cr> Eshoo replacement for CDA


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Path: murdoch!mars.itc.Virginia.EDU!mmdf
From: "--Todd Lappin-->" <•••@••.•••>
Subject: BACKGROUNDER: "Harmful to Minors"
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Date: Sat, 16 Mar 1996 01:52:53 GMT
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I bring more detail about the "harmful to minors" standard used in the
"Online Parental Control Act of 1996," introduced by Rep. Anna Eshoo (D-CA)
on March 14.

With a few phone calls and a lot of very valuable assistance advice from
members of this mailing list, I've been able to track down some specifics
regarding the "harmful to minors" standard.

If passed, Eshoo 's legislation would supersede the Communications Decency Act.

Eric M. Freedman, a professor of Consitutional Law at  the Hofstra
University School of Law, explains that the "harmful to minors" standard is
essentially a modified version of the "obscenity" test laid out by the
Supreme Court in Miller v. California in 1973.  (As always, it's important
to remember that obscene material does NOT enjoy First Amendment

The "harmful to minors" standard basically adds a few caveats to the
"obscenity" standard laid out in Miller.  The net effect is to create a
standard for children that is slightly more broad than the one used to
judge content designed for adults.  As Professor Freedman describes
it,"harmful to minors" is predicated on "the concept of 'variable
obscenity,'meaning that some material that is not obscene as to adults may
be obscene as to children."

This is the text of the "Harmful to Minors" standard as it is defined in
the Online Parental Control Act of 1996:

        "(5) HARMFUL TO MINORS--The term "harmful to minors" means
sexually explicit matter which meets all of the following criteria:
                (A) Considered as a whole, the matter appeals to the prurient
interest of minors.
                (B) The matter is patently offensive as determined by
 contemporary local community standards in terms of what is suitable for minors.
                (C) Considered as a whole, the matter lacks serious literary,
artistic, political, educational or scientific value for minors.

Compare this with the three-part legal test laid out in Miller v.
California, and you'll see that they are very similar.

Miller defines "obscene" material as that which a) depicts sexual or
excretory acts listed in a state obscenity statute, b) depicts those acts
in a "patently  offensive" manner, appealing to the "prurient interest," as
judged by a  reasonable person applying the standards of the community, and
c) lacks "serious" literary, artistic, social, political, or scientific

(As an aside, I'll mention that applying the criteria of offensiveness "as
determined by contemporary local community standards standards" remains
thorny.  The question of *which* community's standards should apply becomes
an obvious issue when your're dealing with a medium such as the Internet
which facilitates global distribution.  I'll dig into this more deeply in a
forthcoming bulletin.)

The language used to define "harmful to minors" in the Online Parental
Control Act of 1996 differs slightly from language used to define the
standard in the past.  This is an excerpt from a CDT Policy Post, dated Dec
4, 1995:



(Available at

Harmful to minors is an intermediate standard between indecency and
obscenity. It is essentially material that is obscene to a minor. It has
been used in 48 state statutes and has been ruled constitutional by the
Supreme Court. It is defined as follows:

"'harmful to minors' means any communications or material that is
obscene or that:

   (a)  taken as a whole, and with respect to minors, appeals to a
          prurient interest in nudity, sex, or excretion;

   (b)  depicts, represents, or describes in a patently offensive way
        with respect to what is suitable for minors, ultimate sexual
        acts, normal or perverted, actual or simulated, sado-masochistic
        acts or abuse; or lewd exhibition of the genitals, pubic area,
        buttocks, or post-putertal female breasts; and

   (c)  taken as a whole, lacks serious literary, artistic, political,
        or scientific value for minors.

Materials that would be acceptable under this standard include the text
of Catcher in the Rye, Ulysses, the use of the "7 dirty words" in
context, and works of art which contain nudity. These same materials
would be prohibited under an "indecency" standard

Notice that the  Online Parental Control Act of 1996  replaces the specific
kinds of prohibtions laid out in section (b) of the "harmful to minors"
standard ("ultimate sexual acts, normal or perverted, actual or simulated,
sado-masochistic acts or abuse..." etc.) with a more general category of
"patently offensive" speech.

This warrants further scrutiny, but for now I can say this:  The definition
of "patently offensive" speech is currently ambiguous.  For example, under
the injunction blocking full implementation of the Communications Decency
Act, the Department of Justice is enjoined from enforcing the "indecency"
standard, but permitted to enforce the "patently offensive" standard.
Previously, the assumption had been that "indecent" and "patently
offensive" are legal synonyms.

Oy.  So much semantics...

It gives me vertigo.

Nevertheless, for the moment let's assume that the pre-existing definition
of "harmful to minors" is *functionally equivalent* to the one used in the
Online Parental Control Act .  As CDT obeserved in their Policy Post above,
"harmful to minors" opens the door to categories of speech that would
otherwise be blocked under the more broad "indecency" standard.  Most
notably, the "harmful to minors" standard permits the publication of works
that have "serious literary, artistic, political, or scientific value for

As Professor Freedman explained to me, "The underlying purpose of the
'harmful to minors' standard is to say that you cannot altogether ban
certain types of speech.  It means that you must somehow segregate
'harmful' material so minors will not be exposed to it, but it also
specifies that you can't remove it from circulation alotgether."

For example, it is largely in virtue of the "harmful to minors" standard
that some localities require copies of Hustler Magazine to be displayed out
of reach of children.  But even then, the general sale and distribution of
Hustler is permitted for adults.

Professor Freedman cites the following example:

"Suppose, for example, a film of a woman compulsively masturbating.  This
might have serious scientific value to adults, because it may be the film
of a patient in a mental hospital with a sexual disorder that the
scientific community is trying to cure; thus, it could not be banned as
obscene.  However, the legislature could decide that it had no scientific
value to an audience of children, and thus ban it as "harmful to minors,"
meaning, more accurately "obscene as to minors."

He goes on to say, "The rule is that in applying the Miller test for that
which is obscene, you may broaden it slightly to cover material that meets
the test with regard to children although not with regard to adults."

Freedman adds, "When this has come up in subsequent cases (American
Booksellers v. Va., 484 US 483 (1988)) the focus has been pro-speech, on
making sure that any such statute is not applied so as to reduce the entire
adult population to reading only that which is fit for children, an effect
which the court said in the American Booksellers case 'this court has
repeatedly held' to be unconstitutional."

And as a practical matter, Freedman notes that when the "harmful to minors"
standard is used, law enforcement authorities *usually* focus on eggregious
violations of the code, as opposed to "borderline" cases.

Finally, Mike Godwin from the Electronic Frontier Foundation comments, "The
good thing about 'harmful to minors' is that it acknowlegdes that
literary, artistic, political, or scientific value needs to be protected,
and that these should always be significant factors in determining what
kind of material should be criminalized.  The downside is that it creates
uncertainty regarding the applicability of community standards to a medium
in which everyone is connected to one another globally.  Also, the standard
does not address the variable maturity of minors, given that what's
appropriate for a 17 year-old may not be appropriate to a 7 year-old."

--Todd Lappin-->
Section Editor
WIRED Magazine

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