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Should Cyber-Pornography be Banned?
by Michelle Calderon, staff writer for AnaiRhoads.org
Pornography has been commonly used as a term to describe sexual materials. Legally, sexual speech, including pornography is distinguished as either obscenity or indecency. Obscenity is unprotected by the First Amendment, and obscenity laws make it a crime to sell obscene material, even to willing adults. Indecency, on the other hand, is less sexually explicit than obscenity, and is protected by the First Amendment for adults. Pornography is protected unless it is determined to be obscene.
The expansion of access to computer networks and the development of the WWW have caused unprecedented proliferation of pornography over the Internet (Cyber-pornography). This has brought concerns about its harmful effects, not just on influencing sexual aggression and values of people, but on overall affect on children. In reaction to this, Senator James Exon (1995) proposed the CDA amendment to restrict sexually explicit material on the Internet. The result sparked fierce antagonism between free speech advocates and child-welfare advocates. Since prohibition of obscenity and regulation of pornography for child protection, effects of both exposure to and legal actions against sexually explicit material have been at the center of controversy. In addition, the applications of regulations have created conflicts as they are occurring in other legal areas such intellectual property, trade laws, and privacy.
In the beginning, the determination of obscenity was based on the Hicklin Rule: If something was obscene to children, it was obscene for everyone and its distribution or sale could be completely prohibited. In 1957, Hicklin was abandoned. In 1973, for the first time, a majority of the Supreme Court in Miller reached an agreement on a definition of obscenity:
“Whether the average person, applying contemporary local community standards" would find that the work, taken as a whole, appeals to prurient interest; whether the work depicts, in a patently offensive way, sexual conduct specifically defined by applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Nicholas, 1999).
Known as the Miller Test, this has established the concept of contemporary community standards, which continues today. The Miller test has established that the "average person" includes all adults. The term "local community standards" has been defined as "state standard." All communities within the same state share the same standards. The question of community standards becomes a problem in cases that involve the transmissions of pornographic material between states within the U.S., and the importation internationally, hence especially over the internet.
Because existing laws cause many problems in applying contemporary local community standards (the Miller Test), three federal laws were employed to prosecute obscene material over the Internet. “The first statute prohibits child pornography and ban materials that visually depict a sexual performance engaging children under 18 years old. The second statute bans the interstate transfer of obscene materials for selling and distributing. The third federal statute regulates the "dial-a porn" industry, and prohibits the transfer of obscenity over the telephone line” (Nicholas, 1999).
Regulating pornography advocates its possible harm on society and human values. However, studies have not resolved the question as to whether pornography increases or decreases sexual aggression in society. Absolute free speech traditionionalists opposes censorship. An example would be feminists that believe that anti-censorship emphasize women's liberation from patriarchal sexual suppression. Some libertarians believe that obscenity is speech not sex, and therefore it is eligible for the First Amendment protection. They oppose any form of legal restriction on speech. The ACLU denounces the Supreme Court's support of the restriction of sexual speech-based on moral grounds and asserts that restriction infringes on individuals' rights to choose what they see and hear.
In conclusion, laws require a redefinition of standard. Traditional principles that protect minors from pornographic material should stand firm. Courts need to consider the potential of the Internet as an open educational forum for young adults. The applications of "harmful to minors" standards in courts will determine if the protection of children from pornography necessarily means the suppression of healthy discussion of human sexuality. Rather than banning cyber-pornography altogether, it is more reasonable that regulation of obscene materials and child pornography should be continued by a combination of current laws and the adoption of new standards of obscenity; with the goal of the development of technology making it possible to restrict minors access to sexually explicit material without violating the First Amendment rights of adults.
References:
Nicholas, J. (1999). The Internet and Pornography: In the Search for Regulatory
Alternatives in a New Technological Environment. Cyberspace Law Seminar.
Retrieved September 22, 2005, from: http://www.cyquator.com/highcourt/3a.htm
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