State Laws on Obscenity, Child Pornography and Harassment Disclaimer: This document is reprinted courtesy of Ronald J. Palenski, Partner, Gordon & Glickson P.C. iFriends.net is in no way responsible for the accuracy, quality or comprehensiveness of this document. If you have questions about your conduct on iFriends, we recommend that you consult competent local counsel familiar with first-amendment law in your community, city or state.
Background Information All 50 states and the District of Columbia have laws governing obscenity, child pornography, and harassment. What follows is a general commentary on these laws plus a state-by-state overview on the extent to which they may apply in on-line or other digital environments. Click here to read all about it.
Obscenity All states have laws governing the distribution of obscene materials. Generally, these statutes prohibit the sale, lending, renting, giving, publication, exhibition or other dissemination of materials, with general knowledge of their obscene character and content. Drafted before an electronic age, many states define “materials” as covering any writing, written matter, picture, pictorial representation, film or motion picture, or sound recording. “Obscenity” is typically defined as material which, to the average person, applying contemporary community standards, and taken as a whole: 1) predominantly appeals to prurient interests, 2) lacks serious literary, artistic, political, or scientific value, and 3) depicts or describes nudity, sex, or excretion in a patently offensive way. Of course, what constitutes the relevant “community” in on-line environments without geographic boundaries is an open issue. In a very few states, obscenity laws cover the dissemination of tangible material only, a matter of some importance given the debate in other areas of the law whether computer software or other information in digital format is tangible or intangible.* Similarly, many states prohibit the distribution of electronic or electrical reproductions of obscene material. Presumably such statutes cover obscene material in digital format; note, however, that ambiguities in criminal statutes are to be construed strictly against the state and in favor of the accused. A very few states prohibit the distribution of obscene materials to minors only; distribution to adults is not prohibited.
Child Pornography All states prohibit child pornography. “Child pornography” may encompass either: 1) the creation or reproduction of materials depicting minors engaged in actual or simulated sexual activity (“Sexual Exploitation of Minors”) or 2) the publication or distribution of obscene, indecent, or harmful materials to minors. All such laws require actual knowledge, or reason to know, that the person portrayed or the recipient of the obscene, indecent, or harmful material is a minor. A few states also penalize the distribution, with reckless disregard, of obscene or indecent materials to minors. The states generally provide defenses to the publisher or distributor where some reasonable attempt has been made to discern the age of the recipient of the obscene, indecent, or harmful material. As noted above, most state statutes reach beyond what is deemed to be “obscene” for adults to prohibit the distribution of material that has been determined to be “harmful to minors,” including that which is indecent or excessively violent. As with obscenity statutes generally, what is “harmful to minors” is to be determined with reference to the local “community.” Note, too, that the definition of a “minor” varies among the states, with most state laws applying to the distribution of harmful material to persons under the age of 18 years but some states prohibiting the distribution of harmful material to those under the age of 17 years.
Harassment/Stalking All states have statutes prohibiting harassment and stalking. “Harassment” statutes typically prohibit the intentional or knowing engaging in a regular course of conduct (which may include sending mail - including electronic mail - or other written** communications) designed to alarm or seriously annoy another. “Harassment” is sometimes included as a subset of “stalking,” which is defined typically as the willful, malicious, and repeated harassing of another, or the making of a credible threat, with intent to place another in reasonable fear of death or great bodily harm. Prohibited “stalking” may directed towards one’s person or one’s family. Threats to property may also be covered. All states have statutes prohibiting harassment by telephone, although it appears that most of these statutes contemplate voice rather than digital communications. These statutes thus prohibit the use, with intent to harass or annoy, of the telephone: 1) to make obscene or lewd proposals, 2) to threaten to inflict injury, or 3) to call repeatedly, whether or not conversation ensues. With this general background, what follows is an overview of state obscenity, child pornography, and harassment/stalking laws, as particularly applicable in on-line or digital environments. For purpose of state sales and use tax laws, most states regard prewritten computer programs, at least, as tangible personal property. Similarly, most courts that have examined the issue have determined that computer software constitutes “goods” for purposes of Uniform Commercial Code, Article 2. The federal government, on the other hand, has determined computer software to be intangible for tax purposes. Many statutes prohibit written communications intended to harass, annoy, or seriously alarm. The issue arises whether digital communications are included within the scope of the statute. back to top |
