Pornography

The representation in books, magazines, photographs, films, and other media of scenes of sexual behavior that are erotic or lewd and are designed to arouse sexual interest.

Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience. During the twentieth century, Americans debated whether pornographic material should be legally protected or banned. Those who believe pornography must be protected argue that the FIRST AMENDMENT to the U.S. Constitution guarantees freedom of expression, including sexual expression. Traditional opponents of pornography raise moral concerns, arguing that the First Amendment does not protect expression that corrupts people's behavior. Toward the end of the century, some feminists advocated suppressing pornography because it perpetuates gender stereotypes and promotes violence against women.

Pornography has been regulated by the legal standards that govern the concept of OBSCENITY, which refers to things society may consider disgusting, foul, or immoral, and may include material that is blasphemous. Pornography is limited to depictions of sexual behavior and may not be obscene.

The U.S. Supreme Court has established that obscenity is not protected by the First Amendment. The more troublesome question has been defining what is and is not obscene. In 1957, the U.S. Supreme Court, in ROTH V. UNITED STATES, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, stated that obscenity is "utterly without redeeming social importance" and therefore is not protected by the First Amendment. The Roth test for obscenity is "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient [lewd or lustful] interest." The Roth test proved difficult to use because every term in it eluded a conclusive definition.

The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the English novel Memoirs of a Woman of Pleasure, more commonly known as Fanny Hill. In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be "utterly without redeeming social value" and "patently offensive because it affronts contemporary community standards relating to the description of sexual matters." The phrase "utterly without redeeming social value" allowed a loophole for pornographers. Expert witnesses

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testified that there was at least a shred of social value in the novel's depiction of sexual behavior and social relations.

The Supreme Court established the basic legal standard for pornography in MILLER V. CALIFORNIA, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Chief Justice WARREN E. BURGER stated in Miller that pornographic material would be classified as obscene if it met three criteria: (1) the work, taken as a whole by an average person applying contemporary community standards, appeals to the prurient interest; (2) the work depicts sexual conduct in a patently offensive way; and (3) the work, when taken as a whole, lacks serious literary, artistic, political, or scientific value.

Burger emphasized in Miller that only hardcore pornography could be designated as patently offensive. He listed examples of patently offensive descriptions or representations, including representations of "ultimate sex acts" and "masturbation, excretory functions, and lewd exhibition of the genitals."

Based on Miller, the law distinguishes between hard-core pornography and soft-core pornography, which involves depictions of nudity and limited and simulated sexual conduct. Because it is not as graphic or explicit as hard-core pornography, soft-core pornography is protected under the First Amendment.

CHILD PORNOGRAPHY, whether hard-core or soft-core, is treated severely under the law. In 1982, the Supreme Court, in New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113, held that child pornography is not a form of expression protected under the Constitution. It found that the state of New York had a compelling interest in protecting children from SEXUAL ABUSE and found a close connection between such abuse and the use of children in the production of pornographic materials. In 1990, the Court went even further in upholding a state law prohibiting the possession and viewing of child pornography (Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98).

In the 1980s, some feminists began an attack on pornography and the way the Supreme Court had structured the legal debate using the First Amendment. Led by law professor CATHARINE A. MACKINNON and writer ANDREA DWORKIN, they proposed that women be permitted to sue pornographers for damages under CIVIL RIGHTS laws. In 1982, in an alliance with political conservatives opposed to pornography, MacKinnon and Dworkin convinced Indianapolis officials to pass a municipal ordinance based on their civil rights approach. The ordinance described pornography as "a discriminatory practice based on sex which denies women equal opportunity in society" and defined it as "the graphic sexually explicit subordination of women, whether in pictures or words," especially in a violent or degrading context. The ordinance made unlawful the production, sale, exhibition, and distribution of pornography and gave anyone injured by a person who has seen or read pornography the right to bring a civil suit against the maker or seller.

Supporters of the ordinance argued that the legislation was a civil rights measure whose purpose was to fight SEX DISCRIMINATION. In their view, the ordinance regulated conduct rather than free speech and thus did not violate the First Amendment. They argued that even if pornography was viewed as speech, it should be treated as a low-value form of speech that was not entitled to First Amendment protection.

All of these arguments were rejected by the U.S. Court of Appeals for the Seventh Circuit in Hudnut v. American Booksellers Association, Inc., 771 F.2d 323 (7th Cir. 1985). The court agreed that pornography affected how people view the world and their social relations but observed that the same could be said of other speech, including expressions of racial bigotry. Yet these kinds of expression are protected as speech because to do otherwise would give the government control of "all institutions of culture" and allow it to be the "great censor and director of which thoughts are good for us." The court, adhering to the definition of obscenity first articulated in Miller, ruled that the ordinance's definition of pornography would cover many works that are not obscene because it would not take the value of the work as a whole into account or consider the work as a whole. The court of appeals' decision effectively ended this approach to the regulation of pornography.

In the 1990s, attention was paid to the new ways technology could supply pornography. The use of computer bulletin boards and the INTERNET to distribute pornography nationally and internationally led to the enactment of the federal Communications Decency Act of 1996 (CDA) (47 U.S.C.A. § 223). CDA was designed to outlaw obscene and indecent sexual material in cyberspace, including the Internet. In Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supreme Court overturned provisions of the CDA prohibiting transmission of obscene or indecent material by means of a TELECOMMUNICATIONS device. The Court held that the provisions represented a content-based restriction, in violation of the Free Speech Clause of the First Amendment.

Congress quickly responded by passing the Child Online Protection Act (COPA), which sought to limit restrictions on pornographic material to communications made for commercial purposes. The law also incorporated the three-part obscenity test that the Supreme Court formulated in Miller v. California. The AMERICAN CIVIL LIBERTIES UNION (ACLU) and a group of online Web site operators challenged the constitutionality of COPA, arguing that it was overbroad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA. This meant that the most conservative community in the country could dictate the content of the Internet.

The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), issued an ambiguous decision. The use of community standards did not by itself make the statute overbroad and unconstitutional under the First Amendment. Apart from that conclusion, the Court could not agree, with five of the justices producing separate opinions. Despite this situation, a majority expressed numerous reservations about the COPA, including the concern that, absent a national standard, it would be difficult for operators of Internet services to know when they had crossed a line and had subjected themselves to liability. The case was remanded to the lower courts for a full examination of the law on all issues.

Congressional efforts to curb the spread of child pornography also ran into judicial roadblocks based on First Amendment concerns. The Child Pornography Prevention Act of 1996 (CPPA) was dealt a fatal blow when the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002), ruled that two of its three major provisions were unconstitutional. The Court found that some of the prohibitions contained in the act were written in a manner that resulted in the CENSORSHIP of legally protected speech as well as unprotected speech. It also could be said that the language in the act had a "chilling effect" on the exercise of free speech because it tended to inhibit not only proscribed forms of expression, but also those forms of expression that were not proscribed.

The problem with the CPPA was not that it prohibited child pornography but that its language also attempted to prohibit other pornographic material that "appear[ed] to be" or that "convey[ed] the impression" that it depicted "a minor engaging in sexually explicit conduct." This prohibition extended to "any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture." Pornographic material that appears to depict minors but is actually produced through creative computer imaging or through the use of youthful-looking adults is often referred to as "virtual child pornography." Thus, the CPPA prohibited not only actual child pornography, but also pornographic material pandered as child photography, even though real children were not used.

The Supreme Court concluded that the CPPA failed to meet the Miller criteria because there was no requirement to prove that the material was "offensive" or that it "appealed to prurient interests." In other words, all material depicting sexual conduct of persons under 18 years of age would be prohibited, despite any underlying merit or value. Therefore, such prohibitions contained in the language of the CPPA were overbroad and, accordingly, must be rendered invalid as abridging First Amendment rights.

The House of Representatives, with the support of the President GEORGE W. BUSH's administration, passed the Child Obscenity and Pornography Prevention Act of 2002, in response to the Supreme Court decision. The Senate passed a bill in November 2002 that sought to tailor the definition of virtual child pornography to meet the Miller criteria set out in the Supreme Court decision. Despite this apparent agreement, the two houses disagreed over the definition of virtual child porn. The House bill presented a narrow definition, stating that computer-generated images must be "indistinguishable" from actual child pornography. The Senate bill was broader, but it included provisions that would make it hard to obtain a guilty verdict. The House rejected the Senate version, and the bill died. However, the law was finally enacted in April 2003 using the Senate definition. As with all prior congressional attacks on pornography, this law was likely to be challenged in court.