VII. OBSCENE AND INDECENT MATERIAL

Computer information systems can contain obscene or indecent material in the form of text files, pictures, or sounds (such as the sampled recording of an indecent or obscene text). Different degrees of liability depend on which legal analogy is applied t o computer information systems. Differences in regulation based on medium are a result of differing First Amendment concerns.[311]

A. Obscenity

The constitutional definition of "obscenity," as a term of art,[312] was solidified in *Roth v. United States*.[313] The *Roth* definition asks if the material deals with sex in a manner appealing to prurient interests.[314] This standard was further explained in *Miller v. California*,[315] a case which explored the constitutionality of a state statute prohibiting the mailing of unsolicited sexually explicit material.[316] The court expressed the test for obscenity as:

"whether (a) the average person, applying 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."[317]

The first two prongs of this test have been held to be issues left to local juries, while the last prong is to be determined by the court.[318] Courts have been unwilling to find a national standard for obscenity, and have held that a carrier of obscenity must be wary of differences in definition between the states.[319] This has profound implications for computer information systems which have a national reach. It means SYSOPs must be aware of not only one standard of obscenity, but fifty. (More if the service has international users.) SYSOPs must be aware of the different standards because the Constitution's protection of free speech does not extend to obscenity, and states are free to make laws severely restricting its availability, especially to children.[320] Although states can regulate the availability of obscene material, they cannot forbid the mere possession of it in the home.[321] The justification for this is based on privacy.[322] In the now famous words of Justice Marshall in *Stanley v. Georgia*,[323]

Whatever may be the justifications for other statutes regarding obscenity, we do not think they reach the privacy of one's home. If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, w hat books he may read, or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds.[324]

Stanley has been interpreted as establishing a "zone of privacy" about one's home.[325] Many computer information system users are connected to the system by modem from their homes. Because of this, any pornographic material they have stored on their home computers is protected from government regulation.[326] However, connecting to a remote computer information system entails moving obscene material in and out of this zone of privacy, and therefore may not be insulated from state legislation.[327] Support for this argument comes from *U.S. v. Orito*[328] which held that Congress has the authority to prevent obscene material from entering the stream of commerce, either by public or private carrier.[329] While a person's disk drive on his or her computer is analogous to his or her home library, connecting to a computer information system can be seen as analogous to going out to a bookstore.[330]

*Stanley*[331] may protect a person's private library, but "[c]ommercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public environment."[332]

B. Indecent Speech

Speech which is not considered obscene may qualify as indecent. In *F.C.C. v. Pacifica Foundation, Inc.*, the court held that indecent speech is protected by the First Amendment, unlike obscene and pornographic material, though it can still be regulated where there is a sufficient governmental interest.[333] Indecent language is that which "describes, in terms patently offensive as measured by community standards ... sexual or excretory activities and organs ..."[334] This language comes from *F.C.C. v. Pacifica Foundation, Inc.*,[335] a broadcasting case which upheld the channeling of indecent language into time periods when it was not as likely that children would be in the audience. Discussion of indecent speech will be continued in the analysis of t he different legal analogies that may apply to computer information systems.

Copyright 1994 - 1995 by P-Law, Inc., and Kenneth M. Perry, Esq. All rights reserved. Reproduction is permitted so long as no charge is made for copies, no copies are placed on any electronic online service or database for which there is a fee other than a flat access charge, there is no alteration and this copyright notice is included.

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