Study Notes on Obscenity, Nonconsensual Pornography, and Cyberbullying

Chapter 8: Obscenity, Nonconsensual Pornography, and Cyberbullying

Introduction

  • Authors: Adedayo L. Abah (Washington & Lee University) and Amy Kristin Sanders (University of Texas).

  • Overview: The chapter discusses the societal impacts of social media, focusing on issues of nonconsensual pornography, online harassment, and implications for legal regulation.

The Rise of Nonconsensual Pornography and Cyberbullying

  • Social media's growing influence has led to increased harm dissemination.

  • Nonconsensual pornography linked to sites like IsAnyoneUp.com.

  • Victims face significant consequences from the spread of explicit images.

  • Recent studies indicate a high incidence of online harassment, with:

    • Two-thirds of adults under 30 experiencing harassment.

    • 41% of Americans subject to harassment (multiple forms measured).

    • Sexual harassment incidences increased from 6% in 2017 to 11% in 2020.

    • 75% of those harassed identified social media as the platform of their most recent experience.

  • Legislative responses to increasing harassment rooted in early online speech regulation efforts.

Regulation of Sexually Explicit Speech Offline and Online

  • Historical context of the US Supreme Court’s regulation of obscenity:

    • Roth v. United States (1957): Set the precedent that obscenity is not protected by the First Amendment.

    • Justice William Brennan stated: "The dispositive question is whether obscenity is utterance within the area of protected speech and press."

    • Acknowledgement that regulation of sexually explicit speech is permissible (Chaplinsky v. New Hampshire).

  • Justice Potter Stewart's famous quote on obscenity: "I know it when I see it."

  • The standard for regulating obscenity was set in Miller v. California (1973):

    1. Prurient Interest: Whether the average person, applying contemporary community standards, finds the work appealing to the prurient interest.

    2. Patently Offensive: Whether the work depicts offensive sexual conduct as defined by law.

    3. Serious Value: Whether the work lacks serious literary, artistic, political, or scientific value.

Legislative Efforts on Internet Regulation

  • Regulation efforts for sexually explicit content more extensive than just obscenity laws, including indecency and pornography regulation.

  • The Telecommunications Act of 1996 included the Communications Decency Act (CDA):

    • Title V focused on obscenity and violence in telecommunications, making it a crime to transmit obscene material to minors.

    • ACLU challenged Section 223 of the CDA, leading to a landmark ruling in ACLU v. Reno (1997):

    • Justice Stevens emphasized that traditional media regulations do not apply to the Internet.

    • The Court identified the CDA as overly broad without clear definitions of "indecent" and "patently offensive," violating First Amendment protections.

  • Following CDA’s failure, the Child Online Protection Act (COPA) was enacted in 1998 but faced similar legal challenges due to its broad nature.

  • Subsequent legal battles led to Ashcroft v. ACLU (2004), which found COPA unconstitutional, further demonstrating difficulties in regulating online content.

  • The Children's Internet Protection Act (CIPA, 2000) focused on requiring internet filters in schools and libraries, challenged constitutionally by the American Library Association.

  • Legal outcomes established CIPA's provisions to be considered funding conditions instead of outright speech restrictions.

Cyberbullying and Recent Legislative Developments

  • Cyberbullying defined by various sources, often emphasizing the use of digital technologies for harassment by minors against minors.

  • By 2021, all fifty states had laws addressing bullying, with 48 including cyberbullying provisions.

  • Many states require school districts to develop specific policies while also allowing them to sanction students.

  • Ongoing challenges include balancing regulation without infringing on First Amendment rights.

Nonconsensual Pornography and Legal Frameworks

  • Nonconsensual pornography often tied to revenge porn cases.

  • Legislative action and challenges highlight the difficulty in obtaining justice for victims under existing laws.

  • Hunter Moore, operator of IsAnyoneUp.com, was sentenced for criminal activity, underscoring challenges in prosecuting nonconsensual porn claims.

  • As of 2021, 48 states and D.C. enacted laws criminalizing nonconsensual pornography, but many face effectiveness challenges.

Deepfake Technology and its Consequences

  • Deepfake technology involves significant ethical implications and legal challenges within nonconsensual pornography contexts.

  • Highlighted the pervasive threat posed by deepfake pornography, affecting both public figures and private individuals.

  • States like Virginia have introduced laws specifically targeting deepfakes, reflecting growing legal recognition of the technology's risks.

Conclusion

  • As technologies evolve, so will the legal responses to issues involving cyberbullying, sexting, and nonconsensual pornography.

  • Future legislation will need to balance protecting individuals while upholding First Amendment rights.

  • Legal frameworks will evolve to address emerging digital contexts, shaping how society understands and regulates communication in the age of social media.

Frequently Asked Questions

  1. Can I get in trouble for posting sexually explicit photographs on a social media site?

    • Yes, platforms like Facebook prohibit sharing pornographic content and may terminate accounts that violate these standards.

  2. Does the First Amendment protect the use of foul language on Twitter?

    • Twitter may restrict content as it sees fit without First Amendment repercussions.

  3. Can my employer examine my mobile device or email for indecent materials?

    • Employers may monitor company devices, enforcing appropriate usage policies.

  4. If someone tags me in an inappropriate photograph on Facebook, can I demand its removal?

    • You may contact the user directly, but you may have no legal recourse under Section 230 of the CDA.

  5. What kinds of social media activities are most likely to lead to criminal charges?

    • Activities may range from sharing obscene content to live-streaming criminal acts, subjecting individuals to legal scrutiny.