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The Internet - Community Standards

child pornography law test

Restrictions of adult materials have traditionally been based on contemporary community standards. Web pages are likely to be determined to be commercial speech that the Constitution permits the states to regulate. Of course, obscenity and child pornography are not protected speech in any form, anywhere. To evaluate if a work is obscene, the Court developed the Miller test, a three part evaluation that resulted from Miller v. California (1973). The test stands to question three aspects of a work: 1) Would the "average person," using standards common to the time and place, find that the work in question appeals to sexual desires?; 2) Does the work use clearly offensive means to show desirable sexual conduct in a way specifically prohibited by law?; 3) Does the work "taken as a whole, [lack] literary, artistic, political or scientific value?" The first time the Miller test was applied to the Internet was a federal obscenity case involving material disseminated on a computer bulletin board service in 1996. In United States v. Thomas (1996) a California couple was convicted for distributing obscenity in Tennessee. The content failed to meet local community standards in Tennessee. The Thomases appealed, saying that Internet users form their own community. The Sixth Circuit Court of Appeals rejected the idea of a cyber community.

Another solution is filtering software set to block offensive words. But after the courts struck down the CDA, Florida and Massachusetts libraries ordered such governing software and adults protested bitterly that they were being denied First Amendment rights when library Internet access was reduced to a child's content availability.

In 1996, the Child Pornography Protection Act became law, changing the definition of child pornography to include computer-generated images because software programs allow pornographers to create erotic material without using live humans. This bill makes no distinction between the legal consequence of distributing computer-generated child pornagraphy and regular child pornography.

Ten states have proposed to make it illegal to transmit indecent material to minors. Twenty-three states have created laws making possession of child pornography a felony regardless of intent to distribute. Of these, only one law predated the emergence of the Web in 1994.

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