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 :
- 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
- 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
- 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:
- 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
- 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
- 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.
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