What are the criteria for classifying articles? According to the COIAO, in determining whether an article is obscene or indecent, the OAT shall have regard to: a Standards of morality, decency and propriety that are generally accepted by reasonable members of the community; b The dominant effect of an article or of matter as a whole; c The persons or class of persons, or age groups of persons, to or amongst whom the article is, or is intended or is likely to be, published; d In the case of matter publicly displayed, the location where the matter is or is to be publicly displayed and the persons or class of persons, or age groups of persons likely to view such matter; and e Whether the article or matter has an honest purpose or whether its content is merely camouflage designed to render acceptable any part of it.
Who may submit articles to the classifying authority? Such parties as authors, printers, manufacturers, publishers, importers, distributors, copyright owners or any person who commissions the design, production or publication of the articles concerned may submit articles to the OAT for classification, as may the Secretary for Justice or any authorized public officer i. How long does it take to obtain a classification from the OAT? Upon receipt of a submitted article, the Tribunal will conduct a first hearing in private and give an interim classification within five days.
Requests for review of classification may be lodged within five days. If the interim ruling is not disputed, it will be confirmed as the final classification. As for cases in respect of which the OAT holds a public full hearing on the classification, the average processing time is approximately 1 to 2 months. Is the decision of the OAT in respect of the classification of an article final? Otherwise, the result of the full hearing will be final.
How do the Police handle borderline cases now? In case of doubt as to whether an article falls under the classification of obscene or indecent, the Police will take the initiative to consult OFNAA or send the article to the OAT for classification in accordance with section 13 2 of the COIAO before laying charges relating to obscene and indecent articles.
Are the OAT adjudicators drawn from the list of jurors? Interested persons may apply to become adjudicators. Successful applicants are then appointed by the Chief Justice. Under our present division of work, the OFNAA generally handles cases involving indecent articles, whilst the Hong Kong Police Force handles cases involving obscene articles.
They will make referral to each other for follow up if necessary. Is the arrangement of having multiple law enforcement departments for the enforcement of a single Ordinance unique to COIAO? And is it unique for OFNAA, as a civilian department, to take up investigation and enforcement actions? There are also some other civilian departments, e. Obscene and indecent optical discs are usually offered for sale at those notorious shopping arcades which are also the black spots of pirated discs.
Can I shed responsibility if I distribute obscene content on the Internet with false name? The Miller test remains the leading test for obscenity cases, but it continues to stir debate. In its decision in Pope v. Obscenity prosecutions do, however, impose contemporary community standards, even though a distributor may transport materials to various communities.
Thus interesting issues emerge when a defendant in California is prosecuted in a locale with more restrictive community standards.
This phenomenon has caused some legal experts and interested observers to call for the creation of a national standard, particularly in the age of the Internet. In Ashcroft v. American Civil Liberties Union , several justices expressed concern about applying local community standards to the Internet as required by the Child Online Protection Act of For example, Justice Stephen G. The Supreme Court has resisted efforts to extend the rationale of obscenity from hard-core sexual materials to hard-core violence.
The state of California sought to advance the concept of violence as obscenity in defending its state law regulating the sale or rental of violent video games to minors. The Court invalidated the law in Brown v. Federal obscenity prosecutions increased during the George W. Bush administration.
States continued to pursue obscenity prosecutions against hard-core pornography, but also occasionally against other materials. For example, in a comic book artist was convicted of obscenity in Florida, and in the owner of gay bar in Nebraska was successfully prosecuted for displaying a gay art in a basement.
Although obscenity laws have their critics, they likely will remain part of the legal system and First Amendment jurisprudence. While federal obscenity prosecutions waned during the Barack Obama administration, state obscenity prosecutions continue in the 21 st century.
David L. Hudson, Jr. This article was originally published in Calvert, Clay, and Robert D. Hixon, Richard F. They define "obscene" to have the meaning given such term in18 U. Sections , , and all define "child pornography" to have the meaning given such term in 18 U. That section defines "child pornography" as any "visual depiction" of "sexually explicit conduct" that is or appears to be of a minor, and defines "sexually explicit conduct" as various "actual or simulated" sexual acts or the "lascivious exhibition of the genitals or pubic area of any person.
Sections , , and define "material that is harmful to minors" as any communication that—. In United States v. American Library Association , a three-judge federal district court unanimously declared CIPA unconstitutional and enjoined its enforcement insofar as it applies to libraries. The decision included a four-justice plurality opinion by Chief Justice Rehnquist, concurring opinions by Justices Kennedy and Breyer, and dissenting opinions by Justices Stevens and Souter the latter joined by Justice Ginsburg.
The plurality noted that "Congress may not 'induce' the recipient [of federal funds] 'to engage in activities that would themselves be unconstitutional. The plurality concluded that it does not. In so concluding, the plurality found that "Internet access in public libraries is neither a 'traditional' or a 'designated' public forum," and that therefore it would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.
The plurality acknowledged "the tendency of filtering software to 'overblock'—that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block. The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance—in other words, does it violate public libraries ' rights by requiring them to limit their freedom of speech if they accept federal funds?
The plurality found that, assuming that government entities have First Amendment rights it did not decide the question , CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute "simply insist[s] that public funds be spent for the purposes for which they were authorized.
In effect, then, the plurality seemed to view CIPA as raising no First Amendment issue other than the possible one of overblocking, which it found the statute to deal with adequately by its disabling provisions. Justice Kennedy, concurring, noted that, "[i]f some libraries do not have the capacity to unblock specific websites or to disable the filter or if it is shown that an adult user's election to view constitutionally protected Internet material is burdened in some other substantial way, that would be the subject for an as-applied challenge, not the facial challenge made in this case.
Justice Breyer would have applied "a form of heightened scrutiny," greater than rational basis scrutiny but "more flexible" than strict scrutiny, to assess CIPA's constitutionality. Justice Stevens found CIPA unconstitutional because of its "vast amount of 'overblocking,'" which he found not cured by the disabling provisions, because "[u]ntil a blocked site or group of sites is unblocked, a patron is unlikely to know what is being hidden and therefore whether there is any point in asking for the filter to be removed.
Justice Souter said that he would not "dissent if I agreed with the majority of my colleagues But the Federal Communications Commission, in its order implementing the act, pointedly declined to set a federal policy on when unblocking by local libraries would be appropriate under the statute Moreover, the District Court expressly found that 'unblocking may take days, and may be unavailable, especially in branch libraries, which are often less well staffed than main libraries.
This provision, 18 U. It makes it a crime knowingly to use a misleading domain name on the Internet with the intent to deceive a person into viewing material that is obscene, or with the intent to deceive a minor into viewing material that is "harmful to minors. It makes it a crime to knowingly embed words or digital images into the source code of a website with the intent to deceive a person into viewing material that constitutes obscenity, or with the intent to deceive a minor into viewing material that is "harmful to minors.
Misleading Domain Names on the Internet". Item i apparently should refer to paragraph 3 rather than paragraph 2. If read to refer to paragraph 3 , then it would mean that the FTC-prescribed marks and notices may be in the body of the e-mail instead of in the subject heading.
They may be in the body of the e-mail, however, only if the sender complies with items ii and iii. Item ii refers to subsection a 5 , which requires all spam to provide:. Item iii apparently means that the body of the e-mail may contain a link to sexually oriented material, but may not contain sexually oriented material itself. The Federal Trade Commission issued a final rule, effective May 19, , requiring that sexually oriented spam "exclude sexually oriented material from the subject heading A "private area" refers to "naked or undergarment clad genitals, pubic area, buttocks, or female breast [below the top of the areola].
RICO makes it a crime for any person employed by or associated with any "enterprise" engaged in or affecting interstate or foreign commerce to participate in the affairs of the enterprise "through a pattern of racketeering activity. A "pattern of racketeering activity" means at least two acts of racketeering activity within ten years excluding any period of imprisonment.
Thus, if a person engages in two such activities, including the obscenity offenses specified, he is subject to prosecution under RICO in addition to, or instead of, prosecution for the particular activities. RICO also provides for criminal forfeiture 18 U. United States , infra. In Fort Wayne Books, Inc. Indiana , the Supreme Court held that pretrial seizure, under the Indiana RICO statute, of books or other expressive materials, was unconstitutional.
In Fort Wayne Books , the Court did, however, uphold the constitutionality of including obscenity violations among the predicate offenses under a RICO statute. The Court rejected the argument "that the potential punishments available under the RICO law are so severe that the statute lacks a 'necessary sensitivity to first amendment rights. The fact that the violations need not be affirmed convictions means that the obscenity violations may be proved as part of the RICO prosecution; no "warning shot" in the form of a prior conviction for obscenity is required.
The fact that the predicate offenses need not be convictions in the same jurisdiction as that where the RICO charge is brought means that the predicate offenses can be violations which were based on community standards different from those of the jurisdiction where the RICO charge is brought.
In Alexander v. United States , the Supreme Court addressed a question it had left open in Fort Wayne Books : whether there are First Amendment limitations to RICO forfeitures of assets that consist of expressive materials that are otherwise protected by the First Amendment.
He was also ordered to forfeit all his wholesale and retail businesses, including more than a dozen stores and theaters dealing in sexually explicit material, all the assets of these businesses i. The government chose to destroy, rather than sell, the expressive material.
The Supreme Court rejected the argument that the forfeiture of expressive materials constitutes prior restraint, as the forfeiture order "does not forbid petitioner from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities.
The Court did, however, remand the case to the court of appeals to decide whether the forfeiture constituted an "excessive fine" under the Eighth Amendment. The same day, in another case, the Court held that the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property imposed by criminal statutes. This statute, which is codified at 19 U. As the message of the President that accompanied the original proposal that became P.
Despite its mentioning only "Congress," the First Amendment applies equally to all branches of the federal government and the states. Herbert v. Lando, U. Child pornography is material that visually depicts sexual conduct by children. New York v. Ferber, U. It is unprotected by the First Amendment even when it is not legally obscene; i. In Frisby v. Schultz , U. Playtime Theaters, Inc. Sable Communications of California v. Federal Communications Commission, U.
Roth v. United States, U. However, Justice Douglas, dissenting, wrote: "[T]here is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment.
In Brockett v. Spokane Arcades, Inc. Day , U. In Jenkins v. Georgia , U. Ohio , U. Then followed his famous remark: "But I know it when I see it, and the motion picture involved in this case is not that. In Hamling v. United States , U. Georgia , supra note 8, U. Justice Scalia concurred in the result in Pope v. Illinois , but wrote: "[I]n my view it is quite impossible to come to an objective assessment of at least literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can.
Since ratiocination has little to do with esthetics, the fabled 'reasonable man' is of little help in the inquiry, and would have to be replaced with, perhaps, the 'man of tolerably good taste'—a description that betrays the lack of an ascertainable standard I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum.
Just as there is no arguing about taste, there is no use litigating about it. Pacifica Foundation, U. New York , U. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg , amply justify special treatment of indecent broadcasting.
American Civil Liberties Union , U. It might appear that regulations could be "narrowly drawn" or "carefully tailored" without being the "least restrictive means" to further a governmental interest.
But Sable , on the same page, also uses the latter phrase quoted above in the text accompanying note 4 , and the Court has elsewhere made clear that the "narrow tailoring" required for content-based restrictions is more stringent than that required for time, place, and manner restrictions see , note 3, supra , where "least-restrictive-alternative analysis is wholly out of place.
Rock Against Racism, U. The Court has held that there is no right even to private possession of child pornography. Osborne v. Ohio, U. A type of business that the ordinance covered that did not engage in First Amendment activity was adult motels, which the ordinance defined as motels that rented rooms for less than 10 hours. Inclusion of these motels was challenged on two grounds: 1 that the city had "violated the Due Process Clause by failing to produce adequate support for its supposition that renting rooms for less than 10 hours results in increased crime or other secondary effects," and 2 "that the hour limitation on the rental of motel rooms places an unconstitutional burden on the right to freedom of association The Court rejected both arguments.
As for the first, it found "it reasonable to believe that shorter rental time periods indicate that the motels foster prostitution. As for the second, it found that the associations "that are formed from the use of a motel room for less than 10 hours are not those that have 'played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs. Similarly, a "content-neutral time, place, and manner regulation of the use of a public forum" need not "adhere to the procedural requirements set forth in Freedman.
Chicago Park District, U. The plurality said that, though nude dancing is "expressive conduct" [which ordinarily means it would be entitled to full First Amendment protection], "we think that it falls only within the outer ambit of the First Amendment's protection.
The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Playboy Entertainment Group, Inc. Justice Stevens also wrote that the plurality was "mistaken in equating our secondary effects cases with the 'incidental burdens' doctrine applied in cases such as O'Brien The incidental burdens doctrine applies when speech and non-speech elements are combined in the same course of conduct"[internal quotation marks omitted], whereas secondary effects "are indirect consequences of protected speech.
Section b provides that a person found guilty of knowingly communicating obscene dial-a-porn "shall be fined in accordance with title 18 of the United States Code, or imprisoned not more than two years, or both. Dial Information Services Corp. Thornburgh, F. The court noted that the word has been "defined clearly" by the Federal Communications Commission, in the dial-a-porn context, "as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.
The court noted that this definition tracks the one quoted in the text accompanying note 79, infra. See , United States v. Merrill, F. This statute dates back to section of the Communications Act of , 48 Stat. The term "radio," however, today includes broadcast television; i. In dictum, the Supreme Court quoted the FCC with approval as noting that "the televising of nudes might well raise a serious question of programming contrary to 18 U.
Code, to mean "the transmission by radio of writing, signs, signals, pictures , and sounds of all kinds In this case, the Supreme Court upheld the constitutionality of the Federal Communication Commission's "fairness doctrine," which required broadcast media licensees to provide coverage of controversial issues of interest to the community and to provide a reasonable opportunity for the presentation of contrasting viewpoints on such issues.
Pacifica , supra , note 74, U. A federal court of appeals subsequently held unconstitutional a federal statute that banned "indecent" broadcasts 24 hours a day, but, in a later case, the same court upheld the present statute, 47 U. Action for Children's Television v. FCC, F. FCC, 58 F. The court wrote: "While we apply strict scrutiny to regulations of this kind regardless of the medium affected by them, our assessment of whether section 16 a survives that scrutiny must necessarily take into account the unique context of the broadcast media.
Chief Judge Edwards, in his dissent, wrote: "This is the heart of the case, plain and simple," as "[t]he majority appears to recognize that section 16 a could not withstand constitutional scrutiny if applied against cable television operators.
Note that the court struck down the 10 p. Chief Judge Edwards, in his dissent, commented that "the majority appears to invite Congress to extend the 6 a.
EBIH March 18, For additional information, including an analysis of whether prohibiting the broadcast of "indecent" words regardless of context would violate the First Amendment, see CRS Report RL, Regulation of Broadcast Indecency: Background and Legal Analysis , by [author name scrubbed] and [author name scrubbed].
Fox Television Stations, Inc. Federal Communications Commission, F. United States v. Thomas, 74 F. The court cited another conviction under 18 U. Maxwell, 42 M. American Civil Liberties Union , supra note 11, the Supreme Court noted that "the 'community standards' criterion as applied to the Internet means that any communication available to a nation-wide audience will be judged by the standards of the community most likely to be offended by the message.
American Civil Liberties Union , infra note , the Supreme Court held that the use of community standards to assess "harmful to minors" material on the Internet is not by itself unconstitutional. They may have done so because fully blocking or fully scrambling "appears not be economical" id. This suggests the possibility that the Court might not find a compelling interest in shielding older children from sexually oriented material.
The Court rejected another interest as compelling: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. Reno , supra , note 11, U. The CDA also prohibits the transmission to minors of obscene material, and the Supreme Court, without a written opinion, affirmed the decision of a three-judge federal district court that rejected a claim that this prohibition is unconstitutionally overbroad.
Nitke v. Gonzales, F. In ApolloMedia Corp. Reno , 19 F. The plaintiffs reportedly had appealed because they believed that the fact that the word "indecent" was in the statute could have a chilling effect on indecent nonobscene expression, even if the law was not enforceable against such expression. Section 3 of P. Section f 2 defines "interactive computer service" as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
Section a 1 C makes it a crime for a person, in interstate or foreign communications, to "make[ ] a telephone call or utilize[ ] a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person See , id.
The Court wrote: "[A] parent who sent his year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material 'indecent' or 'patently offensive,' if the college town's community thought otherwise. American Civil Liberties Union v. Reno, 31 F. Ashcroft v. American Civil Liberties Union, U. Mukasey, F. Despite the fact that only the first prong of this test refers to "community standards," community standards are also to be used in applying the second prong.
See the Supreme Court's first decision in Ashcroft v. ACLU , supra note , U. Section amends section h of the Communications Act of , 47 U. Only sections and insofar as it applies to libraries were at issue in the case before the three-judge district court and the Supreme Court.
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