The battle for Internet freedom: Obscenity and child pornography

This is the second in a series of articles presenting the legal foundations of Internet expression.

The battle for Internet freedom - Part 1

Indecency is "offensiveness according to accepted standards, especially in sexual matters" and obscenity is "something that is disgusting and morally offensive." (Microsoft® Encarta® 2008.) In every culture, social norms prescribe and prohibit ranges of behavior. For example:provocative.drive in public.Playboy and strip shows: "You mean they act like babies??" (This is a true story from Drs. Michael and Judie Bopp, Baha'j missionaries whom I met in Rwanda in the mid-1970s and who are still close friends.

• Scandinavians and most northern Europeans have far less concern about nudity than many people in the USA: when German exchange students cheerfully took off their blouses to sunbathe on the campus of Norwich University some years ago, they were mystified when asked to cover up (and many male students at the summer school were disappointed).

• Some Muslim countries view any sight of a woman's body except the eyes as indecent and

• Saudi Arabian censorship concerned primarily with preventing views of women in positions of autonomy and authority; for example, it is forbidden for Saudi Arabian women to

• African tribal women who habitually go barebreasted laughed like crazy upon hearing of American men's obsession with

In the United States, certain categories of sexually-oriented materials are defined as pornography and are expressly protected by the First Amendment to the Constitution. However, materials may be defined as obscenity and deprived of First Amendment protection if they violate the Miller Test which asks these difficult questions:

1. Would the "average person," apply "contemporary community standards," find the work, taken as a whole, appeals to the "prurient interest"?

2. Does the work depict or describe, in a "patently offensive way," sexual conduct specifically defined by applicable state law?

3. Does the work, taken as a whole, lack "serious" literary, artistic, political, or scientific value?

The difficulties are in the details: Which community – San Francisco or Peoria? Whose values?

One category that is illegal in most countries in the world is child pornography: the depiction of underage children engaged in sexual poses or sexual acts. Problems include differences in defining the age of consent (which varies from 12 to 18 years) and different degrees of rejection of sex with children (Japan, for example, is under fire for tolerating what would be called pedophilia in many other countries). In the United states, creating, storing and transmitting child pornography is a felony and the Federal Bureau of Investigation (FBI) has been running the "Innocent Images National Initiative" since 1995 to help stop child pornographers and pedophiles.

While I'm on the topic of child pornography, readers might want to let their younger relatives and students know that the widespread practice of sexting, in which kids send provocative pictures of themselves or of their friends and send them around via mobile phones is drawing the attention of police authorities on the grounds that even self-photography by minors may constitute child pornography.

If you would like to see or use lecture notes on indecency and obscenity from the CJ341 Cyberlaw & Cybercrime course that I teach in collaboration with professors Peter R. Stephenson and Julie Tower-Pierce, you can download PowerPoint or PDF versions. The corresponding files for the lecture on child pornography are also freely available (PPT and PDF).

I'll continue with this review of fundamentals of what we can and cannot post legally on the 'Net in the next column by discussing intellectual property.

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