Order Code 98-670 A
Updated June 29, 2004
CRS Report for Congress
Received through the CRS Web
Obscenity, Child Pornography, and
Indecency: Recent Developments
and Pending Issues
American Law Division
The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech, or of the press . . . .” The First Amendment applies, with two
exceptions, to pornography and indecency, with those terms being used to refer to any
words or pictures of a sexual nature. The two exceptions are obscenity and child
pornography; because these are not protected by the First Amendment, they may be, and
have been, made illegal. Pornography and indecency that are protected by the First
Amendment may nevertheless be restricted in order to limit minors’ access to them.
To be legally obscene, and therefore unprotected by the First Amendment,
pornography must, at a minimum, “depict or describe patently offensive ‘hard core’
sexual conduct.”2 The Supreme Court has created the three-part Miller test to determine
whether a work is obscene. The Miller test asks:
(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.3
For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional
Principles and Federal Statutes.
Miller v. California, 413 U.S. 15, 27 (1973).
Id. at 24 (citation omitted).
Congressional Research Service ˜ The Library of Congress
In Pope v. Illinois, the Supreme Court clarified that “the first and second prongs of
the Miller test — appeal to prurient interest and patent offensiveness — are issues of fact
for the jury to determine applying contemporary community standards.” However, as for
the third prong, “[t]he proper inquiry is not whether an ordinary member of any given
community would find serious literary, artistic, political, or scientific value in allegedly
obscene material, but whether a reasonable person would find such value in the material,
taken as a whole.”4 In Brockett v. Spokane Arcades, the Supreme Court held that material
is not obscene if it “provoke[s] only normal, healthy sexual desires.” To be obscene it
must appeal to “a shameful or morbid interest in nudity, sex, or excretion.”5
Obscenity: Recent Developments. The Communications Decency Act of 1996
(P.L. 104-104, § 507) expanded the law prohibiting the importation of, or interstate
commerce in, obscenity (18 U.S.C. §§ 1462, 1465) to apply to the use of an “interactive
computer service” for that purpose. It defined “interactive computer service” to include
“a service or system that provides access to the Internet.” 47 U.S.C. § 230(e)(2). These
provisions were not affected by the Supreme Court’s decision in Reno v. American Civil
Liberties Union declaring unconstitutional two provisions of the CDA that would have
restricted indecency on the Internet.6
Obscenity: Pending Issues. In Reno, the Court noted, in dictum, 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.”7 This suggested that, at least with respect to
obscenity on the Internet, the Court might replace the community standards criterion,
except perhaps in the case of Internet services where the defendant makes a
communication available only to subscribers and can thereby restrict the communities in
which he makes a posting accessible. However, in Ashcroft v. American Civil Liberties
Union, decided May 13, 2002, the Court held that the use of community standards does
not by itself render a statute banning “harmful to minors” material on the Internet
unconstitutional. (See below under “Indecency.”)
Child pornography is material “that visually depict[s] sexual conduct by children
below a specified age.”9 It is unprotected by the First Amendment even when it is not
obscene (i.e., child pornography need not meet the Miller test to be banned).10 The reason
481 U.S. 497, 500 (1987).
472 U.S. 491, 498 (1984).
521 U.S. 844 (1997).
Id. at 877-878.
For additional information, see CRS Report 95-406, Child Pornography: Constitutional
Principles and Federal Statutes.
New York v. Ferber, 458 U.S. 747, 764 (1982) (italics in original).
This means that child pornography may be banned even if does not appeal to the prurient
interest, is not patently offensive, and does not lack literary, artistic, political, or scientific value.
that child pornography is unprotected is that it “is intrinsically related to the sexual abuse
of children . . . . Indeed, there is no serious contention that the legislature was unjustified
in believing that it is difficult, if not impossible, to halt the exploitation of children by
pursuing only those who produce the photographs and movies.”11
Federal law bans interstate commerce (including by computer) in child pornography
(18 U.S.C. §§ 2252, 2252A), defines “child pornography” as “any visual depiction” of
“sexually explicit conduct” involving a minor, and defines “sexually explicit conduct” to
include not only various sex acts but also the “lascivious exhibition of the genitals or
pubic area of any person.” 18 U.S.C. § 2256.
Child Pornography: Recent Developments. In 1994, Congress amended the
child pornography statute to provide that “lascivious exhibition of the genitals or pubic
area of any person” “is not limited to nude exhibitions or exhibitions in which the outlines
of those areas were discernible through clothing.” 18 U.S.C. § 2252 note. This
amendment expressed Congress’s support for a court decision upholding a conviction for
possessing “videotapes that focus on the genitalia and pubic area of minor females . . .
even though these body parts are covered by [opaque] clothing.”12 Then, the Child
Pornography Prevention Act of 1996 (CPPA) enacted a definition of “child pornography”
that included visual depictions that appear to be of a minor, even if no minor was actually
used. 18 U.S.C. § 2256(8). The statute thus banned visual depictions using adult actors
who appear to be minors, as well as computer graphics and drawings or paintings done
without any models.
In Ashcroft v. Free Speech Coalition, the Supreme Court declared the CPPA
unconstitutional to the extent that it prohibited pictures that were not produced with actual
minors.13 Child pornography, to be unprotected by the First Amendment, must either be
obscene or depict actual children engaged in sexual activity (including “lascivious”
poses), or actual children whose images have been “morphed” to make it appear that the
children are engaged in sexual activity. The Court observed in Ashcroft that statutes that
prohibit child pornography that use real children are constitutional because they target
“[t]he production of the work, not the content.” The CPPA, by contrast, targeted the
content, not the means of production. The government’s rationales for the CPPA included
that “[p]edophiles might use the materials to encourage children to participate in sexual
activity” and might “whet their own sexual appetites” with it, “thereby increasing . . . the
sexual abuse and exploitation of actual children.” The Court found these rationales
inadequate because the government “cannot constitutionally premise legislation on the
desirability of controlling a person’s private thoughts” and “may not prohibit speech
because it increases the chance an unlawful act will be committed ‘at some indefinite
See Ferber, supra note 9, 458 U.S., at 764.
Ferber, supra note 9, 458 U.S., at 759-760.
United States v. Knox, 977 F.2d 815, 817 (3d Cir. 1992), vacated and remanded, 510 U.S. 375
(1993); 32 F.3d 733 (3d Cir. 1994), cert. denied, 513 U.S. 1109 (1995).
535 U.S. 234 (2002).
The government also argued that the existence of “virtual” child pornography “can
make it harder to prosecute pornographers who do use real minors,” because, “[a]s
imaging technology improves . . . , it becomes more difficult to prove that a particular
picture was produced using actual children.” This rationale, the Court found, “turns the
First Amendment upside down. The Government may not suppress lawful speech as a
means to suppress unlawful speech.”
In response to Ashcroft, Congress enacted Title V of the PROTECT Act, Public Law
108-21 (2003). This statute prohibits any “digital image, computer image, or computergenerated image that is, or is indistinguishable from, that of a minor engaging in sexually
explicit conduct. It also prohibits “a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that . . . depicts a minor engaging in sexually explicit
conduct,” and is obscene or lacks serious literary, artistic, political, or scientific value.
Child Pornography: Pending Issues
To the extent that the PROTECT Act prohibits non-obscene child pornography that
was produced without the use of an actual child, it may be unconstitutional.
The Supreme Court has said that “the normal definition of ‘indecent’ merely refers
to nonconformance with accepted standards of morality.”15 The FCC defines the term to
refer to material that “describe[s] or depict[s] sexual or excretory organs or activities” in
terms “patently offensive as measured by contemporary community standards for the
Indecent material is protected by the First Amendment unless it constitutes obscenity
or child pornography. Except on broadcast radio and television, indecent material that is
protected by the First Amendment may be restricted by the government only “to promote
a compelling interest” and only by “the least restrictive means to further the articulated
interest.”17 The Supreme Court has “recognized that there is a compelling interest in
protecting the physical and psychological well-being of minors. This interest extends to
shielding minors from the influence of literature that is not obscene by adult standards.”18
For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional
Principles and Federal Statutes.
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 740 (1978).
In the Matter of Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C.
§ 1464 and Enforcement Policies Regarding Broadcast Indecency, File No. EB-00-IH-0089
(April 6, 2001). This definition is similar to the FCC’s definition of “indecent” in the context
of dial-a-porn. See, Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535, 1540 (2d Cir.
1991), cert. denied, 502 U.S. 1072 (1992).
Sable Communications of California v. Federal Communications Commission, 492 U.S. 115,
There are federal statutes in effect that limit, but do not ban, indecent material
transmitted via telephone, broadcast media, and cable television.19 There are also many
state statutes that ban the distribution to minors of material that is “harmful to minors.”
Material that is “harmful to minors” under these statutes tends to be defined more
narrowly than material that is “indecent,” in that material that is “harmful to minors” is
generally limited to material of a sexual nature that has no serious value for minors. The
Supreme Court has upheld New York’s “harmful to minors” statute.20
Indecency: Recent Developments. In 1997, the Supreme Court declared
unconstitutional two provisions of the Communications Decency Act of 1996 that would
have prohibited indecent communications, by telephone, fax, or e-mail, to minors, and
would have prohibited use of an “interactive computer service” to display indecent
material “in a manner available to a person under 18 years of age.”21 This latter
prohibition would have banned indecency from public (i.e., non-subscription) websites.
The CDA was succeeded by the Child Online Protection Act (COPA), P.L. 105-277
(1998), which differs from the CDA in two main respects: (1) it prohibits communication
to minors only of “material that is harmful to minors,” rather than material that is
indecent, and (2) it applies only to communications for commercial purposes on publicly
accessible websites. “Material that is harmful to minors” is defined as material that (A)
is prurient, as determined by community standards, (B) “depicts, describes, or represents,
in a manner patently offensive with respect to minors,” sexual acts or a lewd exhibition
of the genitals or post-pubescent female breast, and (C) “lacks serious literary, artistic,
political, or scientific value for minors.” A communication is deemed to be for
“commercial purposes” if it is made in the regular course of a trade or business with the
objective of earning a profit. Requiring a viewer to use a credit card to gain access to the
material would constitute a defense to prosecution. COPA has never taken effect because
a constitutional challenge was filed and a federal district court, finding that there was a
likelihood that the plaintiffs would prevail, issued a preliminary injunction against
enforcement of the statute pending a trial on the merits.22 On June 29, 2004, the Supreme
Court affirmed the preliminary injunction and remanded the case for trial.
Indecency: Pending Issues. The Supreme Court affirmed the preliminary
injunction because the government had not shown that proposed alternatives to COPA
would not be as effective in accomplishing its goal. The primary alternative to COPA is
blocking and filtering software. Filters are less restrictive than COPA because “[t]hey
impose selective restrictions on speech at the receiving end, not universal restriction at
47 U.S.C. § 223(b) (commercial dial-a-porn), 18 U.S.C. § 1464, 47 U.S.C. § 303 note
(broadcast media), 47 U.S.C. §§ 531(e), 532(c)(2), 532(h), 559-561 (cable television). The
Supreme Court declared section 561 unconstitutional. United States v. Playboy Entertainment
Group, Inc. v. United States, 529 U.S. 803 (2000).
Ginsberg v. New York, 390 U.S. 629 (1968).
Reno v. American Civil Liberties Union, supra, note 6.
American Civil Liberties Association v. Reno, 31 F. Supp.2d 473 (E.D. Pa., 1999), aff’d, 217
F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil Liberties
Union, 535 U.S. 564 (2002), aff’d on remand,322 F.3d 240 (3d Cir. 2003), aff’d and remanded,
No. 03-218 (June 29, 2004).
the source.” In addition “a filter can prevent minors from seeing all pornography, not just
pornography posted on the Web from America,” and filters “can be applied to all forms
of Internet communication, including e-mail, not just communications available via the
World Wide Web.” Nevertheless, the Court’s “opinion does not foreclose the District
Court [after a trial] from concluding . . . that COPA is the least restrictive alternative
available to accomplish Congress’ goal.”
On another matter, the FCC Enforcement Bureau held that, on broadcast media, use
of the word “f[***]ing” in “f[***]ing brilliant” was not “indecent” because it was used
as a modifier and not to describe sexual or excretory activities or organs. The full
Commission, however, reversed, ruling that “given the core meaning of the ‘F-Word,’ any
use of that word or a variation, in any context, inherently has a sexual connotation, and
therefore falls within the first prong of our indecency definition.”23
The Children’s Internet Protection Act (CIPA), P.L. 106-554
CIPA restricts access to obscenity, child pornography, and material that is “harmful
to minors,” and so is discussed here separately. CIPA amended three federal statutes to
provide that a school or library may not use funds it receives under these statutes to
purchase computers used to access the Internet, or to pay the direct costs of accessing the
Internet, and may not receive universal service discounts, unless the school or library
enforces a policy to block or filter minors’ Internet access to images that are obscene,
child pornography, or harmful to minors; and enforces a policy to block or filter adults’
Internet access to visual depictions that are obscene or child pornography. It provides,
however, that filters may be disabled “for bona fide research or other lawful purposes.”
In 2002, a three-judge federal district court declared CIPA unconstitutional; the
provisions affecting schools were not challenged. The government appealed directly to
the Supreme Court, which, in 2003, reversed, holding CIPA constitutional.24 The
plurality opinion 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.”25 It found, however, that, “[a]ssuming that
such erroneous blocking presents constitutional difficulties, any such concerns are
dispelled by the ease with which patrons may have the filtering software disabled.”26 The
plurality also found that 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.”27
In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of
the “Golden Globe Awards” Program, File No. EB-03-IH-0110 at 4 (March 18, 2004). For
additional information, see CRS Report RL32222.
United States v. American Library Association, 539 U.S. 194 (2003).
Id. at 208.
Id. at 209.
Id. at 211.