First Amendment: Freedom of Expression

First Amendment: Freedom of Expression • Are obscenity laws a violation of free speech? • 1st Amendment applies to federal government • 14th Amendment made freedom of expression applicable to state government (c) 2004 West Legal Studies in Business A Division of Thomson Learning

1957 Roth v. United States: • Facts? Defined Obscenity in a three pronged test: • Whether “the average person, applying contemporary community standards” would find the work, taken a a whole, appeals to the prurient interest, • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law, • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value • Law? First Amendment does not protect obscenity because it is utterly without social importance (c) 2004 West Legal Studies in Business A Division of Thomson Learning

1973 Miller v. California • What is obscenity? Use Roth test which has three parts: • It arouses a prurient interest that does not conform to contemporary community standards • It is patently offensive • It lacks serious literary, artistic, political or scientific value (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Miller • Defined Prurient Interest • “Itching, longing; uneasy with desire or longing; of persons, having itching, morbid or lascivious longings; of desire, curiosity,or propensity, lewd.” Webster’s New International Dictionary (Unabridged, 2d ed. 1949) • Tendency to arouse lustful thoughts (c) 2004 West Legal Studies in Business A Division of Thomson Learning

That does not conform to which community standards? • Does not conform to which community’s contemporary standards of what is prurient? • Where material is sent from or sent to? • Internet – sent everywhere??? (c) 2004 West Legal Studies in Business A Division of Thomson Learning

U.S. v. Thomas • Non-internet law: when it is sent interstate: any district from, through, or into which it moves • Does the Internet demand a new law? • Because of the chilling affect on free speech? • No, just don’t give passwords to people from communities where this is below the standard (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Miller • Defined Patently Offensive • hard core “ultimate sexual acts, normal or perverted, actual or simulated” that include “masturbation, excretory functions, and lewd exhibition of the genitals.” • Also judge by local community standards (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Lacks Serious Literary, Artistic, Political, or Scientific Value • This is not judged by the local community standard, but by the “reasonable person” test – more objective than local (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Does the law require intent? – that the defendant knew the material was obscene? • Too difficult to prove that they knew it was obscene • Only have to prove: Provider had knowledge of the character and nature of the material rather than knowledge that it was obscene. (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Consenting Adults Defense Only Works Once the Material is in One’s Home • In Stanley v. Georgia: Police went in home with warrant to search for bookmaking activities, they found obscene material. First Amendment privacy protection would keep state from regulating obscene materials in one’s home - material could have no redeeming social value- but that was OK, if already in home. • Paris Adult Theatre I v. Slaton: State can regulate videos shown in adult theaters, not like Staley v. Georgia because the theater is not one’s home (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Federal Law on Obscenity • Communication Decency Act (CDA) of 1996 • Title V of the Telecommunications Act of 1996; 47 U.S.C. Section 223 • To protect minors from pornography • A crime to knowingly transport obscene material for sale or distribution either in foreign or interstate commerce or through the use of an interactive computer service. • Matter = books, magazines, pictures, paper, film, videotape, and audio recordings. • $100,000 fine and imprisonment of up to five years for first offense (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Another provision of CDA: • Crime for anyone to knowingly transmit obscene online communications that involve “comments, requests, suggestions, proposals, images, or other communication which is obscene, lewd, lascivious, filthy or indecent made with the intent to annoy, abuse, threaten, or harass another person.” (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Another provision of CDA: • Crime to knowingly transmit the descried material to a person under the age of eighteen, irrespective of whether the maker placed the call or initiated the communication. (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Defenses: • CDA distinguishes “access provider” from “content provider” • Access provider is not liable • Good Samaritan defense for online provider who has used good technological means to block and screen offensive material provided by another content provider • Content provider has to have made a good effort to block (v chip or credit card) minors out of the site • Not obscene if medical information or other good reason to show minors (c) 2004 West Legal Studies in Business A Division of Thomson Learning

CDA Unconstitutional? • 223(a) and (d) yes – not narrowly drawn enough – too over broad • Did not define indecent or distinguish indecent from obscene • Reno v. American Civil Liberties Union 1997 (Reno I) • Facts? • Law? • Holding? (c) 2004 West Legal Studies in Business A Division of Thomson Learning

U.S. v. Playboy Entertainment Group, Inc. (U.S.S Ct. 2000) • Section 505 of the CDA on scrambling requirement is unconstitutional because it violates freedom of speech (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Child Pornography Prevention Act (CPPA) 1996 • Passed to remedy the Reno I decision above • Use of computer technology to knowingly produce child pornography that contains both depictions of real children as well as “virtual” or fictitious children • “appears to be” and “conveys the impression” are the problems (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Different Courts of Appeals split on this law • Hilton 1st Cir. 1999 found it constitutional • Acheson 11th Cir. 1999 found it constitutional • Free Speech Coalition v. Reno 9th Cir found it unconstitutional because aimed at more than real children- on appeal, will be heard this month • It shifted the definition of child porn from harm inflicted upon real children to a determination that child porn was evil in and of itself, whether it involved real children or not.” • On Appeal to the U.S.S.Ct. – writ granted • Virtual children part found unconstitutional (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Child Online Protection Act of 1998 (COPA) • Congress tried to fix problems with CDA • Made it apply to WWW instead of Internet • Made it apply to commercial activities • Redefined harmful • Still used community standard (c) 2004 West Legal Studies in Business A Division of Thomson Learning

COPA 1998 challenged in ACLU v. Reno ( Reno II) • District Court: granted injunction to halt implementation of the statute – community standards don’t work on WWW • It overly burdened speech that was protected for adults • Didn’t distinguish educational materials • “Chilling effect” • 3rd Circuit Affirmed • U.S.S.Ct. granted writ of certiorari – (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Case now called Ashcroft v. American Civil Liberties Union (2001) • Court focused on the meaning of community standards • Kicked the case back to the Court of Appeals to define “community” of the Internet • Pending (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Protection of Children from Sexual Predators Act of 1998 • Expands liability to those who attempt to use the Internet for purposes of child pornography • Targets commercial pornographers • Using Internet for purposes of engaging in sexual activities with minors (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Children’s Internet Protection Act (CIPA) 2000 • Congressional attempt to regulate computer access to adult-oriented Web sites in public schools and libraries • To receive federal funds must install filtering devices that prevents adults from accessing obscene or pornographic depictions and minors from accessing material deemed harmful • American Library Association v. United States • D.Ct. found it unconstitutional • Appealed directly to U.S Supreme Court (c) 2004 West Legal Studies in Business A Division of Thomson Learning

State Regulations Can Be Tougher • New York v. Ferber (1982): need not appeal to the prurient interest of the average person…. (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Consenting Adults Defense in Child Pornography • Not applicable • Osborne v. Ohio (1990) • Facts: • Law: Ohio law and the rights of privacy and First Amendment • Holding: not the same as Stanley v. Georgia because child pornography • Using Internet for child pornography: possess, sell and distribute in e-commerce will be held criminally liable (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Employees and Workplace Access to Adult Web Sites • Privacy and 1st Amendment rights at work? • ECPA gives the OK for employer to monitor • Get consent anyway (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Public Employees • Urosky v. Gilmore: • Facts? • Virginia statute restricted access to sexually explicit material by state employees unless written approval for access was obtained from appropriate agency head. Professors at Virginia state colleges wanted to access sexually explicit sites of a variety of educational purposes • Law? • First Amendment • Holding? • Statute violated First Amendment and overbroad (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Global Issues • Minimal international law • Every country has its own “community” by which it judges what is obscene • One country usually cannot enforce its laws inside another country • Internet makes geographic boundaries easy to cross (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Act of State Doctrine • U.S. court would lack jurisdiction and be powerless to rule on what occurs within the borders of a foreign country, even it violates U.S. laws • Germany sentenced Felix Somm, the general manager of CompuServe Germany to prison for his failure to block access to materials that were illegal in Germany, but not in the U.S. (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Multilateral Treaties • Arrangement Between the United States and Other Powers Relative to the repression of the Circulation of Obscene Publications 1910 • Invites cooperation among signatories to control dissemination of obscene materials and to share information regarding regulations and sentencing • International Convention for the Suppression of the Circulation of and Traffic in Obscene Publications 1923 • U.S. in not a party to this treaty • Regulates the information change provisions of the prior treaty and grants jurisdiction to countries where offenders commit any element of the crime or where the offenders are nationals (c) 2004 West Legal Studies in Business A Division of Thomson Learning

Importation of Cyberporn • Title 19 bans • Importation of obscene material by • ISPs who know it is obscene and allows it to be downloaded into U.S. • users if it is obscene and downloads it into U.S. (c) 2004 West Legal Studies in Business A Division of Thomson Learning

First Amendment: Freedom of Expression