Obscenity and Pornography on the Net
The regulation of pornographic materials in cyberspace is, in principle, no different than the regulation of such materials in the "real world." However, the fact that the materials are not in tangible form, but are encoded in computer systems, does create some new problems.
Under Miller v. California, 413 U.S. 15 (1973), in order for material to be found obscene by a court of law, the material must:
1) appeal to the prurient interest, as judged against local community standards;
2) depict or describe sexual conduct (as defined by applicable state law) in a patently offensive way; and
3) lack serious literary, artistic, political, or scientific value.
These standards apply equally in the context of cyberspace as they do in ordinary books and magazines. Where material is found to be obscene, the First Amendment does not apply. States are relatively free to regulate obscene material, especially in the context of child pornography and the regulation of the availability of pornography to children.
The fact that obscenity is judged, in part, by a local community standard has significant implications for computer networks. Because a computer network can be accessed from remote locations, an operator of an on-line service must be concerned with obscenity standards everywhere the network is accessible. The problem was recently brought to the forefront in the case of United States v. Thomas. In this case, a Tennessee postal inspector called up a BBS run by a couple in California and downloaded materials that were judged obscene under the local standards of the community of Memphis. Although the inspector had to call a long distance telephone number and request a personal account in order to dial in to the BBS, which served mainly California users, the trial court ruled that the applicable community standard was that of Memphis. The conviction was recently affirmed by the Sixth Circuit Court of Appeals, which rejected the defendants' arguments that venue was improper in Memphis, and that the local community standards of Memphis should not be applied. United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). (The Supreme Court subsequently declined to review the case. 117 S. Ct. 74 (1996)). The Court of Appeals specifically rejected the argument that the relevant local community was the community of cyberspace, an argument supported by amicus briefs submitted by the American Civil Liberties Union, the Interactive Services Association, the Society for Electronic Access, and The Electronic Frontier Foundation. Prudent sysops should therefore be aware that the materials they make available on the Internet may be held to the obscenity standards of the most conservative communities.
On the other hand, computer users have reason to feel secure in their privacy if they wish to keep obscene or pornographic materials on their own personal computers. The Supreme Court has established a "zone of privacy" about one's home. So long as pornography is simply kept on a home computer and is not distributed or transmitted in any way, the material is, for the most part, insulated from government regulation. However, even mere possession of child pornography is almost always illegal.
In February of 1996, Congress enacted the Communications Decency Act of 1996 (the "CDA") as a part of the Telecommunications Act of 1996. The law imposes fines of up to $250,000 and prison terms of up to two years on persons who use a "telecommunications device" or an "interactive computer service" to transmit obscene or "indecent" materials, particularly to minors. The law imposes the same penalties upon persons who allow a "telecommunications facility" under their control to be used for such purposes. However, the law does afford a defense for mere "access providers," by providing that a person who simply provides access to a system controlled by someone else is not liable for obscene or indecent materials posted by a person to whom access is provided. In addition, the operator of a system upon which obscene or indecent materials are posted has a defense if it has made good faith efforts to prevent access to obscene or indecent material by minors. Thus, the law imposes greater responsibility on on-line service providers to prevent the distribution of obscene or indecent materials, particularly to children, by requiring service providers to give customers warnings about adult material before they are downloaded and to provide customers with software that allows them to block out certain material. The law also gives the FCC regulatory authority over computer networks and on-line systems. Finally, it should be noted that the law specifically rejects the idea that computer services should be treated as common carriers or telecommunications carriers. The upshot of the law is that interactive computer services operators may be held liable for obscenity or indecency posted by their users.
The CDA immediately received a great deal of criticism on First Amendment grounds. Many people objected to statutory language which would prohibit frank discussions of abortion. In at least two instances, challengers of the new law succeeded in obtaining a temporary restraining order enjoining the enforcement of parts of the Act. In American Civil Liberties Union v. Reno, 24 Media L. Rep. 1379 (E.D. Pa. 1996), the Court enjoined the enforcement of that part of the Act which prohibits the transmission of indecent material through telecommunications networks to recipients known to be under the age of 18 on the grounds that the term "indecent" is unconstitutionally vague. Another court enjoined that part of the act which requires cable television distributors to scramble or block channels primarily dedicated to sexually-oriented programming. Playboy Entertainment Group, Inc. v. United States, 918 F. Supp. 813 (D. Del. 1996). In the latter case, the Court found that the provisions of the Act's goals could likely be achieved by substantially less restrictive means than those provided in the Act. However, upon a full hearing by a special three-judge district court panel, as provided for under Section 561 of the Act, the scrambling provisions were held constitutional under the First Amendment. 945 F. Supp. 772 (D. Del. 1996), aff'd w/o opinion, 117 S. Ct. 1309 (1997).
In the case brought by the ACLU, the special district court panel issued a decision on June 11, 1996. 929 F. Supp. 824 (E.D. Pa. 1996). The decision upheld the TRO, and granted an injunction based upon a finding that the "indecency" provisions of the CDA were unconstitutional. (The case also noted that the Department of Justice conceded that the abortion-related provisions were unconstitutional, and could not be enforced.) The district court panel recognized that the Internet is a new medium, distinct from either broadcast or print media, and therefore deserved a different First Amendment analysis than would apply to those media. The court characterized the Government's argument as resting "on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants." However, the court found that the Internet "has achieved, and continues to achieve, the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen." Therefore, "the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."
In a 7-2 decision, the Supreme Court affirmed the district court's ruling. ACLU v. Reno, 117 S. Ct. 2329 (1997). Writing for the majority, Justice Stevens declared that, "As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." The court agreed with the lower court's finding that the Internet was entitled to the fullest First Amendment protections. (Media such as radio and television are afforded a lower level of protection, on the theory that such media are more "invasive," since a listener or viewer is more likely to be unexpectedly confronted with offensive material.) In addition, the Supreme Court found the CDA to be unconstitutionally vague. The Court noted that both the terms "indecent" and "patently offensive" were left undefined by the CDA. This was particularly problematic because the uncertainty would create a "chilling effect" on free speech, and because violators would be subject to criminal penalties for poorly-defined actions. Finally, the High Court also found the CDA to be unconstitutionally overbroad: "In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable, if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve."
A similar case was brought before a district court panel in the Southern District of New York in Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996). In this case, the plaintiff, a publisher of an on-line newspaper, claimed that the CDA was unconstitutional because it was too vague and was overbroad. The New York court issued its decision on July 29, 1996. In contrast to the Philadelphia ACLU v. Reno court, the New York court did not find that the statute was unconstitutionally vague, but did agree that the statute was overbroad because it serves as a ban on constitutionally protected indecent communication between adults. In fact, the Court found that the government had conceded that the CDA was unconstitutional on overbreadth grounds. In addition, the Court noted that the affirmative defenses available to content providers under the CDA (good faith, demonstrated by efforts to make the site unavailable to minors, such as "tagging" the site with tags that could be detected by browsing or blocking software; and by requiring that users "prove" that they are adults by requiring credit card numbers or "adult identification numbers") were not technically feasible at present. The case was affirmed by the Supreme Court the day after its decision in ACLU v. Reno. 117 S. Ct. 2501 (1997). The Supreme Court's decision has been widely hailed by online organizations such as the Electronic Frontier Foundation as a "ringing reaffirmation of the American people's fundamental right to freedom of expression."
In the wake of the CDA, several states have made efforts to enact state laws analogous to the CDA. For example, New York enacted a CDA-type law in September of 1996, which, among other things, prohibited the dissemination of "indecent material" to minors through computer networks. These statutes have met with mixed success. The New York statute, for instance, was declared unconstitutional by a New York federal court insofar as it impeded on the federal government's exclusive right to regulate interstate commerce under the "dormant" Commerce Clause. (See our page on Cases Which Hold that Internet Contacts are Insufficient to Convey Jurisdiction) However, a separate provision of the same act which criminalizes the dissemination of material used to "induce a minor to engage in sexual intercourse" (rather than simply prohibiting the dissemination of "indecent material") was ruled constitutional in a Brooklyn criminal case upholding charges against a defendant alleged to have sent such material over the Internet.
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