Definitions of Child Pornography, Obscenity, and Material “Harmful to Minors”
Child Pornography
CONSTITUTION
According to the Supreme Court, child pornography is a category of speech that is not protected by the First Amendment.24 It is not legal to have child pornography in the home.25 It is not legal to look at child pornography for research or journalistic purposes.26
CHILD PORNOGRAPHYLAW
The federal child pornography statute defines “child pornography” as
“any visual depiction” of a minor under eighteen years old engaging in
“sexually explicit conduct.” “Sexually explicit conduct” is defined in child pornography as actual or simulated “(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person.27
In 1996 Congress passed the Child Pornography Prevention Act, which added a definition of “child pornography” that includes depictions of images that “appear to be” of minors engaging in sexually explicit conduct. On April 16, 2002, the Supreme Court held this provision unconstitutional to the extent that it prohibited pictures that were not produced with actual minors.28
Additionally, each state has child pornography laws.29
Obscenity
The legal definition of “obscenity” is far narrower than the common usage of the term.
The constitutional definition of “obscenity,” according to the Supreme Court, applies to “material whose predominant appeal is to a shameful or morbid interest in nudity, sex, or excretion” and not to “materials that provoked only normal sexual reactions.”30 This is a refinement of the Miller decision, which is discussed below.
CONSTITUTION
The U.S. Supreme Court, in the famous Miller v. California decision, established a three-pronged test to determine whether a work is obscene:
(a) whether the “average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value.31
The first two prongs of the Miller test—the prurient interest and patent offensiveness—are issues of fact for a jury to determine, applying contem- porary community standards and federal or state law. The third prong does not rely on a particular community’s sensibilities. Courts instruct juries to use a “reasonableness standard”; the inquiry is “not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”32
The legal definition of “obscenity” is extraordinarily narrow. As Kathleen Sullivan, now dean of Stanford Law School, wrote in 1992,
“The first two parts of this test are incoherent: to put it crudely, they require the audience to be turned on and grossed out at the same time.”33
Note: In some situations, courts have upheld zoning regulations of sexually explicit material that is not obscene. The restrictions are not an outright ban, and must be narrowly tailored to combat secondary effects such as crime.34In the only case on point to date, a federal district court judge did not find the “secondary effects” argument viable when a library
claimed that Internet filters were needed to prevent a hostile working envi- ronment and to prevent the viewing of illegal materials. The court found that neither of those claims were secondary effects.35
FEDERAL OBSCENITY LAWS
Congress passed the Communications Decency Act (47 U.S.C. §223) as part of its Telecommunications Act of 1996.36 The “indecent transmis- sion” provision and the “patently offensive display” provision were struck down by the Supreme Court in Reno v. ACLU.37The act also prohibited the knowing transmission of obscene messages to any recipient under eighteen years of age. This provision was not challenged and remains part of the law today.38Therefore, a website that may be legally permissible in California may be illegal in another state such as Tennessee. The liability for obscene material falls on producers and distributors, not “mere con- duits,” such as libraries (see question 2).
STATE OBSCENITY LAWS
States generally pattern their laws on the Miller decision.39 What is not commonly understood is that the Miller decision sets a ceiling on permis- sible statutes regarding obscenity. States may define “obscenity” more lib- erally than the Miller decision. For example, the California Penal Code’s section 311 states:
As used in this chapter, the following definitions apply:
(a) “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scien- tific value.
(1) If it appears from the nature of the matter or the circumstances of its dissemination, distribution, or exhibition that it is de- signed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipi- ent group.
(2) In prosecutions under this chapter, if circumstances of produc- tion, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the
defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value.
(3) In determining whether the matter taken as a whole lacks serious literary, artistic, political, or scientific value in descrip- tion or representation of those matters, the fact that the defen- dant knew that the matter depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.
Materials “Harmful to Minors”
The Supreme Court has ruled that states may prohibit access by minors to material deemed “harmful to minors.”40 Until the Child Online Protection Act (COPA) and the Children’s Internet Protection Act (CIPA) were passed, there was no federal “harmful to minors” law. As this book went to press, COPA had been enjoined by the Third Circuit. On May 13, 2002, the Supreme Court vacated the Third Circuit’s opinion and sent the case back down for further proceedings. The Supreme Court kept the pre- liminary injunction, however, and the statute, at present, is still not in effect.
On May 31, 2002, the U.S. District Court for Eastern Pennsylvania struck down CIPA as unconstitutional so far as public libraries were concerned.
Since the final court decisions have yet to be made, the two statutes’ defini- tions of material that is “harmful to minors” are given below.
The Children’s Internet Protection Act (CIPA) as written applied only to schools and libraries that use these federal funding programs: Library Services and Technology Act, Title III of the Elementary and Secondary Education Act, and the Universal Service discount program known as the E-rate (Public Law No. 106-554). A federal district court struck down its application to public libraries, but the application to schools was not chal- lenged and is still in effect.41
CIPA defines “material that is harmful to minors” as:
any picture, image, graphic image file, or other visual depiction that—
(i) taken as a whole and with respect to minors, appeals to a pruri- ent interest in nudity, sex, or excretion;
(ii) depicts, describes, or represents in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or per- verted sexual acts, or a lewd exhibition of the genitals; and (iii) taken as a whole, lacks serious literary, artistic, political, or sci-
entific value as to minors.42
Note: This statute refers to minors as persons under seventeen years of age. It differs from the COPA definition (below) in three respects. CIPA applies only to images, whereas COPA applies to images and words. CIPA does not apply community standards, and CIPA does not include an image of the “post-pubescent female breast” as “harmful to minors.”
Current Status: Although a federal district court has struck down the application of CIPA to public libraries, the final word will come from the Supreme Court. To get updates on the case, see http://www.ala.org/cipa.
The Child Online Protection Act (COPA) would define materials harmful to minors differently, but this law has never gone into effect. The day after COPA was signed into law, it was challenged in federal court and an injunction was soon granted. COPA defines “material that is harmful to minors” as pictures or words that:
(i) the average person, applying contemporary community stan- dards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(ii) depicts, describes, or represents in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or a post- pubescent female breast; and
(iii) taken as a whole, lacks serious literary, artistic, political, or sci- entific value as to minors.43
Current Status: The Supreme Court sent the COPA case back to the lower court for further proceedings. It kept the preliminary injunction, which stops enforcement of the law.44
Unless COPA or CIPA is upheld by the Supreme Court, the “harmful to minors” laws will remain at the state level, outside the context of school libraries.
Notes
1.American Library Association v. United States, 201 F. Supp. 2d. 401 (E.D. Pa.
2002). See alsoMary Minow, The Children’s Internet Protection Act: The Recent District Court Decision, in Context, for Librarians and Library Patrons, LLRX.com (June 17, 2002), athttp://www.llrx.com/features/cipa.htm (visited July 13, 2002).
2. American Library Association, Libraries & the Internet Toolkit: Tips and Guid- ance for Managing and Communicating about the Internet, athttp://www.ala.org/
alaorg/oif/internettoolkit.html (visited Feb. 25, 2002); and the ALA’s CIPA web- site, athttp://www.ala.org/cipa (visited Feb. 25, 2002).
3. 18 U.S.C. §1460-1470 (2001). See Henry Cohen, Obscenity and Indecency:
Constitutional Principles and Federal Statutes,CRS Report for Congress, Congres- sional Research Service (updated May 17, 2002), for an excellent summary of obscenity law.
4.Miller v. California,413 U.S. 15, 24 (1973).
5. 47 U.S.C. §230(c)(1) (2000).
6.Kathleen R. v. City of Livermore,87 Cal. App. 4th 684, 697 (Cal. App. 1st Dist.
2001), citing Blumenthal v. Drudge 992, F. Supp. 44, 49 (D.D.C. 1998). These cases refer to 47 U.S.C. §230(c)(1).
7.Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 871 (1982).
8.Ginsberg v. New York, 390 U.S. 629 (1968).
9. Jenner & Block, Memorandum, Minors’ Rights to Receive Information under the First Amendment (August 1998), at http://www.ala.org/alaorg/oif/minor_jb.html (visited Feb. 26, 2002).
10. For a thorough analysis of statutory exemptions, seeIan L. Saffer, Note, Obscenity Law and the Equal Protection Clause: May States Exempt Schools, Libraries, and Museums from Obscenity Statutes? 70 NEW YORK UNIVERSITY LAW REVIEW 397 (May 1995). Saffer examines statutory exemptions and distinguishes different characteristics: display of materials v. distribution of materials, and obscenity v.
harmful matters.
11. Kristen Delguzzi, Flynt Uncovering All the Bases: Hustler Publisher Unable to Bait Local Authorities,CINCINNATIINQUIRER, May 19, 1997.
12. Adultweblaw, at http://www.adultweblaw.com/laws/obscene.htm (visited June 2, 2001).
13. See Pruneyard Shopping Center v. Robins,447 U.S. 74 (1980).
14. “School districts operating one or more high schools and private secondary schools shall not make or enforce any rule subjecting any high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.” CAL. EDUC. CODE§48950(a) (2001).
“No private postsecondary educational institution shall make or enforce any
rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution.” CAL. EDUC. CODE§94367(a) (2001).
15. American Library Association, Libraries & the Internet Toolkit: Tips and Guid- ance for Managing and Communicating about the Internet, at http://www.ala.org/
alaorg/oif/internettoolkit.html (visited Feb. 25, 2002).
16.American Library Association v. United States,201 F. Supp. 2d 401 (E.D. Pa. 2002).
17.American Library Association,No. 01-1303.
18.Mainstream Loudoun v. Loudoun County Library,2 F. Supp. 2d 783, 797 (E.D.
Va. 1998).
19.Mainstream Loudoun,2 F. Supp. 2d at 791, citing Lamont v. Postmaster General, 381 U.S. 301 (1943).
20.Mainstream Loudoun,2 F. Supp. 2d at 797.
21. “There are no articulated standards either in the ordinance or in the county’s estab- lished practice. The administrator is not required to rely on any objective factors.
He need not provide any explanation for his decision, and that decision is unre- viewable. Nothing in the law or its application prevents the official from encour- aging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth County, Ga. v. Nationalist Movement,505 U.S. 123, 133 (1992).
22.Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853, 857 (1982).
23.Board of Education, Island Trees Union Free School District No. 26, 457 U.S. at 915.
24.New York v. Ferber,458 U.S. 747 (1982).
25.Osborne v. Ohio, 495 U.S. 103 (1990).
26. See, e.g., United States v. Matthews, 209 F.3d 338 (4th Cir. 2000).
27. 18 U.S.C. §2256 (2000).
28.Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002).
29.See U.S. Dept. of Health and Human Services, Child Abuse and Neglect State Statutes Elements: Crimes No. 30, Child Pornography(current through Dec. 31, 1999), for the text of each state statute, at http://www.calib.com/nccanch/pubs/
stats00/pornog.pdf (visited Feb. 26, 2002).
30.Brockett v. Spokane Arcades, 472 U.S. 491, 498 (1985).
31.Miller v. California,413 U.S. 15 (1973).
32.Pope v. Illinois, 481 U.S. 497, 500–501 (1987). The difficulty inherent in these cri- teria is summed up in Justice Antonin Scalia’s concurrence: “I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocina-
tion has little to do with esthetics, the fabled “reasonable man” is of little help in the inquiry, and would have to be replaced with, perhaps, the “man of tolerably good taste”—a description that betrays the lack of an ascertainable standard. If even handed and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind:
Degustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide ‘What is Beauty’ is a novelty even by today’s standards.”Pope, 481 U.S. at 504–505.
33. Kathleen M. Sullivan, Girls Lean Back Everywhere: The Law of Obscenity and the Assault on Genius,NEWREPUBLIC, Sept. 28, 1992, at 35 (book review).
34.Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); and Renton v.
Playtime Theaters, Inc. 475 U.S. 41 (1986).
35.Mainstream Loudoun v. Loudoun County Library,24 F. Supp. 2d 552 (E.D. Va.
1998).
36. Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56.
37.Reno v. ACLU,521 U.S. 844 (1997).
38. See 47 U.S.C. §223(a)(1)(B) (2000).
39. The Morality in Media website has links to current state and federal obscenity statutes. Seehttp://www.moralityinmedia.org/nolc/statutesIndex.htm (visited Feb.
26, 2002).
40.Ginsberg v. New York,390 U.S. 629 (1968).
41.American Library Association v. United States,No. 01-1303 (E.D. Pa. 2002).
42. Children’s Internet Protection Act, section 1703(b), H.R. 4577, 107th Cong.; final version passed into law as Pub. L. No. 106-554 (Dec. 21, 2000), codified at 20 U.S.C. §9134 and 47 U.S.C. §254(h).
43. 47 U.S.C. §231(e)(6) (2000).
44. 122 S. Ct. 1700, 2002 U.S. Dist. LEXIS 3421 (2002) (“The scope of our decision today is quite limited. We hold only that COPA’s reliance on community standards to identify ‘material that is harmful to minors’ does not by itself render the statute substantially overbroad for purposes of the First Amendment. We do not express any view as to whether COPA suffers from substantial overbreadth for other reasons, whether the statute is unconstitutionally vague, or whether the District Court correctly concluded that the statute likely will not survive strict scrutiny analysis once adjudication of the case is completed below. While respondents urge us to resolve these questions at this time, prudence dictates allowing the Court of Appeals to first examine these difficult issues”).
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Q1 Does the Americans with Disabilities Act (ADA) apply to digital
resources in libraries, such as library and online databases and websites?
Q2 How does the ADA treat private libraries differently from public libraries?
Q3 How do I know if my library is providing “effective communication”?
Q4 What are “auxiliary aids and services”?
Q5 What is an “undue burden”?
Q6 What is a “fundamental alteration”?
Q7 What are Title II (public) and Title III (private) libraries and organiza- tions?
Q8 Are all private libraries considered “Title III” libraries?
Q9 Are any libraries not subject to the ADA at all?
Q10 How does a library make its web pages accessible to people with disabilities?
Q11 What does it mean to be “accessible” in the electronic environment?
Q12 Is electronic text considered accessible?
Q13 What are the accessibility standards for electronic information?
Q14 Do these electronic accessibility standards have the force of law?
Q15 What are the Section 508 Standards?
Q16 Do the Section 508 Standards allow libraries a phase-in period?
Q17 Is there a phase-in period for state and local libraries?