Applying obscenity standards and Reno v. ACLU to online sexual speech

Address the three questions at the top of this discussion with reference to the topic of sexually-oriented ADULT-to-ADULT web camming and the voluntary self-postings of homemade sex videos on various sites. To what extent would you support a federal law that regulated such sexual materials by banning them and/or punishing Internet Service Providers who allow such transmissions or postings? Would you punish the material as “indecent” under FCC v. Pacifica, overruling the Supreme Court decision in Reno v. ACLU or would you apply obscenity standards?

1) Should words, images and sounds that stimulate erotic or sexual thoughts be granted the same protection as political speech?
Words, images, and sounds that stimulate erotic thoughts should be granted a high level of protection, and they should be given the same absolute protection as political speech, except only in certain online and offline forums. In these places the sexual speech should be protected to the utmost degree, but otherwise it should be susceptible to punishment.

Although often controversial, and not always accepted by all, I believe that it is important for this kind of speech to be protected to a high extent. It should be protected until it becomes obscene, as obscenity is still criminal in all media. The overall definition of obscenity that I want to use to support my argument was applied to Miller v. California, where it was decided that obscenity was not protected under the First Amendment, and that the Miller Test should be used when decided if speech was obscene or not. A work was defined as obscene if an average person applying community standards finds:

• The work as a whole whole appeals to prurient interest, and;
• It depicts in a patently offensive way sexual conduct outlawed by specific state law, and;
• It lacks Serious Literary, Artistic, Political, or Scientific value as judged by national standard.

However I feel that only parts of this definition should be used to punish sexual speech. I don’t think that a work needs to have SLAPS in order to be protected. I highly doubt that many of the sexual materials available on the internet have artistic value beyond bringing pleasure to the viewer. I also don’t think that it matters if a work appeals to a prurient interest or not. Other kinds of highly offensive speech are protected by law, and I don’t think that sexual speech should be treated any differently. I do think that if the work is portraying something prohibited by specific state law, it shouldn’t be protected speech, especially if it is being posted on the world wide web for everyone to see. I am still struggling with the concept of that material being acceptable if kept within the confines of a person’s home as was protected under Stanley v. Georgia. This 1969 decision protects the possession of obscene speech, but allows punishment for creation and distribution of the same kind of speech. I agree with the court decision in this case, and see no problem with watching obscene material in the privacy of one's home. As long as the sexual speech is not prohibited by law (ex. child pornography, beastiality), it should be protected. Furthermore, this material should be allowed to be produced and shared (under certain conditions) as long as it doesn't violate state laws, in my opinion.

2) Should adults have the same rights to create such speech for private use, distribute such speech for public consumption and receive such speech – or should varying levels of protection be applied?
In accordance with Reno v. American Civil Liberties Union, I think that adults have the right to post and participate in sexual speech via the internet, and that this speech should be protected. The 1997 case marked nine Justices of the Court striking down anti-indecency provisions of the Communication Decency Act because these provisions suppressed free speech rights of internet users. The provisions were meant to protect children from encountering sexual material online by criminalizing any obscene messages sent to minor recipients, and also criminalizing the knowing sending of any material that basically depicted and/or described sexual activities or organs. The majority opinion was that less restrictive measures could be used to protect children while maintaining free speech among adults on the internet.

Under Reno v. ACLU, adults should be able to create, distribute, and receive such speech (posting of homemade sexual material/webcamming) on the internet. Varying levels shouldn’t be applied for the different actions – I think they should all be protected unless deemed obscene and being transmitted to a captive audience or children (Justice Brennan’s approach to sexual speech).

3) Should the same levels of protection apply to ALL media – print, broadcast, movies, cable, online sites, webcams/chat – or should the levels of protection vary according to medium?
Adult-to-adult materials such as webcams/chat and online sites are easier to contain on the internet that all types on media. I think that the sexual speech should not be protected to a high degree if being broadcast via television, radio, or cable. These are portals that are widely watched, and an audience that doesn't want to see sexual material could more easily stumble across it if it was broadcast all over the place. I think that for the safety of children, sexual speech should be contained in closed portals that are not as accessible, and that take more effort to experience.

Movies are more of a choice because they are often kept in a certain section of a DVD or video rental store. It requires more effort to buy a video and take it home than to turn on the television to a regular station and all of a sudden be watching some aspect of sexual speech. They should therefore be protected under Burstyn v. Wilson, a case that decided that movies do have value and are protected speech under the First Amendment and marked the decline of movie censorship in the United States. I feel that the internet is the same way -- a viewer or participant needs to make an effort to reach sexual speech in most cases. They need to go on the computer, find a certain kind of website, pass a warning page, and often log in before they can access sexual material. Material found in these areas of the web should receive protection. However, this argument could be partially undermined by the widespread use of webcams. Now, anyone anywhere can connect a camera to their computer and go online to any kind of chatroom to get involved in sexual speech. I don't think this should be protected unless it is on certain websites and online spaces where people have to knowingly make the decision to engage in such speech.