With the exception of child pornography, the legal status of accessing Internet pornography is still somewhat unsettled, though many individual states have indicated that the creation and distribution of adult films and photography are legally listed as prostitution within them.
The legality of pornography at the federal level has been traditionally determined by the Miller test, which dictates that community standards are to be used in determining whether a piece of material is obscene. Thus, if a local community determines a pornographic work to meet its standard for obscenity then it could be banned. This means that a pornographic magazine that might be legal in California could be illegal in Alabama. This standard poses a problem when it comes to the Internet because restricting the communities some pornographic material is available in is much more difficult over the Internet. It has been argued that if the Miller test were applied to the Internet then, in effect, the community standards for the most conservative community would become the standard for all U.S.-based Web sites. The courts are currently examining this issue.
The first attempt to regulate pornography on the Internet was the federal Communications Decency Act of 1996, which prohibited the "knowing" transmission of "indecent" messages to minors and the publication of materials which depict, in a manner "patently offensive as measured by contemporary community standards, sexual or excretory activities or organs", unless those materials were protected from access by minors, for example by the use of credit card systems. Immediately challenged by a group of organizations spearheaded by the ACLU, both of these provisions were struck down by the U.S. Supreme Court in Reno v. American Civil Liberties Union (1997). The "indecent transmission" and "patently offensive display" provisions were ruled to limit the freedom of speech guarantee of the First Amendment.
A second attempt was made with the narrower Child Online Protection Act (COPA) of 1998, which forced all commercial distributors of "material harmful to minors" to protect their sites from access by minors. "Material harmful to minors" was defined as materials that by "contemporary community standards" are judged to appeal to the "prurient interest" and that show sexual acts or nudity (including female breasts). Several states have since passed similar laws. An injunction blocking the federal government from enforcing COPA was obtained in 1998. In 1999, the 3rd Circuit Court of Appeals upheld the injunction and struck down the law, ruling that it was too broad in using "community standards" as part of the definition of harmful materials. In May 2002, the Supreme Court reviewed this ruling, found the lower court’s given reason insufficient and returned the case to the circuit court. In March 2003, the 3rd Circuit Court again struck down the law as unconstitutional, this time arguing that it would hinder protected speech among adults. The administration appealed; in June 2004 the Supreme Court upheld the injunction against the law, ruling that it was most likely unconstitutional but that a lower court should determine whether newer technical developments could have an impact on this question. On March 22, 2007, COPA was found to violate the First and Fifth Amendments of the United States Constitution and was struck down.
Another act intended to protect children from access to Internet pornography is the Children's Internet Protection Act (CIPA) of 2000. It requires that public libraries, as a condition of receiving federal subsidies for Internet connectivity, employ filtering software to prevent patrons from using Internet terminals to view images of obscenity and child pornography, and to prevent children from viewing images "harmful to minors", a phrase encompassing pornography that has been held by the Supreme Court to be protected by the First Amendment for adults. The act allows librarians to disable the filtering software for adult patrons with "bona-fide research or other lawful purposes". The act was challenged by the American Library Association on First Amendment grounds, and enforcement of the act was blocked by a lower court. In June 2003, the Supreme Court reversed and ruled that the act was constitutional and could go into effect.
The production of sexually explicit materials is regulated under 18 U.S.C. 2257, requiring "original" producers to retain records showing that all performers were over the age of 18 at the time of the production for inspection by the Attorney General. The 18 U.S.C. 2257 disclaimer is common on Internet sites distributing pornography, but the Department of Justice has rarely if ever enforced the provision. Although the law had been on the books for over 10 years, the Justice Department never actually inspected anyone. It was not until pressure from Congress, and conservative religious groups spurred the administration of George W. Bush and Attorney General Gonzales to begin inspections of larger commercial porn companies primarily in the Los Angeles area. Despite fearing mass inspections, harassment, and prosecution, the Justice Department inspected less than two dozen companies (out of several thousand operating), and no prosecutions resulted from any of the inspections. Retired FBI agents conducted the inspections, and generally arrived with a list of videos whose records they wanted to examine (most likely, to avoid potential Fourth Amendment conflicts on issues of probable cause). According to porn executives, the agents were always courteous and professional, suggesting changes or modifications to the companies' record-keeping processes. Once Attorney General Alberto Gonzales left the Justice Department, the inspections ended.
In 2005, the Department of Justice issued regulations that expand the definition of a "secondary producer" of sexually explicit material. As of June 23, 2005, federal regulations apply the 2257 record-keeping requirement to secondary producers, and defines them as including anyone who "inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct." 73 Fed. Reg. at 77,468.
On Oct. 24, 2007 the Sixth Circuit Court of Appeals in Ohio, issued a judgment against the 2257 law, ruling it as unconstitutional according to the first amendment, however the Sixth Circuit subsequently reheard the case en banc and issued an opinion on February 20, 2009, upholding the constitutionality of the record-keeping requirements, albeit with some dissents. The Sixth Circuit en banc decision was appealed to the US Supreme Court where on Monday October 5, 2009, the US Supreme Court denied certiorari without comment not addressing the Sixth Circuit decision that 18 USC 2257 is not constitutionally "vague and overbroad" and able to be enforced. See the one line denial on page nine of the Supreme Court order list for October 5, 2009.
In February 2001, Buffnet, a New York Internet Service Provider, pleaded guilty in state court to a misdemeanor count of knowingly providing access to child pornography, after being notified by police of the content and not taking action. The ISP faced a $5000 fine.
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