December 1998 Article


By: Lawrence G. Walters

The First Amendment is alive and well; in Philadelphia at least. As most of ASMs readership has probably already learned, U.S. District Court Judge Reed granted a Temporary Restraining Order prohibiting the enforcement of the Child Online Protection Act which is designed to censor materials harmful to minors on the Internet. The law will likely be blocked until a final decision is reached by the courts as to its constitutionality. (Do I hear a sigh of relief from the tens of thousands of adult webmasters?). Individuals worldwide are now able to access free information about breast cancer and condoms without giving a credit card number. Thanks Judge Reed. This ruling is of particular importance to Adult Stars Magazine which provides its constitutionally protected speech free of charge and can, for now, continue to do so without violating this federal law.

State laws have also been used to punish online service providers (such as America Online) who merely facilitate sexually explicit Achat@ or exchange of photographs. In Florida, AOL was sued by the parents of a minor who alleged that the child suffered emotional injuries as a result of participating in chat rooms where other males lured the minor into sexual activity, videotaped the acts and sold the videotape to a man in Arizona. The parents sued AOL under Florida=s obscenity law making it illegal to sell, distribute or offer to sell, etc., photographs or videotapes containing images of a minor which are unlawful or obscene. As a service provider, AOL claimed that it fell within the Asafe harbor@ provision of the federal Communications Decency Act. It is important to note that a good portion of the Communications Decency Act was left in tact despite the challenge by the ACLU in 1996. It is still unlawful to sell or transmit obscene material through the Internet under the remaining portion of the Act. The Florida appellate court found in the case against AOL that federal law preempted Florida=s obscenity law and dismissed all claims against AOL. Ironically, the federal obscenity law saved AOL from the state law claims. However, the Florida appellate court asked the state supreme court to take a look at the issue so this might not be the last word on that issue.

Anyone transmitting or receiving obscene material online should be legitimately concerned about imminent obscenity prosecutions by the federal government based on the remaining portions of the Communications Decency Act. This concern begs the eternal question:

What is obscene? The legal definition used in most prosecutions comes from a 1973 case called Miller v. California, which defines obscenity as material which the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interests; depicts or describes, in a patently offensive way, sexual conduct; and taken as a whole, lacks serious literary, artistic, political or scientific value. A more realistic definition of obscenity, according to a former Supreme Court Justice is: I can’t define it, I know it when I see it. Ultimately, the determination whether any material is obscene will come down to the conclusion drawn by any particular jury, and if I may be so bold, the skill of the lawyers involved.

The true injustice involved in online obscenity prosecution is the definition of Acommunity standards@ that are applied. Ordinarily, if a video store is being prosecuted for selling an obscene video tape, the Court will take into consideration the type of material tolerated within the relevant geographic community in which the video store is located. In other words, a store in New York could safely sell material which would likely be considered obscene in Montgomery, Alabama. In fact, one appellate court ruled that the New York community standards were so tolerant that virtually nothing could be found obscene!

The rub in Internet obscenity cases is that under the case of U.S. v. Thomas, the material is to be evaluated based on either the community standards of the location of downloading or transmission. That is, a web site operated out of Los Angeles (or Amsterdam for that matter) could be prosecuted in the smallest community in the United States which tolerates no adult material, if a government agent merely accesses the site and downloads the information in that small town. Under this line of thinking, the entire Internet must conform to the most conservative, small town standards in the United States in order to be safe from obscenity prosecutions.

This writer firmly believes that materials found on the Internet should be judged not by the standards of any geographic community, but by what is tolerated in the cyber community of the Internet. This is a fair standard for a number of reasons. First, web masters have no ability to block distribution of material to select areas of the country or the world. Accordingly, they could not keep certain materials out of computer terminals in specific geographic locations even if they tried. Secondly, the adult material at issue never enters the stream of commerce in the geographical location of downloading. No truck drives up to the store, and no videotape sits on the shelf for sale. The material is transmitted directly into the privacy of one=s own home. The community need never know of the material=s existence unless someone chooses to seek it out. Finally, web site operators can access the other material available in cyberspace to educate themselves as to what is tolerated. Such a task would be impossible with regard to the material available in every geographic community in the United States.

While we should all applaud the legal victory scored against the Child Online Protection Act, we cannot be lulled into a false sense of security given the twisted manner in which federal obscenity laws can be interpreted. Fortunately for us all, there are free speech groups willing to stand up for the right to sexual expression, judges brave enough to uphold constitutional principles and, of course, lawyers to assist in the fight.