From Chapter 10, you should be prepared to answer questions in the following areas:

Regulation of Cyberporn

• The Communications Decency Act of 1996 (CDA)

  • Sections 223(a) and (d) criminalized online transmitting of obscene or indecent material to adults or minors.

    • The Supreme Court overturned this portion of the law in Reno v. ACLU (Reno I), differentiating between obscene and indecent materials.

    • The FTC defines indecent materials by using the second Miller prong.

  • Section 505 requires cable television operators to fully scramble channels dedicated to sexual-oriented programming.

    • The court dealt with this section in US v. Playboy, page 322.  Answer question 2, page 324.

• The Child Pornography Prevention Act of 1996 (CPPA)

  • CPPA outlawed computer technology to produce "virtual" or real child pornography

  • The Supreme Court struck down the ban on virtual child pornography in Ashcroft v. Free Speech Coalition. Why?

• The Child Online Protection Act of 1998 (COPA)

  • Provides criminal liability for WWW operators to offer harmful material (as defined by the Miller three-prong test) to minors, if offered without first using bona fide methods to determine age.

  • The supreme Court has upheld the use of community standards to define harmful, Ashcroft v. ACLU, page 328.

  • The Third Circuit has since declared COPA is unconstitutionally overbroad.  This decision is on appeal to the Supreme Court, cert. granted.

• The Children's Internet Protection Act of 2000 (CIPA)

  • Requires schools and libraries receiving federal grants to install Internet filters to block obscene material or material harmful to minors.

  • If blocked from a site, adults may ask a librarian to disable the filter.

  • The Supreme Court upheld this law, US v. Am. Library Assoc., 539 U.S. 194 (2003).

• Considering the constitutional success rate of the above laws, what is the best approach to protecting children from pornography?

Trademark Law and Indecent Material

• 15 U.S.C. §1052.  No trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it . . .

       Consists of or comprises immoral . . . or scandalous matter . . ..

• The Court of Customs and Patent Appeals noted dictionary entries that defined “scandalous” as, inter alia, shocking to the sense of propriety, offensive to the conscience or moral feelings or calling out for condemnation.  . . . The statutory language “scandalous” has also been considered to encompass matter that is “vulgar,” defined as “lacking in taste, indelicate, morally crude.” 

• Analyze the following trademark applications made to the United States Patent and Trademark Office:

  • BULLSHIT as used for  attaché cases, hand bags, purses, belts, and wallets,

  • BLACK TAIL as used for African-American adult entertainment magazine,

  • OLD GLORY as used for condoms decorated with stars and stripes,

  • DICK HEADS as use by a restaurant chain owned by Richard Head, with the trademark positioned directly underneath a caricature of a human head composed primarily of a graphic and readily recognizable representation of male genitalia,

  • WEEK-END SEX for adult magazines,

  • BIG PECKER BRAND for T-shirts and clothing, using a bird in the design,

  • BAD FROG beer, using a frog with a raised "middle finger".

Employees' Access to Obscene/Indecent Material at Work

• Differentiate between private and public employees.

• Regarding public employees, see Urosky v. Gilmore, page 334.

International Regulation of Obscenity

• Note the act of state doctrine.

• Analyze collecting a foreign judgment in the US regarding the First Amendment.

This site is maintained by Jeffrey Pittman.  Please direct comments to pittman@astate.edu.