Combating Obscenity on the Internet: A Legal and Legislative Path Forward


Published December 15, 2022

EPPC/CRA White Paper

Obscenity has never been more prolific in our society than it is now due to the internet. Enforcement has not been able to keep up with the sheer volume of obscenity online because of the narrowness of the legal definition of obscenity and roadblocks Congress and courts have placed in the way of successful prosecution. Stronger laws and prosecutions against obscenity are thus needed. In this joint report released by the Ethics and Public Policy Center and the Center for Renewing America, we offer a robust legal and legislative framework for combating obscenity online. The report offers strategies for successful prosecutions against obscenity, as well as proposing policy changes that would enable more obscenity prosecutions—both creative policy solutions that operate within existing legal precedents, as well as bolder solutions to directly challenge unhelpful current precedents. The amount of and access to online obscenity today is a dire situation, especially for our children. Action is needed now. This report offers a path forward. 


Introduction

While attempting to define obscenity Justice Potter Stewart famously quipped: “I know it when I see it.” With the advent of the internet and the rise of online pornography many people today have certainly seen it, but has the internet changed what we know about it and how we should treat it? More importantly, can obscene content still be prosecuted even if it’s found on the internet? This paper will (i) examine current law and explain why it is, for the most part, ill-equipped to confront obscene content on the internet; (ii) suggest ways to strengthen prosecutions under current law; and (iii) put forward ideas for legislative reform — some of which stays within current Supreme Court precedent and some aim to challenge it.


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