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Chapter 18

Chapter 18. Obscenity & Pornography. Pornography. Protected by First Amendment Unless child pornography-not protected. Obscenity. Not protected by First Amendment. Question. When does pornography become obscenity? Justice Potter Stewart “I know it when I see it”.

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Chapter 18

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  1. Chapter 18 Obscenity & Pornography

  2. Pornography • Protected by First Amendment • Unless child pornography-not protected PgP BUSA331 Chapter 18

  3. Obscenity • Not protected by First Amendment PgP BUSA331 Chapter 18

  4. Question • When does pornography become obscenity? • Justice Potter Stewart • “I know it when I see it” PgP BUSA331 Chapter 18

  5. Miller Test-1973-Nebulous • Average person, Contemporary community standards, Dominant theme, Taken as a whole, Prurient interest • Describes in a patently offensive way sexual conduct • Lacks serious value PgP BUSA331 Chapter 18

  6. Internet Age • What is a community standard? • Not defined by geographic area anymore per Supreme Court • Use Google Trends PgP BUSA331 Chapter 18

  7. Federal Obscenity Statutes

  8. Communications Decency Act §223 • Illegal to transmit indecent material on the internet? • Violates 1st Amendment-overbroad-1997, Reno • Miller obsolete, Supreme Court has not addressed Internet obscenity • Supreme Court refused to rule on Nitke S-M case, so result is federal prosecutors select the forum, going for most conservative community PgP BUSA331 Chapter 18

  9. Child Online Protection Act (COPA) • 1998 law never took affect • Vague- • Overbroad- • Denied adults access to ‘material harmful to children’ (a vague phrase in itself) • But only applied to US websites, not foreign PgP BUSA331 Chapter 18

  10. Children’s Internet Protection Act(CIPA) • 2000 law • Withholds federal funds unless libraries put filter software on internet accessible computers • Some now refuse funds • What about free speech, adults needing sex info (AIDS)? PgP BUSA331 Chapter 18

  11. Obscene Words • Classic literature banned before Miller case • After Miller focus is on visuals • Except website fiction accounts by Fletcher PgP BUSA331 Chapter 18

  12. Child Pornography • Unprotected speech after NY v Ferber, 1982 • Child Pornography Prevention Act (CPPA)-1996 • Focus child sexual exploitation • But also virtual child pornography, no children need be involved! • Found unconstitutional • Iowa comic book collector pled guilty to possessing comic books with graphic art (not photographs) depicting child sex- under PROTECT PgP BUSA331 Chapter 18

  13. PROTECT • 2003 law-Amber Alert • Reinstates virtual child pornography prohibition • MO pharmacist automatic 15 year sentence downloading child porn via Kazaa PgP BUSA331 Chapter 18

  14. Other Statutes • Several others like Child Protection and Obscenity Enforcement-1988 • Protect Our Children Act-2008 • Keeping the Internet Devoid of Sexual Predators-2008 • Will they withstand constitutional challenge? PgP BUSA331 Chapter 18

  15. Possession? • Distributing obscene material unlawful • Possession is lawful • Distribution and possession of child pornography is illegal • How do you determine possession in internet? • Browser cache? • Hard drive? • Malware did it? • Technology is complicated PgP BUSA331 Chapter 18

  16. Protecting Yourself • Be aware of potential problems • Malware, viruses that can be downloading child porn to your image cache without your knowledge • Neighbors or others piggybacking on your wi-fi to browse obscene material, using your IP address? • Are you liable if someone uses your wi-fi to surf obscene material, and you did not password protect your system? PgP BUSA331 Chapter 18

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