How is Obscenity Regulated on the Internet?

How is Obscenity Regulated on the Internet?

by Stephanie Morrow, December 2009

Surfing the internet for obscenity just got harder. This past March, in the case Nitke v. Gonzales, the Supreme Court affirmed the constitutionality of a federal ban on internet obscenity.

The case involved Barbara Nitke, a photographer whose sexually explicit photos containing sadomasochistic poses were placed on the Internet, to supplement a gallery display. Nitke, along with the National Coalition for Sexual Freedom (NCSF), challenged the obscenity portion of the 1996 Communications Decency Act which, among other things, prohibits the distribution of obscenity via the Internet to anyone believed to be under the age of 18.

A special panel of the Second Circuit of Appeals in New York unanimously disagreed with Nitke and the NCSF. The panel stated that they failed to show that the Act was substantially overbroad. In other words, Nitke and the NCSF did not successfully show that the ban was veering towards censorship.

This ruling seems to indicate a change in course from past Supreme Court rulings. In 1997, the Supreme Court struck down the portion of Communications Decency Act that prohibited the transmission of indecent material online. Since then, the Supreme Court has also ruled against the Child Online Protection Act, which targets commercial Web sites that make sexually explicit material available to those under 18; and the court nullified portions of the 1996 Child Pornography Prevention Act, which barred images of children appearing to be under the age of 18 and engaged in sexually explicit conduct.

In 2003, however, the Supreme Court did uphold the Children's Internet Protection Act, which requires public and school libraries that receive government Internet discounts to install filters on their computers that block pornography.

Is this the beginning of a Supreme Court pattern that could spell victory for the opponents of Internet obscenity?

What is Obscenity?

Legally, obscenity refers to words, images or actions that offend the sexual morality of its viewers. This could range from simple profanity to offensive pictures or videos. Under the U.S. law, the Supreme Court has found that, when used in the context of the First Amendment and free speech, obscenity must refer to materials that are of a sexual nature.

The Miller Test

For something to be considered "obscene," the Supreme Court uses what is known as "The Miller Test." Developed in 1973 in the case Miller v. California, the Supreme Court determined that the following types of works are not protected by the First Amendment and, therefore, can be prohibited. If the average person finds that when viewed as a whole, a work:
  • Appeals to the "prurient" interest (i.e., an unhealthy and degrading interest in sex)
  • Depicts or describes sexual conduct in a patently offensive way, and
  • Lacks serious literary, artistic, political or scientific value.

All three parts of the Miller Test must be met before a material can be found to be obscene under the law. If just one of the parts is not met, the material would not be considered obscene under law and, in turn, would be constitutionally protected under the First Amendment. The most controversial portion of the test is the question of creative or scientific value. Even though some pornography may appeal to an average person's prurient interest and depict sexual conduct in an offensive way, if some contend it holds an artistic or literary value, it fails the Miller Test and is not deemed obscene.

The Internet

The Internet has made the law of obscenity much more convoluted. Federal obscenity laws apply to interstate and foreign issues, such as distribution; intrastate issues are mostly governed by state law. Today, materials considered "obscene" can be sent from a computer in California to someone across the U.S. as fast as a click of a button. The question is: What state governs the issue of obscenity when the Internet can reach multiple areas? Interestingly, the Miller Test is based on what is offensive in a certain "community," not the United States as a whole. For example, what's offensive to someone from New York City may differ from what offends a person in Topeka, Kansas. But, the Miller Test's basis of "community" becomes blurred with the advent of the Internet; a state can define a community as the state as a whole, a county, a city or another geographic area. The geographic area of the Internet, however, is nonexistent, and geographic boundaries are essential to the "community" definition for the Supreme Court's Miller Test.

As technology redefines our communities and our world, the Internet will more than likely be the source of more obscenity trials landing in front of the Supreme Court. Many believe the Court may have to challenge the current state of the Miller Test as it relates to electronic obscenity. What will happen in the future? Like Justice Potter Stuart famously said about pornography decades ago, "I'll know it when I see it."