What should and should not be legal pornography? Many countries and many people all have very different answers. While almost all agree that child pornography should be illegal in real life, what about child pornography between two consenting adults who make child-like avatars in virtual worlds? What about porn that simulates illegal rape? What is too obscene that we must stop the average internet user looking for a thrill?
THE LAW REGULATING PORNOGRAPHY
The First Amendment protects your right to access legal adult content and distribute it to the public. However, our laws forbid distribution of obscene material and child pornography. In the United States, we have additional pornography regulations, currently being challenged in court, under 18 U.S.C. § 2257, that impose record keeping requirements on a broadly defined class of porn producers. When determining what is “too obscene” the US relies on the Miller Test. The Miller test was first given to us in Miller v. California, 413 U.S. 15 (1973), where US Supreme Court held that material is obscene if each of the following factors is satisfied:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law;
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Therefore, most pornography portraying regular sexual acts or depicting genitalia would not be obscene under Miller, but community standards can greatly differ.[i]
How do you determine community standards? Under current law, the legal question of whether speech is free speech or too obscene is determined partly by looking at the local community standards.i Federal jurisdiction rules allow an obscenity case to be brought where the speech originated or where it was received.i Internet speech is received in every community of our nation. Therefore, “the ‘community standards’ question must be applied to a nationwide audience and can be judged by the standards of the community most likely to be offended by the message.” Reno v. ACLU, 521 U.S. 844 (1997).i
COMMUNITY STANDARDS ABROAD
United Kingdom is certainly judging their whole internet’s censorship by those who would most easily be offended by the speech- children. The campaign to regulate porn, supported by the Daily Mail, Britain’s most powerful newspaper, is one of many new proposals to help censor the web. The government promised to make it easier for citizens to bring charges against web users who libel them behind the veil of anonymity. The government also offered legal immunity to publishers that cough up identifying information about people spreading defamation on their sites. Publishers have been in favor of this, but many free-speech defenders worry that hastily drafted regulations could make publishers far too eager to hand over private user information. Ian Brown, at the Oxford Cyber Security Centre, cautions that the rules could encourage sites to gather more private data from their users and distribute that personal information.[ii]
This summer, most homes in the United Kingdom had pornography blocked by their internet provider unless they opted to receive it, Prime Minister of England David Cameron announced. [iii] In addition, the PM said possessing online pornography simulating illegal rape would become illegal in England and Wales – as it is with their neighbor Scotland.iii
Cameron cautioned in his address that access to online pornography was “corroding childhood”.iii The new regulations will affect both existing and new customers of the service providers. Cameron also stated other measures will be taken – some “horrific” internet search terms will now be “blacklisted”, meaning they would automatically bring up “no results” on search engines such as Google or Bing. The UK’s biggest internet service providers have consented to the filters proposal, meaning that it should affect 95% of homes in England.iii
Other measures announced by the prime minister include:
- New laws so videos streamed online in the UK will be subject to the same restrictions as those sold in shops
- Search engines having until October to introduce further measures to block illegal content
- Experts from the Child Exploitation and Online Protection Centre being given more powers to examine secretive file-sharing networks
- A secure database of banned child pornography images gathered by police across the country will be used to trace illegal content and the pedophiles viewing it
Cameron also initiated a move to bring pop up pages to guide users to helpline numbers when people try to search for illegal content. He stated: “I want to talk about the internet, the impact it is having on the innocence of our children, how online pornography is corroding childhood.” And how, in the darkest corners of the internet, there are things going on that are a direct danger to our children, and that must be stamped out.iii
CHILD PORNOGRAPHY IN THE VIRTUAL WORLD
Child Pornography has become an issue all it’s own. Distributing child pornography is almost always illegal. But virtual worlds and smart technology have made this issue more gray than previously so. How has the US responded to virtual issues child pornography can bring up? Many legilsatiors have aimed to close loopholes after the Netherlands failed to prosecute Second Life users that were simulating child pornography via their avatars.[iv] “There are possibilities to prosecute because it possibly incites child abuse,” the spokesman for public prosecutor Kitty Nooij, who is in charge of national vice cases, said. ii In Linden Labs home, the United States, the U.S. Supreme Court struck down a law in 2002 which would ban computer-generated images that depict minors engaged in sexual conduct.
Commenting on their failure to prosecute, spokesman E. Boersman of the prosecutor’s office says that they have been investigating a number of cases, but that prosecutor T. Nooij is sure that a judge will never convict their suspects. “[There is only a prosecutable case] if the virtual children are so realistic that you can’t tell whether they are real or not. You have to be thinking there is really a child involved. SL is too much a computer animation.”[v]Dutch forensic psychiatrist J. Bushman commented that “ageplay in SL is a perfect ‘school’ for a pedophile.”iiiHe stated that he is convinced that virtual child porn has real world dangerous for Dutch children.iii
What about recording someone that you are legally allowed to have consensual sex with? This peculiar predicament arose in South Carolina, where the age to have consensual sex is 16, yet recording a minor is illegal. Sidney Myers, a 20 year old from South Carolina, is facing 18 months in Federal Prison and a lifelong tag as a sex offender because he recorded smartphone videos of his girlfriend, who was 16 at the time. He was legally allowed to have consensual sex with her, and he did not distribute the photos, but once he made a bomb threat to her high school so they could cut class, his phone was subject to police scrutiny who pressed charges for the underage videos. His public defender claims that the “facts of this case have never been seen in our jurisdiction and likely will not be seen again,” but in the smartphone age, perhaps the facts no longer seem as unusual as they once would have been.[vi]