Reporting Online Obscenity
Thursday April 7, 2011
by Daniel Weiss
Many people mistakenly believe that all pornography online is legal. If it were violating the law, they think, surely someone would do something about it.
Even though pornography is widely available online (and on cable and satellite premium channels) much of it may be violating state and federal obscenity laws. Illegal pornography flourishes online because the U.S. Justice Department has not vigorously enforced federal obscenity laws since 1992. Thus, when the Internet came into widespread public use in the mid-to late-1990s, there was already a pattern of non-enforcement that has largely continued to this day.
Federal laws prohibit the sale, distribution, transportation across state lines, broadcast, or dissemination over an interactive computing device of obscene material. Further, production of obscene material with intent to distribute is also banned. The only right regarding obscene material that the U.S. Supreme Court has recognized is the right of an individual to posses it within the privacy of his or her own home. Cleary, trafficking in obscene material would dry up quickly if these laws were consistently and vigorously enforced.
How do I know what is obscene?
Pornographic material is presumptively protected by the First Amendment. That is, the material is considered legal until proven obscene through a jury trial. In its landmark 1973 case Miller v. California, the Supreme Court wrote that pornography would be considered obscene if a jury determined that:
These guidelines can help determine whether material should be reported to law enforcement agencies.
The average person, applying contemporary community standards, would find that the material, when taken as a whole, appeals to the prurient interest; and
The material depicts or describes sexual conduct in a patently offensive manner, when applying contemporary community standards; and
A reasonable person would find that the material, when taken as a whole, lacks serious artistic, literary, political, or scientific value.
What can I do about it?
Citizens who encounter obscene material online are encouraged to report it at ObscenityCrimes.org. This program is administered by Morality in Media and has received official recognition by the Department of Justice. Morality in Media created the program for people who have unwillingly been exposed to pornography in spam email or on the Internet or whose children have been exposed. They do NOT encourage people to seek out obscene material in order to report it.
ObscenityCrimes.org contracts with retired federal agents to review the complaints. They then prepare detailed reports of any websites they believe violate obscenity laws and send them to federal authorities for further investigation.
Does it work?
While ObscenityCrimes.org is fantastic idea, it hasn’t had its intended effect. To date, more than 77,000 citizen complaints have been registered at the site, but not a single one has been acted on by federal law enforcement agencies. Some might then see this project as a waste of time. Not at all. The lack of federal law enforcement is part of a larger problem of institutional inertia and bad politics. There may be a time when the executive branch is more favorable to prosecuting obscenity, particularly since so many families have been harmed by it and since research continues to show the harm to men, women and children.
By reporting obscene websites and email, citizens continue to build a strong case in favor of enforcement and may actually provide the impetus and political cover necessary for a future administration to tackle the issue.
Make a report at ObscenityCrimes.org.
Is Pornography Legal?
You Might Be Surprised (to learn what is illegal under federal law)
Negative Secondary Effects: How Sex Shops Affect your Community
Protect Your Community from Sexually Oriented Businesses
Help Clean Up TV
Daniel Weiss is ROCK's director of research and national outreach.