The Supreme Court has held: "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, at 878 n. 44 (1998).
Federal law prohibits the distribution of obscenity through the facilities of interstate or foreign commerce. More specifically, it is a crime to use the mail to send or receive obscene materials, to import obscenity, to ship or receive obscenity by a common carrier, or to transport obscene materials across state lines for sale or distribution, including by computer. See 18 U.S.C. sections 1461, 1462, and 1465. It is also illegal to broadcast obscene materials, or engage in the business of selling obscene materials that have traveled through interstate or foreign commerce.
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The U.S. Supreme Court established the test that judges and juries use to determine whether material is obscene. The test was developed in three major cases: Miller v. California, 413 U.S. 15, 24-25 (1973); Smith v. United States, 431 U.S. 291, 300-02, 309 (1977); and Pope v. Illinois, 481 U.S. 497, 500-01 (1987). The resulting three-pronged test to adjudicate obscenity is as follows:
Whether the average person, applying contemporary adult community standards, would find that the work, taken as a whole, appeals to the prurient interest (i.e., an erotic, lascivious, abnormal, unhealthy, degrading, shameful, or morbid interest in nudity, sex, or excretion); and
Whether the average person, applying contemporary adult community standards, would find that the work depicts or describes, in a patently offensive way, sexual conduct (i.e., ultimate sexual acts, normal or perverted, actual or simulated, masturbation, excretory functions, lewd exhibition of the genitals, or sado-masochistic sexual abuse); and
Whether a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Any material meeting this definition may be found to violate the laws of the United States and anyone convicted of distributing such material may be prosecuted and punished by fines and a term of imprisonment.
