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The Bloggers' FAQ on Adult Material addresses the legal issues arising from publishing risque adult-oriented content, including obscenity law, community standards on the Internet, and the new 2257 regulations.
Can I put adult content on my blog?
Yes. The First Amendment protects your right to communicate legal adult content to the public. However, the law prohibits distribution of obscene material and child pornography. In addition, a federal law, 18 U.S.C. § 2257, currently being challenged in court, imposes record-keeping requirements on a broadly defined category of producers of sexually explicit material.
What is obscene material?
United States courts use the Miller test for determining whether speech or expression is "obscene," and therefore not protected by the First Amendment. That means it can legally be banned.
The Miller test stems from Miller v. California, 413 U.S. 15 (1973), in which the US Supreme Court held that material is obscene if each of the following factors is satisfied:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable law;
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Most pornography depicting sexual acts or genitalia would not be considered obscene but community standards can vary widely (compare Peoria with Manhattan), and a blog can be seen in any jurisdiction.
How do you determine "community standards" on the Internet?
Under current law, the legal question of whether speech is obscene is determined partly by reference to local community standards. Federal venue rules permit an obscenity prosecution to be brought where the speech originated or where it was received. Internet speech, however, is received in every community of our nation. As a result, "the 'community standards' criterion as applied to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno v. ACLU, 521 U.S. 844 (1997).
EFF is concerned that present law permits censorship of speech on the Internet under the standards of the least tolerant community, negating the values that the community standards doctrine was intended to protect -- diversity and localism in the marketplace of ideas.
In Nitke v. Ashcroft, EFF is helping challenge the "least tolerant" standard. Barbara Nitke, a New York photographer who works with erotic subject matter, has joined with the National Coalition for Sexual Freedom to challenge the constitutionality of provisions in the Communications Decency Act that create criminal penalties for making "obscene" materials available online. In July 2005, the district court ruled that the plaintiffs had not provided sufficient evidence of harm to maintain a facial challenge to the criminal provisions, but left open the possibility of a case-by-case analysis. EFF opposes this decision because the possibility of being hauled into court in the least tolerant jurisdiction could chill protected speech throughout the Internet. There will be an appeal.
What is child pornography?
Child pornography is any visual depiction, where "(A) the producing of such visual depiction involves the use of a minor [under 18] engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct." 18 U.S.C. § 2252 The law prohibits knowingly possessing or transmitting (including by computer) child pornography.
What is sexually explicit conduct?
Sexually explicit conduct is defined in 18 U.S.C. § 2256, but basically is any form of sex or the "lascivious exhibition of the genitals or pubic area." This definition is used for both child pornography and for federal reporting and record-keeping requirements.
Who is required to keep records about adult images under federal law?
Under a federal law, 18 U.S.C. § 2257, producers of a "visual depiction of an actual human being engaged in actual sexually explicit conduct" are required to keep records showing the ages of the models. It does not cover images produced before July 3, 1995, or depictions of simulated sexually explicit conduct.
While this law has been in effect for years, recently the Department of Justice (DOJ) issued new regulations that expand the definition of a "secondary producer" of sexually explicit material. As of June 23, 2005, new federal regulations apply the record-keeping requirement to these secondary producers, and defines them as anyone "who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction" of sexually explicit conduct.
The regulations imply that the record-keeping requirement is restricted to commercial operations. This would seem to exclude noncommercial or educational distribution from the regulation, and to limit secondary publishing and reproduction to material intended for commercial distribution. However, the DOJ has left wiggle-room, and it is still unclear if they intend to go after noncommercial websites.
Wait, don't the new DOJ regulations exceed the statute?
Yes. The statute limits its definition of producers to people involved with the "hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." The DOJ regulations define producer much more broadly. This issue will be one part of legal challenges to the requirement.
What records do federal regulations require?
Producers are required to maintain records of the legal name and date of birth of each performer, any name, other than each performer's legal name, ever used by the performer, including the performer's maiden name, alias, nickname, stage name, or professional name.
The proposed DOJ rule would add a requirement that the records include a copy of each image as well as the URL on which the depiction was published. It also includes onerous requirements for how the records are kept, including maintaining the records for up to five years after the so-called producer is out of business.
For online publishers, a statement that includes the location of these records must be displayed on their site's "homepage, any known major entry points, or principal URL (including the principal URL of a subdomain), or in a separate window that opens upon the viewer's clicking a hypertext link that states, '18 U.S.C. 2257 Record-Keeping Requirements Compliance Statement.'"
What if I don't have the records?
18 U.S.C. § 2257(f)(4) makes it a crime for a person "knowingly to sell or otherwise transfer" any sexually explicit material that does not have a statement affixed. As noted above, this does not include noncommercial distribution.
What is a "lascivious" image?
Many courts apply the so-called Dost test to determine if a given image is considered to be "lascivious" under the law. United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom., United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987) set forth a six factor test:
- Whether the genitals or pubic area are the focal point of the image;
- Whether the setting of the image is sexually suggestive (i.e., a location generally associated with sexual activity, such as a bed);
- Whether the subject is depicted in an unnatural pose or inappropriate attire considering her age;
- Whether the subject is fully or partially clothed, or nude;
- Whether the image suggests sexual coyness or willingness to engage in sexual activity; and
- Whether the image is intended or designed to elicit a sexual response in the viewer.
This test requires a case-by-case analysis and is devoid of bright line rules.
How is the Dost Test applied in case law?
Nudity is not enough for a finding that an image is lascivious, but clothing does not mean a photo is in the clear: "a photograph of a naked girl might not be lascivious (depending on the balance of the remaining Dost factors), but a photograph of a girl in a highly sexual pose dressed in hose, garters, and a bra would certainly be found to be lascivious." United States v. Villard, 885 F.2d 117, 124 (3d Cir. 1989).
Setting is critical, but must be taken in context. For example, "while the setting of a bed, by itself, is some evidence of lasciviousness, it alone is not enough to support a finding of lasciviousness." Id. One should consider not just the bed, but how the person is posed on the bed (i.e. sleeping vs. posing seductively).
Context is also important in determining "whether the image is intended or designed to elicit a sexual response in the viewer." For example, in jury instructions approved by the Ninth Circuit, the Court asked the jurors to consider the caption of the photograph. United States v. Arvin, 900 F.2d 1385 (9th Cir. 1990).
What do I do if someone puts child porn on my blog?
Some blogs allow anyone to come along and put in comments, sometimes with images. A federal law, 18 U.S.C. § 2258A , requires anyone who is engaged in providing certain online services to the public, and obtains knowledge of a violation of the child exploitation statutes, to report such violation to the CyberTipline of the National Center for Missing and Exploited Children. NCMEC will forward information to law enforcement. These regulations apply to electronic communication services and remote computing services. Section 2258B provides a limited safe harbor for these service providers and domain name registrars.
Will the DOJ really go after my little blog for a couple of risqué photos?
Probably not. First, as discussed above, the record-keeping requirements are only for actually sexually explicit conduct?photos of you topless at Burning Man or jogging naked for Bay to Breakers are not going to trigger the law. Second, the legality of the new regulations is being challenged in court, which should discourage the DOJ from going after borderline sites.
What have courts said about record-keeping requirements?
In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the prior regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).
However, the DOJ takes the position that American Library Ass'n v. Reno, 33 F.3d 78 (DC Cir. 1994), "implicitly accepted that the distinction between primary and secondary producers was valid" and that "the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech."
In Connection Distributing Co., et al. v. Keisler, 505 F.3d 545, (6th Cir. 2007) the Sixth Circuit initially rejected the DOJ's argument, and held that "the [revised] statute is overbroad and therefore violates the First Amendment. However, the Court reheard the case en banc and ultimately issued a new opinion, Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009), upholding the record-keeping requirements.
What is EFF doing about the new 2257 regulations?
EFF is working with the Free Speech Coalition to challenge the new regulations, which go far beyond the authorization of the statute, and impermissibly impinge on constitutionally protected speech. For instance, on March 5, 2010, we filed an amicus curiae brief in the Eastern District of Pennsylvania, challenging the constitutionality of the statute.