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Whether the posting to a webpage of pornographic material is lawful depends upon the definition of “obscene.” Obscene material does not fall within the First Amendment’s protection of free speech.1 The U.S. Supreme Court has stated that the legal test for obscenity turns on three considerations:
  1. Whether the average person, applying contemporary community standards, would find that the work as a whole appeals to the prurient interest;
  2. Whether the work depicts or describes sexual conduct in a patently offensive way; and
  3. Whether the work as a whole lacks serious literary, artistic, political or scientific value.2
While it is legal to possess pornography within the confines of one’s own home,3 the availability of obscene material for sale may be regulated by the various levels of government.4

For those wishing to provide or access adult material via the Internet, the thorniest part of the test for obscenity is the “contemporary community standards” aspect. A famous example is the case of the California couple held to the community standards of Memphis, Tennessee.5 The couple operated a BBS in California that was accessible by long distance phone call. A postal inspector in Tennessee dialed the number with his computer and joined the service under an assumed name. He received images by modem over telephone lines and ordered videotapes for delivery by United Parcel Service. A jury determined that the material was obscene by the “contemporary community standards” of Memphis. The BBS operators were fined and incarcerated.

That case differs slightly from the of a typical situation on the Web because the BBS proprietors knew that the subscriber was logging on from Tennessee. In addition, they knew the jurisdiction to which they were shipping videotapes. In contrast, websurfers rarely identify their local community when accessing websites. Still, the case is instructive for the argument that providers of adult content must reference the most sensitive community standards when determining compliance with obscenity regulations.6

The U.S. Supreme Court has decided the fate of the Communications Decency Act7 (a portion of the 1996 Telecommunications Act) by overturning certain sections.8 However, the Court left intact the portions dealing with "obscene" content. Content providers should take steps to avoid providing such material to minors. One way to do this is to have a warning page where viewers must click on a statement certifying that they are over the age of 18 or 21 and will not hold the site responsible for violation of community standards.9 No court has yet decided whether this type of warning is sufficient.10 Sites that wish to avoid the risk inherent with minimal prevention can make use of the cottage industry that has sprung up to verify a user's age, such as AdultCheck and AdultVerify. Other methods include listing a site with Surfwatch or Cyber Patrol (software that filters or controls access to pornographic websites) or including warning labels. The W3C (the organization controlling HTML standards) has warnings that can be created and attached using the new Internet Content Selection.11 Another form of warning, known as PICS, can be placed in the meta commands so that it is invisible to the viewer.12

The exhibition of children engaged in sexual acts is always illegal, even if the children are computer-generated images. A reporter for National Public Radio was even arrested and charged with violating the law while researching a story about child pornography on the Internet.

1 Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957).

2 Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), reh’g denied, 414 U.S. 881 (1973).

3 Stanley v. Georgia, 394 U.S. 557 (1969); but see New York v. Ferber, 458 U.S. 747 (1982) (allowing outright prohibition of material depicting minors engaged in sexual conduct); 18 U.S.C. 2255(a)(4)(B) (criminalizing possession of child pornography).

4 See e.g., 18 U.S.C. 1465 (criminalizing transmission of obscene material);but see 47 U.S.C. 223(f)(2) (prohibiting states and localities from passing laws inconsistent with Communications Decency Act) and ALA v. Pataki, No. 97 Civ. 0222 (LAP) (S.D.N.Y. June 20, 1997) (finding that divergent requirements between jurisdictions violates Commerce Clause).

5 U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied 117 S.Ct. 74 (1996).

6 But see Joint Explanatory Statement of the Conference Committee, H.R. Conf. Rep. No. 458. 104th Cong., 2d Sess. 191 (1996) (indicating that Communications Decency Act was attempt to “establish a uniform national standard of content regulation”).

7 47 U.S.C. 223 et seq.

8 Reno v. ACLU, No. 96-511, 1997 U.S. LEXIS 4037 (June 26, 1997).

9 The following is an example of such language:

This Website contains images of a mature nature including full and partial nudity. If you are below the age of 18 or easily offended, then please leave.

By clicking on any link below, you are agreeing to the following:

I certify that I am of legal age in the jurisdiction from which I am accessing this page, or any pages, containing adult material. I indemnify the publisher, the service provider and the telecommunications companies from any losses, liability, costs and/or expenses incurred by them and any legal action commenced against them or any of them as a result of the viewing or the retrieving of such materials by me in the event that the material is contrary to the laws of the location from which I am accessing the material. I acknowledge all responsibility for viewing the material that follows.

10 While potentially relevant to the question of community standards (or whether material is “patently offensive”), consent alone is not likely to be a sufficient defense. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (holding that movie theaters have no First Amendment right to show obscene films because “The States have the power to make a morally neutral judgment that public exhibition of obscene material... has a tendency to injure the community”).

11 Seehttp://www.w3.org.

12 See http://www.rsac.org for more information.

13 18 U.S.C. 2251, et. seq.; United States v. Hockings, 129 F.3d 1069 (9th Cir. 1997).

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