When it comes to speech, no category of content attracts more legal scrutiny than sexually explicit expression or, to use a more loaded word, pornography.
The debate over the protection and regulation of sexual media content must now include technological variables such as the Internet and other forms of evolving communications mechanisms, including smartphones, video on demand (VOD), and streaming movie services.
Technology today is the game changer when it comes to sexual imagery, just as it long has been for an adult entertainment industry that saw the videocassette recorder in the 1980s kill both the film medium and bricks-and-mortar adult theaters, and the Internet in the 1990s signal the gradual demise of the adult DVD that had replaced the VHS tape.
No one in 2012 must go out in public to an adult bookstore or movie theater to purchase or view sexual content; the days of so-called rain-coaters are largely bygone. Content, instead, typically flows directly into the privacy of one’s home (or workplace) via the Internet, cable TV channels such as Larry Flynt’s Hustler TV, and services such as VOD.
Technological advances pose new and daunting questions that challenge the current state of both obscenity and child pornography laws that were developed before the ubiquity of the World Wide Web and cell phones.
Community standards. In the United States, the current test for obscenity was developed nearly 40 years ago in Miller v. California, 413 U.S. 15 (1973). It was three decades ago in New York v. Ferber, 458 U.S. 747 (1982), that the U.S. Supreme Court held that the production and sale of child pornography—a distinct category of speech in the United States from obscenity—was not protected by the First Amendment’s guarantee of free speech.
The current test for obscenity requires a jury to apply “contemporary community standards” when deciding if a work is obscene, with the Supreme Court in Miller making it clear back in 1973 only that the community is not a nationwide one, but rather is measured by local standards.
But what is the appropriate community when material is transmitted via the Internet? Is it the location where the material is produced or uploaded or viewed/purchased? In brief, U.S. courts permit prosecution wherever the material is downloaded or viewed online, meaning that a Southern California producer of adult content in the so-called Porn Valley of San Fernando can be hauled all the way across the country into court in Pittsburgh, Pennsylvania.
More fundamentally, why should local “community” standards be relevant when no one in the community even knows—or needs to know—about the adult movies a person watches in privacy at home? The notion of local community standards arguably becomes irrelevant when the community is reduced to a community of one. The logic here is that because adult content today typically is received in the privacy of one’s home via means such as the Internet, cable television, or VOD, no one else in the “community” sees it or is offended by it. Adopting a community-of-one standard essentially reads the notion of community standards out of Miller such that it becomes roadkill on the Information Superhighway. This may not be such a bad thing—Miller was adopted in 1973 when people had to venture out into the community to purchase or view adult content.
In 2009 the U.S. Court of Appeals for the Ninth Circuit adopted a tactic different from either a local community standard or the community-of-one standard suggested above. In United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009), the Ninth Circuit squarely turned its back on local community standards on the Internet and held, instead, “that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.”
In 2010, however, the U.S. Court of Appeals for the Eleventh Circuit, in an unpublished opinion, United States v. Little, 365 F. App’x 159 (11th Cir. 2010), declined to follow the Ninth Circuit’s lead in Kilbride. It rejected a national community standard for Internet-based sexual material. In brief, there now is a split of authority among federal appellate courts on which community’s standards (local or national) should apply to the Internet. This creates a prime opportunity for the Supreme Court to revisit the Miller obscenity test and modernize it.
Another problem with the aging Miller standard is that it requires a work to be “taken as a whole” in determining if it is obscene. How does this “taken-as-a-whole” standard apply to an adult website?
Child pornography. What happens when one mixes hormone-charged teens with cell phone technology in a sex-soaked culture where everyone wants to be a reality TV star? A widespread exhibitionist phenomenon called “sexting” that has some parents, prosecutors, and lawmakers in a state of turmoil. Sexting is a moniker for the risqué, skin-baring blend of sex and texting.
The problem facing the legal system is that minors are now becoming their very own child pornographers—creating sexually explicit images of themselves and then distributing the images to other teens. By July 2012, more than 15 states had passed laws that address teen sexting, typically by reducing the offense from a felony child pornography charge to either a misdemeanor or a summary offense that can be paid off through either a relatively small fine or community service.
Is viewing child pornography on the Internet distinct from possessing it? Increasingly this is a question of statutory interpretation of the terms “possession,” “possess,” and “control” in child pornography laws throughout the United States. Riding on the outcome of how courts resolve the questions are the fate and freedom of an increasing number of individuals arrested for possessing child pornography on their computer hard drives.
For instance, the Supreme Court of Michigan in 2010 grappled with the issue in State v. Flick, 790 N.W.2d 295 (Mich. 2010). The defendants intentionally accessed and purposely viewed depictions of child sexually abusive material on the Internet, but the only such matter later found on their computers was automatically stored in temporary Internet files. The court concluded that the word “possesses” in the phrase “[a] person who knowingly possesses any child sexually abuse material” includes both “actual and constructive possession. . . . As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material.”
The Supreme Court of Oregon in State v. Barger, 247 P.3d 309 (Ore. 2011), confronted a similar issue based on evidence showing only that the person searched for and found such images through the Internet on his or her computer. The court concluded that the “statute requires something more than simple accessing and looking at incorporeal material of the kind involved here to ‘possess’ or ‘control’ that material.” It added that there was “no evidence in the record suggesting that defendant knew about the computer’s automatic caching function or how to access material in the cache.”
This article merely hits the tip of the iceberg of issues raised by technological advances. Technology will continue to test the limits of laws regarding sexually explicit expression, with lawmakers too often scrambling to play catch-up.
ABA Section of Individual Rights and Responsibilities
This article is an abridged and edited version of one that originally appeared on page 8 of Human Rights, Spring 2011 (38:2).
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