Obscenity Law v. Freedom of Speech
09/29/2008Anybody can post information on the Internet, and many people do, but being aware of obscenity law and how it applies to United States culture in general is critical when the information is of a sexual nature.
The term freedom of speech is used quite frequently, often inappropriately, in casual defense of material posted on the Internet. However, the First Amendment does not protect every utterance that is or may be spoken. Obscenity law prohibits material depicting - verbally or graphically - illegal acts, usually of a sexual nature, that are separate from those allowed under the First Amendment. But where is the line between what is considered obscene and what may be defined as a protected form of speech ? Obscene acts are usually determined by current cultural standards. Former U.S. Supreme Court Justice Potter Stewart once addressed the subjective way of dividing between what is allowed and disallowed in the 1964 case of Jacobellis v. Ohio with, " I shall not today attempt further to define the kinds of material I understand to be embraced [as obscene material] and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."
A decade later, in Miller v. California the Supreme Court established the Miller Test, also known as the Three Prong Obscenity Test, to determine whether speech or expression can be labeled obscene (and thus not protected under the First Amendment). Material in question may be considered obscene only if three conditions are fulfilled:
-whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,
-whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
-whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.
The three prongs of the Miller Test account for the possibility that what a community considers obscene may differ from the perspective of a reasonable person. The first two prongs refer to community standards, and the third to reasonable person standards. Dissenting opinions on what is considered obscene often come up, especially in cases between individuals from different cultures. One example of this appeared this year when Gons Nachman, an ex-diplomat from the Democratic Republic of the Congo, was charged with possessing child pornography and engaging in sexual activity with teenage girls in Brazil while he served as a consular officer there. Nachman pleaded guilty to the charges, but asked for leniency on the grounds of cultural differences. He claimed that, In the Congo, women develop quickly, both physically and emotionally, due to the substantial responsibility society places on them from early childhood. This, however, did not release him from his legal troubles, as prosecutor Ron Walutes wrote in court documents, Children in the Democratic Republic of the Congo and Brazil have the same inherent value as children in the United States.
With respect to the Internet, this presents a problem. Material posted from one region may be accessed from any other part of the world, and state legislation often differs from federal law. In the 2005 case of United States v. Extreme Associates, Extreme Associates, Rob Zicari and Janet Romano's pornography company, was charged with alleged distribution of obscene material across state lines. Federal agents in Pittsburgh indicted the California-based company after ordering offending materials through mail and Internet. The movies involved in the case contained scenes of women imbibing various bodily fluids, rape, and a man persuading an underage girl to have sex. Initially, District Court Judge Gary Lancaster of the U.S. District Court for the Western District of Pennsylvania dismissed the charges on the grounds that the federal anti-obscenity statutes are unconstitutional. However, the Department of Justice appealed the ruling, citing previous Supreme Court rulings regarding obscenity law. In response, Extreme Associates filed a petition for a U.S. Supreme Court hearing, which was subsequently denied. The case was then sent back to the district court, and after more than a year, a date for the trial still has not been set, but is expected to occur within the next few months.
How does this help delineate something obscene as opposed to simply expression ? It does not. Obscenity law is still ambiguous, but the important thing to remember is that it exists. Simply being aware of obscenity law and the issues surrounding it may serve to deter people from expressing themselves in an unlawful manner, thereby protecting members of a community that may have different standards from reprehensible material.
