Indecency, Obscenity, and Queer Voices Online
US obscenity and indecency law has undergone several major transformations over the past 65 years. Prior to 1957, obscene content was defined using 19th century English common law as any works that "deprave and corrupt those whose minds are open to such immoral influences." The Comstock Act of 1873 made it illegal to distribute these materials via the mail, and postal authorities were often key figures in defining in practice what "obscene" materials meant.
The 1957 Supreme Court case Roth v. United States introduced a defined standard for determining obscenity, including the idea of using "contemporary community standard" to identify it. The first test of this standard for gay and lesbian individuals came in the 1958 case One, Inc. v. Olesen. In 1957, Los Angeles Postmaster Otto Olesen ruled the October 1954 issue of ONE Magazine contained "obscene, lewd, lascivious and filthy" content and thus could not be distributed via the mail. The magazine challenged Olsen's decision in court. Though both the District and Appeals courts found in Olesen's favor, the Supreme Court reversed their decision, allowing the magazine and similar gay and lesbian materials to be mailed.
These differing decisions represent the differing definitions of obscenity. In the 1964 Jacobellis v. Ohio case, where the justices could not come to a common reason why the film being challenged could be considered "obscene," Justice Potter Stewart famously declared of obscenity that "I know it when I see it." In 1973, the modern obscenity test (aka the Miller Test) was adopted in Miller v. California (see longer description in Key Terms and Concepts below). That same year, in the FCC v. Pacifica Foundation case the FCC gained the authority to regulate indecent content on radio and television broadcasts. Unlike obscene content, indecent content was considered offensive, but otherwise failed the Miller Test. In that decision, the Court found that the government, and the FCC in particular, had a real interest in firstly, protecting children from indecent content, and second, keeping unwanted content out of the privacy of the home.
This expansion of the FCC's regulatory authority was foundational for the US government's first attempt to regulate content on the Internet. The Communications Decency Act of 1996 (CDA) aimed to expand the FCC's regulatory powers to the Internet. Energy for regulation for the CDA was driven, in part, by a wider moral panic about children's theoretical access to pornography online (see Key Terms below for longer definition of a moral panic). However, the anti-indecency portions of the CDA would be overturned in the 1997 case Reno v. ACLU, on the grounds that because individuals can exert more control of what kinds of content can be accessed, unlike on live radio, government regulation was not applicable.
This teaching guide is meant to help introduce students to the relevant issues surrounding indecency, the Internet, and their impact of LGBTQ individuals' self-expression.
Key Legal Cases and Legislation
- The 1996 Communications Decency Act (CDA): Passed in 1996, the Communications Decency Act (officially known as Title V of the Telecommunications Act of 1996) regulated legal minors’ access to explicit content. Specifically, it criminalized the knowingly transmission of "obscene or indecent" messages to a legal minor, as well as knowingly sending a legal minor any content that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."
- Section 230: The only portion of the CDA to not be overturned by the Supreme Court in Reno v. ACLU (see below). Section 230 provides legal “safe harbor” to internet service providers and users. Specifically, it says that these groups and individuals will not be “treated as the publisher or speaker of any information provided by another information content provider,” in effect giving them legal immunity from liability.
In 2018, the Stop Enabling Sex Traffickers Act (FOSTA-SESTA) amended Section 230 to include a provision requiring these parties to remove any content that violated federal and state sex trafficking laws. However, since its passage the Act has been criticized for its outside impact on LGBTQ individuals and communities
- Reno v. ACLU: The 1997 Supreme Court decision ruling that the CDA’s anti-indecency provisions violated the First Amendment's guarantee of freedom of speech. In their decision, the justices ruled the CDA’s provisions were “unnecessarily broad.” As they argued, unlike an indecent radio or television broadcast, whose warnings may not “adequately protect the listener from unexpected program content,” an Internet user is required to take "a series of affirmative steps" before accessing possibly indecent material. For a more detailed overview of the case and those that followed, see the First Amendment Encyclopedia.
Key Terms and Concepts
- Obscenity: A category of speech that, due to its content, is legally considered unprotected by the First Amendment. To be considered obscene, content must meet the three criteria of the Miller Test (defined below).
- Miller Test: The legal standard currently used to determine whether content can be classified as “obscene.” The test was established by the Supreme Court in the 1973 case of Miller v. California, and has three criteria: “(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value” (Cornell Legal Information Institute).
- Indecency: A category of speech that, while offensive, does not rise to the level of obscenity. Compared to obscene content, indecent content portrays sexual content in a way that is “patently offensive,” but does not meet the three criteria of the Miller Test. Unlike obscene content, it is protected by the First Amendment, though when and how it can be broadcast is restricted. The regulation of indecent speech on broadcast radio or TV is overseen by the Federal Communications Commission (FCC).
- Minor: An individual under the “age of majority,” usually 18 years old, as defined by the state they live in, who live with a parent or guardian. Compared to legal adults, minors’ legal rights are constrained.
- Moral Panic: As defined by sociologist Stanley Cohen, a moral panic occurs when "a condition, episode, person or group of persons emerges to become defined as a threat to societal values and interests.” In a moral panic, claims related to the core issues at hand "exaggerate the seriousness, extent, typicality and/or inevitability of harm." Often, the fear that children may be harmed is a key feature of a moral panic. The Satanic Panic during the 1980s is one well-known contemporary example of a moral panic. Youth interest in new formats can also drive moral panics, such as the panic around children's access to violent crime and horror comics led to the development of the Comics Authority Code.
Moral panics often arise around the emergence of new technologies, particularly when they are used by youth. Scholar Alice Marwick defines these kinds of moral panics as “technopanics,” which “focus on new media forms, “generally pathologize young people’s use of this media,” and “manifests itself in an attempt to modify or regulate young people’s behavior, either by controlling young people or the creators or producers of media products.”
Selected Primary Sources
- Elmer-DeWitt, Phillip. “Cyberporn: On a Screen Near You” (and cover image), Time (July 3, 1995): This article was a major impetus for the CDA’s development and passage. Its central argument as based on a Georgetown Law Journal article, “Marketing Pornography on the Information Superhighway” (see below). This article was entered by Senator Chuck Grassley into the Congressional Record as evidence of the necessity of restricting speech online.
- Rimm, Marty. "Marketing pornography on the information superhighway: A survey of 917,410 images, descriptions, short stories, and animations downloaded 8.5 million times by consumers in over 2000 cities in forty countries, provinces, and territories." Georgetown Law Journal: A text-only digital copy of the study often cited by proponents of restricting speech online. The study, which analyzed content on Usenet, included a variety of highly quoted statistics, including that 83.5% of the image files shared on Usenet were pornographic in nature. However, soon after its publication, the study’s findings were challenged by a variety of researchers and free speech advocates.
- C-SPAN. “Senate Communications Decency Act Debate.” (June 14, 1995, approximately 1 hour and 30 minutes): An excerpt from the Senate debate on the Exon Amendment, which eventually would become widely known as the CDA.
- C-SPAN. “Freedom of Speech and the Internet.” (February 24, 1996, approximately 55 min): Mike Godwin, counsel to the Electronic Frontier Foundation (who opposed the CDA), discusses proposed regulations, including the CDA.
- C-SPAN. “Internet Freedom of Speech.” (June 13, 1996, approximately 15 minutes): Senator Exon presents a statement on the initial ruling striking down the CDA.
- Meers, Erik Ashok. “The Net Effect.” The Advocate (July 9, 1996): A special report on the CDA’s impact on gay and lesbian users.
- ACLU Affidavits: As part of their case, the ACLU submitted affidavits for all of their plaintiffs as well as individuals who would have been negatively affected by the CDA. This list includes affidavits of particular relevance to the QDHP:
- David Casti, representing Queer Resources Directory
- Kiyoshi Kuromiya, representing Critical Path
- Sister Mary Elizabeth Clark, representing AEGIS
- Three queer youth also submitted affidavits, representing YouthArts, a program of plaintiff WildCat Press:
- How does the CDA fit into the longer history of the US government restricting access to content? What are some of the challenges to applying the "contemporary community standard" portion of the Miller Test, as well as the FCC's regulatory powers, to content on the Internet?
- How might the CDA and similar legislation have an outsize impact on smaller content producers, particularly those from minority populations?
- Using the readings on One, Inc. v. Olesen and the ACLU affidavits, discuss possible secondary effects of legislation that aims to restrict or control content production. How might gay and lesbian life be different if the Supreme Court had not ruled in One, Inc's favor?
- Read DeWitt's "Cyberporn" story as well as the ACLU affidavits from queer youth. How do the different speakers define a “good” childhood? What role does the idea of “childhood” and the theoretical child user play in shaping legal policy?
Queer Youth, Online: In this activity, students identify the Internet's role in queer youth's lives in the 1990s. In small groups, students should select one of the three ACLU affidavits from YouthArts participants (or have one assigned to their group). Have them read over it together and discuss: What role did the Internet play in their identity formation? What were possible negative impacts of restricting their ability to communicate and publish online? And lastly, how do their affidavits challenge popular narratives at the time around youth and the Internet? Once small group discussion is completed, have each group share notes from their discussion and as a class identify common themes amongst the three affidavits.
Alternative History: In this activity, students consider an alternative history where the ACLU did not prevail in Reno v. ACLU. What might the internet of that world look like? Have them break into small groups and select a favorite social media app of their choice (Twitter, TikTok, Instagram, YouTube, etc.) and imagine what that app might look like in this alternative history. What kinds of content would be accessible? What would be restricted? How would the app require "verification," and what role would parental controls play? As part of this imagining, have the group sketch out a simple mock-up of their alternative app's interface, including labels on any added or changed features specific to their alternate history.
Suggested Readings and Resources
Historical Context: Key Obscenity and Indecency Cases
- Werbel, Amy. "Searching for Smut: Hot on the trail of Anthony Comstock (1844-1915)." Commonplace - The Journal of Early American Life.
- Marshall, Rick. Obscenity Case Files: Jacobellis v. Ohio (“I know it when I see it”). Comic Book Legal Defense Fund.
- Sergi, Joe. Obscenity Case Files: FCC v. Pacifica Foundation (George Carlin’s Seven Dirty Words). Comic Book Legal Defense Fund.
One, Inc. v. Olesen
- Savage, David E. "Supreme Court faced gay rights decision in 1958 over ‘obscene’ magazine." Los Angeles Times.
- Lopex, German. "The homophobic history of the Post Office: Interview with historian David K Johnson." Vox.
- Johnson, David K. "The secret anti-gay history of the U.S. postal service." Daily Dot.
Obscenity and the Internet
- Strickland, Ruth Ann. "Indecency and the Electronic Media." First Amendment Encyclopedia.
- Chun, Wendy Hui Kyong. Control and Freedom: Power and Paranoia in the Age of Fiber Optics. MIT Press (Available Open Access via MIT Press Direct).
- McKinney, Cait. “Crisis Infrastructures: AIDS Activism Meets Internet Regulation.” In AIDS and the Distribution of Crises, edited by Jih-Fei Cheng, Alexandra Juhasz, Nishant Shahani, 162–182. Durham and London: Duke University Press, 2020.
ACLU v. Reno