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In 1998, Congress, in response, enacted the less-broad Child Online Protection Act (COPA), but it was also held unconstitutional and never took effect. In 1997, however, the Supreme Court held the inclusion of “indecent” communications in this statute unconstitutional. The Communications Decency Act of 1996 makes it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail) to make an obscene or indecent communication to a minor, or knowingly to use an interactive computer service to transmit an obscene communication to anyone or an indecent communication to a minor. The Internet has given rise to three federal statutes designed to protect minors from sexual material posted on it. In addition, obscenity crimes are included among the predicate offenses that may give rise to a violation of the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). 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.įederal statutes, in addition to making it a crime to mail obscenity or to transport or receive it in interstate or foreign commerce, provide for criminal and civil forfeiture of real and personal property used in making obscenity pornography, and of the profits of obscenity-in some instances even when they were already used to pay a third party.
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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.
Most pornography is not legally obscene to be obscene, pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene. Consequently, they may be banned on the basis of their content, and federal law prohibits the mailing of obscenity, as well as its transport or receipt in interstate or foreign commerce. The Supreme Court, however, has held that the First Amendment does not protect two types of pornography: obscenity and child pornography. abridging the freedom of speech, or of the press.” In general, the First Amendment protects pornography, with this term being used to mean any erotic material. The First Amendment provides: “Congress shall make no law.