Chapter 8-13 Questions
Chapter Eight
1. Legal concepts of Indecency and Obscenity
The question of indecency and obscenity in the legal circles in United States has seen much debate. Obscenity as a legal term is used to refer to certain (especially sexual) material that is offensive to the public perspective of decency. Initially, the definition alluded to things considered repulsive but it has over time narrowed to more specifically sexual connotations. Modern law against obscenity has resulted as a direct response to the dynamic social and technological changes which have enabled wide and easy distribution of content regarded as sexually explicit material (Clark, 2002). State governments in the U.S began enacting obscenity law in early 1820s, and the federal government passed legislation permitting the seizure of obscene pictures in 1842. The first comprehensive legislation on obscenity in the United States came in 1873 with the enactment of the Comstock Act. The legislation provided for strict fine together with imprisonment of any individual that mails or receives “obscene,” “lascivious” or “lewd” publications. The Act had the impact of widespread suppression of pornographic books and pictures as well as publication carrying legitimate medical information pertaining to contraception, abortion, and contraception devices (Britz, 2009).
The problem of a standard definition of obscenity has been evident by a number of court cases in the United States. Up to mid 20th century, the U.S. courts employed the definition articulated in the British Hickin case which resulted in banning of several novels. However, in 1934 the New York Court of Appeals revoked the Hickin standard definition by arguing that proper judging of obscenity could not be found in content of some isolated passages but instead on grounds of whether the publication take as a whole had a libidinous effect.
In Roth v. United States (1957), a decision was rendered by the U.S. Supreme Court to the effect that standard obscenity ought to be on the basis of “whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest” (Britz, 2009). The synonymy of sex and obscenity was therefore ruled out. This ruling established the proposition arguing that obscene expression lacked First Amendment protections. Obscenity subsequently became unique in the sense that it was the only type of speech without First Amendment protection regardless of whether it is harmful to a person or not. The Roth test, with few refinements, remained the standard definition of obscenity for the following sixteen years where most Justices could reach consensus on the proper standard for determining obscenity (Clark, 2002). The courts struggled to develop a more substantive definition of what material is so offensive to be legally considered obscene as well delineating limits on the ability of the government to regulate the sexually explicit material.
In Miller v. California (1973), the Supreme Court in a landmark case restated its definition of obscenity by substituting a detailed three-part test (known as the Miller Test or the ‘Community Standards’ test) to be employed by each locality when dealing with the matter. The Miller test asks:
(a) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (Clark, 2002).
The Supreme Court provided on exception to the aspect of obscenity being not protected by the First Amendment by stating that it is the constitution of an individual to possess any obscene material in the privacy of his/her own home.
In New York v. Ferber (1982), commonly referred to as Ferber, the Supreme Court held that child pornography was not a form of expression that had protection by the First Amendment. Child pornography in this regard included the pictorial representation of minors under 16 in either still photographs or films engaging in sexual activities or mere exposure of their genitals. Such depictions were banned in the interest of protecting both the psychological and physical well-being of minors whose participation in the production of such materials was tantamount to their exploitation and harm (Britz, 2009). The Court upheld the conviction of a vendor who had sold a couple of films depicting young boys engaging in masturbation for undercover agents. The Supreme Court held that states had greater leeway in the regulation of pornographic depictions of children under 16 relative to images of adults. The government was also mandated to constitute regulation of child pornography that could even contradict the Miller standard as applied to pornography by adults.
The court decision in Ferber was extended in a subsequent case granting states the right to forbid the viewing or possession of child children in addition to their production and distribution in another historic case – Osborne v. Ohio (1990). The High Court ruled that the Stanley v. Georgia right for an adult to possess obscene material in their home did by no means extend to child pornography (Clark, 2002). In addition, the Court held that the Ohio law on the subject matter was not overboard, basing its interpretation on the law previously adopted by the Ohio Supreme Court. By forbidding the possession of child pornography, the government is not acting in “parternalistic interest” rather it strives to shrink the child pornography market and in so doing eradicating potential legitimate harms that the minors might face.
The current climate of the Court is to the effect that possession of obscenity material is prohibited where the intent is to sell or distribute, send, ship, receive, import of transport it across state borders. While the federal law does not forbid private possession of obscene material, receiving such material could be in violation of statutes prohibiting use of U.S Mails, common carriers, as well as interactive computer services for transportation. Convicted offenders faces fine together with imprisonment. It also against the law for a person to abet or aid the commission of these crimes. In addition, the law also forbids both the production of obscene material for the purpose of selling or distributing, and engaging in the business of either selling or transferring obscene material through means or facility of interstate and foreign commerce. Convicted offenders face fines and jail term of up to five years.
Going forth the Supreme Court will have to tighten it laws on both indecency and obscenity considering the increasing new media forms and the potential of the Internet to be used for child pornography.
2. Jurisprudential inconsistency in child pornography law
There is significant jurisprudential inconsistency between state and federal laws as well as from state to state in their treatment of child pornography crimes. There is inconsistency both in terms of definition and penalties for charges. The federal laws, for example, do not regard the state’s age of consent (under 16) as federal law refers to the age of 18. In this regard, an individual could be prosecuted for possession of child pornographic material under federal laws where they would otherwise be exempted in state laws. There is also inconsistency in both possession and distribution of child pornography material between state and federal law, where the federal penalties are relatively harsher.
Arguably, the most meaningful difference between federal and state child pornography charges relates to resources. The federal government commits relatively huge amounts of money to fund tracking the tracking down, prosecution and conviction of persons who commit child pornography crimes. In this regard, it is comparatively more difficult for a defendant to fight a federal child pornography charges because of the hard-line approach the federal sentencing guidelines adopt to the offense. Unrelated sentences across the country have resulted in those in possession of child pornography (non-contact offenders) receiving much harsher as compared to primary creators of the material (contact offenders) who avoid lifetime supervision completely. This demonstrates substantial discrepancy in the manner that the sentences are advised, created, and handed down to offenders.
From the liberal point of view, consenting adults have the freedom to publish and consume pornography in the comfort of their privacy. The liberals oppose the criminalization of possessing pornographic material for adults unless there is clear evidence that it causes harm to others. On the other hand, the moral and religious conservatives favor banning of pornography on grounds of its obscenity, its corrupting effect along with its corrosive impact on conventional family and religious values. The conservatives thus support the state’s use of its coercive power in upholding and enforcing community’s moral convictions, which may include interfering with the freedom of sound minded adult in consuming pornography i.e. legal paternalism. The conservative view is more consistent with my own view.
3. The Child Pornography Prevention Act (CPPA) of 1996
With the rapidly advancing technology, it is now possible for individuals to use computer imaging to develop artificial child pornography and render it instantly available on the Internet to be accessed by millions of people around the globe. In response, Congress enacted the Child Pornography Prevention Act (CPPA) in 1996, a statute criminalizing not only the possession but also the distribution of virtual child pornography (Akdeniz, 2008). The bone of contention in the application of the Child Pornography Prevention of 1996 related to the constitutionality of virtual child pornography as a type of speech. The underlying question was whether virtual child pornography was indeed a real threat to both the safety and security of young children, or merely a harmless invention of the mind. However, the Supreme Court later found the statute to be unconstitutional on its criminalization of possessing and distribution of computer images that do not entail use of actual children. The Court held that while the CPPA demonstrated potential overbreadth problems in criminalizing virtual images that appear to be of children in pornographic material it was constitutional as it could be addressed on a case-to-case basis. The court further held that there are no significant differences between conventional child pornography and the new virtual child pornography because their effects on child molesters were identical and same potential for child abuse (Akdeniz, 2008). The Court also ruled that the CPPA did not have unconstitutional vagueness considering that it categorically defined the activity it regulates besides providing a sufficient affirmative defense, in addition to objective standard for establishing scienter (Akdeniz, 2008).
4. The problem of advertising gambling sites
Online gambling has become one of the rapidly growing online businesses, so is advertising of Internet gambling. Online gambling ads are increasingly appearing on mainstream websites and effectively compete with such popular industries as travel, retail, and financial services for advertising space on leading portals like Google and Yahoo (Gainsbury, 2012).
The Federal government has been reluctant to enact laws covering advertising because it would, just like the existing statutes, unconstitutional especially because they can be interpreted to be in violation of the First Amendment express right to free speech as well as free press. From a face-value, it would seem a simple to sort out advertising of gambling which is itself an illegal activity. This would translate the enticing people through advertisement to engage in gambling would equally be illegal (Gainsbury, 2012). However, the rapid development of the Internet has resulted in more complex legal issues that are yet to tested or answered. In the same manner that there is no clarity whether, where, when, or how Internet gambling is illegal, so is its advertising. There is also confusion on whether search engines such as Google or Yahoo violate existing gambling laws in listing gambling sites.
It can be argued that the lack of federal law against the online gambling in the United States makes its advertising perfectly legal. The Department of Justice has held that online gambling advertisement contravene the Interstate Telephone Act of 1994, and has subsequently issued subpoenas to a number of large media outlets in the effort to check them from running advertisements for online gaming (Gainsbury, 2012). In order to effectively respond to the growing problem of online gambling, regulation is needed. This will be better than prosecution which is not being enforced the majority of countries as some have already legalized Internet gambling.
5. The Ashcroft Decision
The Ashcroft Decision was issued on April 16th, 2002 by the United States Supreme Court. In response, the government has argued that the decision has negatively affected their ability to protect children from exploitation from pornography following the striking down of provisions or the CAAP. In declaring as unconstitutional the section of the CAAP that prohibited virtual child pornography, it is believed that law enforcement has been significantly weakened and rendered children more vulnerable to abuse and exploitation.
The proponents of the vulnerability claim reckon that the Decision’s demand for proof of sexually explicit images involving children is rather difficult in today’s world where virtual images are becoming more and more indistinguishable from reality i.e. technological advances have increasingly blurred the line between “virtual” and “real” children. The Ashcroft Decision is accused of assuming the strong correlation between child molesters and child pornography offenders. On the other hand, defendants argue that rapidly advancing computer imaging technology is at the heart of the virtual images productions as opposed to real children.
The side of the debate that makes a lot of sense is the one portending the Ashcroft Decision has indeed made children more vulnerable. The virtual images could be used to build a potentially undefeatable defense for criminal prosecution of creators, distributors, and those in possession of child pornography. Also, the images can be used with impunity in grooming the next generation of victims when these images are used to lower the resistance of actual children from being sexually exploited. As a result of the Ashcroft Decision, real children are now more exposed to sexual exploitation including eroticization from either child pornography created from use of virtual images or through exploiting real children.
References:
Clark, M. D. (2002). Obscenity, child pornography and indecency. Hauppauge, N.Y: Novinka Books.
Britz, M. (2009). Computer forensics and cyber crime: An introduction. Upper Saddle River, N.J: Pearson Prentice Hall.
Gainsbury, S. (2012). Internet gambling: Current research findings and implications. New York: Springer.
Mateo, G. (2008). The New Face of Child Pornography: Digital Imaging Technology and the Law. Journal of Law, Technology and Policy 8, pp.177-181 [http://www.jltp.uiuc.edu/archives/Mateo.pdf].
Kreston, S.S. (2004). Defeating the Virtual Defense in Child Pornography Prosecutions. Journal of High Technology Law 49, 53 [http://www.jhtl.org/docs/pdf/JHTL_Kreston_Article2.pdf].
Burke, D. D. (2004). Thinking Outside the Box: Child Pornography, Obscenity And the Constitution, Virginia J Law & Technol 8,11 [http://www.vjolt.net/vol8/issue3/v8i3_a11-Burke.pdf].
Akdeniz, Y. (2008). Internet child pornography and the law: National and international responses. Burlington, VT: Ashgate.
