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April 01, 2011

Evolving Technologies Challenge Laws Regarding Sexually Explicit Speech

by Clay Calvert

When it comes to speech, no category of content attracts more legal scrutiny—at least in the United States, albeit not nearly so much in seemingly less squeamish European countries—than sexually explicit expression or, to use a more loaded word, pornography.

For some adults over the age of fifty, certain sordid and salacious images may come to mind when they hear the term “pornography,” a word that lacks legal definition in the United States, unlike obscenity.

Perhaps, for example, they imagine perverts, decked out in raincoats, skulking in and around what were euphemistically called “adult” bookstores and peep-show arcades, replete with grainy, eight-millimeter continuous-loop films and boxes of easy-to-reach tissues in viewing stalls.

Or maybe it is actor Paul Reubens (better known as Pee-wee Herman, a favorite TV character of American children in the 1980s) being arrested two decades ago by undercover detectives for allegedly masturbating inside an adult theater in Sarasota, Florida.

Or possibly it’s Hustler magazine, publishing its infamous June 1978 cover featuring a woman, legs lifted high and upward, being plunged, pressed, and processed through a meat grinder, accompanied by publisher Larry Claxton Flynt’s statement, “We will no longer hang women up like pieces of meat.”

Legal condemnation surrounding sexually charged expression that this trio of old-school examples conjures up is, of course, anything but new in the United States.

Indeed, the first obscenity prosecution in the country occurred nearly 200 years ago in Pennsylvania. That’s when and where Jesse Sharpless, along with five other men from Philadelphia, was convicted of the for-profit exhibition of an allegedly “lewd and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman.” Commonwealth v. Sharpless, 2 Serg. & Rawle 91, 103 (Sup. Ct. Pa. 1815).

The Sharpless indictment characterized the defendants as “being evil disposed persons” who sought “to debauch and corrupt” the youth of Pennsylvania. The Pennsylvania Supreme Court affirmed the conviction based on what amounted to the display of a painting of a nude heterosexual couple, reasoning that “the courts are guardians of the public morals, and therefore have jurisdiction in such cases. Hence, it follows that an offence may be punishable, if in its nature and by its example, it tends to the corruption of morals.”

But all of that consternation and contravention was then. This, as they say, is now.

Fast forwarding—on digital media, not eight-millimeter loops—to 2011, we add to the debate over the protection and regulation of sexual media content technological variables such as the Internet and other forms of evolving communications mechanisms, including smart phones, 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 (see the movie Boogie Nights for an excellent pop-cultural reference point) and the Internet in the 1990s signal the gradual demise of the adult DVD that had replaced the VHS tape.

No one in 2011 must go out in public to an adult bookstore or movie theater to purchase or view sexual content; the days of so-called “raincoaters” are largely bygone. Content, instead, typically flows directly into the privacy of one’s home (or, more scandalously, one’s workplace) via the Internet, cable TV channels like Flynt’s Hustler TV and Hugh Hefner’s Playboy TV, and services such as VOD. The image of Paul Reubens stimulating himself in a darkened movie theater, in fact, now seems both amusingly antiquated and perversely pathetic.

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.

In the United States, for instance, the current test for obscenity was developed nearly forty years ago in Miller v. California, 413 U.S. 15 (1973). It was almost 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.

Three short scenarios and the corresponding questions they raise illustrate how technological developments are vexing the regulation of sexually explicit speech.

1. Community Standards in the Internet Era: An adult, from the privacy of his home bedroom and on his own computer, watches a sexually explicit movie on the Internet, a modern-day adult parody by Larry Flynt—he of Hustler meat-grinder cover infamy—called Who’s Nailin’ Paylin? It’s a movie that features only consenting adults as performers—no minors are used or abused in its production—and parodies erstwhile Alaskan governor Sarah Palin. Should the opinions and views of the man’s neighbors and other members of his local community—or even the nation—affect whether he has a right to watch such content?

2. Sexting and Child Pornography: A fifteen-year-old girl uses her cell phone to snap a sexually explicit, up-close photo of herself digitally playing with her vagina. She texts the photo—“sexting,” as it is known—to her seventeen-year-old boyfriend, who saves it on his phone and, in turn, shows it to his friends. Should the girl be charged with the production and distribution of child pornography? Should her boyfriend be charged with the possession and display of child pornography?

3. Computerized Possession: While surfing the Internet on his laptop for sexually explicit content, a man comes across a Web site that features several graphic images of a ten-year-old girl being sexually abused by an adult. He looks at the photos on the Web site and finds them sexually arousing, yet he never intentionally saves them to his laptop or otherwise copies them to a disk drive. In brief, after viewing the images, he clears his cache and never returns to the Web site to view them again. Should he be charged with the possession of child pornography, or did he merely view the images?

Each scenario raises difficult questions for a legal system struggling to play catch-up with technological developments. Let’s address them in order.

The Community Standards Muddle

Consider the first hypothetical about an adult who, in the privacy of his or her home, watches a sexually explicit movie on the Internet that was made by and for consenting adults.

The current test in the United States for obscenity requires a jury to apply “contemporary community standards” when deciding if a work is obscene, with the U.S. Supreme Court in Miller v. California making it clear back in 1973 only that the community is not a nationwide one, but rather is measured by local standards. Some states, such as California, subsequently have adopted statewide community standards, while others, like Florida, have embraced more geographically confined communities, such as regions within the state.

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? U.S. courts allow the federal government to go venue shopping, with law enforcement officials intentionally downloading material in communities with the most conservative standards to gain jurisdiction there and to enhance the odds of winning an obscenity conviction.

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. This was precisely the case in United States v. Extreme Associates, 2009 U.S. Dist. LEXIS 2860 (W.D. Pa. Jan. 15, 2009), when government agents accessed the company’s Web site in Pittsburgh.

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 at-home audience). 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, as Miller was adopted in 1973 when people had to venture out into the community to purchase or view adult content, and theaters like the one where Paul Reubens was arrested were the norm.

In 2009, however, 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 notion 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 U.S. 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. What does this taken-as-a-whole standard mean for an adult Web site? Does it include all of the content on the Web site? Does it sweep up links posted on the site that connect to material available on other Web sites? It was much easier, as these questions make clear, to decide what the work-as-a-whole was when there were only print versions of magazines and books and reel-to-reel imprints of films.

The Issues with Sexting

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. Child pornography laws, however, were designed to protect minors from sexual exploitation at the hands of nefarious adults. It thus seems counterintuitive to prosecute teens for engaging in what often seems like nothing more than a twenty-first-century exercise of typical teen spirit and sexual exuberance.

But this is exactly what some overzealous prosecutors in the United States are doing—charging sexting minors with felonies under child pornography statutes. It is illegal in the United States (both at the federal level and in all fifty states) to create, distribute, and possess child pornography, and the punishment for these offenses is severe. Under federal law, a person convicted of the charge of possession, receipt, and distribution of child pornography faces a mandatory minimum term of five years’ imprisonment and a maximum term of twenty years.

Since 2009, states have been scrambling to pass 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. Other measures aim at educating minors about the dangers of sexting, such as when an ex-boyfriend sends out a girl’s sexted photos to his friends (without her consent) and they quickly go viral on the Internet, where they are irretrievable and may circulate forever.

According to the National Conference of State Legislatures, by May 2011, at least twenty-one states had introduced bills or resolutions that year alone addressing sexting. Ultimately, most measures strive to strike a balance between unduly harsh punishment of minors who sext and complete absolution for an activity that can, indeed, have harmful real-world consequences.

The Problem of Possession

Is viewing child pornography on the Internet distinct from possessing it? That’s the key question raised by the third hypothetical above, and it is far more than either an academic or semantic query. Increasingly, it is one 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 question 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). It considered the scope of a Michigan Penal Code section criminalizing the knowing possession of child sexually abusive material. The defendants in Flick intentionally accessed and purposely viewed depictions of child sexually abusive material on the Internet, but the only such material later found on their computers was automatically stored in temporary Internet files. As the Michigan Supreme Court observed, “every time a user visits a website, most web browsers will automatically send a record of that website to the hard drive so that the computer can access the website faster in the future.”

It concluded that the word “possesses” in the phrase “[a] person who knowingly possesses any child sexually abusive material” includes both “actual and constructive possession.” The Michigan high court found that two defendants in the case “did more than passively view child sexually abusive material on the Internet. When any depiction of child sexually abusive material was displayed on each defendant’s computer screen, he knowingly had the power and the intention to exercise dominion or control over that depiction. As a result, each defendant constructively possessed those images, which amounts to possession of child sexually abusive material.”

The Supreme Court of Oregon in January 2011 in State v. Barger, 247 P.3d 309 (Ore. 2011) confronted a similar issue: “Can a person be found guilty of ‘possess[ing] or control[ling]’ digital images of sexually explicit conduct involving a child, as that phrase is used in Oregon Revised Statute Section 163.686(1)(a), based on evidence showing only that the person searched for and found such images through the Internet on his or her computer?” After engaging in an extensive exercise of examining the legislative intent of the key phrase, the Oregon high court concluded that the “statute requires something more than simply accessing and looking at incorporeal material of the kind involved here to ‘possess’ or ‘control’ that material.” It added that, in the case before it, 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 hit 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 legislative catch-up.

Clay Calvert

Clay Calvert is a professor and Brechner Eminent Scholar in Mass Communication and director of the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville. He spent part of the 2006 and 2007 summers living in Los Angeles researching the adult entertainment industry.