The Virtual lawyer - Give Me Smut and Nothing But

by David Crocker

Published 1998-08-01    Printer-friendly version

You can learn a lot about human nature by using Alta Vista. Plug in a harmless search string (say, "woman" and "health") and look what appears. You will get back page after page of metakey descriptors consisting of vulgar words for male and female anatomy, together with every sort of crude synonym for coitus known to reprobate humanity. After a bit, you begin to get the impression that there is an underground even in cyberspace, a place existing in the twilight zone between appetite and obsession. At times, one wonders whether obsession isn't winning out. Yes, smut is alive and well on the Web. In fact, every variant of the genre seems to be on display and available with a simple mouseclick. From what my sources tell me, smut seems to be one of the true commercial success stories of the Web, and is the driving force behind many technical improvements like mpeg, streaming video and advanced audio.

Obscene or Merely Pornographic?

There's gotta be a law, right? Well, there is, but there is also a thing called the U.S. Constitution, which, as we all know, protects speech. In order for pornography to lose its constitutional protection, it must be deemed by a court to be "obscene". Obscenity has been defined by the Supremes in the Miller case as (1) whether the average person, applying contemporary community standards would find that a work, taken as a whole, appeals to the prurient interest, (2) whether a work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether a work, taken as a whole, lacks serious literary, artistic, political or scientific value. As you can see, this test leaves a lot of pelvic wiggle room, but also allows a distinctly local standard; what may be adjudged prurient in Pig's Knuckle, Tennessee may be considered family fare in certain left coast salons. Robert and Carleen Thomas or Milpitas, California recently found this out, to their sorrow.

The Pride of California

Bob and Carleen ran the "Amateur Action" BBS, featuring (according to the court) a wide variety of sexual conduct, including bestiality and "excretory fetishism" (not the sort of thing you find in a Harlequin Romance). A Memphis postal inspector signed on to the service, downloaded pictures and dirty language, and received bad stuff in the mail. Apparently, evidence was presented indicating that the Thomases knew that the inspector was located in Memphis but consciously chose to continue his subscription. A federal court jury in Memphis ultimately convicted the Thomases of disseminating obscene images over phone lines and the 'net, and of transporting the stuff through the mail. The penalty? A cool $2.75 million in fines and several years in prison for each. The Sixth Circuit upheld their convictions on appeal, although it did expressly distinguish this case from cases in which an operator has no knowledge or control over the identity or location of folks accessing a service or site.

Web Washing

Everyone wants to scrub down the Web. In 1996, those lovable lugs in Congress passed the Communications Decency Act, which prohibits obscene online communications. It also targeted communications deemed "indecent" as well, criminalizing the "knowing" use of an "interactive computer system" to send or display indecent images to anyone under eighteen years old. Online advocates immediately sued the government to block the indecency provisions and won all the way up the food chain to the Supreme Court. The Supremes determined that indecent communication was, in the end, protected under the First Amendment. The provisions relating to obscenity still stand, however. If content is adjudged obscene, then a site operator or user might be prosecuted under the community standard in which the content is received, if it is their intent to provide or obtain obscene materials through the site.

Kiddy Porn

Thankfully, there is little doubt that kiddy porn continues to be outside the pale, constitutionally speaking. Most states and the federal government have criminalized the creation, possession or sale of child pornography. In particular, the federal Child Pornography Prevention Act of 1996 prohibits computer-generated images of children engaged in sexual conduct, even where no real children are involved in their production. In 1982, the U.S. Supreme Court upheld a New York State statute forbidding distribution of depictions of "sexual performances" by children under sixteen. In case you were wondering, the New York statute in question defines such performances to include any play, motion picture, photograph, or dance involving "actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse or lewd exhibition of the genitals." It's safe to say, therefore, that the kiddy stuff is beyond the scope of the First Amendment, even where the expression would not otherwise be obscene. Just thought you'd like to know.

Time to take a shower.

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