Mary Minow is an attorney, a former librarian and library trustee, and a library law consultant with librarylaw.com. She has taught library law at the San Jose State School of Library Science. She received her B.A. from Brown University, her A.M.L.S. from the University of Michigan, Ann Arbor, and her J.D. from Stanford University. She is currently writing a book with Tomas Lipinski on legal issues for librarians for the American Library Association.
*Justice Potter Stewart, Jacobellis v. Ohio, 878 U.S. 184 (1964)
“Cyberporn,” “Pornography,” and “Inappropriate,” are not legal terms. According to the American Heritage Dictionary of the English Language (1976), “pornography” consists of “written, graphic, or other forms of communication intended to excite lascivious feelings.” “Indecent,” also has no specific legal meaning in the context of the Internet. ACLU v. Reno, 521 U.S. 844 (1997).
(Please be advised this article contains the text of federal and state laws, as well as urls to websites, the content of which may be offensive. In particular, the article quotes statutory language verbatim that is of a graphic nature. LLRX is not responsible for any content that the reader may encounter by following links from any website referenced in this article.)
Constitution (Per U.S. Supreme Court) Child pornography is a category of speech that is not protected by the First Amendment. New York v. Ferber, 458 U.S. 747 (1982).
Federal Child Pornography Law
Federal laws prohibit the distribution of child pornography in interstate commerce and on federal property. The federal child pornography statute, 18 U.S.C. 2256, defines “child pornography” as “any visual depiction” of a minor under 18 years old engaging in “sexually explicit conduct.” Sexually explicit conduct, is defined in child pornography 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;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person”
Current Status: On April 16, 2002, the Supreme Court struck down a provision added by the 1996 Child Pornography Protection Act (CPPA) that added images that “appear to be” minors engaging in sexually explicit conduct. This provision made “virtual child pornography” illegal, even when no real child was involved, making it easier to identify and prosecute cases. The Court observed that virtual child pornography was not “intrinsically related” to the sexual abuse of children, unlike pornography that uses real children. Moreover, as written, the CPPA would prohibit pictures in a psychology manual as well as movies depicting the horrors of sexual abuse, not to mention the possible ban on Romeo and Juliet. Ashcroft v. Free Speech Coalition, 122 S. Ct. 1389 (2002). Three new bills were introduced soon after this decision in new attempts to ban the distribution of material that conveys the impression that it depicts a minor engaging in sexually explicit conduct: H.R. 4623, S. 2511 and S. 2520.
California Child Pornography Law
California child pornography laws are included with the state’s obscenity laws. See especially California Penal Code § 311.2-311.4 and 311.11; definition in §311.3(b): State law makes it a felony to distribute or exhibit matter depicting a person under the age of 18 years personally engaging in or personally simulating sexual conduct, including (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals. (2) Penetration of the vagina or rectum by any object. (3) Masturbation for the purpose of sexual stimulation of the viewer. (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer. (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer. (6) Defecation or urination for the purpose of sexual stimulation of the viewer.
Constitution (Per U.S. Supreme Court)
(i) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
(ii) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(iii) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973).
The first two prongs of the Miller test – the prurient interest and patent offensiveness – are issues of fact for a jury to determine, applying contemporary community standards and state law. The third prong, serious value, is not determined by a given community or state, but is instead a national standard. Pope v. Illinois, 481 U.S. 497, 500 (1987).
“The first two parts of [the Miller test] are incoherent: to put it crudely, they require the audience to be turned on and grossed out at the same time.” Kathleen Sullivan [now dean of Stanford Law School], The New Republic (Sept 28, 1992).
The Constitutional definition of Obscenity was further narrowed by the Supreme Court in Brockett v. Spokane Arcades, 472 U.S. 491, 498 (1985) which endorsed the Model Penal Code of obscenity — “material whose predominant appeal is to a shameful or morbid interest in nudity, sex, or excretion” and not “materials that provoked only normal sexual reactions.” In practice, prosecuting obscenity cases is very tough. Jeffrey Douglas, a Santa Monica lawyer has tracked nationwide obscenity prosecutions since 1987. He found that of the materials that have been judged obscene — by a judge or a jury– there are several common elements: explicit showing of excretion, bestiality, necrophilia, incest, or any type of non-consensual sex. He notes that the “taken as a whole” language is important, and “that is one of the reasons that all — or most — adult magazines have literary content.” The adult industry has a growing number of web pages that offer legal information regarding Internet distribution: “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…. 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.” http://www.adultweblaw.com/laws/obscene.htm (visited August 30, 2002).
Federal Obscenity Law
Federal law does not ban obscenity outright; it leaves this to state law. Federal statutes prohibit, among other things, the transmission of obscene matter as defined by state law, in interstate commerce (e.g. the Internet) and on federal land. 18 U.S.C. §§1460-1470. A website that may be legally permissible in California may be illegal in another state such as Tennessee. Note that websites that have pornographic content generally have a warning that asks the user to verify not only that they are over 18, but also that they are following the laws of their state. Note that the landmark decision Reno v. ACLU, 521 U.S. 824 (1997), struck down only the indecency provision of the Communications Decency Act. The provision that prohibits transmission of obscene material across the Internet was not challenged and is still valid law. 47 U.S.C. §223(a)(1)(B).
California Obscenity Law
California Penal Code § 311. As used in this chapter, the following definitions apply:
(a) “Obscene matter” means matter, taken as a whole, that to the average person, applying contemporary statewide standards, appeals to the prurient interest, that, taken as a whole, depicts or describes sexual conduct in a patently offensive way, and that, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(1) If it appears from the nature of the matter or the circumstances of its dissemination, distribution, or exhibition that it is designed for clearly defined deviant sexual groups, th
e appeal of the matter shall be judged with reference to its intended recipient group.
(2) In prosecutions under this chapter, if circumstances of production, presentation, sale, dissemination, distribution, or publicity indicate that matter is being commercially exploited by the defendant for the sake of its prurient appeal, this evidence is probative with respect to the nature of the matter and may justify the conclusion that the matter lacks serious literary, artistic, political, or scientific value.
(3) In determining whether the matter taken as a whole lacks serious literary, artistic, political, or scientific value in description or representation of those matters, the fact that the defendant knew that the matter depicts persons under the age of 16 years engaged in sexual conduct, as defined in subdivision (c) of Section 311.4, is a factor that may be considered in making that determination.
Harmful to Minors – A.K.A. Harmful Matters
Constitution (Per U.S. Supreme Court) States may prohibit access by minors to material deemed harmful to minors. Ginsberg v. New York, 390 U.S. 629 (1968)
Federal “Harmful To Minors” Law
There has not been a federal harmful matters law until the recent legislation, the Children’s Online Protection Act (struck down by the Court for now), and the Children’s Internet Protection Act (struck down for public libraries, for now).
Children’s Internet Protection Act (CIPA) applies only to schools and school libraries that use certain federal funds to access the Internet. CIPA defines “material that is harmful to minors” as:
any picture, image, graphic image file, or other visual depiction that —
(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion;
(ii) depicts, describes, or represents in a patently offensive way with respect to what is suitable for minors, an actual or simulated sexual act or sexual contact, actual or simulated normal or perverted sexual acts, or a lewd exhibition of the genitals; and
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
This statute refers to minors as persons under 17. It differs from the COPA definition (below) in three respects. CIPA applies only to images, whereas COPA applied to images and words; CIPA does not apply community standards, and CIPA does not allow an image of the “post-pubescent female breast” to be found harmful to minors.
Current Status: This law is still valid for school libraries, but has been struck down for public libraries by a federal district court on May 31, 2002. American Library Association v. U.S., No. 01-1303 (E.D. Pa. 2002). The Attorney General is appealing directly to the Supreme Court; a decision is expected in 2003.
Child Online Protection Act (COPA) applied to commercial speakers. COPA defines “material that is harmful to minors” as pictures or words that –
(i) 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;
(ii) 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 a post-pubescent female breast; and
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to minors.
Current Status: COPA was scheduled to take effect in 1998, but never went into effect after it was challenged in court. On May 13, 2002, the Supreme Court vacated the Third Circuit’s opinion, which was based on the difficulty in applying “contemporary community standards” to the Web, allowing the community most likely to be offended to censor others. The Supreme Court held, however that the use of “community standards” in the statute was not unconstitutional by itself. Further court proceedings will be held to further determine whether COPA will withstand judicial scrutiny. In the meantime, it is not in effect.
California “Harmful To Minors” Statute: Penal Code 313(a) “Harmful matter” means matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors. (1) When it appears from the nature of the matter or the circumstances of its dissemination, distribution or exhibition that it is designed for clearly defined deviant sexual groups, the appeal of the matter shall be judged with reference to its intended recipient group. … 313.1(c) Any person who knowingly displays, sells, or offers to sell in any coin-operated or slug-operated vending machine or mechanically or electronically controlled vending machine that is located in a public place, other than a public place from which minors are excluded, any harmful matter displaying to the public view photographs or pictorial representations of the commission of any of the following acts shall be punished as specified in Section 313.4: sodomy, oral copulation, sexual intercourse, masturbation, bestiality, exposed smegma, or a photograph of an exposed penis in an erect and turgid state. Note: This statute refers to minors as persons under 18.
California Case Law on Harmful Matters and Libraries
Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (Cal. App. 1st Dist. 2001). Cites Moore v. Younger and states: “Consistent with the library’s stated mission of encouraging children to develop a lifelong interest in learning, the library presumably seeks to impart the “[e]lectronic information research skills” the policy deems “increasingly important to students” and others. Librarians cannot be prosecuted for providing such instruction (Pen. Code, § 313.3; Moore v. Younger, 54 Cal.App. 3d 1122 (1976), and we cannot presume that such instruction would include lessons on finding obscenity or other harmful matter on the Internet. Such lessons would not further the library’s stated mission, and would not be consistent with its policy that computers are to be used only for “educational, informational and recreational purposes.”
Moore v. Younger, 54 Cal. App. 3d 1122 (1976) holds librarians and libraries exempt from the California Harmful Matters statute. “The court declares that it was the intention of the Legislature to provide librarians with exemption from application of the Harmful Matter Statute when acting in the discharge of their duties. The court declares alternatively that the availability and distribution of books at public and school libraries is necessarily always in furtherance of legitimate educational and scientific purposes . . . And accordingly, librarians are not subject to prosecution under the Harmful Matter Statute for distributing library materials to minors in the course and scope of their duties as librarians.”
Bonus definition: Hostile Work Environment
Constitution: The Supreme Court has said there is no mathematical formula. The hostile work environment standard is when the workplace is permeated with discriminatory intimidation, or ridicule, an insult that is sufficiently severe or pervasive to alter the condition of the victim’s employmen
t and create an abusive working environment. This standard takes a middle path between making actionable any conduct that is merely offensive and requiring it to cause a tangible psychological injury. The test is not mathematically precise, looks at all of the circumstances: such as frequency of the discriminatory conduct, and severity, whether it is physically threatening or humiliating or a mere offensive utterance and whether it unreasonably interferes with employees work performance. (Justice Sandra Day O’Connor in Harris vs. Forklift Systems, 510 U.S. 17 (1993).
Note on Library Internet Terminals and Sexual Harassment
In some situations, courts have upheld zoning regulations of sexually explicit material that is not obscene. The restrictions are not an outright ban, and must be narrowly tailored to combat secondary effects, such as crime. See Young v. American Mini Theaters, 427 U.S. 50 (1976) and Renton v. Playtime Theaters, 475 U.S. 41 (1986).
The “secondary effects” argument was not found viable by a federal district court when a library that used filters claimed that the filters were needed to prevent a hostile working environment and to prevent viewing of illegal materials. Mainstream Loudoun v. Loudoun County Library, 2 F. Supp. 2d 552 (E.D. Va. 1998).
Additionally, another federal court noted that the mere tendency of speech to encourage unlawful acts such as harassment is insufficient reason for banning it. The proper method is to impose sanctions on the conduct, such as removing the patron from the library. American Library Association v. U.S., No. 01-1303 (E.D. Pa. 2002).
Last Updated August 30, 2002
Editor’s Note (SP): I have added links to specific cases and code sections throughout this article, available from free access sites. Also, please note that registered users of lexisOne(sm) can obtain free copies of many cases referenced in this article for which links are not otherwise provided.