The Catholic University of America

Of Counsel - A Bulletin on Legal Issues at CUA - August 1999


Obscenity, Pornography and Sexually Explicit Materials

Pornography is a generic term for sexually explicit materials. Some pornography is protected by the free speech provisions of the First Amendment. Obscenity is a subset of pornography that does not enjoy First Amendment protection.

The line between what is obscene and what is not is hard to draw with any precision. The legal term "obscenity" basically means hard-core pornography that has no literary, artistic, political or other socially redeeming value. Unlike some adult pornography, child pornography (the visual depiction of minors engaged in sexually explicit activity) is illegal, regardless of whether it has any literary, artistic, political or other socially redeeming value.

Generally, obscenity and child pornography are illegal. Other sexually explicit materials are legal.

Under both state and federal law, it is a crime to publish, sell, distribute, display, or, in some cases, merely to possess obscene materials or child pornography. These laws also apply equally to the Internet, and a number of people have been prosecuted and convicted for violating them in that context.

The definition of obscenity is so fluid that it is difficult to predict how such material will be perceived. One reason that it is so hard to define obscenity as a legal matter is that it depends, in part, on local community standards. What is considered obscene in one community may not be considered obscene in another. That makes it particularly difficult to determine whether materials on the Internet are obscene, since such materials are, in a sense, everywhere. It is, therefore, not enough that the materials are legal where you are. In one case, the operators of a bulletin board service in California posted materials that were not considered obscene there, but were convicted of violating the obscenity statutes in Tennessee when the materials were downloaded there.

Computer users should know that CUA, as a private, Catholic institution, may enforce more stringent restrictions on the computer publication of sexually explicit materials which CUA considers inappropriate in this community.

For example, "lewd, indecent, or obscene conduct or expression" and "conduct which results in harassment, infringement of rights, or hardship to any member of the university community" are violations of the CUA Standard of Student Conduct. For interest, see the statement issued by the United States Catholic bishops regarding overcoming violence and sex in the media, or call the CUA Office of General Counsel for a copy.

Also, note that displaying or sending such materials to people who do not wish to see them may be a violation of the university's Sexual Harassment Policy.

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