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Legal Definitions of Pornography


 

Excerpted from Appendix D, Kids Online: Protecting Your Children In Cyberspace
by Donna Rice Hughes (Revell, September 1998)

pornography-A generic term that can refer to materials that are either "legal" or "illegal" to disseminate under the circumstances. "Pornography" encompasses all sexually oriented material intended primarily to arouse the reader, viewer, or listener. See Webster's Dictionary; Miller v California, 413 U.S. 15, 18 n. 2 (1973); Final Report, Attorney General's Commission on Pornography (1986), Chapter One, "Defining our Central Terms." Serious works of art, literature, politics, or science; "mere nudity," medical works, even though they deal with sex or include sexual references or depictions, would not be considered "pornography" in the context of their legitimate uses. On the other hand, since obscenity can include both actual and simulated conduct, all "Hard-Core Pornography" that depicts penetration clearly visible ("PCV") is "implicitly" within the application of the constitutional criteria of the Supreme Court's obscenity test. See Mishkin v New York, 383 U.S. 506, 508 (1966), Miller v California, 413 U.S. 15, 29 (1973).


material harmful to minors-Known as "variable obscenity" or the "Millerized Ginsberg Test." See Ginsberg v New York, 390 U.S. 629 (1968); and Miller, Smith, Pope, supra. It is illegal to sell, exhibit, or display "harmful" ("soft-core") pornography to minor children, even if the material is not obscene or illegal for adults. See also Com. v Am. Booksellers Ass'n, 372 S.E.2d 618 (Va. 1988), followed, American Booksellers Ass'n v Com. of Va., 882 F.2d 125 (4th Cir. 1989), Crawford v Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S. Ct. 1249 (1997). "Harmful to minors" means any written, visual, or audio matter of any kind that :

  1. the average person, applying contemporary community standards, would find, taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion, and
  2. the average person, applying contemporary community standards, would find depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, ultimate sexual acts, normal or perverted, actual or simulated; sadomasochistic sexual acts or abuse; or lewd exhibitions of the genitals, pubic area, buttocks, or post-pubertal female breast, and
  3. a reasonable person would find, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

broadcast indecency-See FCC v Pacifica Foundation, 438 U.S. 726 (1978). The FCC defines broadcast indecency as language or material that, "in context, depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Action For Children's Television v FCC, 11 F.3d 170, 172 (D.C. Cir. 1993). Enforced by FCC from 6 AM-10 PM. Action For Children's Television, et al. v F.C.C., 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996).

dial-a-porn-"The description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium." Requires: a written request from an adult; or a credit card number; or an adult identification PIN code before transmission. See Sable Communications of California, Inc. v FCC, 492 U.S. 115, 126, 128-30 (1989); Information Providers' Coalition v FCC, 928 F.2d 866, 872 (9th Cir. 1991); Dial Information Services Corporation of New York v Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert. denied, 502 U.S. 1072 (1992).

cable indecency-Cable operators may refuse to carry indecent leased access programming that the operator reasonably believes "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Cable operators who choose to carry indecent programming on leased access channels are not required to place such programs on a separate, blocked channel. See Denver Area Ed. Tel. Consort. v FCC, 116 S. Ct. 2374 (1996). See also Playboy Entertainment Group v United States, 945 F. Supp. 772 (D. Del. 1996), aff'd, 117 S. Ct. 1309 (1997) (upholding CDA's cable indecency provisions).

computer "Internet" indecency-The Communications Decency Act of 1996 ("CDA"), 110 Stat. 133-43, amended 47 U.S.C. § 223 to add a new subsection 223 (d) to prohibit knowingly sending or displaying "indecent" material to minors under age 18 by computer and defined the indecency which is unlawful to provide to minors as: "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." See Joint Explanatory Statement of the Committee of Conference ("Conference Report on the CDA"), 1996 U.S.C.C.A.N. Leg. Hist., at 200-11. The indecency provisions for interactive computer systems were held unenforceable in Reno v ACLU, 117 S. Ct. 2329 (1997), but the Court reaffirmed the application of obscenity and child pornography laws in "cyberspace."

obscenity (adult)-Not protected by the First Amendment. The "Miller Test" applies to actual or simulated sexual materials and lewd genital exhibitions. See Miller v California, 413 U.S. 15, at 24-25 (1973); Smith v United States, 431 U.S. 291, at 300-02, 309 (1977); Pope v Illinois, 481 U.S. 497, at 500-01 (1987), providing the three-pronged constitutional criteria for federal and state laws and court adjudications:

  1. whether the average person, applying contemporary adult community standards, would find that the material, taken as a whole, appeals to a prurient interest in sex (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and
  2. whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e., ultimate sex acts, normal or perverted, actual or simulated; masturbation; excretory functions; lewd exhibition of the genitals; or sadomasochistic sexual abuse); and
  3. whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

child pornography-An unprotected visual depiction of a minor child (federal age is under eighteen) engaged in actual or simulated sexual conduct, including a lewd or lascivious exhibition of the genitals. See New York v Ferber, 458 U.S. 747 (1982), Osborne v Ohio, 495 U.S. 103 (1990), U.S. v X-Citement Video, Inc., 115 S. Ct. 464 (1994). See also U.S. v Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856 (1987), U.S. v Knox, 32 F.3d 733 (3rd Cir. 1994), cert. denied, 115 S. Ct. 897 (1995). Note: In 1996, 18 U.S.C. § 2252A was enacted and § 2256 was amended to include "child pornography" that consists of a visual depiction that "is or appears to be" of an actual minor engaging in sexually explicit conduct. See Free Speech Coalition v Reno, No. C-97-0281 SC, judgment for defendants, Aug. 12, 1997, unpublished, 1997 WL 487758 (N.D.Cal 1997).

Legal definitions from National Law Center for Children and Families, 4103 Chain Bridge Rd. #410, Fairfax, VA 22030-4105, 703-691-4626, fax: 703-691-4669. Used by permission.


 
 
       

© 2001 by Donna Rice Hughes. Request permission if you wish to reprint or post.