The obscenity of Internet regulation in the United States

  • Ailsa White
  • Published 2004 in Ethics and Information Technology


Recently the United States Supreme Court decided to uphold the injunction against the Child Online Protection Act (COPA) which was signed into law on October 21, 1998. One of the concerns presented by the Court was that a community standards based regulatory approach may not appropriate for the Internet. However, such a standard is currently used for regulating Internet obscenity in the Untied States and, despite the common conception, the Internet is not a haven for free speech. While it was decided in the United States in Stanley v. Georgia that possessing obscene material, except child pornography, in one’s own home is protected by the First Amendment, it is illegal to post or transfer obscene material on the Internet. Regulation of such obscenity on the Internet is based on the current obscenity standard defined in Miller v. California. If this regulatory system were justified and effective for Internet material, it would be pointless to continue this paper; however, as can be seen in Ashcroft v. ACLU, there are serious questions concerning the use of a community standards based approach in the regulation of Internet content. Problems that many authors have associated with current obscenity regulation are magnified on the Internet. These obstacles, ubiquitous in the current obscenity standard, make it hopeless to apply such regulation justly to Internet content. The current obscenity standard in the United States began to emerge in such cases as Roth v. United States; Alberts v. California and Memoirs v. Massachusetts, however, it received refinement in Miller v. California. In Miller v. California, the current three-prong test for obscenity was developed. The three-prong test outlined in the Court’s opinion is the following: (1) whether ‘‘the average person, applying contemporary community standards’’ would find that the work, taken as a whole, appeals to the prurient interest, (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Thus, if a picture, text, performance or sound satisfies all three prongs of the test, it is legally obscene. The idea that existing standards, even those that are community based, used for regulating other communication technologies should be applied to the Internet is common. For example, in defense of the Broadcasting Service Amendment of 1999, Australian Senator Richard Alston claims,

DOI: 10.1007/s10676-004-4589-1

Cite this paper

@article{White2004TheOO, title={The obscenity of Internet regulation in the United States}, author={Ailsa White}, journal={Ethics and Information Technology}, year={2004}, volume={6}, pages={111-119} }