Obscenity, Child Pornography, and Indecency: Recent Developments and Pending Issues Page: 2 of 6
This report is part of the collection entitled: Congressional Research Service Reports and was provided to UNT Digital Library by the UNT Libraries Government Documents Department.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
CRS-2
In Pope v. Illinois, the Supreme Court clarified that "the first and second prongs of
the Miller test - appeal to prurient interest and patent offensiveness - are issues of fact
for the jury to determine applying contemporary community standards." However, as for
the third prong, "[t]he proper inquiry is not whether an ordinary member of any given
community would find serious literary, artistic, political, or scientific value in allegedly
obscene material, but whether a reasonable person would find such value in the material,
taken as a whole."4 In Brockett v. Spokane Arcades, the Supreme Court held that material
is not obscene if it "provoke[s] only normal, healthy sexual desires." To be obscene it
must appeal to "a shameful or morbid interest in nudity, sex, or excretion."
Obscenity: Recent Developments. The Communications Decency Act of 1996
(P.L. 104-104, 507) expanded the law prohibiting the importation of, or interstate
commerce in, obscenity (18 U.S.C. 1462, 1465) to apply to the use of an "interactive
computer service" for that purpose. It defined "interactive computer service" to include
"a service or system that provides access to the Internet." 47 U.S.C. 230(e)(2). These
provisions were not affected by the Supreme Court's decision in Reno v. American Civil
Liberties Union declaring unconstitutional two provisions of the CDA that would have
restricted indecency on the Internet.6
Obscenity: Pending Issues. In Reno, the Court noted, in dictum, that "the
'community standards' criterion as applied to the Internet means that any communication
available to a nationwide audience will be judged by the standards of the community most
likely to be offended by the message."7 This suggested that, at least with respect to
obscenity on the Internet, the Court might replace the community standards criterion,
except perhaps in the case of Internet services where the defendant makes a
communication available only to subscribers and can thereby restrict the communities in
which he makes a posting accessible. However, in Ashcroft v. American Civil Liberties
Union, decided May 13, 2002, the Court held that the use of community standards does
not by itself render a statute banning "harmful to minors" material on the Internet
unconstitutional. (See below under "Indecency.")
Child Pornography'
Child pornography is material "that visually depict[s] sexual conduct by children
below a specified age."9 It is unprotected by the First Amendment even when it is not
obscene (i.e., child pornography need not meet the Miller test to be banned).10 The reason
4 481 U.S. 497, 500 (1987).
5 472 U.S. 491, 498 (1984).
6 521 U.S. 844 (1997).
7 Id. at 877-878.
8 For additional information, see CRS Report 95-406, Child Pornography: Constitutional
Principles and Federal Statutes.
9 New York v. Ferber, 458 U.S. 747, 764 (1982) (italics in original).
10 This means that child pornography may be banned even if does not appeal to the prurient
interest, is not patently offensive, and does not lack literary, artistic, political, or scientific value.
(continued...)
Upcoming Pages
Here’s what’s next.
Search Inside
This report can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Report.
Obscenity, Child Pornography, and Indecency: Recent Developments and Pending Issues, report, June 29, 2004; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc817684/m1/2/: accessed April 23, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.