University of Phoenix Online
BUS415 - Business Law
Facilitator: Mr. Mark Goodman
December 6, 2004
Because the internet provides invaluable information at the touch of a button, unwanted and inappropriate information is readily available and concern over free expression and First Amendment violations with respect to filtering and censorship are at issue as we look at protecting children and families.
Free Speech and the Internet
Not all speech, such as obscenity, is protected under the First Amendment of the U.S. Constitution. The law differentiates between obscene and indecent speech. Currently the three part test for determining whether speech is illegally obscene is when it is found by a jury or judge to (1) appeal to the prurient interest, (2) depicts sexual conduct in a patently offensive manner, and (3) lack serious literary, artistic, scientific and political value.
Differentiating obscenity from indecency has a long history in the law. The Hicklin Rule provided the precedent for many years. This precedent developed from an obscenity case in England in the late 1800s. Britain’s Chief Justice, Alexander Cockburn stated in his ruling: "The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."(Kovarick)
Although this particular case took place in England, American courts cited the Hicklin Ruling in obscenity cases. Other major cases involving the issue of obscenity and involving issues with the Internet are: 1. Roth vs. U.S. (1957) The Roth Standard redefined obscenity from the Hicklin Rule, and said obscene materials were not protected under the First Amendment. Roth defined obscene as: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as whole appeals to the prurient interest.” (Brennan) 2. Smith vs. California. (1959) A bookstore owner was found not guilty of knowingly selling obscene materials. The case tested scienter and became an important case to Internet service providers. 3. Memoirs of a Woman of Pleasure v. Massachusetts, (1966) The Supreme Court ruled this book was not obscene based on this three-part test: A book can be held obscene if: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value.” (Brennan)
In 1997, the Supreme Court struck down the 1996 Communications Decency Act (CDA), which was deemed unconstitutional. The Court said the Internet and the World Wide Web should not be regulated as broadcasters, and should have full First Amendment protection. This was in Reno v. ACLU.Traditionally the definition of community included geographical boundaries, which do not exist on the Internet. Community membership on the Internet is experiential. Other factors used to determine communities are: “continuity of membership; shared experiences, progress, deliberation, and goals among members; personal investment of members; established boundaries; and the ability to distinguish members from nonmembers.” (Harvard) The issue of local community standards in obscenity law was tested in United States v. Thomas. The Court applied the local community standards test, as opposed to accepting a community of cyberspace standard, and allowed the prosecution to stand of two individuals who made obscene material available on the Internet. The issue argued centered on where the effects of the obscenity were felt, in the local community or in cyberspace. Since the Internet has millions of users it may be impossible to define...