Pornography Definitions     5/15/2003
By Jan LaRue

1. Illegal Pornography:

A. Child pornography: An unprotected visual depiction of a minor child (federal: under the age 18) engaged in actual or simulated sexual conduct, including a lewd or lascivious exhibition of the genitals. See New York v. Ferber, 458 U.S. 747 (1982), Osborne v. Ohio, 495 U.S. 103 (1990), U.S. v. X-Citement Video, Inc.,513 U.S. 64 (1994). See also U.S. v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856 (1987); U.S. v. Knox, 32 F.3d 733 (3rd Cir. 1994), cert. denied sub nom Knox v. U.S., 513 U.S. 1109 (1995). Note: In 1996, 18 U.S.C. § 2252A was enacted and § 2256 was amended to include "child pornography" that consists of a visual depiction that "is or appears to be" or "conveys the impression" of a minor engaging in sexually explicit conduct. On April 16, 2002, the Supreme Court struck down the "appears to be" and "conveys the impression" sections in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

B. Obscenity (adult): "Hard-core pornography" ("PCV"- penetration clearly visible). Not protected by the First Amendment. 18 U.S.C. §§ 1460-1470. See Miller v. California, 413 U.S. 15, at 24-25 (1973); Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977); Pope v. Illinois, 481 U.S. 497, at 500-01 (1987), announcing the three-prong "Miller Test", which, after Smith and Pope, reads as follows:

(1) whether the average person, applying contemporary adult community standards, would find that the material, taken as a whole, appeals to a prurient interest in sex (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and

(2) whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e., ultimate sex acts, normal or perverted, actual or simulated; masturbation; excretory functions; lewd exhibition of the genitals; or sadomasochistic sexual abuse); and

(3) whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

C. Material Harmful to Minors: Known as "variable obscenity" or the "Millerized Ginsberg Test." See Ginsberg v. New York, 390 U.S. 629 (1968); and Miller, Smith, Pope, supra. It is illegal to sell, exhibit, or display "harmful" ("soft-core") pornography to minor children, even if the material is not obscene or illegal for adults. See also Com. v. Am. Booksellers Ass'n, 372 S.E.2d 618 (Va. 1988), followed, American Booksellers Ass'n v. Com. of Va., 882 F.2d 125 (4th Cir. 1989); Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 117 S. Ct. 1249 (1997). "Harmful to minors" means any written, visual, or audio matter of any kind that:

(1) The average person, applying contemporary community standards, would find, taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion, and

(2) the average person, applying contemporary community standards, would find depicts, describes, or represents, in a patently offensive way with respect to what is suitable for minors, ultimate sexual acts, normal or perverted, actual or simulated, sado-masochistic sexual acts or abuse, or lewd exhibitions of the genitals, pubic area, buttocks, or post-pubertal female breast, and

(3) a reasonable man would find, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

D. Broadcast Indecency: See FCC v. Pacifica Foundation, 438 U.S. 726 (1978). The FCC "defines broadcast indecency as language or material that, in context, depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." Action For Children's Television, et al. v. FCC, 11 F.3d 170, 172 (D.C. Cir. 1993). Enforced by FCC from 6 A.M.-10 P.M. Action For Children's Television, et al. v. FCC., 58 F.3d 654 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996).

E. Dial-a-Porn: "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." Requires: a written request from an adult; or a credit card number, or an adult identification PIN code before transmission. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 128-30 (1989); Information Providers' Coalition v. FCC, 928 F.2d 866, 872 (9th Cir. 1991); Dial Information Services Corporation of New York v. Thornburgh, 938 F. 2d 1535 (2nd Cir. 1991), cert. denied, 502 U.S. 1072 (1992).

F. Cable Indecency: Cable operators may refuse to carry indecent leased access programming which the operator reasonably believes "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Cable operators who choose to carry indecent programming on leased access channels are not required to place such programs on a separate channel and block the channel until the subscriber in writing, requests unblocking. Cable operators may not prohibit the use of PEG access channels for "any programming which contains obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct." However, a cable programmer is liable for obscene programming. See Denver Area Ed. Tel. Consort. v. FCC, 116 S. Ct. 2374 (1996). In U.S. v. Playboy Entertainment Group, Inc., 120 S. Ct. 1878 (2000), the Supreme Court upheld 47 U.S.C. § 560. Section 560 requires cable television operators who provide channels primarily dedicated to sexually oriented programming to fully scramble or otherwise fully block both the audio and video portions of those channels from the homes of cable subscribers at their request and at no cost to the subscriber.

2. Legal Pornography: Serious works of art, literature, politics, or science; "mere nudity"; medical works, etc. See: Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973); Jenkins v. Georgia, 418 U.S. 153 (1974); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).

3. "Pornography": A generic term that includes both legal and illegal materials, i.e., all sexually oriented material intended primarily to arouse the reader, viewer, or listener. See Webster's Dictionary; Miller v. California, 413 U.S. 15, 18 n. 2 (1973); Final Report, Attorney General's Comm'n on Pornography (1986), Chapter One, "Defining our Central Terms".

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