Cybertelecom Federal Internet Law & Policy An Educational Project

Obscenity

Withstanding the test of time, obscenity has never enjoyed Constitutional protection. No holds barred, this stuff is illegal. This is stuff simply beyond the pale of anything that the First Amendment was designed to protect. [Reno] [Miller]

The Supreme Court has also held that statutes that criminalize the writing or exhibiting of "obscene or indecent" materials, when "applied according to the proper standard for judging obscenity, do not offend constitutional safeguards ... or fail to give ... adequate notice of what is prohibited." Roth v. United States, 354 U.S. 476, 492 (1957). Thus, use of the term "obscene" in a criminal statute survives a vagueness challenges because the word "is precise enough to convey sufficiently definite warning ... when measured by common understanding and practices." Roth v. McConn, 631 F.2d 377, 387 (5th Cir. 1980) (citing Roth v. United States, 354 U.S. 476, 491-92 (1957)).

Gros v. City of New Orleans, Dist. Court, ED Louisiana 2013

Well this might make some uneasy. How can one be assured that one's art or literature or informational website will not be judged obscene? What is obscene? The Supreme Court set forth how to determine this in something known as the Miller test.

The test for obscenity is

(a) whether the average person, applying contemporary 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.

This is an extreme test. The key in many ways is the final element. The work taken as a whole must lack serious literary, artistic, political or scientific value. Thus a text book on sexual health would immediately fail this test. It is not obscene; it has scientific value. Likewise Shakespeare would fail the test; it has literary value. Federal courts have found the phrase, "Fuck the Draft" written on the back of a denim jacket worn inside of a court house during the Vietnam war was not obscene; this was a political statement.[Cohen] Further, one section of a work taken out of context does not make the work obscene. One could not take one section out of the Hindu Kamasutra and label it obscene; the work must be viewed as a whole. The courts have made clear that when they are talking obscenity, they are talking smut for smut sake.

Obscenity is illegal under 18 U.S.C. §§ 1460-1466. It also remains illegal under the CDA. 47 U.S.C. § 223(a) & (b).

Caselaw

• Reno v. ACLU (CDA Case) "obscene speech ... can be banned totally because it enjoys no First Amendment protection."
• Cohen v. California, 403 U.S. 15 (1971).
• Miller v. California, 413 U.S. 15, 24 (1973)
  • See 18 U.S.C. §§ 1460-1466
• Roth v. United States, 354 U.S. 476, 492 (1957)

Notes

Under Miller v. Califronia, 413 US 15 (1973), the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. Id., at 24. -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

Obscene speech, for example, has long been held to fall outside the purview of the First Amendment. See, e.g., Roth v. United States, 354 U.S. 476, 484 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring in part and dissenting in part) (referring to the "intractable obscenity problem"); see also Miller v. California, 413 U.S., at 20 23, 93 S.Ct. 2607 (reviewing "the somewhat tortured history of th[is] Court's obscenity decisions"). The difficulty resulted from the belief that "in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Id., at 22 23, 93 S.Ct. 2607.
Ending over a decade of turmoil, this Court in Miller set forth the governing three part test for assessing whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 'the average person, applying contemporary 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.'' Id., at 24, 93 S.Ct. 2607 (internal citations omitted; emphasis added).
Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. See, e.g., Queen v. Hicklin [1868] L.R. 3 Q.B. 360, 1868 WL 9940; see also Roth, 354 U.S., at 488 489, and n. 25, 77 S.Ct. 1304 (listing relevant cases). But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards." Id., at 489, 77 S.Ct. 1304. The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: "[T]he primary concern ... is to be certain that ... [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person or indeed a totally insensitive one." Miller, 413 U.S., at 33, 93 S.Ct. 2607 (internal quotation marks omitted); see also Hamling v. United States, 418 U.S. 87, 107, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (emphasizing that the principal purpose of the community standards criterion "is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group").
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

The definition of "obscenity" was articulated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). According to Miller, the test for obscenity is
(a) whether the average person, applying contemporary 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.

Id., at 24, 93 S.Ct., at 2615 (internal quotation marks and citations omitted).

"Obscenity has no constitutional protection, and the government may ban it outright in certain media, or in all. R.A.V. v. City of St. Paul, 505 U.S. 377, ----, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992)." --Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 116 S.Ct. 471 (1995)

Obscenity is defined as material, taken as a whole, which the average person, applying contemporary community standards, would find as appealing to the purient interests and lacks serious educational or artistic value. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973); Alliance for Community Media, 56 F.3d at 113 n. 4; Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504-05 (1985) (obscenity must appeal to "shameful or morbid" sexual desires, not merely "normal interest in sex"). The Supreme Court has determined that obscenity is one of those rare forms of speech which is not protected by the First Amendment. Sable, 492 U.S. at 124 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S. Ct. 2628, 2641, 37 L.Ed.2d 446 (1973)); Alliance for Community Media, 56 F.3D at 112 & 121-22.

---

" there is no constitutional barrier to the ban on obscene dial- a-porn recordings. We have repeatedly held that the protection of the First Amendment does not extend to obscene speech. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446 (1973). " --Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2835 (1989)

---

All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opiion- have the full protection of the [First Amendment]. But implicit in the history of the First Amendment is the rejection of obscenity as utternly without redeeming social importance. Indeed, it is apparent that obscenity, like libel, is outside the protection intended for speech and press. Accordingly, obscene material ma be suppressed without proof that it will create a clear and present danger of antisocial conduct..... However sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, for example in art, lterature, an scientific works, is not itself sufficient reason to deny material constitutional protection. Sex, a great and mysterious motivating force in human life, has indisputably been a subject of absorbing interest to humankind through the ages; it is one of the vital problems of human interest and public concern. It is therefore essential that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to the prurient interest. The proper test is whether the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." -- Roth v United States, 354 US 476 (1957).

Lewd, lascivious, and filthy

"Lewd, lascivious, and filthy" is mere surplusage for "obscenity," and has been expressly so since prior to Pacifica. See, e.g., the discussion of 18 U.S.C. 1461 in Hamling v. United States, 418 U.S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7 (18 U.S.C. 1462) (dicta). And, finally, see the discussion of the phrase in Pacifica.

"The words of ' 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the *120 statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the **1702 early case of United States v. Bennet, 24 Fed.Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489 [77 S.Ct., at 1311] 'taken as a whole appeals to prurient interest.' " Manuel Enterprises, Inc. v. Day, 370 U.S. 478, 482-484 [82 S.Ct. 1432, 1434-1435, 8 L.Ed.2d 639] (1962) (footnotes omitted; emphasis in original). --Osborne v. Ohio, 495 U.S. 103, *119, 110 S.Ct. 1691, **1701 (1990).

Hamling rejected a vagueness attack on ' 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). In that case, Mr. Justice Harlan recognized that ' 1461 contained a variety of words with many shades of meaning. **3036 [FN15] Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex." 370 U.S., at 483, 82 S.Ct., at 1434. In Hamling the Court agreed with Mr. Justice Harlan that ' 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality. -- Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, *740, 98 S.Ct. 3026, **3035 (1978).

'The words of s 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14,571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest.'' 370 U.S., at 482--484, 82 S.Ct., at 1434 (footnotes omitted) --Hamling v. United States, 418 U.S. 87, *112, 94 S.Ct. 2887, **2905 (1974)

Elements

must be sexy (appeal to the purient interests)
must make society sick. patently offensive to average person in community.
must have right standards
must lack serious value: educational, artistic.

A Determination of What Is Obscene Cannot Be Made by Police Officer Alone. A Judicial Determination Is Necessary Before the Material May Be Seized. This Rule Is to Protect Persons Possessing Nonobscene Material from Unwarranted and Unlawful Restraints. People v. Gilmore, 120 Misc.2d 741 (1983). SeeRoaden v. Kentucky, 413 U.S. 496 (1973) (concerning reasonableness of siezure of obscene material).

Community Standards

The Court of Appeals, however, concluded that this Court's prior community standards jurisprudence "has no applicability to the Internet and the Web" because "Web publishers are currently without the ability to control the geographic scope of the recipients of their communications." 217 F.3d, at 180. We therefore must decide whether this technological limitation renders COPA's reliance on community standards constitutionally infirm.[6]
In addressing this question, the parties first dispute the nature of the community standards that jurors will be instructed to apply when assessing, in prosecutions under COPA, whether works appeal to the prurient interest of minors and are patently offensive with respect to minors.[7] Respondents contend that jurors will evaluate material using "local community standards," Brief for Respondents 40, while petitioner maintains that jurors will not consider the community standards of any particular geographic area, but rather will be "instructed to consider the standards of the adult community as a whole, without geographic specification." Brief for Petitioner 38.
In the context of this case, which involves a facial challenge to a statute that has never been enforced, we do not think it prudent to engage in speculation as to whether certain hypothetical jury instructions would or would not be consistent with COPA, and deciding this case does not require us to do so. It is sufficient to note that community standards need not be defined by reference to a precise geographic area. See Jenkins v. Georgia, 418 U.S. 153, 157, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974) ("A State may choose to define an obscenity offense in terms of 'contemporary community standards' as defined in Miller without further specification ... or it may choose to define the standards in more precise geographic terms, as was done by California in Miller "). Absent geographic specification, a juror applying community standards will inevitably draw upon personal "knowledge of the community or vicinage from which he comes." Hamling, supra, at 105, 94 S.Ct. 2887. Petitioner concedes the latter point, see Reply Brief for Petitioner 3 4, and admits that, even if jurors were instructed under COPA to apply the standards of the adult population as a whole, the variance in community standards across the country could still cause juries in different locations to reach inconsistent conclusions as to whether a particular work is "harmful to minors." Brief for Petitioner 39.
Because juries would apply different standards across the country, and Web publishers currently lack the ability to limit access to their sites on a geographic basis, the Court of Appeals feared that COPA's "community standards" component would effectively force all speakers on the Web to abide by the "most puritan" community's standards. 217 F.3d, at 175. And such a requirement, the Court of Appeals concluded, "imposes an overreaching burden and restriction on constitutionally protected speech." Id., at 177.
In evaluating the constitutionality of the CDA, this Court expressed a similar concern over that statute's use of community standards to identify patently offensive material on the Internet. We noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno, 521 U.S., at 877 878, 117 S.Ct. 2329. The Court of Appeals below relied heavily on this observation, stating that it was "not persuaded that the Supreme Court's concern with respect to the 'community standards' criterion has been sufficiently remedied by Congress in COPA." 217 F.3d, at 174.
The CDA's use of community standards to identify patently offensive material, however, was particularly problematic in light of that statute's unprecedented breadth and vagueness. The statute covered communications depicting or describing "sexual or excretory activities or organs" that were "patently offensive as measured by contemporary community standards" a standard somewhat similar to the second prong of Miller's three prong test. But the CDA did not include any limiting terms resembling Miller's additional two prongs. See Reno, 521 U.S., at 873, 117 S.Ct. 2329. It neither contained any requirement that restricted material appeal to the prurient interest nor excluded from the scope of its coverage works with serious literary, artistic, political, or scientific value. Ibid. The tremendous breadth of the CDA magnified the impact caused by differences in community standards across the country, restricting Web publishers from openly displaying a significant amount of material that would have constituted protected speech in some communities across the country but run afoul of community standards in others.
COPA, by contrast, does not appear to suffer from the same flaw because it applies to significantly less material than did the CDA and defines the harmful to minors material restricted by the statute in a manner parallel to the Miller definition of obscenity. See supra, at , 5 6, 10. To fall within the scope of COPA, works must not only "depic[t], describ [e], or represen[t], in a manner patently offensive with respect to minors," particular sexual acts or parts of the anatomy,[8] they must also be designed to appeal to the prurient interest of minors and "taken as a whole, lac[k] serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6).
These additional two restrictions substantially limit the amount of material covered by the statute. Material appeals to the prurient interest, for instance, only if it is in some sense erotic. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 213, and n. 10, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). [9] Of even more significance, however, is COPA's exclusion of material with serious value for minors. See 47 U.S.C. § 231(e)(6)(C). In Reno, we emphasized that the serious value "requirement is particularly important because, unlike the 'patently offensive' and 'prurient interest' criteria, it is not judged by contemporary community standards." 521 U.S., at 873, 117 S.Ct. 2329 (citing Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987)). This is because "the value of [a] work [does not] vary from community to community based on the degree of local acceptance it has won." Id., at 500, 107 S.Ct. 1918. Rather, the relevant question is "whether a reasonable person would find ... value in the material, taken as a whole." Id., at 501, 107 S.Ct. 1918. Thus, the serious value requirement "allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value." Reno, supra, at 873, 117 S.Ct. 2329 (emphasis added), a safeguard nowhere present in the CDA.[10]
When the scope of an obscenity statute's coverage is sufficiently narrowed by a "serious value" prong and a "prurient interest" prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), this Court considered the constitutionality of applying community standards to the determination of whether material is obscene under 18 U.S.C. § 1461, the federal statute prohibiting the mailing of obscene material. Although this statute does not define obscenity, the petitioners in Hamling were tried and convicted under the definition of obscenity set forth in Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), which included both a "prurient interest" requirement and a requirement that prohibited material be " 'utterly without redeeming social value.' " Hamling, supra, at 99, 94 S.Ct. 2887 (quoting Memoirs, supra, at 418, 86 S.Ct. 975).
Like respondents here, the dissenting opinion in Hamling argued that it was unconstitutional for a federal statute to rely on community standards to regulate speech. Justice Brennan maintained that "[n]ational distributors choosing to send their products in interstate travels [would] be forced to cope with the community standards of every hamlet into which their goods [might] wander." 418 U.S., at 144, 94 S.Ct. 2887. As a result, he claimed that the inevitable result of this situation would be "debilitating self censorship that abridges the First Amendment rights of the people." Ibid.
This Court, however, rejected Justice Brennan's argument that the federal mail statute unconstitutionally compelled speakers choosing to distribute materials on a national basis to tailor their messages to the least tolerant community: "The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional." Id., at 106, 94 S.Ct. 2887.
Fifteen years later, Hamling's holding was reaffirmed in Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Sable addressed the constitutionality of 47 U.S.C. § 223(b) (1982 ed., Supp. V), a statutory provision prohibiting the use of telephones to make obscene or indecent communications for commercial purposes. The petitioner in that case, a "dial a porn" operator, challenged, in part, that portion of the statute banning obscene phone messages. Like respondents here, the "dial a porn" operator argued that reliance on community standards to identify obscene material impermissibly compelled "message senders ... to tailor all their messages to the least tolerant community." 492 U.S., at 124, 109 S.Ct. 2829.[11] Relying on Hamling, however, this Court once again rebuffed this attack on the use of community standards in a federal statute of national scope: "There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messag es." 492 U.S., at 125 126, 109 S.Ct. 2829 (emphasis added).
The Court of Appeals below concluded that Hamling and Sable "are easily distinguished from the present case" because in both of those cases "the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control." 217 F.3d, at 175 176. In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis. In Hamling, the ability to limit the distribution of material to targeted communities was not mentioned, let alone relied upon,[12] and in Sable, a dial a porn operator's ability to screen incoming calls from particular areas was referenced only as a supplemental point, see 492 U.S., at 125, 109 S.Ct. 2829.[13] In the latter case, this Court made no effort to evaluate how burdensome it would have been for dial a porn operators to tailor their messages to callers from thousands of different communities across the Nation, instead concluding that the burden of complying with the statute rested with those companies. See id., at 126, 109 S.Ct. 2829.
While Justice KENNEDY and Justice STEVENS question the applicability of this Court's community standards jurisprudence to the Internet, we do not believe that the medium's "unique characteristics" justify adopting a different approach than that set forth in Hamling and Sable. See post, at 4 5 (KENNEDY, J., concurring in judgment). If a publisher chooses to send its material into a particular community, this Court's jurisprudence teaches that it is the publisher's responsibility to abide by that community's standards. The publisher's burden does not change simply because it decides to distribute its material to every community in the Nation. See Sable, supra, at 125 126, 109 S.Ct. 2829. Nor does it change because the publisher may wish to speak only to those in a "community where avant garde culture is the norm," post, at 6 (KENNEDY, J., concurring in judgment), but nonetheless utilizes a medium that transmits its speech from coast to coast. If a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.[14]
Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable. While those cases involved obscenity rather than material that is harmful to minors, we have no reason to believe that the practical effect of varying community standards under COPA, given the statute's definition of "material that is harmful to minors," is significantly greater than the practical effect of varying community standards under federal obscenity statutes. It is noteworthy, for example, that respondents fail to point out even a single exhibit in the record as to which coverage under COPA would depend upon which community in the country evaluated the material. As a result, if we were to hold COPA unconstitutional because of its use of community standards, federal obscenity statutes would likely also be unconstitutional as applied to the Web,[15] a result in substantial tension with our prior suggestion that the application of the CDA to obscene speech was constitutional. See Reno, 521 U.S., at 877, n. 44, 882 883, 117 S.Ct. 2329.

6]While petitioner contends that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities, Brief for Petitioner 29, n. 3, he stipulated below that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." App. 187. The District Court adopted this stipulation as a finding of fact, see American Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 484 (E.D.Pa.1999), and petitioner points to no evidence in the record suggesting that this finding is clearly erroneous.
[7]Although the phrase "contemporary community standards" appears only in the "prurient interest" prong of the Miller test, see Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), this Court has indicated that the "patently offensive" prong of the test is also a question of fact to be decided by a jury applying contemporary community standards. See, e.g., Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The parties here therefore agree that even though "contemporary community standards" are similarly mentioned only in the "prurient interest" prong of COPA's harmful to minors definition, see 47 U.S.C. § 231(e)(6)(A), jurors will apply "contemporary community standards" as well in evaluating whether material is "patently offensive with respect to minors," § 231(e)(6)(B).
[8. ]While the CDA allowed juries to find material to be patently offensive so long as it depicted or described "sexual or excretory activities or organs," COPA specifically delineates the sexual activities and anatomical features, the depictions of which may be found to be patently offensive: "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post pubescent female breast." 47 U.S.C. § 231(e)(6)(B).
[9.]Justice STEVENS argues that the "prurient interest" prong does not "substantially narrow the category of images covered" by COPA because "[a]rguably every depiction of nudity partial or full is in some sense erotic with respect to minors," post, at 6 7 (dissenting opinion) (emphasis in original). We do not agree. For example, we have great difficulty understanding how pictures of a war victim's wounded nude body could reasonably be described under the vast majority of circumstances as erotic, especially when evaluated from the perspective of minors. See Webster's Ninth New Collegiate Dictionary 422 (1991) (defining erotic as "of, devoted to, or tending to arouse sexual love or desire").
[10. ]Justice STEVENS contends that COPA's serious value prong only marginally limits the sweep of the statute because it does not protect all material with serious value but just those works with serious value for minors. See post, at 7. His dissenting opinion, however, does not refer to any evidence supporting this counterintuitive assertion, and there is certainly none in the record suggesting that COPA restricts about the same amount of material as did the CDA. Moreover, Justice STEVENS does not dispute that COPA's "serious value" prong serves the important purpose of allowing appellate courts to set "as a matter of law, a national floor for socially redeeming value." Reno, 521 U.S., at 873, 117 S.Ct. 2329.
[11.] Although nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47 U.S.C. § 223(b) (1994 ed.). See, e.g., Smith v. United States, 431 U.S. 291, 299, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977).
[12. ]This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143 144, 94 S.Ct. 2887 (Brennan, J., dissenting), and a postal customer obviously lacked the ability to control the path his letter traveled as it made its way to its intended recipient.
[13.] Justice STEVENS' contention that this Court "upheld the application of community standards to a nationwide medium" in Sable due to the fact that "[it] was at least possible" for dial a porn operators to tailor their messages to particular communities is inaccurate. See post, at 4 (dissenting opinion). This Court's conclusion clearly did not hinge either on the fact that dial a porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial a porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U.S., at 126, 109 S.Ct. 2829 ("If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages").
[14.] In addition, COPA does not, as Justice KENNEDY suggests, "foreclose an entire medium of expression." Post, at 6 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 55, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). While Justice KENNEDY and Justice STEVENS repeatedly imply that COPA banishes from the Web material deemed harmful to minors by reference to community standards, see, e.g., post, at 6 (opinion concurring in judgment); post, at , 7, 11 (dissenting opinion), the statute does no such thing. It only requires that such material be placed behind adult identification screens.
[15. ]Obscene material, for instance, explicitly falls within the coverage of COPA. See 47 U.S.C. § 231(e)(6) (1994 ed., Supp. V).

- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

National Standards s 223

"We do not read s 223(b) as contravening the "contemporary community standards" requirement of Miller v. California, 413 **2836 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Section 223(b) no more establishes a "national standard" of obscenity than do federal statutes *125 prohibiting the mailing of obscene materials, 18 U.S.C. s 1461, see Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), or the broadcasting of obscene messages, 18 U.S.C. s 1464. In United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), we said that Congress could prohibit the use of the mails for commercial distribution of materials properly classifiable as obscene, even though those materials were being distributed to willing adults who stated that they were adults. Similarly, we hold today that there is no constitutional stricture against Congress' prohibiting the interstate transmission of obscene commercial telephone recordings.

We stated in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), that the Miller standards, including the "contemporary community standards" formulation, apply to federal legislation. As we have said before, the fact that "distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity." Hamling v. United States, supra, 418 U.S., at 106, 94 S.Ct., at 2902. " --Sable v. FCC, 492 U.s. 115, 109 S.Ct. 2829, 2835-36 (1989)

Links

• USDOJ CEOS Obscenity and the Internet

News

• Internet Obscenity Conviction Requires Assessment of National Community Standards--US v. Kilbride, Technology & Marketing Law 11/4/2009