OBSCENITY
Displaying obscene content on your adult website or
home page is a punishable crime in the United States. Unfortunately,
which images or ideas are "obscene" varies widely within different minds
and communities in the United States, and adult website webmasters
should be aware that they can be prosecuted anywhere for violating
obscenity laws. By using this webpage in any way you agree that you
accept the Terms
and Conditions
Distribution of pornographic content on the Internet that is not obscene or illegal is protected by the 1st Amendment to the
Constitution of the United States. See Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) The 1st Amendment provides in relevant part:
"Congress shall make no law . . . abridging the freedom of speech, or
of the press." (See the 1st Amendment to the
U.S. Constitution )
The 1st Amendment has been interpreted by the Supreme Court to mean
that the federal and state governments should not pass laws that
interfere with speech unless it is necessary to protect some perceived
public interest. "Speech" in the context of an adult website includes
text, images, sound and video files, and other visual and aural forms of
communication. "Public interest" means whatever the Court says it means.
In its infinite wisdom, the Supreme Court has decided that the public
interest is best served if "obscenity" is not protected by the 1st
Amendment. Pornography is protected, but obscenity is not - it's
anyone's guess what divides the two categories. See generally Roth v.
United States, 354 U.S. 476 (1957) and Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). Whether the Court's reasoning in these and
similar cases is sound, and there is considerable debate about that,
there is no doubt that publishing obscene content is illegal in the
United States. Federal obscenity statutes are found in 18 U.S.C. 1460-1469 , and
each state has its own obscenity statutes.
The current definition of obscenity requires the application of a
three-part test enunciated by the Court in Miller v. California, 413 U.S. 15 (1973). Under the so-called "Miller Test," a jury from
the jurisdiction where an obscenity charge is brought will decide
whether the content in question is obscene by asking:
"(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."
There is no useful definition of who the average person is or what he
or she thinks. If you see Michelangelo's David as art and believe that
it does not appeal to any "prurient interest," your views probably
resemble those of most people and you could safely guess that the
"average person" in your community would agree with you. On the other
hand, images of anal fisting, believe it or not, are considered
"obscene" in many communities in United States. Between content that the
average person considers "art" and that considered "obscene" there is a
lot of gray area.
What is considered "art" versus "obscenity" varies in different
jurisdictions, based on the prevailing "contemporary community
standards." Juries in obscenity prosecutions are asked to guess what
most people in their community would think about the content in
question. This means that if obscenity is charged in Hollywood or
Manhattan, "obscenity" will probably mean something different than if
the crime is charged in, for example, Cincinnati, Ohio.
The Internet is a unique forum in at least one regard: while other
forms of communication such as magazines or videos must be physically
brought into a hostile jurisdiction, allowing you to choose whether to
do business there, the content of your adult website can be viewed by
anyone anywhere with a computer and Internet access. What this means for
adult site webmasters is that it doesn't matter where you, your
pictures, or server are located - you risk prosecution if a prosecutor
anywhere views your adult website or home page and believes that the
content is obscene.
For example, a husband and wife operating a Bulletin Board System
(BBS) from their house in Milpitas, California, were prosecuted and
convicted in Tennessee for displaying obscene content. The BBS provided,
among other things, access to GIF scans for a membership fee. A U.S.
Postal Inspector purchased a membership from Memphis, Tennessee. The
husband called the Inspector in Memphis and gave him an access code.
The Inspector brought six counts against the couple under United States Code: Title 18,1465. Production and transportation of obscene matters for sale or distribution | LII / Legal Information Institute for using a means of interstate commerce (a combined computer
and telephone system) for the purpose of transporting obscene images,
namely GIF files containing images of "bestiality, oral sex, incest,
sado-masochistic abuse, and sex scenes involving urination." The couple
was convicted on all six counts, and a few others including mailing a
sexually explicit video to Tennessee. Their computer system was
"forfeited" (the government took their property by force without
compensation, the husband was sentenced to 37 months in prison,
and the wife was sentenced to 30 months. The Appeals Court upheld their
convictions, and the Supreme Court refused to hear the case. See United
States v. Thomas,
74
F.3d 701 (6th Cir.) , Cert. denied, 117 S.Ct. 74 (1996).
Image files are not the only medium that can land you in jail. In
another case, Jake Baker published stories in an Internet newsgroup entitled "alt.sex.stories,"
that graphically described the torture, rape, and murder of a woman with
the same name of one of Baker's classmates at the University of
Michigan. He also sent similar stories and communication via email to a
friend. Baker was charged under 18 U.S.C. 875(c) with threatening to kidnap and injure another person. A true
threat to injure or kidnap another person is not protected speech under
the 1st Amendment. The charges against Baker were eventually dismissed
because his words were not "true threats," but he was kicked out of
school, denied bail, and he spent one month incarcerated. Plain text, if
it explicitly describes sexual conduct, might provide the basis for an
obscenity charge.
A dictionary definition of "prurient" is anything "causing lascivious
or lustful thoughts." A similarly vague legal definition of prurient
interest is a "shameful and morbid interest in nudity, sex, or
excretion." To be safe, any content that makes you sexually aroused
probably "appeals to the prurient interest" in some communities within
the United States.
To recap, if a conservative jury thinks that most people in their
community would decide that the content on your adult website causes too
much sexual arousal, you're in trouble under the first prong of Miller .
The second prong of the Miller Test requires that the content in
question must be patently offensive sexual conduct specifically defined
by state law. "Patently offensive" means whatever a jury thinks it
means, much like "prurient interest" or "the average person." In states
that have made oral or anal sex a crime, any content that depicts such
conduct could probably be considered "patently offensive" by a jury in
that state. The Supreme Court in Miller made it clear that they will
allow states to define offensive sexual conduct:
"We emphasize that it is not our function to propose regulatory
schemes for the States. That must await their concrete legislative
efforts. It is possible, however, to give a few plain examples of what a
state statute could define for regulation under [Miller]: (a) Patently
offensive representations or descriptions of ultimate sexual acts,
normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals."
In some jurisdictions this definition could be construed to include
the content of almost any adult website or home page on the Internet.
For a typical state obscenity statute that meets the "patently offensive
. . . sexual conduct specifically defined" requirement of Miller , see California Penal Code 311-312.7 .
This last part of the Miller Test should put to rest any fears that
the United States has become an intolerant totalitarian state. If you
can prove that the content on your adult website has some literary,
artistic, political, or scientific value, the criminal charges against
you might be dismissed. Imagine how happy you'll be after you finally
get out of jail. You can go home (if you haven't been evicted), try to
get your job back, and start paying your legal bills. Good luck getting
your computer back. In light of this, you might want to consider
displaying or linking to content that has something other than
masturbatory value such as information about
health care issues in the adult
entertainment industry,
safe
sex information , a discussion of fetishes , or political links to
other websites.
If you need to be further confused read Indecency on Line
Question
There are file sharing sites and sites that distribute stolen adult media. They do not have documentation on hand to prove that the participants are not minors. Aren't they violating the law that requires Title 18 Section 2257 documentation for any site that distributes adult media?
If you have any content on your adult website that might be
considered obscene and without redeeming value by some communities, you
are the potential victim of a "zealous" prosecutor. If you want to play
it safe, censor all images of penetration and anything else "hardcore"
on the free section of your site. Hide the good stuff in a members'
section and charge for access - don't give a prosecutor anywhere a
reason to target your site
Our site has no minors. This is an article where such issues are reviewed
Child pornography Displaying child
pornography or "kiddie porn" on the Internet is illegal in the United
States and many other countries of the world. "Child pornography" is
easier to define than more elusive concepts such as " obscenity ,"
but several categories of content exist that may or may not constitute
child pornography, depending upon the circumstances.
Producing, possessing or distributing images of minors (anyone under
the age of 18) engaged in sexual conduct is illegal. Some states in the
United States and many countries allow sexual conduct and marriage
between adults and minors, but visual depictions of that conduct are
prohibited in the United States by federal law. Similarly, sexual
conduct between minors or by a minor is often tolerated but visual
depictions of that conduct are also prohibited. Child Pornography laws
in the United States exist to protect children and are strictly enforced
- websites that display any content that might be considered child
pornography should expect to be prosecuted.
Unlike pornographic images of adults, the First Amendment does not
protect the possession or distribution of child pornography. Content
that depicts children engaged in sexual conduct is "a category of
material outside the protection of the First Amendment." New York v.
Ferber, 458 U.S. 747 1982. The First Amendment does protect some material
that could be considered child pornography, for example images in a
medical textbook that show a child's genitalia. Although the possession
or distribution of such images might be protected by the First Amendment
when used in a pediatric context, the same images would probably not be
protected if they were displayed on an adult website. Unless you have
the resources of, for example,
Calvin Klein
, and can afford the legal battle, play it safe and do not display any
questionable images of minors on your website.
Title 18 of the United States Code governs child pornography. See
Chapter 110 , Sexual Exploitation and Other Abuse of Children. 18 U.S.C.
2256 defines "Child pornography" as:
"any visual depiction, including any photograph, film, video,
picture, or computer or computer-generated image or picture, whether
made or produced by electronic, mechanical, or other means, of sexually
explicit conduct, where - (A) the production of such visual depiction
involves the use of a minor engaging in sexually explicit conduct;
(B) such visual depiction is, or appears to be, of a minor engaging in
sexually explicit conduct;
(C) such visual depiction has been created, adapted, or modified to
appear that an identifiable minor is engaging in sexually explicit
conduct; or
(D) such visual depiction is advertised, promoted, presented, described,
or distributed in such a manner that conveys the impression that the
material is or contains a visual depiction of a minor engaging in
sexually explicit conduct . . ."
Even though this law originally attempted to cover both the actual child
pornography and so-called "virtual child pornography", this attempt was
unsuccessful. In Ashcroft v. The Free Speech Coalition, which came down
on April 16, 2003, the Supreme Court struck down provisions of 18 U.S.C.
� 2256(8)(B) and 2256(8)(D), finding them unconstitutional. The problem,
according to the Supreme Court, is that these sections ban images that
"appear to be" of minors engaging in sexually explicit conduct. Such
images are frequently created using computer technology, and do not
involve actual children. There is also no "child pornography" simply
because something is "advertised" as child porn while the actual images
themselves are not. According to some analysts, this decision by the
Supreme Court was not surprising. The present Court has consistently
resisted legislative efforts to use new technology to justify new
restraints on speech.
If your adult website displays images that arguably appear to have
minors engaged in sexually explicit conduct, make sure that you are
prepared and have proper legal forms that you need to comply with federal record keeping requirements. You
should also have plenty of money and a desire to make the headlines.
Remember, if you are prosecuted for violating child pornography laws, a
jury will decide whether the content on your adult website is child
pornography. Without a doubt, some juries will see child pornography
where there is none. So, if you make an error, make it on the safe side.
18 U.S.C. 2252 prohibits the production, transportation, or knowing receipt or
distribution of any visual depiction "of a minor engaging in sexually
explicit conduct." For the purposes of Title 18, 18 U.S.C. 2256 defines a "minor" as any person under the age of eighteen
years, and "sexually explicit conduct" as actual or simulated:
"(A) sexual intercourse, including genital-genital, oral-genital,
anal-genital, or oral-anal, whether between persons of the same or
opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person"
"Sexual intercourse" and "bestiality" (sex with an animal) seem pretty
clear - if your website displays images that a prosecutor believes
involve minors engaged in sexual intercourse or bestiality, expect to be
prosecuted. Which acts constitute "masturbation" or "sadistic or
masochistic abuse" may be more difficult to define, because participants
engaged in such activities tend to do so for a sexual purpose. Clearly a
child could appear to be engaged in such activities without intending a
sexual purpose. What a child intends by his or her actions is
irrelevant, however, because Federal law prohibits "simulated" as well
as actual acts. Many states also address this issue by prohibiting
images of minors touching or displaying their bodies "for the purpose of
sexual stimulation of the viewer." (See, for example, California Penal
Code 311.3-312.7 ).
Section (E) prohibits images of "lascivious exhibition of the
genitals or pubic area." Courts that have interpreted this section have
done so broadly - "as used in the child pornography statute, the
ordinary meaning of the phrase "lascivious exhibition" means a depiction
which displays or brings forth to view in order to attract notice to the
genitals or pubic area of children, in order to excite lustfulness or
sexual stimulation in the viewer." States v Knox (1994). You may risk
prosecution if your website displays images of minors depicted in a way
that excites viewers.
In Knox , a man who had previously been convicted of receiving child
pornography through the mail ordered video tapes (by mail) of girls
between the ages of ten and seventeen who, in the Court's words, "were
dancing or gyrating in a fashion not natural for their age." The girls
wore bikini bathing suits, leotards, or underwear - none of the girls in
the videos was nude. The videos were set to music, and it appeared that
someone off-camera was directing the girls. The photographer videotaped
the girls dancing, and zoomed in on each girl's pubic area for an
extended period of time. Knox was prosecuted under United States Child
Pornography laws.
Legal counsel for Knox argued that "lascivious exhibition of the
genitals or pubic area" meant that the girls had to be nude - wearing
clothing meant that that genitals and pubic area were clearly not exhibited. The Court disagreed and held that there was no nudity
requirement in the statute: "the statutory term "lascivious exhibition
of the genitals or pubic area," as used in 18 U.S.C. � 2256(2)(E), does
not contain any requirement that the child subject's genitals or pubic
area be fully or partially exposed or discernible through his or her
opaque clothing."
The Courts will likely continue to define what is prohibited under
the child pornography laws. For example, if a website displays legal
images of children, perhaps scanned from magazines and other legal
sources, in a way that a prosecutor believes could excite some viewers,
can that website be prosecuted under the child pornography laws? In many
states and countries the age of consent is younger than 18. Can
the USA prosecute a webmaster in another country who is displaying
images of a 16 year old nude model, even if the images are not illegal
in the webmaster's home country? The USA invades other countries to
enforce its drug laws, so it's possible that webmasters in other
countries might find themselves hauled to the USA to face criminal
charges if they violate USA child pornography laws.
If you want to be safe, do not display any images of minors on your
adult website and do not advertise or suggest that your models are
minors. If your website displays any arguably sexual images of minors,
you may risk prosecution if it appears that your site exists for the
sexual stimulation of viewers. If you display any questionable images of
minors on your website, make sure you have a good lawyer. If you have
any questionable images on your site, but you know that the model
depicted is of legal age, make sure that you have the necessary legal
records you will need to produce if you are prosecuted.
-
Child
Abuse Website Links
A list of online websites and organizations dedicated to stopping
child abuse and child pornography
-
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THE COPA The Supreme Court is going to hear the Justice Department's appeal
of a unanimous
decision by the United States Court of Appeals for the 3rd Circuit
that upheld the ACLU's preliminary injunction against the Child Online
Protection Act (COPA). The COPA was on hold after the ACLU won a preliminary injunction against the Act in 1999. This decision could
have a huge impact on how adult webmasters do business - get ready! By
using this webpage in any way you agree that you accept our Terms and
Conditions .
Title V of the Telecommunications Act of 1996, also called the
"Communications Decency Act of 1996" (CDA), prohibited the use of a
computer to display "in a manner available to a person under 18 years of
age, any [content that] depicts or describes, in terms patently
offensive as measured by contemporary community standards, sexual or
excretory activities or organs." The ACLU and others challenged the legislation. The United States, led by
Janet Reno, took the dispute all the way to the Supreme Court.
The Court had two options - treat the Internet like broadcast media
or treat it like print media. Legislation and regulations that censor
broadcast media are generally upheld on the premise that because
television and radio are broadcast to the public, without regard to who
receives the material being broadcast, minors might accidentally
encounter sexual material. Conversely, print media such as magazines and
books is easier to keep away from minors, for example by prohibiting
sales to anyone under 18, and it enjoys a greater level of protection.
The Supreme Court in
Reno v.
ACLU decided that communication on the Internet deserves the same
high level of protection as communication in print media. The Court
noted the growing importance of the Internet as a public forum, and
struck down the CDA because it prohibited adults from engaging in
Constitutionally protected speech. Enter the 105th Congress.
The 105th Congress came up with and passed the Child Online
Protection Act of 1998 ( COPA ). President Clinton immediately zipped his pants and dutifully signed
the legislation into law. The relevant section of the COPA provides
that:
"Whoever knowingly and with knowledge of the character of the
material, in interstate or foreign commerce by means of the World Wide
Web, makes any communication for commercial purposes that is available
to any minor and that includes any material that is harmful to minors
shall be fined not more than $50,000, imprisoned not more than 6 months,
or both." In addition, the Act provides fines and penalties for
"intentional violations" (if you refuse to remove the offending
material) of up to $100,000 for each day that the material remains on
your site.
Under the Act, a person is engaged in making communications for
commercial purposes if that person "devotes time, attention, or labor to
such activities, as a regular course of such person's trade or business,
with the objective of earning a profit as a result of such activities."
If you intend to make any money off of any part of your website, you are
engaged in making "communication for commercial purposes" and the Act
applies to you.
The Act defines a minor as "any person under 17 years of age" and
material that is "harmful to minors" as:
"any communication, picture, image, graphic image file, article,
recording, writing, or other matter of any kind that is obscene or that:
(A) the average person, applying contemporary community standards, would
find, taking the material as a whole and with respect to minors, is
designed to appeal to, or is designed to pander to, the prurient
interest;
(B) depicts, describes, or represents, in a manner patently offensive
with respect to minors, an actual or simulated sexual act or sexual
contact, an actual or simulated normal or perverted sexual act, or a
lewd exhibition of the genitals or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or
scientific value for minors."
The COPA expands the definition of obscenity by
adding an "as to minors" focus and by including material that is
currently considered pornography ("lewd exhibition"). Of particular
interest to adult site webmasters is the prohibition of depictions of
"an actual or simulated sexual act or sexual contact, an actual or
simulated normal or perverted sexual act, or a lewd exhibition of the
genitals or post-pubescent female breast." If you run a website that
contains adult content that is not covered by this definition,
here's some good news: you are probably not running an adult website.
The definition of "harmful to minors" in COPA appears to include display
of all sexual material.
The COPA prohibits any depiction of nudity or sexual conduct that the
most conservative community in the United States might find offensive as
to minors. Remember, prosecutors in conservative jurisdictions can
prosecute adult site webmasters for transmitting prohibited material,
regardless of where the webmaster lives or where the server for the site
is located. See United States v. Thomas,
74
F.3d 701 (6th Cir.) , Cert. denied, 117 S.Ct. 74 (1996). Do you
really want a jury in a small county in the South (no offense) to decide
whether an image on your publicly accessible website constitutes a "lewd
exhibition" of the female breast?
"It is an affirmative defense to prosecution under [the COPA] that
the defendant, in good faith, has restricted access by minors to
material that is harmful to minors-- (A) by requiring use of a credit
card, debit account, adult access code, or adult personal identification
number;
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under
available technology."
Essentially, the COPA prohibits making pornographic material
available free to minors. If you hide every image of nudity or sexual
conduct on your site in a "member's area," protected by credit card or
other age verification system, you probably won't be prosecuted under
the COPA. Of course no one will stay long at your site if there aren't
any free pictures, but at least you'll be doing your part to protect the
children.
In the event that the COPA or similar legislation passes, the most
likely scenario is that obvious targets will be prosecuted first. If the
index page on your site contains an 800 X 600 greasy close-up of deep
anal fisting in full-color, and the name of your site is "thehappylionking.com,"
you're in trouble. Similarly, if free hardcore material is available
just a few clicks into your site, you may be a target for prosecution.
If you want to be safe, censor all genitalia, "lewd images," and images
of sexual conduct on the free section of your site. Hide the good stuff
in your members' section and charge for access - don't give the censors
a reason to target your site.
If it bothers you that you pay taxes to a government that wastes your
money trying to censor the Internet, get involved in the process. You
can bet that people who don't want little Jimmy to get excited by
looking at a bare breast online are organized, and they work very hard
to influence their Representatives in Congress. Contribute to the debate
by sending email, faxes, and letters to your Representatives, especially
if they support the COPA or similar legislation. Let them know what you
think about pornography and free speech on the Internet. The following
links should get you started:
Burden of Title 18 section 2257
At Bossy Girls we do not have any material that shows
real or simulated sex acts, such as strap-on because it
would force us to comply with Title 18 section 18 2257 and all the
documentation keeping burden and visits by the authorities to our office
to see the PC where the material is located. We obey the law. We are
strongly opposed to any child pornography. We do not believe that this
law helps a lot to prevent these immoral activities and punish the
perpetrators. We do not have to like the law, we have to obey it.