Pornography.
Publié le 10/05/2013
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censorship.
Congress passed 20 obscenity laws between 1842 and 1956, most of which were variations of or amendments to the original Comstock Law.
Later, Congress passed aseries of antipornography and anti-indecency laws dealing with new forms of technology and with the protection of children.
The Protection of Children Against SexualExploitation Act of 1977 prohibits anyone from employing or inducing a minor to participate in sexual conduct or in the making of pornography.
In 1988 Congresspassed legislation against “dial-a-porn” companies that made it illegal to make indecent or obscene phone calls over state lines for commercial purposes.
(In 1989 theSupreme Court struck down the part of the law that dealt with indecency.) The Child Pornography Prevention Act of 1996 made it illegal to distribute or receive childpornography, including virtual child pornography, by any means.
(However, in 2002 the Supreme Court struck down provisions of the law that banned virtual childpornography.) Penalties for violation of these various laws range from a few years to 30 years in prison, depending on the circumstances.
The widespread availability of pornography on the Internet has led to a number of legislative attempts to prevent children’s access to it.
However, opponents havechallenged these laws on the grounds that they are overly broad and infringe on freedom of speech, which is protected by the First Amendment of the U.S.Constitution.
In 1996 Congress passed the Communications Decency Act (CDA), making it a crime to send any obscene or indecent messages over the Internet knowingthat the recipient is under 18 years of age.
After the Supreme Court unanimously ruled this law unconstitutional in 1997, Congress passed the Child Online ProtectionAct (known as “son of CDA”), which required commercial Web sites to ensure that children could not access material deemed “harmful to minors.” The act alsoprohibited, among other things, material that “depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual actor sexual contact.” In 1999 a federal appeals court blocked that law as well, citing free-speech concerns.
The Children’s Internet Protection Act, passed in 2000,required all public schools and libraries that receive federal technology funds to install filtering software designed to block access to pornographic sites.
A coalition of civilliberties groups, led by the American Civil Liberties Union and the American Library Association, argued that filtering software was imprecise and blocked access to Websites that have nothing to do with pornography.
In 2002 a federal judicial panel struck down the Children’s Internet Protection Act, finding that filtering software blockedWeb sites whose content was constitutionally protected.
However, in 2003 the Supreme Court reversed the lower court and ruled that the law was constitutional andwas justified by the government’s legitimate interest in protecting children from harmful materials.
The Court noted that the law allowed librarians to enable access toblocked Web sites at the request of patrons, thereby protecting patrons’ First Amendment rights.
A2 The Two Commissions
Two national commissions appointed to study the effects of pornography in the United States show how tolerance of such material ebbs and flows.
In 1970 theCommission on Obscenity and Pornography, created by President Lyndon B.
Johnson in 1968, found no evidence that pornography caused crime or delinquency amongadults and youths.
Although the commission supported laws prohibiting sales of pornographic materials to children, it recommended eliminating all legal restrictions onthe use by consenting adults of sexually explicit books, magazines, pictures, and films.
This position was consistent with the dominant liberal view of the time and withmuch of the social science and psychological literature that was then available.
Although the commission’s findings were widely reported, politicians rejected them.
In 1985 Attorney General Edwin Meese III formed another national commission to study the effects of pornography.
By this time, society had changed in several ways.Pornography had become even more available; a new generation of social science studies suggested a link between exposure to violent or degrading pornography andmale aggression against women in laboratory settings; and new conservative and feminist movements were joining hands to attack pornography.
In addition, themembership of the new commission was decidedly more conservative than that of the 1970 commission.
Not surprisingly, the Attorney General’s Commission onPornography, also known as the Meese Commission, reached strikingly different conclusions than did its predecessor.
In its 1986 report, the commission concluded thatviolent pornography and degrading pornography (pornography showing the “degradation, domination, or humiliation” of women) cause violence and discriminationagainst women and an erosion of sexual morality.
The Meese Commission’s report suffered the same fate as that of the 1970 commission, being largely ignored.
A3 Major Court Decisions
In 1896 the United States Supreme Court, in the cases Rosen v.
United States and Swearingen v.
United States , ruled that the definition of obscenity should be the same as the one stated in a famous 1868 English case, Regina v.
Hicklin .
That case defined obscenity as material that has a tendency “to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall.” Judges could rule a work obscene if even isolated passagesfit this definition.
This broad test changed in the early 1930s as courts grew more concerned about protecting serious literary treatments of sexual themes.
A majorturning point took place when federal courts overturned the government’s ban on Ulysses (1922), a book by Irish writer James Joyce that many scholars now consider the most important novel of the 20th century.
In the 1933 case United States v.
One Book Called “Ulysses,” federal judge John Woolsey declared Ulysses nonobscene and rejected the Hicklin “bad tendency” test in favor of a test that focused on the author’s pornographic intent and the effect on the average reader of the work taken as whole.
In the 1957 case Roth v.
United States , which involved a Comstock Law prosecution, the Supreme Court ruled that obscene materials are not protected by the First Amendment’s guarantees of freedom of speech and of the press.
In its decision, the Court also established a new test for obscenity: “whether to the average person,applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.” ( Prurient means marked by impure or unwholesome sexual desire.) This obscenity standard was the first designed to protect the First Amendment rights of materials dealing with sex in a mannernot appealing to a prurient interest.
Before this time, courts based their interpretations of obscenity on their reading of the relevant statutes without reference to theFirst Amendment.
During the 1960s the Supreme Court developed more liberal tests for obscenity, and the market in pornography exploded in the wake of the sexual liberationmovement.
In the 1973 case Miller v.
California , a somewhat more conservative Court settled on a three-part test that is now the foundation of obscenity doctrine in the United States: (1) whether the work, taken as a whole, would be prurient according to the average person applying contemporary community standards; (2)whether the work describes sex acts in a patently offensive way; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.Essentially, this test restricts obscene material to “hard-core” pornography that shows sex acts or displays of genitals in a patently offensive way.
Although the Miller definition seems to balance libertarian and conservative moral values, it has proved difficult to apply in practice and has not had much impact on the growth andavailability of hard-core pornography.
In the 1985 case American Booksellers Association v.
Hudnut, a federal appeals court struck down an Indianapolis antipornography ordinance that employed the feminist definition of pornography as the “sexually explicit subordination of women.” The court ruled that the ordinance violated the First Amendment because it wasinconsistent with obscenity doctrine and constituted punishment of speech with a particular viewpoint.
Experts pointed to the case as evidence that U.S.
courts, indetermining obscenity, still focus on prurience and have refused to make violence or degradation elements of obscenity law.
In the 2002 case Ashcroft v.
Free Speech Coalition , the Supreme Court ruled that two parts of the Child Pornography Prevention Act of 1996 violated the First Amendment.
The act went beyond previous laws by prohibiting “any visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” TheCourt held that the act’s ban on virtual child pornography, such as computer-generated sexually explicit images of minors, was unconstitutional because pornographycould be banned only if it used real children or met the legal test for obscenity.
It also invalidated a ban on presenting youthful-looking adults as children inpornographic materials.
The Court noted that the act was so broadly worded that it prohibited not only child pornography but also forms of expression with serious.
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