Speech: Obscenity

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Obscenity and regulation of speech are based on standards that vary with the community and from one nation to another. Under current law, the legal question of whether speech is obscene is determined partly by reference to local community standards. As a result, speech that is legally obscene and therefore without constitutional protection in one community may enjoy full protection in another. See Miller v Californa, 413 U.S. 15, 32-33 (1973). Federal venue rules permit an obscenity prosecution to be brought where the speech originated or where it was received. However, offensive speech that is not obscene is fully protected. Carey v. Population Services Int'l, 431 U. S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression"); Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment").

Obscenity Test

United States courts use the Miller test for determining whether speech or expression is "obscene," and therefore not protected by the First Amendment. That means it can legally be banned.

The Miller test stems from Miller v. California, 413 U.S. 15 (1973), in which the US Supreme Court held that material is obscene if each of the following factors is satisfied:

  • Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  • Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law;
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Sexually Explict Conduct

Sexually explicit conduct is defined in 18 U.S.C. § 2256, but basically is any form of sex or the "lascivious exhibition of the genitals or pubic area." This definition is used for both child pornography and for federal reporting and record-keeping requirements under 18 U.S.C. § 2257.

See main article on 2257 Reporting Requirements.

Community Standards on the Internet

Internet speech is received in every community of the nation. As a result, "the 'community standards' criterion as applied to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno v. ACLU, 521 U.S. 844 (1997); see also Ashcroft v. ACLU, 535 U.S. 564, 587 (2002) (O'Connor, J., concurring) ("[A]doption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity."); Id. at 589, 122 S.Ct. at 1715 (Breyer, J., concurring) ("I believe that Congress intended the statutory word 'community' to refer to the Nation's adult community taken as a whole, not to geographically separate local areas.").

In Nitke v. Ashcroft, 413 F. Supp. 2d 262 (S.D.N.Y. 2005), Barbara Nitke, a New York photographer who works with erotic subject matter, challenged the constitutionality of being hauled into court in the least tolerant jurisdiction, arguing that this could chill protected speech throughout the Internet. The district court ruled that the plaintiffs had not provided sufficient evidence of harm to maintain a facial challenge to the criminal provisions, but left open the possibility of a case-by-case analysis.

In United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009), the defendant argued that because they "cannot control which geographic community their works will enter," a geographic community standard for Internet works "unavoidably subjects such works to the standards of the least tolerant community in the country." The Ninth Circuit agreed, holding that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. ... To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the internet." Nevertheless, the court found it to be harmless error, and the conviction was upheld.

However, in U.S. v. Little, 2010 WL 357933 (11th Cir. 2010), the Eleventh Circuit "decline[d] to follow the reasoning of Kilbride in this Circuit," and held that the District Court did not err in using a local community standard.

Internet Obscenity Cases

As the cases discussed below demonstrate, jurisdictions have varied in determining liability for transmission of allegedly obscene material over the Internet.

  1. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). A California couple was convicted under a Tennessee obscenity statute for making available on their California website photographs found to be obscene under Tennessee law, where the community standards (the relevant legal test) differed greatly from California. The Sixth Circuit Court of Appeals affirmed in part, finding that defendant had approved applications for “membership” to the website, thereby explicitly approving transmissions into Tennessee or other users’ locations.
  2. United States v. Matthews, 11 F. Supp. 2d 656 (D. Md. 1998). The court denied defendant reporter a First Amendment defense to charges of violating federal child pornography laws, where defendant downloaded and transmitted images of child pornography as part of newsgathering for a story. The court held that since the pictures are not protected by the First Amendment, defendant could not avail himself of a First Amendment defense on the basis that he only used the pictures as a means of researching his story.
  3. United States v. Mohrbacher, 182 F.3d 1041 (9th Cir. 1999). A defendant who downloaded two images of child pornography from a computer bulletin board system based in Denmark violated a federal statute prohibiting the receipt of such images, but did not violate a federal statute prohibiting the transportation of such images. The court held that a person who simply downloads an image is not guilty of “shipping or transporting” such an image.

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