Posted by Eugene Volokh: Is downloading obscenity constitutionally protected?
In [1]Stanley v. Georgia (1969), the Supreme Court held that private possession of obscenity (i.e., hard-core pornography) is constitutionally protected, partly because of the sanctity of the home. This happened at a time when the distribution of obscenity was thought to be constitutionally unprotected; and when in 1973 the Court confirmed that distribution of obscenity was unprotected, Stanley still remained good law. It has not been overruled or seriously questioned since (though private protection of child pornography can indeed be outlawed, see Osborne v. Ohio; I set aside child pornography for the purposes of this post). OK, so the next question: Does it follow that, because you may not be punished for merely possessing obscenity at home, you also may not be punished for buying it to consume at home? The answer is pretty clearly "no" -- and, what's more, [2]U.S. v. Orito (1973) held that you don't even have the right to transport it yourself for your own consumption. So buying it and taking it home with you can be made a crime, and even taking it with you to your new home when you move can be made a crime. (This means that a prosecutor who really wants to go after a possessor might be able to prosecute him for buying, and use the possession as powerful evidence that at some point it must have been bought and transported to the buyer's home; I'm not sure how successful such a theory would be -- it may be the case that the prosecutor might have to prove more details of the illegal purchase, such as where it took place, which he couldn't do simply based on possession alone, but I'm not positive about that.) Likewise, United States v. Kuennen, 901 F.2d 103 (8th Cir. 1990), and United States v. Hurt, 795 F.2d 765 (9th Cir. 1986), both held that buying such material by mail can likewise be made a crime, citing Orito. (I suspect the buyers were prosecuted because the material actually was child pornography; I suspect the federal government wasn't that interested in pursuing individual buyers of adult hard-core porn. But the defendants were prosecuted under general obscenity laws, and the logic of the cases isn't limited to child porn.) One can, of course, argue that downloading porn into your home should be treated more like mere possession, and less like transportation or even mailing, since the electronically downloaded material isn't physically available outside the home. It's a weird distinction to draw, but this field is full of weird distinctions. My guess is that most courts won't buy that distinction, and will hold the initial downloading to be punishable even though the subsequent possession is not. In any event, that's why in my post below, I noted that it's possible that people could be prosecuted for downloading obscenity into their own homes. But fortunately that seems to be a pretty academic question right now, since few prosecutors seem likely to be interested in going after private buyers in such situations (again, unless child pornography is involved). References 1. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=394&page=557 2. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=413&invol=139 _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
