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Questions and Answers
What is the primary difference between indecent and obscene speech as recognized by FCC v. Pacifica Foundation?
What is the primary difference between indecent and obscene speech as recognized by FCC v. Pacifica Foundation?
Which medium enjoys heightened levels of protection according to the rulings in Sable Communications, Inc. v. FCC?
Which medium enjoys heightened levels of protection according to the rulings in Sable Communications, Inc. v. FCC?
What major legislation aimed to regulate cyberspace by addressing issues such as harassment and obscene communication to minors?
What major legislation aimed to regulate cyberspace by addressing issues such as harassment and obscene communication to minors?
What was a significant reason for the Communications Decency Act being struck down by the courts?
What was a significant reason for the Communications Decency Act being struck down by the courts?
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What compelling interest did the courts recognize concerning the regulation of speech?
What compelling interest did the courts recognize concerning the regulation of speech?
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What was the primary purpose of the Protection of Children Against Sexual Exploitation Act (1977)?
What was the primary purpose of the Protection of Children Against Sexual Exploitation Act (1977)?
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What significant change did the Child Protection Act (1984) implement?
What significant change did the Child Protection Act (1984) implement?
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In New York v. Ferber, what was the key argument of the bookstore proprietor?
In New York v. Ferber, what was the key argument of the bookstore proprietor?
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According to the US Supreme Court ruling in regard to state regulation of child pornography, what is a primary reason for greater leeway?
According to the US Supreme Court ruling in regard to state regulation of child pornography, what is a primary reason for greater leeway?
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What shortcoming of the Miller standard was noted regarding child pornography issues?
What shortcoming of the Miller standard was noted regarding child pornography issues?
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What does the First Amendment protect regarding computer content?
What does the First Amendment protect regarding computer content?
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What is a challenge presented by technology-specific criminal legislation?
What is a challenge presented by technology-specific criminal legislation?
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Why is the lack of U.S. Supreme Court rulings problematic?
Why is the lack of U.S. Supreme Court rulings problematic?
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What contradiction exists within the court system regarding child pornography?
What contradiction exists within the court system regarding child pornography?
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What should law enforcement officials consider when dealing with ambiguous public policies?
What should law enforcement officials consider when dealing with ambiguous public policies?
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What is the main economic motive behind the production of child pornography?
What is the main economic motive behind the production of child pornography?
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How does classifying child pornography relate to First Amendment protections?
How does classifying child pornography relate to First Amendment protections?
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What was a unique aspect of the court's opinion regarding child pornography?
What was a unique aspect of the court's opinion regarding child pornography?
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What was stated about the potential value of child pornography?
What was stated about the potential value of child pornography?
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What aspect did the court not specifically address regarding child pornography legislation?
What aspect did the court not specifically address regarding child pornography legislation?
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Indecent speech cannot be broadcasted during times when children may be part of the audience.
Indecent speech cannot be broadcasted during times when children may be part of the audience.
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Telephone communications and cable TV have lower levels of protection compared to other media.
Telephone communications and cable TV have lower levels of protection compared to other media.
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The Telecommunications Reform Act of 1996 was designed to regulate cyberspace and criminalize harassment and obscene communications.
The Telecommunications Reform Act of 1996 was designed to regulate cyberspace and criminalize harassment and obscene communications.
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The Communications Decency Act was upheld by the courts without any issues.
The Communications Decency Act was upheld by the courts without any issues.
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Community standards regarding obscenity are universal and the same everywhere.
Community standards regarding obscenity are universal and the same everywhere.
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The court recognized a compelling interest in protecting children but found censoring entire categories of speech unacceptable.
The court recognized a compelling interest in protecting children but found censoring entire categories of speech unacceptable.
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The Roth v. United States ruling determined that obscene material is protected under the First Amendment.
The Roth v. United States ruling determined that obscene material is protected under the First Amendment.
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Miller v. California established a three-prong test for evaluating obscenity based on community standards.
Miller v. California established a three-prong test for evaluating obscenity based on community standards.
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Regina v. Hicklin provided a clear and definitive ruling on what constitutes obscenity.
Regina v. Hicklin provided a clear and definitive ruling on what constitutes obscenity.
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Virtual images are perceived as the same as real images when evaluating obscenity.
Virtual images are perceived as the same as real images when evaluating obscenity.
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All forms of child pornography are protected under the First Amendment.
All forms of child pornography are protected under the First Amendment.
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The potential artistic value of child pornography can justify its production.
The potential artistic value of child pornography can justify its production.
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The economic motive for producing child pornography is non-existent.
The economic motive for producing child pornography is non-existent.
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Courts have deemed child pornography as having significant societal value.
Courts have deemed child pornography as having significant societal value.
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The court's opinion on child pornography considered various statistics and opinions.
The court's opinion on child pornography considered various statistics and opinions.
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The Protection of Children Against Sexual Exploitation Act was enacted in 1977.
The Protection of Children Against Sexual Exploitation Act was enacted in 1977.
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The Child Protection Act of 1984 maintained the obscenity requirement from the Miller test.
The Child Protection Act of 1984 maintained the obscenity requirement from the Miller test.
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In New York v. Ferber, the bookstore proprietor claimed that the NY statute was overbroad and censored protected speech.
In New York v. Ferber, the bookstore proprietor claimed that the NY statute was overbroad and censored protected speech.
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The US Supreme Court ruled that states have less leeway in regulating child pornography compared to obscenity.
The US Supreme Court ruled that states have less leeway in regulating child pornography compared to obscenity.
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The Miller test is deemed a satisfactory solution to the child pornography problem according to the US Supreme Court.
The Miller test is deemed a satisfactory solution to the child pornography problem according to the US Supreme Court.
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What key aspect did the Miller v. California case emphasize in evaluating obscenity?
What key aspect did the Miller v. California case emphasize in evaluating obscenity?
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Which ruling declared that obscene material is not protected by the First Amendment?
Which ruling declared that obscene material is not protected by the First Amendment?
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What was a significant challenge identified in overseeing the definition of obscenity according to community standards?
What was a significant challenge identified in overseeing the definition of obscenity according to community standards?
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Which case was noted for its ambiguous ruling while evaluating obscenity related to the morality of Catholic priests?
Which case was noted for its ambiguous ruling while evaluating obscenity related to the morality of Catholic priests?
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What critical component is included in the Miller test for determining obscenity?
What critical component is included in the Miller test for determining obscenity?
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What primary reason does the court provide for classifying child pornography as outside the First Amendment's protection?
What primary reason does the court provide for classifying child pornography as outside the First Amendment's protection?
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Which consideration did the court NOT specifically address regarding child pornography legislation?
Which consideration did the court NOT specifically address regarding child pornography legislation?
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What did the court express regarding the literary, artistic, political, or scientific value of child pornography?
What did the court express regarding the literary, artistic, political, or scientific value of child pornography?
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What makes the court's opinion on child pornography unique?
What makes the court's opinion on child pornography unique?
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What is a key assertion made by the court regarding children involved in the production of child pornography?
What is a key assertion made by the court regarding children involved in the production of child pornography?
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What is the primary legal reasoning behind the Ohio statute that prohibits the possession and viewing of child pornography?
What is the primary legal reasoning behind the Ohio statute that prohibits the possession and viewing of child pornography?
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What aspect was emphasized by the courts regarding the market for child pornography?
What aspect was emphasized by the courts regarding the market for child pornography?
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What was a significant conclusion of the Ashcroft v. Free Speech Coalition case regarding virtual child pornography?
What was a significant conclusion of the Ashcroft v. Free Speech Coalition case regarding virtual child pornography?
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How did the Ferber and Osborne decisions influence state interest in child pornography regulation?
How did the Ferber and Osborne decisions influence state interest in child pornography regulation?
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What was a notable criticism mentioned regarding the Child Pornography Prevention Act (CPPA)?
What was a notable criticism mentioned regarding the Child Pornography Prevention Act (CPPA)?
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What problem arises from the protections offered by the First Amendment concerning text and images on computers?
What problem arises from the protections offered by the First Amendment concerning text and images on computers?
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Which issue complicates the legal understanding of child pornography?
Which issue complicates the legal understanding of child pornography?
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What has not been provided due to the lack of US Supreme Court rulings on specific law problems?
What has not been provided due to the lack of US Supreme Court rulings on specific law problems?
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What issue do ambiguous public policies present for law enforcement?
What issue do ambiguous public policies present for law enforcement?
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How do courts generally handle technology-specific criminal legislation?
How do courts generally handle technology-specific criminal legislation?
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The Roth v. United States ruling established that obscene material is not protected by the First Amendment.
The Roth v. United States ruling established that obscene material is not protected by the First Amendment.
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The Miller v. California case introduced a four-prong test to evaluate obscenity.
The Miller v. California case introduced a four-prong test to evaluate obscenity.
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Community standards related to obscenity are universally agreed upon and do not vary by location.
Community standards related to obscenity are universally agreed upon and do not vary by location.
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Virtual images and real images are considered the same in the assessment of obscenity.
Virtual images and real images are considered the same in the assessment of obscenity.
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Regina v. Hicklin provided a very precise definition of what constitutes obscenity.
Regina v. Hicklin provided a very precise definition of what constitutes obscenity.
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Indecent speech can be broadcasted during times when children are presumed to be part of the audience.
Indecent speech can be broadcasted during times when children are presumed to be part of the audience.
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The Telecommunications Reform Act of 1996 was successful in regulating obscene communications without any legal issues.
The Telecommunications Reform Act of 1996 was successful in regulating obscene communications without any legal issues.
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Telephone communications and cable TV are considered more accessible compared to other forms of media.
Telephone communications and cable TV are considered more accessible compared to other forms of media.
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Sable Communications, Inc. v. FCC recognized the need to censor entire categories of speech.
Sable Communications, Inc. v. FCC recognized the need to censor entire categories of speech.
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The Communications Decency Act criminalized any obscene communication to a minor.
The Communications Decency Act criminalized any obscene communication to a minor.
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The Child Protection Act of 1984 maintained the obscenity requirement outlined in Miller v. California.
The Child Protection Act of 1984 maintained the obscenity requirement outlined in Miller v. California.
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In New York v. Ferber, the bookstore proprietor argued that the statute was overly broad and infringed on protected speech.
In New York v. Ferber, the bookstore proprietor argued that the statute was overly broad and infringed on protected speech.
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According to the US Supreme Court, states have more leeway in regulating obscenity than they do in regulating child pornography.
According to the US Supreme Court, states have more leeway in regulating obscenity than they do in regulating child pornography.
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The Miller test provides a satisfactory solution to issues surrounding child pornography, according to the US Supreme Court.
The Miller test provides a satisfactory solution to issues surrounding child pornography, according to the US Supreme Court.
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The economic motive for the production of child pornography is significant and integral.
The economic motive for the production of child pornography is significant and integral.
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Child pornography is recognized as a category of material that is fully protected under the First Amendment.
Child pornography is recognized as a category of material that is fully protected under the First Amendment.
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The court's opinion on child pornography acknowledged a significant artistic value in such materials.
The court's opinion on child pornography acknowledged a significant artistic value in such materials.
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Various statistics and opinions from scholars influenced the court's opinion on child pornography legislation.
Various statistics and opinions from scholars influenced the court's opinion on child pornography legislation.
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The potential harm to children was considered minimal in the court's decision regarding child pornography.
The potential harm to children was considered minimal in the court's decision regarding child pornography.
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Which case established a three-prong test for evaluating obscenity while considering community standards?
Which case established a three-prong test for evaluating obscenity while considering community standards?
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What did the Roth v. United States ruling determine regarding obscene material?
What did the Roth v. United States ruling determine regarding obscene material?
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Which factor is NOT considered in the Miller test when evaluating material's obscenity?
Which factor is NOT considered in the Miller test when evaluating material's obscenity?
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How did the ruling in Regina v. Hicklin impact the understanding of obscenity?
How did the ruling in Regina v. Hicklin impact the understanding of obscenity?
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What main issue arises from trying to determine obscenity in the context of virtual images?
What main issue arises from trying to determine obscenity in the context of virtual images?
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What was a significant legal outcome regarding the lack of scienter requirement in the context of the Protection of Children Against Sexual Exploitation Act?
What was a significant legal outcome regarding the lack of scienter requirement in the context of the Protection of Children Against Sexual Exploitation Act?
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Which legislation aimed to expand upon the protections initially set by the Child Protection Act of 1984?
Which legislation aimed to expand upon the protections initially set by the Child Protection Act of 1984?
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In New York v. Ferber, what was a key flaw identified in the New York statute regarding child pornography?
In New York v. Ferber, what was a key flaw identified in the New York statute regarding child pornography?
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What reasoning did the US Supreme Court provide for allowing states greater regulation of child pornography compared to obscenity?
What reasoning did the US Supreme Court provide for allowing states greater regulation of child pornography compared to obscenity?
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What was identified as a shortcoming of the Miller v. California test in relation to child pornography issues?
What was identified as a shortcoming of the Miller v. California test in relation to child pornography issues?
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What is the primary reasoning for classifying child pornography as outside the First Amendment’s protection?
What is the primary reasoning for classifying child pornography as outside the First Amendment’s protection?
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Which unique aspect of the court's opinion on child pornography involves the use of external references?
Which unique aspect of the court's opinion on child pornography involves the use of external references?
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What did the court assert regarding the potential literary, artistic, political, or scientific value of child pornography?
What did the court assert regarding the potential literary, artistic, political, or scientific value of child pornography?
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What component of child pornography legislation was not explicitly addressed in the court's ruling?
What component of child pornography legislation was not explicitly addressed in the court's ruling?
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How did the court view the economic motives behind child pornography production?
How did the court view the economic motives behind child pornography production?
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What does the Ohio statute specifically define as involving at least a degree of recklessness in relation to child pornography?
What does the Ohio statute specifically define as involving at least a degree of recklessness in relation to child pornography?
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Which argument was used in the Child Pornography Prevention Act (CPPA) regarding virtual child pornography?
Which argument was used in the Child Pornography Prevention Act (CPPA) regarding virtual child pornography?
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What was a key reason the U.S. Supreme Court invalidated the CPPA in Ashcroft v. Free Speech Coalition?
What was a key reason the U.S. Supreme Court invalidated the CPPA in Ashcroft v. Free Speech Coalition?
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The concept of a 'generalized victim' in child pornography law emphasizes what?
The concept of a 'generalized victim' in child pornography law emphasizes what?
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What did the Ferber and Osborne decisions demonstrate in relation to the state's interest in child protection?
What did the Ferber and Osborne decisions demonstrate in relation to the state's interest in child protection?
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Virtual images are treated by courts as inferior to real images in evaluating cases of obscenity.
Virtual images are treated by courts as inferior to real images in evaluating cases of obscenity.
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Community standards regarding obscenity are universally accepted without variations across different regions.
Community standards regarding obscenity are universally accepted without variations across different regions.
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The Communications Decency Act was fully upheld by the courts with no restrictions.
The Communications Decency Act was fully upheld by the courts with no restrictions.
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The Miller test established a four-prong test for evaluating obscenity based on community standards.
The Miller test established a four-prong test for evaluating obscenity based on community standards.
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The ruling in Regina v. Hicklin clearly defined what constitutes obscenity.
The ruling in Regina v. Hicklin clearly defined what constitutes obscenity.
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Roth v. United States determined that obscene material is protected by the First Amendment.
Roth v. United States determined that obscene material is protected by the First Amendment.
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The Miller test evaluates obscenity based solely on the individual perspective of the creator of the material.
The Miller test evaluates obscenity based solely on the individual perspective of the creator of the material.
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Community standards regarding obscenity are largely consistent across different cultures.
Community standards regarding obscenity are largely consistent across different cultures.
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Virtual images are considered the same as actual images when assessing obscenity.
Virtual images are considered the same as actual images when assessing obscenity.
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The court ruled that indecent speech may be broadcasted during times when children are not expected to be part of the audience.
The court ruled that indecent speech may be broadcasted during times when children are not expected to be part of the audience.
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The Telecommunications Reform Act of 1996 was designed to regulate cyberspace and criminalize obscene communication to minors.
The Telecommunications Reform Act of 1996 was designed to regulate cyberspace and criminalize obscene communication to minors.
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Telephone communications and cable TV are considered less accessible compared to other media, thus enjoying lower levels of protection.
Telephone communications and cable TV are considered less accessible compared to other media, thus enjoying lower levels of protection.
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The Communications Decency Act was upheld by the courts for its clarity in defining what constituted obscene material.
The Communications Decency Act was upheld by the courts for its clarity in defining what constituted obscene material.
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Community standards regarding obscenity are consistent and universally accepted across different regions.
Community standards regarding obscenity are consistent and universally accepted across different regions.
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The Protection of Children Against Sexual Exploitation Act (1977) mandated a scienter requirement for securing convictions.
The Protection of Children Against Sexual Exploitation Act (1977) mandated a scienter requirement for securing convictions.
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The Child Protection Act (1984) maintained the obscenity requirement established in the Miller case.
The Child Protection Act (1984) maintained the obscenity requirement established in the Miller case.
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The US Supreme Court has determined that the Miller test is effectively suitable for addressing child pornography regulations.
The US Supreme Court has determined that the Miller test is effectively suitable for addressing child pornography regulations.
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In New York v. Ferber, the bookstore proprietor argued that the statute was too narrow in its definition of protected speech.
In New York v. Ferber, the bookstore proprietor argued that the statute was too narrow in its definition of protected speech.
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The US Supreme Court grants states less authority in regulating child pornography than in regulating obscenity.
The US Supreme Court grants states less authority in regulating child pornography than in regulating obscenity.
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Study Notes
Computer Forensics and Cyber Crime Chapter 8
- This chapter focuses on applying the First Amendment to computer-related crime.
Learning Objectives
- Understand the legal perception of indecency and obscenity.
- Define child pornography.
- Note the contradictions in court cases about child pornography.
- Detail legislation geared toward technology and the internet.
- Discuss internet gambling.
Introduction and General Principles
- The First Amendment protects censorship of text and images on computers.
- Courts have differing views on protected material.
- Technology-specific laws sometimes use vague wording to encompass emerging technologies.
- The Supreme Court hasn't fully addressed many issues, offering no clear guidance.
- Ambiguous public policies also lack direction for law enforcement
Obscenity in General
- Defining obscenity is challenging: "I know it when I see it."
- Community standards vary as to what is obscene.
- Global internet use makes determining obscenity more complex.
- Virtual images can differ from real-world counterparts
Traditional Notions of Decency
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Regina v. Hicklin (1868): A British case, focused on the immorality of Catholic priests' material. Unclear definitions.
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Roth v. United States (1957): US Supreme Court found some material not protected by First Amendment, utilizing a "reasonable person" and community standards approach. This approach was impractical
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Miller v. California (1973): A three-pronged test from the USSC, attempted balance freedom of expression with protecting children. Established standards for determining obscenity.
- Perspective of the average person.
- Patently offensive details about sexual conduct.
- Lacks serious literary, artistic, political, or scientific value.
- Defined who these standards applied to, like children.
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FCC v. Pacifica Foundation: New media must be reviewed and protection can differ to ensure protection from children, for example, on radio and television
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Sable Communications, Inc. v. FCC; Turner Broadcasting system, Inc. v. FCC: Telecommunications and cable TV have heightened protection since they require user action, don't affect captive audiences and do not always allow children to access the material. The Court recognised a need to protect children, but limiting entire speech categories is wrong.
Emerging Statutes and the Availability of Obscene Material to Children
- Communications Decency Act (CDA) (1996): Aimed to regulate the internet and criminalized harassment, stalking, annoyance, or abuse in electronic media or communication to minors, or offensive info.
- Struck down for being too broad and vague.
Traditional Attempts to Criminalize Child Pornography
- Protection of Children Against Sexual Exploitation Act (1977): Linked Miller test, forbidding depictions without redeeming social value. Didn't require proof that the violator knew the child's age (scienter), leading to its later unconstitutionality.
- Child Protection Act (1984): Eliminated the obscenity requirement from Miller and expanded on the 1977 act.
- Following Legislation in 1990 added to these efforts.
Applying Case Law to Traditional Child Pornography Statutes
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New York v. Ferber: A critical case in defining child pornography; focused on the material being obscene rather than who it was about. The Court held the ability of states to place more restrictions on child porn than other obscenity.
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The harm to children and the need to control the market for it were key reasons.
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Osborne v. Ohio: Defined scienter (proof of knowledge) as recklessness. Upheld the standard established in Ferber while prohibiting possession and viewing of child pornography.
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Notion that the market for child pornography must be destroyed because of the continued demand for it and maintaining the status of children as victims.
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Further reiterated the potential for harm to all children.
Technology-Specific Legislation—Contention in the Courts
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Child Pornography Prevention Act (CPPA): Tried to criminalize "virtual" child pornography, arguing it increased child molestation, despite the absence of real children.
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Was struck down for its broad approach and lack of proving connection to real harm.
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Ashcroft v. Free Speech Coalition: The US Supreme Court examined CPPA and ruled it overbroad and lacked evidence of harm related to virtual child pornography. It also required proof of a real child.
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PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act): Created as a response to CPPA. Clarified and made laws stronger against virtual child porn, attempting to fix flaws in CPPA via its approach based on Miller's obscenity test.
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U.S. v. Williams: The Supreme Court upheld the PROTECT Act as it strengthened the CPPA.
Internet Gambling
- The Wire Act of 1961 was deemed insufficient for online sports betting.
- The Unlawful Internet Gambling Enforcement Act (UIGEA) (2006): Aimed at controlling gambling's payment systems.
Case Law on Internet Gaming Statutes
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Central Hudson Gas and Electric v. Public Service Commission of New York: A four-prong test emerged to review commercial speech, establishing a legal standard applicable to internet gaming.
- Determine if the commercial speech is lawful and not misleading
- Evaluate if restricting speech advances a government interest
- Verify if the regulation is directly related to the substantial government interest
- Ensure the prohibition is necessary and not unnecessarily broader than needed.
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Posadas de Puerto Rico Associates v.. Tourism Co: of Puerto Rico: Supported the government's interest in protecting residents from excessive gambling.
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44 Liquormart, Inc. v. Rhode Island: The Supreme Court was skeptical about protecting citizens from commercial speech with respect to states interests.
Internet Gambling—International Considerations
- Online casino gambling thrives, targeting U.S. citizens.
- WTO complaints often limit laws to their original scope.
Future Issues and Conclusions
- Tension exists between a First Amendment right to free speech against the need for protecting children in relation to technology and potentially harmful material, including those created/altered digitally.
- Questions still exist about the protection and legality of digitally altered or generated images.
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Description
Explore how the First Amendment relates to computer-related crimes in this chapter. Gain insights into the complexities of legal definitions regarding indecency, obscenity, and child pornography, along with the evolving legislation surrounding technology and the internet. Analyze the impact of community standards on obscenity and the challenges faced by law enforcement.
