Article: EFF Legal Guide for Bloggers

An interesting read on websites with 'adult' material posted on them.  While the thrust of the full article is on commercial adult websites with explicit sexual content (porn sites), the article does address some of the concerns nudists and naturists have for posting simple, nonsexual images of themselves on their own websites . . . such as personal blogs like this one.

It is interesting the re-read the Supreme Court's landmark Miller Test for obscenity; i.e., what is obscene; as well as the lesser-known Dost Test for lascivious as it relates to community standards.

One of the elements of the Miller Test is "Community Standards", which, since any posting on the Internet reaches every jurisdiction means that the least tolerant of jurisdictions could possibly bring action based on their own interpretation of what is obscene or not (Community Standards).  The article addresses this concern as well as on-going challenges of the law.

All in all . . . I am not going to worry about some super conservative community in . . . let's say, Arkansas . . . dragging me into court all the way from the State of Washington because they consider the images in my blog obscene.

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From the Electronic Frontier Foundation (EFF):  https://www.eff.org/issues/bloggers/legal/adult

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 (emphasis is mine) :

• 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 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).

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.