Pornography Legislation in the United States
Pornography Legal Status United States Legislation
Introduction to Pornography Legislation
The Congress of the United States passed the first federal obscenity law as part of the Tariff Act of 1842, barring the importation of all “indecent and obscene prints, paintings, lithographs, engravings, and transparencies.” However, very little obscenity prosecution took place in the United States until after the Civil War (1861-1865). In the late 19th century, prosecutors grew more active as the production of pornographic material increased and new antivice and antismut groups pressured them to bring cases. The most prominent such group was the New York Society for the Suppression of Vice, which was the offspring of America’s leading antivice crusader, Anthony Comstock.
The so-called Comstock Law, an 1873 amendment to the 1865 Postal Act, prohibited sending any obscene material through the domestic mails, including materials dealing with abortion or birth control. This act made Comstock a special agent to the post office with personal authority to enforce the law. By the time of his death in 1915, Comstock had spearheaded hundreds of successful prosecutions in the name of moral decency, many of which involved works of considerable literary merit. “Comstockery,” as this came to be known, declined after 1920 with the advent of the modern civil liberties movement, but as late as the 1930s classic works such as Lady Chatterley’s Lover (1928), by English novelist D. H. Lawrence, and An American Tragedy (1925), by American novelist Theodore Dreiser, were found obscene. It was not until the 1950s, when social mores and court decisions grew more clearly liberal in this domain, that such works enjoyed unambiguous protection against censorship.
Congress passed 20 obscenity laws between 1842 and 1956, most of which were variations of or amendments to the original Comstock Law. Later, Congress passed a series of antipornography and anti-indecency laws dealing with new forms of technology and with the protection of children. The Protection of Children Against Sexual Exploitation Act of 1977 prohibits anyone from employing or inducing a minor to participate in sexual conduct or in the making of pornography. In 1988 Congress passed legislation against “dial-a-porn” companies that made it illegal to make indecent or obscene phone calls over state lines for commercial purposes. (In 1989 the Supreme Court struck down the part of the law that dealt with indecency.) The Child Pornography Prevention Act of 1996 made it illegal to distribute or receive child pornography, including virtual child pornography, by any means. (However, in 2002 the Supreme Court struck down provisions of the law that banned virtual child pornography.) Penalties for violation of these various laws range from a few years to 30 years in prison, depending on the circumstances.
The widespread availability of pornography on the Internet has led to a number of legislative attempts to prevent children’s access to it. However, opponents have challenged these laws on the grounds that they are overly broad and infringe on freedom of speech, which is protected by the First Amendment of the U.S. Constitution. In 1996 Congress passed the Communications Decency Act (CDA), making it a crime to send any obscene or indecent messages over the Internet knowing that the recipient is under 18 years of age. After the Supreme Court unanimously ruled this law unconstitutional in 1997, Congress passed the Child Online Protection Act (known as “son of CDA”), which required commercial Web sites to ensure that children could not access material deemed “harmful to minors.” The act also prohibited, among other things, material that “depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact.” In 1999 a federal appeals court blocked that law as well, citing free-speech concerns. The Children’s Internet Protection Act, passed in 2000, required all public schools and libraries that receive federal technology funds to install filtering software designed to block access to pornographic sites. A coalition of civil liberties groups, led by the American Civil Liberties Union and the American Library Association, argued that filtering software was imprecise and blocked access to Web sites that have nothing to do with pornography. In 2002 a federal judicial panel struck down the Children’s Internet Protection Act, finding that filtering software blocked Web sites whose content was constitutionally protected. However, in 2003 the Supreme Court reversed the lower court and ruled that the law was constitutional and was justified by the government’s legitimate interest in protecting children from harmful materials. The Court noted that the law allowed librarians to enable access to blocked Web sites at the request of patrons, thereby protecting patrons’ First Amendment rights.” (1)
Resources
Notes and References
- Information about Pornography Legislation in the Encarta Online Encyclopedia
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