked the jurors to consider the caption of the photograph. United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990).
Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation