Question

(a) Describe some concerns involving pornography in cyberspace. (b) Why was the Communications Decency Act (CDA), sections which were designed to protect children from concerns about pornography on the Internet, so controversial? (c) Why was it eventually struck down? (d) Why were both COPA and (portions of) CPPA struck down as being unconstitutional? (e) Should they have been declared unconstitutional? Defend your answer. Please elaborate (beyond a yes or no answer) and provide your “theoretical” rationale in support of your responses. (comprehension)

Answer 1

(a) Describe some concerns involving pornography in cyberspace.

Answer:

1)Cyber Pornography has become a global problem. The government has decided to ban 827 websites that possess pornographic content following the order of the Uttarakhand High Court.

2) The people especially the youngsters, are so addicted to cyberporn that they try different means like VPN, DNS Server Change, or downloading Opera Mini that has inbuilt VPN activation, to view cyberporn.

3)The word pornography is derived from two Greek roots, i.e. “Porne and graphics”. The word “porne” means prostitute, harlot, or female captive, and the word “graphos” means “writing about” or “description of”.

4)In a legal sense, Pornography means “obscenity”. Pornographic includes any video, pictures, or movies that contain sexually explicit acts that are considered indecent by the public.

5)The term pornography is used to the depiction of the act rather than the act itself, and therefore, it does not include live exhibitions like sex shows and striptease. Those who favour or patronise pornography often contend that it is the art exhibition of one’s body while on the other hand, the people who criticize pornography call it immoral and against their religious sentiments.

b)Why was the Communications Decency Act (CDA), sections which were designed to protect children from concerns about pornography on the Internet, so controversial?

Answer:

1)The most controversial portions of the act were those relating to indecency on the Internet. The relevant sections of the act were introduced in response to fears that Internet pornography was on the rise.

2)Indecency in TV and radio broadcasting had already been regulated by the Federal Communications Commission broadcasting of offensive speech was restricted to certain hours of the day when minors were supposedly least likely to be exposed.

3) The CDA imposed criminal sanctions on anyone who:

-uses an interactive computer service to send to a specific person or persons under 18 years of age.

-uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.

c)Why was it eventually struck down?

Answer: There are two types of pornography that receive no First Amendment protection obscenity and child pornography. The First Amendment generally protects pornography that does not fall into one of these two categories at least for adult viewers. Sometimes, the material is classified as “harmful to minors” even though adults can have access to the same material. Even a 1986 Attorney General Commission Report on Pornography said that “not all pornography is legally obscene”. The Court in Miller said that it was constitutional for different communities to articulate different community standards in obscenity cases. “To require a State to structure obscenity proceedings around evidence of a national community standard would be an exercise in futility,” Chief Justice Warren Burger wrote.

d)Why were both COPA and (portions of) CPPA struck down as being unconstitutional?

Answer:1)Both the Child Pornography Prevention Act ("CPPA") and the Child Online Protection Act ("COPA") were intended by Congress to protect minors.

2)The CPPA was intended to protect minors from the harmful effects of virtual child pornography.

3)The COPA was intended to protect minors from pornography currently available commercially on the World Wide Web.

4) The Court struck down sections of the CPPA as overbroad and unconstitutional in Ashcroft v. Free Speech Coalition.

5)The Court upheld some sections of COPA as not unconstitutionally overbroad, but expressed no view as to whether other provisions were overbroad, whether the statute is vague, or whether COPA survives strict scrutiny.

e) Should they have been declared unconstitutional? Defend your answer.

Answer: No because It has been said that a right without a remedy is no right at all. It is important that citizens have a proper way of enforcing their constitutional rights against the government in the courts. Constitutional rights may be asserted both offensively and defensively. The most common defensive use of constitutional rights is by criminal defendants. Persons may also assert constitutional rights offensively, bringing a civil suit against the government or government officials for a variety of relief: declarative, injunctive, and monetary.

And the main thing is the Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. Pornography that is not obscene may not be banned but may be regulated as to the time, place, and manner of its distribution, particularly in order to keep it from children. Thus, the courts have upheld the zoning and licensing of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and indecent radio and television broadcasting.