It's Pornographic...But Is It Obscene?

While the Internet has created a virtual revolution in how colleges and universities manage their information technologies, it has simultaneously created a host of legal issues as well. Among the most controversial is the use of computing resources to access information that might be deemed pornographic.

The term "pornography" is not a legally defined term; therefore, computer use policies such as Maricopa's Computing Resource Standards typically do not purport to prohibit the use of computing resources to display or transmit pornographic materials.

Those Standards, however, do prohibit "transmitting, storing or receiving data, orotherwise using computing resources in a manner that would constitute a violation of state or federal law, including (but not limited to) obscenity . . .."

Most states have outlawed the printing, distribution or possession of obscenity. In outlawing the production of obscene materials, however, state legislatures have struggled for years with a definition of "obscenity."

Undoubtedly the most frequently cited authority on how difficult it is to define the term is a statement by US Supreme Court Justice Potter Stewart in his concurring opinion for Jacobellis v. State of Ohio.

There, Justice Stewart noted that state law purported to include only hard-core pornography in its definition of "obscenity."

"I shall not today," he remarked, "attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in doing so. But I know it when I see it . . .."

Arizona law (in A.R.S. Section 13-3501 et seq.) attempts to define obscenity as materials that depict or describe sexual activity which the "average person" would find (by contemporary state standards) to be appealing to "the prurient interest"; patently offensive; and, taken as a whole, lacking in "serious literary, artistic, political or scientific value."

Imperfect as this--or any--definition of "obscenity" may be, it serves as the basis of conduct that Arizona law has deemed illegal.

In determining whether one's use of Maricopa computing resources violates the prohibition against obscenity, then, the standards contained in Arizona law are the most useful guide.

Published in the Winter 2000 Edition of In Brief