Obscenity, Internet Censorship and the First Amendment

The First Amendment ensures freedom of speech and of the press, expressions necessary to a democratic society, and the Internet has the potential to give many people in any society an open forum to voice their concerns and to reach a large audience. Pornography and other graphic materials existed before the Internet, but the technology’s far-reaching capabilities have made this material more accessible and intrusive.

One problem faced by both the U.S. Congress and the courts is defining the terms obscene and indecent. Because the First Amendment does not protect obscene material but does protect indecent material, creating a distinction between the two is important.

The Supreme Court constructed tests for obscenity in the cases Roth v. United States (1957) and Memoirs v. Massachusetts (1966). The current standards for obscenity were defined in the Supreme Court case Miller v. California (1973).
Miller (1973) brought the tests from Roth (1957) and Memoirs (1966) together to create a three-part test to be used in evaluating alleged obscene material. Five justices supported the opinion that rewrote obscenity standards.

They stated that before the government can prosecute anyone for the handling of obscene materials, the government first must determine “whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interestâÂ?¦.(Miller v. California, 1973).”

Measuring “contemporary community standards” presents a problem, especially online. Different communities have different standards for labeling obscenity; therefore, because someone can use the Internet to reach several communities, the recipient’s community standards apply. People who distribute material nationally using the Internet could be sued in any state where the material is accessible (Rose, 1995). In requiring the work to be taken as a whole, the court gave some leeway to works that might include only a small amount of material that could be considered obscene (Rose, 1995).

The second part of the Miller (1973) obscenity test determines “whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state lawâÂ?¦.” State laws regulate whether material is obscene, and this section of the test is easiest for the government to prove (Rose, 1995).

The final part of the Miller (1973) test judges “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” This value consideration given to materials has saved many potentially obscene materials from censorship because there is no clear standard for determining value (Rose, 1995).

Although the courts have established that the Internet enjoys First Amendment freedoms more similar to the freedoms given to print media than those established for broadcast media, the debate continues about how to regulate questionable, offensive, and obscene materials.

Congress attempted to regulate online material with the Communications Decency Act of 1996, which was enacted as part of the Telecommunications Act of 1996. Parts of the CDA prohibited the “knowing transmission” of “obscene or indecent” (47 USCS 223 (a)) communications to anyone under 18 years old or to display in any place accessible to a minor.

The CDA stipulated that any kind of communication that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication (47 USCS 223(d)(1)(B)).”

Criminal charges of a fine, imprisonment or both were attached to the violation of this law. (Communications Decency Act)
Several plaintiffs filed suits over these two clauses in the CDA in the United States District Court for the Eastern District of Pennsylvania. (Reno v. ACLU, 1997) Eventually the case was appealed to the United States Supreme Court by then Attorney General Janet Reno. The high court decided the case, and it became a defining point in First Amendment freedoms available online.

In Reno v. American Civil Liberties Union (1997) the Supreme Court decided the two clauses of the CDA regulating the transmission of obscene materials to minors were unconstitutional because they were overbroad. An opinion written by justice John Paul Stevens and joined by six justices stated that parts of the CDA “abridged the freedom of speech protected by the Federal Constitution’s First AmendmentâÂ?¦(Reno v. ACLU, 1997)”

The justices gave the reason that the restrictions on speech given by the CDA were “content-based” rather than “regulations of the time, place, and manner of speech.” Also in their opinion, the justices did not hold the Internet to the same level of First Amendment scrutiny that is applied to broadcast media.

The decision was a success for the individuals and the public interest groups that challenged the CDA. It also was a victory for anyone wanting to publish work online because the justices’ decision applied broader First Amendment rights to the Internet that resembled the rights given to the print media. The strict scrutiny applied to the broadcast media was not applicable to the Internet (Creech, 2003).

The justice’s referenced cases such as Red Lion Broadcasting Co. v. FCC (1969) to explain the government’s intense regulation of broadcast media due to “the scarcity of available frequencies at its inception (Reno v. ACLU, 1997)” and to explain that the “scarcity” scrutiny should not be applied to the Internet.

Another reason the court ruled the CDA unconstitutional was its vague definitions of the terms “indecent” and “patently offensive (Reno v. ACLU, 1997).” Because a criminal statute was used to deter violators, the court decided it raised “special First Amendment concerns because of its obvious chilling effect on free speech (Reno v. ACLU, 1997).”

In 2000 Congress again tried to regulate obscene materials, especially those viewable by children, with the Children’s Internet Protection Act (CIPA). The Act required public schools and public libraries to filter inappropriate Web sites in order to receive federal funding for Internet access. The stipulations for libraries eventually became problematic:

Libraries with more than 1 Internet-accessing computer -To be eligible to receive universal service assistance�a library that has more than 1 computer with Internet access intended for use by the public (including minors) shall certify to the Commission that it has installed and uses a technology to filter or block material deemed to be harmful to minors on one or more of its computers with Internet access (S. Res. 97, 2000).

The American Library Association challenged the CIPA bill, fearing the requirement to install filtering software on Internet-accessible computers would force libraries to limit patrons’ First Amendment freedoms to access information.

The case, United State v. American Library Association (2003), reached a lower court in which a three-judge panel ruled that CIPA violated the First Amendment. When the case reached the U.S. Supreme Court, the decision was reversed, and the court ruled that the library clauses of CIPA were not unconstitutional.

Four justices joined the opinion that CIPA was a valid use of spending by Congress for several reasons. They argued that “Internet access in public libraries was neither a ‘traditional’ nor a ‘designated’ public forum (U.S. v. ALA, 2003).”

Without the distinction as a public forum, Internet access through public libraries was afforded little First Amendment freedom. Justices also explained that “heightened judicial scrutiny” did not inhibit a library board’s ability to decide the content of collections.

Because the Internet filters could be turned off, justices concluded there was no reason a filter would “‘overblock’ access to constitutionally protected speech.” Congress could limit federal Internet assistance because library boards had not included pornography in their usual collections. Finally, the justices concluded “filtering software did not violate their patrons’ First Amendment rights.”

Obscenity law and censorship of the online forum will continue to develop as technology advances. Although the Internet receives First Amendment protections similar to the print media, the rulings seem to be conservative in cases, such as U.S. v. ALA (2000), that deal with obscene or indecent materials. The Miller test, a result of Miller v. California (1973), liberalized the definition of obscenity with its value consideration, but the Supreme Court eventually will revisit Miller and create an obscenity test for another generation.

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