Cyberporn

A Pitfall on the Information Superhighway

The Internet brought quick, easy access to information into homes and offices worldwide in the 1990s. Bright entrepreneurs developed various e-commerce sites, and the web became a viable place of business for many, including those who offer sexually explicit images. Unlike seedy adult bookstores, many pornographic sites in cyberspace are easily accessible to anyone at a computer keyboard, including children. That recognition set off a raging debate about the legality of pornography on the web. At the core of this debate was the question raised by the new technology—was the web more like print media and therefore protected by the First Amendment from much regulation at all, or

U.S. SUPREME COURT CASES RELATED TO MEDIA

Osborne v. Ohio, 18 April 1990

The Supreme Court held that a state could constitutionally proscribe the possession of child pornography because protection of the victims of child pornography outweighed other concerns. The case arose when Ohio police found explicit pictures of adolescent males during the execution of a search warrant. The resident was found guilty of violating an Ohio law that prohibits possession of child pornography.

Leathers v. Medlock, 16 April 1991

By a seven-to-two vote, the Supreme Court found that a differential tax structure for various media did not interfere with First Amendment rights and did not present the potential for censorship of ideas. The case brought by Arkansas's cable industry argued that the state's policy of taxing cable but not print media was unconstitutional because the law might suppress the expression of a particular point of view.

Masson v. New Yorker Magazine, Inc., 20 June 1991

By a nine-to-zero vote, the Supreme Court found that a public figure can recover libel damages from the publisher of an article that attributes altered quotations to the public figure if the alteration results in a material change in the meaning of the statement.

Cohen v. Cowles Media Co., 24 June 1991

By a five-to-four vote, the Supreme Court held that a newspaper could be sued under a state's promissory estoppel law (right to sue as a result of a broken promise) because the law docs not discriminate against the press. The case arose when a Minnesota gubernatorial campaign worker offered documents about another candidate to newspapers on the basis of a promise of confidentiality. The newspapers then published the worker's name.

Simon & Schuster v. NY Crime Victims Board, 10 December 1991

The Court ruled that New York's 1977 "Son of Sam" law, which ordered that proceeds from criminals' selling of their stories be turned over to the New York State Crime Victims Board, violated the free speech clause of the First Amendment.

Turner Broadcasting v. FCC, 27 June 1994

The Supreme Court held that the must-carry provision of the Cable Television Consumer Protection and Competition Act of 1992 was not a violation of the First Amendment. Part of the Act required cable companies to allocate a percentage of their channels to local public broadcast stations. The Court found that this Act promoted fair competition and did not determine programming content.

Denver Area Consortium v. FCC, 28 June 1996

In a six-to-three decision, the Supreme Court held that the 1992 Cable Television Consumer Protection and Competition Act allowed leased channel cable operators to restrict the transmission of patently offensive or indecent programming, but it did not allow them to ban offensive or indecent programming on public-access channels.

Arkansas Educational Television Commission v. Forbes, 18 May 1998

In a six-to-three decision, the Supreme Court found that the exclusion of a ballot-qualified candidate from a debate sponsored by a state-owned public television broadcaster did not violate the candidate's First Amendment right to freedom of speech. During a congressional race the Arkansas Educational Television Commission had excluded an independent candidate with little popular support from its debate between major party candidates. The Court held that as long as the debates were not designed as public forums, public broadcasters could selectively exclude candidates.

Hanlon v. Berger and Wilson v. Layne, 24 May 1999

By nine-to-zero and eight-to-one votes, the Supreme Court ruled that law enforcement officials violate the Fourth Amendment by allowing the media to enter private homes on execution of a search warrant and that officers were entitled to qualified immunity because it was not yet a clearly established violation of the Fourth Amendment. A reporter and photographer from The Washington Post accompanied law enforcement officials during the execution of a search warrant, and the residents sued, alleging the officers had violated their rights to privacy.

Source:

The Oyez Project, Northwestern University, First Amendment Center, Supreme Court Files.

was it more like broadcast media, which are much more open to federal regulation?

Porn on the Web

New technologies made pornography on the web accessible and profitable. "Adult" sites on the web were a billion-dollar business by 1998, and more than half the requests on search engines were adult-oriented. While many pornographic sites required identification and a credit card, many others could be accessed by anyone with web service. One survey found that 25 percent of teens said they had visited X-rated websites. Almost all on-line consumers of porn were men, and a great deal of the adult material available consisted of images not readily available in the average porn-magazine market—including bondage, sadomasochism, bestiality, and pedophilia.

Case of the Thomases

Robert Alan and Carleen Thomas operated the Amateur Action BBS (bulletin board service) out of Milpitas, California. The two entrepreneurs were indicted in 1994 for transmitting pornographic material to a government agent in Tennessee. A Memphis jury decided the images were obscene, and the Thomases were found guilty of violating federal obscenity laws by allowing residents in Tennessee to download explicit images and by sending explicit videotapes into Tennessee by United Parcel Service (UPS). Their conviction was affirmed by the U.S. Court of Appeals in February 1996, and the Supreme Court declined to review the case in October 1996. Federal obscenity law requires the court to consider the standards of the local community into which pornography is sent in determining whether or not the material is obscene. The American Civil Liberties Union (ACLU) and other free-speech advocates argued that the images on the web were not sent specifically to Tennessee and that to find the Thomases guilty in that state would mean that anyone posting explicit material on the web could be liable for prosecution in any community that had access to the information. The Supreme Court did not address the larger issue because the Court found that Thomas required the name, age, address, and phone number of each subscriber before he gave them a password to download images from his BBS. Thus, the Thomases knew their customer was in Tennessee and knew they were providing access to someone in a community with strict obscenity standards. Had they not wished to subject themselves to liability, they could have refused to provide a password to consumers in those communities. In other words, the Court ruled that because the Thomases knew the addresses of customers, their business was essentially no different than Playboy or Hustler or any "adult" business that ships videotapes or printed material.

Communications Decency Act

As cyberporn began to come to wider public attention in the mid 1990s, lawmakers began to wonder how to regulate it on the web. Despite protests from various constituencies concerned with civil liberties and free speech, the U.S. House voted 416 to 9 and the U.S. Senate 91 to 5 in favor of the 1996 Telecommunications Reform Act, which included the Communications Decency Act. The CDA called for up to two years in prison and fines up to $250,000 for Internet content providers who displayed "patently offensive material" that could be viewed by a minor or for Internet users who knowingly transmitted indecent material to a minor. Clinton signed the bill into law. In response, ACLU associate director Barry Steinhardt said, "It's a sad day for free speech in America," and the ACLU immediately filed a lawsuit to prevent implementation of the CDA while it was reviewed in the courts. Even among those who voted for the bill, doubts arose about the constitutionality of the measure. A year and a half later the Supreme Court rejected the CDA, declaring it unconstitutional in its abridgement of free-speech rights. The Court voted unanimously against the provision aimed at "patently offensive display," which could have included speech both on websites and in chat rooms, and split seven to two on the transmission provision.

Free Speech on the Internet

In its decision against the Communications Decency Act, the Supreme Court ruled that the provisions of the law unconstitutionally undermined free speech. While affirming the importance of protecting children from inappropriate material, the Court concurred with a lower court ruling that the Act abridged First Amendment rights. In making its ruling, the Court concluded the broadcast standards used to censor obscenity do not necessarily apply to the Internet and that the need to protect children from explicit sexual materials on-line does not supersede the rights of adults to have access to such content. Chris Hansen, lead counsel for the ACLU, which brought suit over the Act, commented that the decision "is recognition that speech over the Internet is entitled to the same First Amendment protection that books and magazines have always enjoyed." Representative Anna Georges Eshoo (D-California) added, "The Supreme Court has demonstrated a far better understanding of free-speech issues on the Internet than Congress did in its rush to address questionable online materials. Todays ruling erects a high legal barrier around online free speech that Congress would be wise not to attempt to breach." Ultimately, then, in the eyes of the Supreme Court justices, preventing children from accessing graphic materials on the Internet is the parent's responsibility.

Blocking Porn

At the end of the decade two technologies existed to help block porn on the Internet, although neither was foolproof. The first is a filtering software that blocks access to sites that contain certain words or phrases associated with sexually explicit material. One of the problems, however, is that such software often also blocks legitimate sites such the National Organization for Women (NOW) or sites that deal with social issues such as violence, sexuality, rape, or homosexuality. Additionally, the software does not always block pornographic pages. The second technology for blocking pornography is a ratings system. Web developers can label sites with invisible tags that indicate the type of content on the site. Users then utilize a ratings system developed by an organization they trust, such as the Parent-Teacher Association (PTA), and program their browsers to access only sites whose content meets the standards of the organization. While both technologies have their problems, opponents to the CDA argue that filtering software and ratings systems are still better options than censorship. Following the Supreme Court decision, Clinton stated, "We will study the opinion closely. We can and must develop a solution for the Internet that is as powerful for the computer as the V-chip will be for television and that protects children in ways that are consistent with America's free-speech values."

Internet pornography The storage and sale of pornographic still and moving images on the Internet, usually on the WORLD WIDE WEB. Internet pornography was the first ECOMMERCE application that was a financial success. Even as early as the 1980s, when the Internet was only populated by a relatively small number of academics, government staff, pornographers, and their customers, there were a number of thriving FILE TRANSFER PROTOCOL sites which sold pornographic images. Internet pornography businesses have always been in the forefront in terms of employing new technology such as VIDEO STREAMING and new businesses models; indeed many commentators have ascribed the success of advanced technologies to the demands placed on them by pornographers.