Obscenity and Indecency: Constitutional Principles and Federal Statutes Page: 2 of 44
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Obscenity and Indecency: Constitutional Principles and
Federal Statutes
Summary
The First Amendment provides: "Congress shall make no law ... abridging the
freedom of speech, or of the press." In general, the First Amendment protects
pornography, with this term being used to mean any erotic material. The Supreme
Court, however, has held that the First Amendment does not protect two types of
pornography: obscenity and child pornography. Consequently, they may be banned
on the basis of their content, and federal law prohibits the mailing of obscenity, as
well as its transport or receipt in interstate or foreign commerce.
Most pornography is not legally obscene; to be obscene, pornography must, at
a minimum, "depict or describe patently offensive 'hard core' sexual conduct." The
Supreme Court has created a three-part test, known as the Miller test, to determine
whether a work is obscene. Pornography that is not obscene may not be banned, but
may be regulated as to the time, place, and manner of its distribution, particularly in
order to keep it from children. Thus, the courts have upheld the zoning and licensing
of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and
indecent radio and television broadcasting.
Federal statutes, in addition to making it a crime to mail obscenity or to
transport or receive it in interstate or foreign commerce, provide for criminal and
civil forfeiture of real and personal property used in making obscenity pornography,
and of the profits of obscenity - in some instances even when they were already
used to pay a third party. In addition, obscenity crimes are included among the
predicate offenses that may give rise to a violation of the Federal Racketeer
Influenced and Corrupt Organizations Act (RICO).
The Internet has given rise to three federal statutes designed to protect minors
from sexual material posted on it. The Communications Decency Act of 1996 makes
it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail)
to make an obscene or indecent communication to a minor, or knowingly to use an
interactive computer service to transmit an obscene communication to anyone or an
indecent communication to a minor. The Supreme Court, however, held the
inclusion of "indecent" communications in this statute unconstitutional. Congress,
in response, enacted the less-broad Child Online Protection Act (COPA), the
enforcement of which has been enjoined while its constitutionality is being
challenged. Finally, the Children's Internet Protection Act (CIPA), enacted at the end
of the 106th Congress, requires schools and libraries that accept federal funds to
purchase computers or Internet access to block or filter obscenity, child pornography,
and, with respect to minors, material that is "harmful to minors." Filters may be
disabled, however, "for bona fide research or other lawful purpose." On June 23,
2003, the Supreme Court held CIPA constitutional.
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Obscenity and Indecency: Constitutional Principles and Federal Statutes, report, January 3, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc807783/m1/2/: accessed April 20, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.