The Supreme Court has ruled that, “transmitting obscenity and child pornography, whether via the Internet or other means, is... illegal under federal law for both adults and juveniles.”
-Reno v. ACLU, 521 U.S. 844 (1998).
Obscenity is not protected under First Amendment rights to free speech, and violations of federal obscenity laws are criminal offenses. The U.S. courts use a three-pronged test, commonly referred to as the Miller test, to determine if given material is obscene. Obscenity is defined as anything that fits the criteria of the Miller test, which may include, for example, visual depictions, spoken words, or written text.
Federal law makes it illegal to distribute, transport, sell, ship, mail, produce with intent to distribute or sell, or engage in a business of selling or transferring obscene matter. Convicted offenders face fines and imprisonment. Although the law generally does not criminalize the private possession of obscene matter, the act of receiving such matter could violate federal laws prohibiting the use of the mails, common carriers, or interactive computer services for the purpose of transportation. (For more information, see Citizen's Guide to Federal Law on Obscenity).
Obscenity Law and Minors
Federal law strictly prohibits the distribution of obscene matter to minors. Any transfer or attempt to transfer such material to a minor under the age of 16, including over the Internet, is punishable under federal law. It is also illegal to use misleading website domain names with intent to deceive a minor into viewing harmful or obscene material. For example, using a cartoon character or children´s television program in the domain of a website that contains harmful or obscene material may be punishable under federal law.
In addition, visual representations, such as drawings, cartoons, or paintings that appear to depict minors engaged in sexual activity and are obscene are also illegal under federal law.
It is important to note that the standard for what is harmful to minors may be different than the standard for adults, and offenders convicted of obscenity crimes involving minors face harsher penalties than if the crimes involved only adults (For more information, see Citizen's Guide to Federal Law on Obscenity).
The Child Exploitation and Obscenity Section (CEOS) remains dedicated to the enforcement of federal obscenity laws. CEOS attorneys work with the High Technology Investigative Unit (HTIU), the Federal Bureau of Investigation (FBI), and United States Attorney´s Offices throughout the country to investigate and prosecute violations of federal obscenity law.
The use of the Internet to distribute obscenity has blurred traditional notions of jurisdiction. CEOS maintains a coordinated, national-level law enforcement focus to help coordinate nationwide investigations and initiatives. Given the importance of community standards under the Miller test, however, CEOS recognizes that the full commitment and support of local United States Attorney´s Offices, who best know local community standards, are absolutely essential to the federal obscenity enforcement efforts.
18 U.S.C §§ 2257–2257A Certifications
Federal law imposes name- and age-verification, recordkeeping, and labeling requirements on producers of visual depictions of actual human beings engaged in actual or simulated sexually explicit conduct. CEOS maintains 18 U.S.C §§ 2257, 2257A certifications provided by producers of certain types of depictions of sexually explicit conduct. For more information, click here.