The future of obscenity law

Howard Schweber schweber at
Tue Jun 14 10:27:52 PDT 2005

Eugene's points about the potential for technological "advancement" (if 
that's the word I want!) are well taken.  I believe it is the case, though, 
that all the attempts at government regulation of the Internet thus far 
have foundered because they attempted to go beyond the regulation of 
obscene material to reach merely "indecent" material.  As Eugene observes, 
those arguments are very far from over, but as a matter of straight 
doctrine I don't think anything that has transpired thus far requires 
rethinking the Miller categories.

In U.S. v. Thomas 74 F.3d 701 (6th Cir. 1996), for example, the circuit 
court explicitly considered and rejected that the non-geographical "space" 
of the internet defeases the Miller equation of a state with a community 
possessed of enforceable standards.  Mr. and Mrs. Thomas were sentenced to 
37 and 30 months in federal prison, respectively, for operating a bulletin 
board from their home in California that permitted an undercover postal 
inspector in to download obscene images in Tennessee.  The court accepted 
the argument that the electronic tranmission of images was analogous to 
sending a money order.  Here's a key relevant excerpt:

"United States v. Gilboe, 684 F.2d 235 (2nd Cir. 1982), cert. denied, 459 
U.S. 1201, 75 L. Ed. 2d  432, 103 S. Ct. 1185  [*9]   (1983), illustrates 
this point.  In Gilboe, the Second Circuit rejected the argument that the 
defendant's transmission of electronic impulses could not be prosecuted 
under a criminal statute prohibiting the transportation of money obtained 
by fraud. The Gilboe court reasoned that:  "electronic signals in this 
context are the means by which funds are transported. The beginning of the 
transaction is money in one account and the ending is money in another. The 
manner in which the funds were moved does not affect the ability to obtain 
tangible paper dollars or a bank check from the receiving account."  Id. at 
238. The same rationale applies here. "


At 09:38 AM 6/14/2005 -0700, Volokh, Eugene wrote:
>         By the way, Scott Gerber's question, and my speculation about
>how Lawrence might be read in 20 years, made me think:  Are we even
>going to have obscenity debates in 20 years?
>         On the one hand, porn has generally become more and more
>tolerated; moreover, the Internet makes regulation of porn harder than
>ever.  That might suggest that 20 years from now, the issue will be
>largely dead.
>         On the other hand, I suspect that technology will make porn more
>and more troubling, even to people of moderate sensibilities (neither
>hard-core culture warriors nor hard-core libertarians).  I have in mind
>two likely developments:
>         1.  Image recognition, generation, and processing technology
>will soon, I suspect, make it easy for people to merge generic porn
>(whether computer-animated or human-actor) with an arbitrary picture or
>voice.  People will thus easily be able to make quite realistic-looking
>porn "starring" their favorite actor, or for that matter their
>acquaintances.  This is already doable to some extent with PhotoShop,
>I'm told, but I expect that 10 or 20 years from now (if not fewer), the
>technology will be much more advanced and plug-and-play, and this will
>quickly become the preferred mode for most porn consumers.
>         I suspect that many people who don't much mind their neighbors
>viewing porn might mind more if they (or their wives or daughters or
>sons) are the "stars" of that porn.  Perhaps there won't be much that
>can be done about it, but I think people will get really upset --
>especially when the porn is distributed beyond its creators (which could
>be actionable under variants of "right of publicity" laws, but may be
>practically hard to stop), but perhaps even when it's produced and
>consumed in the same home.
>         2.  Virtual reality setups -- I'm talking here 3D pictures,
>sound, tactile sensation, and enough AI-based interactions to emulate
>human behavior and speech during sex (an easier matter, I suspect, than
>emulating human behavior more generally) -- will make the consumption of
>porn an ever more enjoyable and consuming experience.  I'm tentatively
>skeptical that the use of porn causes a great deal of social problems
>today (though I haven't done serious reading on this, so I might be
>mistaken).  But the use of virtual reality porn might cause considerably
>greater problems, as sexual relationships, especially among teenage and
>early 20s boys, are increasingly displaced into this cheap, easy-to-get,
>emotionally undraining, and infinitely variable (from a visual
>perspective, though obviously not from an emotional perspective) mode of
>sex.  The upside, of course, is that you can't get pregnant or get an
>STD from virtual reality sex.  The downside is that you can't learn how
>to build a romantic relationship this way, either.  Plus, as a political
>matter, I suspect that a lot of people will be much more upset about
>thinking about their 15-year-old boy in a VR booth than about their
>15-year-old boy looking at normal computer porn.
>         These are all conjectures, of course, based on my generally
>understanding of computer technology (and my best guesses about human
>sexual interests, and especially male sexual interests).  I haven't
>looked into where existing specifically pornography-creating technology
>is on either of these fronts.  But it would shock me if option 1 won't
>be available within 20 years, and I suspect that pretty effective
>versions of option 2 will be available within 20 years, too.  So we
>might not be done with obscenity battles just yet.
>         Eugene
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