All 50 states and the District of Columbia have laws governing obscenity, child pornography, and harassment. Prepared by Ronald J. Palenski, Partner, Gordon & Glickson P.C., what follows is a general commentary on these laws plus a state-by-state overview on the extent to which they may apply in on-line or other digital environments.
All states have laws governing the distribution of obscene materials. Generally, these statutes prohibit the sale, lending, renting, giving, publication, exhibition or other dissemination of materials, with general knowledge of their obscene character and content. Drafted before an electronic age, many states define “materials” as covering any writing, written matter, picture, pictorial representation, film or motion picture, or sound recording.
“Obscenity” is typically defined as material which, to the average person, applying contemporary community standards, and taken as a whole: 1) predominantly appeals to prurient interests, 2) lacks serious literary, artistic, political, or scientific value, and 3) depicts or describes nudity, sex, or excretion in a patently offensive way. Of course, what constitutes the relevant “community” in on-line environments without geographic boundaries is an open issue.
In a very few states, obscenity laws cover the dissemination of tangible material only, a matter of some importance given the debate in other areas of the law whether computer software or other information in digital format is tangible or intangible.* Similarly, many states prohibit the distribution of electronic or electrical reproductions of obscene material. Presumably such statutes cover obscene material in digital format; note, however, that ambiguities in criminal statutes are to be construed strictly against the state and in favor of the accused.
A very few states prohibit the distribution of obscene materials to minors only; distribution to adults is not prohibited.
All states prohibit child pornography. “Child pornography” may encompass either: 1) the creation or reproduction of materials depicting minors engaged in actual or simulated sexual activity (“Sexual Exploitation of Minors”) or 2) the publication or distribution of obscene, indecent, or harmful materials to minors. All such laws require actual knowledge, or reason to know, that the person portrayed or the recipient of the obscene, indecent, or harmful material is a minor. A few states also penalize the distribution, with reckless disregard, of obscene or indecent materials to minors. The states generally provide defenses to the publisher or distributor where some reasonable attempt has been made to discern the age of the recipient of the obscene, indecent, or harmful material.
As noted above, most state statutes reach beyond what is deemed to be “obscene” for adults to prohibit the distribution of material that has been determined to be “harmful to minors,” including that which is indecent or excessively violent. As with obscenity statutes generally, what is “harmful to minors” is to be determined with reference to the local “community.” Note, too, that the definition of a “minor” varies among the states, with most state laws applying to the distribution of harmful material to persons under the age of 18 years but some states prohibiting the distribution of harmful material to those under the age of 17 years.
All states have statutes prohibiting harassment and stalking. “Harassment” statutes typically prohibit the intentional or knowing engaging in a regular course of conduct (which may include sending mail - including electronic mail - or other written** communications) designed to alarm or seriously annoy another. “Harassment” is sometimes included as a subset of “stalking,” which is defined typically as the willful, malicious, and repeated harassing of another, or the making of a credible threat, with intent to place another in reasonable fear of death or great bodily harm. Prohibited “stalking” may directed towards one’s person or one’s family. Threats to property may also be covered.
All states have statutes prohibiting harassment by telephone, although it appears that most of these statutes contemplate voice rather than digital communications. These statutes thus prohibit the use, with intent to harass or annoy, of the telephone: 1) to make obscene or lewd proposals, 2) to threaten to inflict injury, or 3) to call repeatedly, whether or not conversation ensues.
With this general background, what follows is an overview of state obscenity, child pornography, and harassment/stalking laws, as particularly applicable in on-line or digital environments.
* For purpose of state sales and use tax laws, most states regard prewritten computer programs, at least, as tangible personal property. Similarly, most courts that have examined the issue have determined that computer software constitutes “goods” for purposes of Uniform Commercial Code, Article 2. The federal government, on the other hand, has determined computer software to be intangible for tax purposes.
** Many statutes prohibit written communications intended to harass, annoy, or seriously alarm. The issue arises whether digital communications are included within the scope of the statute.
|Alabama||General statute; prohibits distribution of electrical or electronic reproductions of obscene material||General statute; prohibits distribution of electrical or electronic reproductions of minors engaged in real or simulated sexual activity||General statute; prohibits harassment using any form of written or electronic communication|
|Alaska||Statute prohibits distribution of obscene or harmful materials to minors||General statute||General statute; prohibits harassment using electronic communications|
|Arizona||General statute; prohibits any transmission (undefined) of obscene material, whether tangible or intangible||General statute; prohibits the distribution of compact or laser disks, computer diskettes, or tapes portraying minors engaged in sexual activity||General statute; prohibits harassment using electronic communications|
|Arkansas||General Statute||General Statute||General Statute|
|California||General statute; prohibits electrical reproduction of material showing minors engaged in real or simulated sexual activity||General statute; prohibits the distribution of electronic reproduction of obscene materials to minors||General Statute|
|Colorado||General statute; limited to distribution of tangible material||General Statute||General Statute|
|Connecticut||General statute; covers any transmission (undefined) of obscene material; limited to distribution of tangible material||General Statute||General statute; prohibits harassment using computer networks|
|Delaware||General Statute||General Statute||General Statute|
|D.C.||General Statute||General Statute||General Statute|
|Florida||General Statute||General statute; prohibits the compiling, entering into or transmission by means of a computer, or knowingly causing or allowing the same to occur, of a minor’s name for purposes of offering or soliciting sexual conduct, or the visual depiction of such.||General Statute|
|Georgia||General Statute||General statute; prohibits electronically furnishing material harmful to minors by way of electronic storage device (e.g., disk or CD-ROM) or allowing access by way of computer bulletin board||General Statute|
|Hawaii||General Statute||General Statute||General Statute|
|Idaho||General Statute||General statute; prohibits distribution of electronically reproduced material depicting minors engaged in sexual activity||General Statute|
|Illinois||General Statute||General statute; prohibits computer depiction of minors engaged in actual or simulated sexual activity; prohibits making a depiction of a child engaged in sexual activity available by computer network or by any other means of transferring data to a computer||General Statute|
|Indiana||General statute; prohibits distribution of electrical reproductions of obscene material||General Statute||General Statute|
|Iowa||General statute; prohibits distribution of electrical reproductions of obscene material||General statute; excludes from coverage information access service providers that provide mere transmission capacity without control over content||General Statute|
|Kansas||General Statute||General Statute||General Statute|
|Kentucky||General statute; prohibits distribution of electrical reproductions of obscene material||General Statute||General Statute|
|Louisiana||General Statute||General statute; prohibits distribution of obscene or harmful materials to minors by means of compact disc, wire or tape recording, or other similar tangible work or thing||General Statute|
|Maine||General statue; applies to dissemination of obscene material to minors only||General Statute||General Statute|
|Maryland||General statute; prohibits distribution of electrical reproductions of obscene materials||General statute; prohibits distribution or display of obscene material to minors by way of computer disc or video disc||General Statute|
|Massachusetts||General Statute||General Statute||General Statute|
|Michigan||General statute; prohibits distribution of obscene materials including any computer tape or any other medium used to electronically reproduce images on a screen||General Statute||General Statute|
|Minnesota||General Statute||General Statute||General Statute|
|Mississippi||Statute prohibits distribution of obscene or harmful materials to minors||General statute; prohibits causing a child to engage in sexually explicit conduct, or the simulation thereof, by any means including computer for the purpose of creating a visual depiction of such conduct||General Statute|
|Missouri||General Statute||General Statute||General Statute|
|Montana||General Statute||General Statute||General Statute|
|Nebraska||General statute; prohibits distribution of electrical reproductions of obscene material||General Statute||General Statute|
|Nevada||General Statute||General Statute||General Statute|
|New Hampshire||General Statute||General Statute||General statute; prohibits harassment using electronic communications|
|New Jersey||General Statute||General statute; prohibits the knowing possession, sale, manufacture, gift or other transfer of computer programs or video games depicting minor engaged in sexually explicit acts||General Statute|
|New Mexico||General statute; prohibits distribution of obscene material including computer diskettes, videodisks, or any computer or electronically generated imagery||General Statute||General Statute|
|New York||General statute; limited to distribution of tangible material||General Statute||General statute; prohibits harassment using electronic means|
|North Carolina||General Statute||General Statute||General statute; prohibits use of computer modem or facsimile machine to communicate lewd or indecent language or to threaten physical injury|
|North Dakota||General Statute||General Statute||General Statute|
|Ohio||General Statute||General Statute||General Statute|
|Oklahoma||General statute; prohibits distribution of obscene material including electronic videogames or recordings; prohibits importation of obscene material, including electronic videogames into the state||General statute; prohibits the knowing sale, distribution or display of obscene or harmful materials, including by CD-ROM disk, magnetic disk, or magnetic tape, to minors; prohibits the knowing transmission by computer of obscene or harmful material to minors||General statute; prohibits harassment using electronic means|
|Oregon||General Statute||General Statute||General Statute|
|Pennsylvania||General Statute||General statute; prohibits using a minor to engage in actual or simulated sex acts, intending such to be depicted on a computer; prohibits the sale or other transfer of any computer depiction of any actual or simulated sexual act by a minor||General Statute|
|Rhode Island||General statute; limited to distribution of tangible material||General Statute||General statute; prohibits transmission by facsimile machine or other telecommunication device repeatedly to harass or annoy|
|South Carolina||General Statute||General Statute||General Statute|
|South Dakota||General statute; applies to dissemination of obscene material to minors only||General Statute||General Statute|
|Tennessee||General statute; prohibits distribution of electrical reproductions of obscene material||General Statute||General Statute|
|Texas||General statute; limited to distribution of tangible material||General Statute||General Statute|
|Utah||General statute; prohibits distribution of electrical reproductions, or anything which is or may be used as a means of communication, of obscene material||General Statute||General Statute|
|Vermont||General statute; applies to dissemination of obscene material to minors only||General Statute||General Statute|
|Virginia||General Statute||General statute; prohibits use of a minor to make or produce sexually explicit material, including a digital image; prohibits knowingly participating in the reproduction of sexually explicit material by any means, including computer generated reproduction; prohibits use of computers, computer networks, BBS’s or any other electronic means to promote sexually explicit material involving a minor||General Statute|
|Washington||General Statute||General Statute||General Statute|
|West Virginia||General statute; prohibits distribution of electrical reproductions of obscene material||General Statute||General Statute|
|Wisconsin||General Statute||General Statute||General Statute|
|Wyoming||General Statute||General Statute||General Statute|