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Tuesday, October 04, 2005

Right of Publicity and Privacy Outline

The Rights of Publicity and Privacy Outline
(c) Rutchik 2005
Thanks again to Tracey Oh, Esq to be for her work on this.


Jim and Sarah were madly in love and lived together in New York. One day, they went to a party and had one too many drinks, at least Sarah did. After hearing “Get a room!” about five times, the couple headed back to Jim’s apartment, where he had a hidden video camera set up. All he had to do was press an inconspicuous little button and the camera would record their night’s adventures for 4 uninterrupted hours. Before they got down and dirty, Jim suggested it’d be fun to take some pictures of Sarah, who in her eagerness to have sex with Jim, had already stripped down to nothing. Sarah agreed, and even seemed to have fun posing for the camera. Jim suggested that they call and invite his friend Tanya over, whom Sarah had only met once or twice. Sarah was drunk but caught the implication of the suggestion. She glanced up at Jim with her eyebrows raised and said, “You mean….” Jim nodded. They had talked about having a threesome before but Sarah always thought it was a joke. Nevertheless, she felt like doing something crazy and agreed. Tanya arrived shortly after with more alcohol. While Sarah went to the bathroom, Jim had Tanya press play on the hidden video camera, which was nearest to her.
About two months after their wild and crazy night, Jim and Sarah broke up. It was a mutual breakup, with no hard feelings. She later found out that Jim circulated the video online and it had been downloaded 4,000 times. It turns out that Jim had planned the night to include Tanya and had intended to sell the video all long. Tanya given Jim permission orally, but not in writing, giving Jim the right to do whatever he wanted with the tape. Sarah is still seething and feels that her privacy was invaded. She was an aspiring model who wanted to break into print and runway modeling, and she feels that her image is tarnished now because no one will take her seriously if they find out about the video. Although she can’t do anything about the video because it has already been on the Internet for awhile, she wants to try to get back the pictures that Jim took of that night. What are Sarah’s rights? Also, Tanya later decides to sue Jim because she changed her mind about having the video disseminated online. Does Tanya have any rights?

I. The right of privacy
a. It is distinct from the right of publicity protected by state common or statutory law.
i. It means different things to different people like the word freedom.
ii. Constitutional privacy rights v. tort law privacy (invasion of privacy). Not the same thing. Rosenberg v. Martin, 478 F.2d 520, 524 (2d Cir. 1973).
1. constitutional privacy protects against act by govt.
a. does not dictate rights between private citizens.
b. Does not define state law tort invasion of privacy, which can go further in its scope of protection.
c. Confidentially and autonomy branches (Whalen v. Roe, 429 U.S. 589-99 (1977).
i. Avoiding disclosure of matters
ii. Interest in independence in making certain personal choices.
d. Examples
i. Govt intrusion into person’s mind and thought process and related right to control information about oneself. Raime v. City of Hedwig Village, Tex, 765 F.2d 490, 492 (5th Cir. 1985).
1. you cant be forced to recite a prayer in a public school.
ii. Governmental intrusion into person’s zone of private seclusion
1. unwarranted search and seizure. 4th amendment.
iii. governmental intrusion into a person’s right to make certain personal decisions
1. contraceptives or abortions.
2. right of individual autonomy limited usually to matters concerning marriage, procreation, contraception, family relationships and child rearing and education. Paul v. David, 424 U.S. 693, 713 (1976).
iv. govt can’t force you to surrender or admit you’re guilty. 5th Amendment
v. the right of ppl to be secure “in their own persons.” 4th Amendment.
2. tort law privacy protects against acts by private parties.
b. Although the right to privacy is not explicitly stated in the Constitution, it has been inferred in it, but the Supreme Court has said that several of the amendments create this right.
i. 14th Amendment protects the liberty of personal autonomy.
ii. The 1st, 4th, and 5th Amendments also provide some protection of privacy, although in all cases the right is narrowly defined.
iii. The Constitutional right of privacy has developed alongside a statutory right of privacy which limits access to personal information.
1. Right of privacy must be balanced with state’s compelling interests.
a. Including: the promotion of public morality, protection of the individual's psychological health, and improving the quality of life

c. 4 Branches of Privacy (Prosser)
i. False light invasion of privacy
1. most akin to defamation
2. false light invasion of privacy protects a person’s interest “in being let alone” while defamation protects one’s interest in a good reputation.
3. publication doesn’t have to be defamatory. False light claim may actually involve statements that say something good about the plaintiff, yet are “false.” Instead of the defamatory requirement, false light requires that the statement be “highly offensive to the reasonable person.”
4. 30 states acknowledge false light tort, 13 states either reject the tort or noted that the facts of particular case didn’t justify recognizing the tort. 7 states haven’t confronted the issue at all, as of 2002.
5. The use of a film clip of a New Orleans Mardi Gras parade as background for an adult movie called Candy the Stripper, which focused on drugs and sex and was produced by Playboy, prompted a false light claim by persons in the parade. Louisiana Court of Appeals held that the mere appearance of a person in a background crowd scene in an adult movie does not put that person in the false light of having voluntarily chosen to appear in such a film. Easter Seal Soc For Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, Inc., 530 So. 2d 643, 648 (La. Co. App. 4th Cir. 1988).
6. “Stolen Nude Photos” Case
a. Husband took nude photos of his wife and hid them in a drawer. Later the neighbor broke into the home and stole some of the photos. He submitted them to Hustler magazine for the amateur section by forging plaintiff’s signature on consent form and included some misinformation about plaintiff’s imagined sexual fantasies. Jury verdict of $150,000 against Hustler magazine affirmed for negligently verifying the photo submissions and guarding against forgery. Wood v. Hustler Magazine, Inc
ii. Appropriation
1. Definition: involves the unpermitted commercial use of a persons identity which causes injury to dignity and self esteem with resulting mental distress damages.
2. sometimes conflicts with First Amendment interest in news dissemination.
3. appropriation for advertising purposes is the most common ground for successful right of publicity suits.
a. Both celebs and noncelebs may allege this claim.
4. Appropriation v. Right of Publicity
a. Right of Publicity branched out from this once celebrity plaintiffs began to appear in court complaining of unpermitted use of identity and persona in commercial context. Celebs don’t suffer from indignity or hurt feelings because of exposure in advertising use. Their pics are already widely circulated. Now it’s a separate and distinct legal concept.
i. Infringement of right of publicity focuses on injury to the pocketbook, while invasion of appropriation privacy focuses on injury two the emotions and psyche.
b. “Publicity rights are meant to protect against the loss of financial gain, not mental anguish.” Cardtoons, L.C. v. Major League Baseball Player’s Assn, 95 F.3d 959, 976. (10th Cir. 1996).
iii. Disclosure of Private Facts
1. Three basic elements must be met under common law. (Smolla, Law of Defamation § 10.04, 1992)
a. There must be sufficient publicity given to the facts so that they may be considered disclosed to the public at large, or to so many people that the matter is likely to become public knowledge.
b. Facts must not already be known to the public.
c. The disclosure must be highly offensive to a reasonable person of ordinary sensibilities.
2. facts are true, no element of falsity
3. strict application because of publics right to known about matters of legitimate public concern.
4. the private facts must be a kind that would be highly offensive to a reasonable person. “The Law of privacy is not intended for the protection of any shrinking soul who is abnormally sensitive about such publicity.” (Prosser, Privacy at 397)
a. Bratt v. International Business Machines Corp., 785 F.2d 352, 360 (1st Cir.)
5. the following examples were not found to be highly offensive disclosures. (cases on page 547 of McCarthy book)
a. Retirement
b. Religious affiliation
c. Buying a new expensive house
d. Found and returned large sum of money
e. Receives certain salary
f. Receiving passing score on test
g. Is one of the wealthiest people in town
h. Is a certain age
i. Stayed overnight in a hotel
j. Has certain spending habits and preferences
k. Kissed a rock musician in the stall of a women’s bathroom in a bar
6. the following examples show what a reasonable person would find highly offensive
a. unpermitted publication in a national magazine of a nude photograph of the person
b. disclosure by employer of a fellow employee that she had a hysterectomy or masectomy
c. public disclosure of plaintiffs name on signs carried by protestors that plaintiff was about to undergo abortion
d. the showing of a surreptitiously made videotape of plaintiff engaged in sexual intercourse
e. the distribution on the Internet of a video made by plaintiffs of themselves engaged in sexual conduct
7. some courts allow suing under a fictitious name in order to prevent disclosure of information that is sensitive and highly personal. Doe v. Heitler, 26 P.3d 539 (Cp;p Ct. App. 2001).
iv. Intrusion or “psychic trespass”
1. the intentional invasion of the solitude or seclusion of another in his or her private affairs or concerns, through either physical or nonphysical means.
a. i.e.) eavesdropping, peeping through windows, opening someone’s mail, etc. (Rodney A. Smolla, Free Speech in an Open Society 145-146 (1992)).
b. Against Press:
i. Reporters used a hidden camera and hidden recording devices and Court of Appeals for 9th Circuit upheld intrusion claim because the devices were not indispensable tools in newsgathering. First Amendment does not accord news reports immunity from torts committed during newsgathering. Dietemann v. Time, Inc., 449 F.2d 245, (9th Cir. 1971).
ii. Galella v. Onassis case. Onassis sued for injunction against paparazzi who brought powerboat dangerously close to her while she was swimming. He bribed doormen, etc, for information about the Kennedys.
c. Undercover reporting
i. 2 ABC employees went undercover and got hired as employees of a market to record their unsafe meat handling practices. Although found guilty of trespass, ABC only had to pay $2 in damages because court said Food lion chose to attack only the manner in which the story was gathered and not the truth of the story itself. Food Lion v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999).
ii. ABC reporters obtained an interview with the head of a medical pap smear testing lab by posing as persons interested in going into the testing laboratory business and videotaped it with a hidden camera. Ninth circuit found that plaintiff had no reason to expect privacy in his conversation with the reporters. Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 819 (9th Cir. 2002).
2. to prove there has been an intentional intrusion into a private place, conversation or matter, plaintiff has to prove there was
a. an actual, subjective expectation of seclusion or solitude in that place, conversation or matter,
b. that that expectation of privacy was objectively reasonable.
3. Hidden Cameras and consent to record
4. if the secret recording doesn’t disclose facts that are not highly offensive and are of legitimate public concern, there is no disclosure tort. Medical Laboratory Management Consultants v. American Broadcasting Companies, Inc., 306 F.3d 806, 819 (9th Cir. 2002).
d. Transfer of Privacy Rights
i. While acts that invade privacy may be consented to or licensed, a person’s privacy rights can’t be assigned or sold.
ii. Privacy rights are personal
1. The right to sue for invasion of privacy can’t be asserted by a spouse of offspring. Russell v. Marboro Books, 18 Misc. 2d 166 (Sup 1959).
iii. Nonassignability of privacy rights is a huge reason why creation of separate concept of right of publicity came about.
1. one court said in 1935 that professional baseball players could not assign or exclusively license their names for use on baseball bats, they could only sign a consent or waiver which prevented them from objecting to the manufacturers use of their names on baseball bats. → “fame is not merchandise.” The baseball bat manufacturer who had a license from babe Ruth couldn’t sue a competing bat maker who sold Ruth bat. Hanna Mfg. Co. v. Hillerich & Bradsby Co., 78 F.2d 763, 766 (C.C.A. 5th Cir. 1935).

II. Modern Development of the right to publicity
a. Right to publicity is part of “unfair competition” law
b. Right to publicity is a property right. California: Cairns v. Franklin Mint Co., 24 F. Supp.2d 1013, 1025 (C.D. Cal. 1998). Courts agree to this, as well as commentators, the Rest. of Unfair Competition, and Restatement of Torts. Several state statutes explicitly state this too. Cal Civil Code, Ind. Code, Ky Tenn, Tex, Washington, Okla.
i. So you can sell it. Why would you sell it?
1. celebrity may want to transfer all publcitiy rights to a corporation or trust for income tax or estate planning reasons. Martin Luther King Jr. Center for Social Change, Inc. v. American Heritage Products., Inc. 250 Ga. 135.
2. an aging celeb may want to give all his rights to a spouse or offspring.
a. Famous animal trainer clyde beatty assigned all his rights to his wife. Acme Circus Operating Co v. Kuperstock, 711 F.2d 1538 (11th Cir. 1983).
c. first case involving right of publicity
i. Zacchini v. Scripps-Howard Broadcastings Co., 433 U.S. 562 (1977).
1. Hugo Zacchini was an entertainer at a county fair presenting his act of the “human cannonball.” The local television station videotaped and broadcast the entire 15 second act on the 11 o’clock news. Zacchini sued for damages for reproducing his live performance without permission. Ohio courts held it was privileged as news because it was a matter of legitimate public interest. Supreme Court reversed and held that the First Amendment’s concern with free speech did not permit the television station to broadcast the performance as news.
2. Although this case didn’t involve the classic type of use of identity in commercial advertising, it was important because it was the first time Supreme court used the term “right of publicity” as the recognized and established legal principle we know it today.
3. court established the right of publicity as creating economic incentive to work hard to produce a performance of interest to the public, similar to federal patent and copyright laws.
d. case law is mixed at intersection between right of publicity and First Amendment.
i. 9th circuit upheld right of publicity claim and rejected defense that advertiser was only giving sports news about a famous sports star when it mentioned his accomplishments in an ad for autos. Abdul Jabbar v. General Motors Corp., 75 F. 3d 1391. (9th Cir. 1996).
ii. 10th circuit dismissed right of publicity claim against baseball cards that parodied prominent professional players. Since parody baseball cards were not commercial speech, they received full First Amendment protection. Cardtoons L.C., v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th cir. 1996).
e. 1995 Restatement of Unfair Competition
i. strongly supports the right of publicity as a full fledged part of the law of unfair competition. § 46 declares: illegal the use without consent of the commercial value of a person’s identity for the purposes of trade.
1. purposes of trade = use in advertising, on merchandise or in connection with services.
a. Doesn’t include use of identity in news reporting, commentary, entertainment or works of fiction and non-fiction.
ii. Nature of harm suffered by plaintiff: privacy v. publicity
1. While privacy relates to an injury to personal feelings, right of publicity provides redress for an appropriation of the commercial value of identity.
III. Elements of Infringement
a. Intent – doesn’t matter that you didn’t mean to identify plaintiff.
i. “the question is not so much who was aimed at as who was hit.”
1. in 1939, movie producer organized a publicity stunt to promote movie. Sent out bogus love letter to 1000 males in Los Angeles signed by “Marion Kerby,” the star of the movie. The letter promised a good time if the recipient met her in front of Warners Theatre on Thursday evening. Plaintiff’s name was also Marion Kerby and she was the only person listed as such in the phone directory. She received phone calls and visits from men who received the letter. She sued for false light invasion of privacy. Court of Appeals held that it didn’t matter that movie studio had no intent to refer to plaintiff and was negligent in not checking to see if there was a real Marion Kirby. Kerby v. Hal Roach Studios, 53 Cal. App. 2d 207 (2d Dist. 1942).
ii. if intent is proven, identification is usually presumed.
1. Goes off presumption that when person intends a result, the result is presumed to have taken place. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 836 (6th Cir. 1983).
b. Mistake as to consent of plaintiff
i. While a mistake as to consent may mitigate damages, it is not a defense on the merits.
1. ex) U.S. Camera Annual published a nude photo of a professional model, who hadn’t signed a consent. The Camera Annual had obtained the photo from an agent and assumed that the agent had a release from the model. New York court held that the mistake was not a defense to liability and awarded $1500, only for mental distress since the model didn’t offer evidence of loss of income from lost modeling jobs. Myers v. U.S. Camera Pub. Corp., 9 Misc. 2d 765. (City Ct. 1957).
2. A husband took nude photos of his wife. The photos were stolen and submitted to Hustler magazine under forged consent form. P recovered $150,000 under a false light privacy claim. The court noted that Hustler “carelessly administered a slipshod” procedure for verifying the consent forms. Wood v. Hustler Magazine, Inc., 736 F.2d 108 (5th Cir. 1984). In another case, $30,000 was awarded for nude photograph published without consent because of Hustler’s “flawed” procedure for verifying the consent forms. Gallon v. Hustler Magazine, Inc. 732 F. Supp. 322 (N.D. N.Y. 1990).
c. falsity, deception, or confusion is not required for infringement of right of publicity
i. using person’s identity to draw attention to a product or ad is an infringement.
d. no need to prove actual commercial damage to identity or persona in order to establish a claim for liability, you only have to prove that the defendant intended to obtain commercial advantage. Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003).
i. Damage is presumed.
e. doesn’t require pleading or proof of falsity or resulting confusion or mistake. Mere unpermitted use of a person’s identity to draw attention to product or advertisement infringes on right of publicity.
i. If identity is used in insignificant or fleeting matter, it may be defended as immune “incidental” use.
f. Identifiability
i. plaintiff must be “identifiable” from the total context of the defendant’s use.
1. You can be liable even if you try to change the image or identity. (T&T Manufacturing Co. v. A.T. Cross Co., 449 F. Supp. 813.
ii. the number of people that would recognize the plaintiff doesn’t affect the cause of action, it affects the amount of damages. (Hirsh v. S.C. Johnson & Son, Inc., 90 Wis. 2d 379, 1970).
iii. In a case of unauthorized advertising use of a photo of a non-celebrity, even evidence of recognition by only one person – the husband – was enough. Cohen v. Herbal Concepts, Inc. 63 N.Y.2d 379 (1984).
iv. Even if the photograph is of the plaintiff, you have to be able to identify that it’s him or her from the photo.
1. No liability for using a picture of a part of plaintiff’s body where there’s no way for anyone to recognize the person.
a. muscular torso of bodybuilder was used in an ad, and Canadian court found no invasion of publicity or privacy. Joseph v. Daniels, 1986 WL 593842 (B.C. S.C. 1986).
2. Widely distributed photograph of firefighter and injured baby taken after Oklahoma City bombing didn’t make the plaintiffs readily identifiable because facial and other identifying characteristics were obscured. Oklahoma Nat. Gas Co. v. LaRue, 156 F.3d 1244 (10th Cir. 1998).
3. faces in a crowd have no statutory right usually – crowds at sporting events, concerts, etc.
a. California, Florida, Nebraska have statutes.
b. Group scenes in commercial advertisements
i. Different because models and actors usually get paid.
v. Look-Alikes
1. The use of a look alike model in an advertisement can be sufficient identification of a celebrity plaintiff if the obvious effect is to attract attention to the advertisement through use of the celebrity’s persona.
2. can trigger false endorsement liability as well as general deception.
a. Advertising company hired a model to look like Jackie Onassis in an advertisement. Onassis v. Christian Dior-New York, Inc., 122 Misc. 2d. 603.
b. Presley’s Estate v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)
c. White v. Samsung Electronics America, Inc., 971 F. 2d 1395.

g. celebrity status not required
i. defendant’s use proves commercial value of plaintiff’s identity.
1. Worker was videotaped while installing ceramic tile. The tile company used the videotape in tv ads. Court of appeal held that defendant benefited commercial even though the worker wasn’t a celebrity. Ainsworth v. Century Supply Co., 693 NE2d 610. (Ill App 1998).
IV. Assignability v. Licenses
a. assignment – outright sale of right and title in the right of publicity
b. license – limited permission to use within a defined time, context, market line or territory. Presley’s Estate v. Russen, 513 F. Supp 1339, 1350 (D.N.J. 1981).
i. Exclusive license – licensor promises not to grant further licenses within the scope of exclusivity.
c. “Consent” is most often the word used in courts to speak of permission to use one’s identity.
i. I.e. the person gives his or her consent to conduct which would otherwise be an invasion of the appropriation form of privacy.
ii. Consent
1. to be effective, consent must be:
a. by one who has the capacity to consent or by a person empowered to consent for him and
b. to the particular conduct, or to substantially the same conduct. Russell v. Marboro Books, 18 Misc. 2d 166 (Sup 1959).
2. A consent to one act is not a consent to any and all other forms of invasion of privacy related to that act.
a. Ie) wife consented to her husband taking nude and sexually explicit polaroids of her. They divorce and husband became bitter and sent 60 copies of the photos to neighbors and friends. When sued for invasion of privacy, husband claimed that wife wiaved her rights by posing for them and failing to ask for the photos as part of the divorce settlement. Court granted summry judgment in wife’s favor. Pohle v. Cheatham, 724 N.E.2d 655 (Ind. Ct. App 2000).
b. A young model signed an unconditional photographic release and her photo appeared on the cover of Hustler magazine. The Court found the release was a complete bar to suit for invasion of privacy. Morgan v. Husler Magazine, 653 F. Supp 711, 718. (N.D. Ohio 1987).
iii. Duration
1. where consent is oral, informal and gratuitous, lapse of years until use is made might make the user liable to renew the request for consent.
a. Ie) 24 year old man went on a training program at a health club. He agreed to taking of before and after shots for advertising. Ten years later the pictures were used in a local paper. Court found invasion of privacy because people change over time, and what might have been ok with the guy then, might not be ok at age 34. McAndrews v. Roy, 131 So. 2d 256, 259 (La. Ct. App. 1st Cir. 1961).
iv. a license or consent to use of identity for a particular use can’t be stretched to include a consent for other and different uses.
1. A model’s license to Playboy magazine to print nude photos is not an implied license to Hustler magazine to reprint the same photos. Douglass v. Hustler Magazine, Inc. 769 F.2d 1128, 1138-1139 (7th Cir. 1985). Either plaintiff or Playboy could have authorized publication of photos in Hustler but neither did.
2. a human sexuality expert granted a license to TLC company to use his identity in promoting sex education videos but did not give permission to TLC to grant a sub license to TEI company to use plaintiff’s identity in distributing the videos along side sexually explicit videos and products. Seifer v. PHE, Inc. 195 F. Supp. 2d 622, 631 (S.D. Ohio 2002).
v. Must consent or license be in writing?
1. Some states require it to be in writing. New York does. NY courts say that an oral or implied consent, is not a complete defense but may be pleaded in mitigation of damages.
a. Massachusetts, New York, Ohio, Rhode Island, Utah, Virginia, Wisconsin all require consent to be in writing.
vi. Implied consent
1. consent can be implied from conduct or inaction that is reasonably interpreted as giving permission.
a. Usually the critical issue is not consent to the kind of use, but to the scope of the consent.
vii. Minors
1. some states require that consent be given by parent or guardian.
a. Nude photos were taken of 10 year old Brooke Shieldsin her bath by a professional photographer. The photos were widely displayed and published. Shields’ mom had signed a release on behalf of brooke. Later Brooke became a famous actress and model. A nude photo of her appeared in a book and she appeared nude in the role of Pretty Baby, about a child prostitute. At age 17, brooke tried to cancel the 1975 contract signed by her mom and sued the photographer for invasion of privacy. Too late. NY Court of appeals refused to disaffirm the K. Since photos weren’t pornographic, it wasn’t a public policy issue either. Shields v. Gross, 58 NY2d 338 (1983).
b. A mother gave a release to a photographer who took nude but non porno pics of her 6 year old girl and 4 year old son. The phots originally appeared in a book called the Sex Atlas and the mother objected to reprints appearing in Hustler magazines book review of Sex atlas. Since CA pubclity and privacy statute authorized relases and license by a parent, the court upheld the consent. Faloona by Frederikson v. Hustler Magazine Inc. 799 F.2d 1000, 1005 (5th Cir. 1986).
viii. license induced by fraud or mistake
1. plaintiff might be able to rescind the license if it was given in reliance on a mistake or misrepresentation. Rest. Second of Torts § 892 b (2) 1979)
2. Texas court held that consent obtained by fraud was like not having any consent. A performer at an amusement part sued Larry Flynt for using her photo in Chic, a sexually explicit magazine. She sued for invasion of privacy by being in a false light by having her photo appear in such a mag. The editor of the mag told the public relations director of the part that Chic was a mens mag featuring fashion, travel and humor. Since the consent had been obtained by misrepresentation, it was void. Braun v. Flynt, 726 F.2d 245, 255 (5th Cir. 1984).
ix. forged licenses
1. if a license can be proven to be forged, it is void and invalid.
a. Wood v. Hustler magazine… same case as before about neighbor who stole nude photos.
b. Professional model turned actress sued Hustler for invasion of FL privacy and infringement on right of publicity because it published nude photos of her. Hustler showed at trial 2 signed released but it was forged. She had only signed a release allowing Playboy to publish the photos. Douglass v. Hustler Magazine, 769 F.2d 1128, 1132 (7th Cir. 1985).
V. Joining Publicity and Privacy Claims
a. a plaintiff may join both claims as long as the facts support both claims. Candebat v. Flanagan, 487 So. 2d 207, 212 (Miss. 1986).
VI. Legal Rights of Publicity and Privacy
a. the law of publicity is often compared to trademark law. It is analogous, not identical to the law of trademarks.
i. Differences between trademarks and the right of publicity

Trademarks Right of Publicity
What is Identified? “Goodwill” of Seller “Persona” of a human being
Prior Exploitation Needed? Yes – Used to Identify and distinguish goods/ services No – Prior exploitation not required.
Test of Infringement? Likelihood of confusion, mistake, or deception. Identifies the “Persona” of the plaintiff
Transfer Rules? Must Assign with “goodwill” and license with “quality control” Can assign without “goodwill” and license without “quality control”

b. false advertising
i. the difference between the two is that false advertising must be false, whereas infringement of the right of publicity doesn’t require falsity. Rogers v. Grimaldi, 875 F.2d 994, 1004. Parks v. LaFace Records, 329 F. 3d 437, 360 (6th Cir. 2003).
ii. Federal basis for private claim of false advertising is § 43(a) of Lanham Act, 15 U.S.C.A. § 1125(a).
1. rewritten in 1989 to include “goods, services, or commercial activities”
2. requires proof that defendant’s advertising representation is “false”
a. literal falsehoods and also misleading innuendo, indirect intimations and ambiguous suggestions.
i. American Home Products Corp. v. Johnson and Johnson, 577 F.2d 160 (2d Cir. 1978).
3. 2 elements to prove
a. the context of the use contains a message of the plaintiff’s endorsement, approval or affiliation
b. that message is false or misleading
iii. mutilation of author’s or performer’s work
iv. false credit
v. false endorsement
1. Abercrombie and Fitch catalogue used pictures of Hawaiian surfers in their magazine. Surfers sued in CA court, hoping to take advantage of a CA law providing for generous right of publicity. Abercrombie said Hawaiian law should apply instead because Hawaii has no publicity statute. Court said CA law should apply because magazine was circulated in CA. Downing v. Abercrombie and Fitch, 265 F.3d 994 (9th Cir. 2001).
c. Misappropriation and the right of publicity.
i. The 1977 Zacchini case could just have easily rested upon principles of misappropriation, rather than right of publicity.
ii. Misapp is not the same thing as right of publicity.
1. state law offshoot of the general law of unfair competition.
2. invoked when a plaintiff has what he considers a valuable commercial thing which he thinks someone else has taken.
3. Misapp invoked when the thing which has been taken is not protected by
a. Federal patent or copyright law
b. Or by one of the traditional state or federal law theories of unfair competition like trademark infringement or infringement of trade secret.

VII. Related Torts
a. Infliction of Emotional Distress
i. Elements
1. outrageous conduct by plaintiff
2. defendant’s intention of causing or reckless disregard of the probability of causing emotional distress
3. the plaintiff’s suffering severe or extreme emotional distress
4. actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
a. Local tv station aired broadcast showing close up of a skull of a missing child. Family was watching. Florida Court of Appeals called the conduct “outrageous in character and exceeding the bounds of decency so as to be intolerable in a civilized community.” Armstrong v. H&C Communications, Inc., 575 So.2d 280. Claim for invasion of privacy was rejected because the broadcast was newsworthy.
ii. cruel practical jokes
1. practical joker told a woman her husband had been smashed up in accident and was lying in pain with both legs broken. The shock brought her serious and permanent mental and physical consequences. Wiklinson v. Downton (1897) 2 QBD 57.
iii. Penthouse magazine reprinted photo and story in magazine about an elementary school that separated boys and girls during recess because of fights. The girls claimed that Penthouse should have known that publication of the photos in a sexually explicit men’s magazine would offend and shock the girls and parents. There was nothing offensive about the picture or story. The objection was to its placement in the same magazine which showed objectionable material on neighboring pages. Court rejected the claim. Fudge v. Penthouse Intern., Ltd., 840 F.2d 1012, 1021 (1st Cir. 1988).
iv. Some courts say proof of intent to produce mental distress is not needed.
1. reckless disregard with knowledge of probable results also forms basis of recovery. Pierson v. News Group Publications, Inc., 549 F.Supp. 635, 643 (S.D. Ga. 1982).

The Intersection of the First Amendment and Pornography

The Intersection of the First Amendment and Pornography
(c) Rutchik 2005
Thanks to Tracey Oh, Esq to be and to Jesse Summers to his editing.


The intersection of the first amendment and porn is best understood thru a hypo.

Mark, an entrepreneur, owns an internet business incorporated in California. Part of his business is running an adult website, which he runs off of servers in New York. The site provides, for a fee, “hard-core” pornography, including high-resolution images of nude women and graphic videos of people having oral, anal, and vaginal sex. The website also allows viewers to chat real-time with some of the models and actresses from the pornos.
Some of the photos and videos on Mark’s site were taken at a shoot with a photographer he had hired, while others he bought off the Internet as well as from some of the models themselves. Unbeknownst to Mark, however, two of the actresses he hired are 17. He hadn’t really thought about asking them their age because, to him, they looked old enough. The two girls were friends and had responded to an ad Mark had placed on, thinking it would be fun to dabble in the adult entertainment industry.

Typically, Mark advertises his business by hiring people to pass out flyers outside of adult clubs, bars, and bookstores, but his website is accessible to anyone. Not only can anybody land on his page, anyone can also browse through and download the porn, as long as they have the means to pay for it. Mark hasn’t implemented an official adult verification system on his site because he thinks that people who are buying his porn and services are probably over 18 anyway, since they are using a credit card to pay.

Recently, Mark heard that his friend, who also owns a hard-core pornography site, was heavily fined by the Federal Communications Commission (FCC), an independent United States government agency that regulates interstate and international communications, and had to shut his site down. Right now he’s in the process of hiring an attorney to bring a suit against the FCC in court. He claims that the FCC is infringing on his freedom of speech and press rights protected under the First Amendment, as well as the Fourteenth. The fact that his friend’s site got shut down doesn’t deter Mark from keeping his site up: in fact, he wants to venture further out into the adult entertainment business and open up a strip bar. Although he hasn’t found the perfect spot for it yet, he’s contemplating several different locations, including San Francisco. Mark is excited about this double venture but is worried about whether his friend’s legal trouble could happen to him as well.

A Primer on the First Amendment

Issue: What is the First Amendment and what does it protect?

Brief Summary: Does Mark have anything to worry about? Does his friend have a case against the FCC? Does the First Amendment really apply in cyberspace? And just how absolute are our free-speech rights, even in the real world? To answer these questions, we’ll explore the First Amendment and the rights we enjoy from it, as well as the limits of those rights.

The First Amendment to the Constitution states that:
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances.

This right has been understood to mean the right to say pretty much anything you want in written or spoken form. Protected speech under the First Amendment has included many forms of expression, including film, literature, even the establishment of adult businesses. It is this right that permits public protest, picketing, the publication of pornography, and rallies and speeches by those that many or even most find reprehensible.

The primary goal behind protecting speech and press was to promote the unfettered exchange of ideas. After all, sharing ideas and opinions engenders growth in society by leading to new political ideas and social changes. However, the First Amendment does not offer absolute and unlimited protection. It guarantees protection for most, but not for all forms of expression. Most relevant to Mark’s case, obscenity and child pornography have always been and continue to be outside the scope of its protection.
Knowing the rules of the road under this right – what it protects and what it doesn’t – may mean the difference between a legitimate website or adult business and an arrest. This chapter gives some of those rules of the road by focusing on what is protected and unprotected under the First Amendment, and the interplay between it and pornography.


“You’re a God-damned Racketeer!”
Profanity and Lewd Speech

Old Rule: Profanity and lewd speech used to be unprotected by the First Amendment.

Scenario: Many of us today take the First Amendment for granted. At one time, though, cursing at someone in public, even if you were provoked, was enough to get you arrested. For example, FIRSTNAME Chaplinsky was a Jehovah’s Witness who was distributing religious pamphlets in front of City Hall in 1942. When the City Marshal warned him to stop because it was disturbing the citizens, Chaplinsky called him a “God-damned racketeer,” a “damned Fascist,” and accused the whole government of Rochester of being Fascists or agents of Fascists. Chaplinsky was arrested and found guilty of violating the state law forbidding such speech. The Supreme Court upheld the ruling that profanity and lewdness were not protected by the First Amendment. In 1942, if a state wanted to enact a law prohibiting you from saying anything offensive, derisive, or annoying to anybody in the street, it could. Think about how many of the things that come out of your mouth could get you arrested back then!

If Mark and his website were transplanted back to New Hampshire in 1942, he would have undoubtedly been prosecuted and sent to jail for the content on his website and for trying to earn a living off of it. Imagine the reaction of the Supreme Court judge, who had just put away Chaplinsky for calling the City Marshal a “God-damned racketeer” upon viewing the naked women on Mark’s site! The idea of exploiting carnal fantasies, even if to put food on the table, was preposterous. Mark would have probably been sent to a mental institution, because if profanity was seen as horrible back then, then anything having to do with sex was worse.

Public Criticism
Current Rule: The First Amendment does not protect libel, the written or published defamation of character, especially to harm one’s reputation, but does guarantee the right of public criticism, even if against public officials.

Scenario: In subsequent years, after the Chaplinsky case, the Court started to relax a little bit more about what was protected speech and what wasn’t, particularly during the 1970’s. Profanity and lewd speech are protected now. Furthermore, you have the right to criticize someone in public – though these rulings came a bit too late for poor Chaplinsky.
In a society where you can’t look left or right without seeing or hearing something offensive to you or to someone else, it’s hard to fathom the situation that lead to the ruling of our next case, in which several people, as well as the New York Times, got into trouble for expressing their disagreement with the treatment of equal rights advocates. Until the Supreme Court announced otherwise in 1964, it used to be that if you criticized a public official, you had better guarantee that everything you said was true.

The 1960’s was a period of dramatic social unrest caused by the struggle for racial equality. In February of 1960, Dr. Martin Luther King, Jr. was arrested on “trumped-up” charges involving perjury in connection with his state income tax return. This prompted the New York Times to run an editorial praising King’s efforts in the South to resist racism. In its editorial, the Times warned Congress to “heed their rising voices, for they will be heard.” Around the same time, the “Committee to Defend Martin Luther King” was formed. It ran a full-page ad in the New York Times, titled “Heed Their Rising Voices,” picking up the editorial phrase used by the newspaper. The ad also listed the members of the Committee and included statements about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement. Despite the fact that the ad didn’t mention specific names, L.B. Sullivan sued the Times, claiming that the statements referred to him because he was the supervisor of the Montgomery police department.

The Times and four black ministers who were part of the Committee were found guilty of libel. The Alabama Supreme Court defined libel as published words that “tend to injure a person libeled by them in his reputation, profession, trade, or business, or charge him with an indictable offense, or tend to bring the individual into public contempt.” Even without proof of injury, you could be found guilty of libel because the injury was implied.

Setting new precedent, the U.S. Supreme court overturned the lower courts’ decisions, holding that this was not a case of libel. Rather, it was public criticism, which the First Amendment protects. The Court reaffirmed its commitment to the idea that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” It defended its position by stating that, under the old common law rule requiring people to prove the truth of everything they say, “would be critics” wouldn’t want to voice their opinion even if it was true because they might feel it would be both too difficult and too expensive to prove it in court. The consequence of the old rule, the Court stated, would be “an unhealthy timidity” in which people would avoid saying anything potentially controversial.

It’s important to understand, however, the difference between libel, or slander, and the freedom to criticize, express dissent, and so on. The Court defended the right to criticize publicly as protected by the First Amendment. Libel, on the other hand, is when you publish a personal attack on someone: this is not protected under the First Amendment. In fact, you could be punished for doing so.

Current Rule: Obscenity is not protected by the First Amendment.

Scenario: Despite its more liberal approach to interpreting the First Amendment with regard to the spoken word after the Chaplinsky case, the Court still put its foot down about certain materials, namely obscenity.
FIRSTNAME Roth had a publishing business in New York selling books, photographs, and magazines. As part of his business, he mailed out advertisements and books that the Court did not describe, but did deem obscene. He was convicted and heavily fined for violation of a statute that prohibits mailing obscene materials. The Court upheld his conviction and declared a new rule that stands today: Anything considered obscene will not be protected by the First Amendment. The Court defined obscenity as material that deals with sex in a manner appealing to the prurient interest. Not wanting to seem prudish, the Court pointed out the difference between sex and obscenity. While sex was natural and integral to society, obscenity didn’t make any contribution to the exchange of ideas and growth of society.

“I Know It When I See It!”:
The Miller Test and Guidelines For Judging Obscenity

Issue: What is obscenity and what guidelines does the Court offer for determining if something is obscene?

Brief Summary: Since we now know that obscenity is not protected under the First Amendment, we need to figure out what obscene really means. Pinning this down is tricky because there is no national standard other than a set of guidelines called the Miller Test. In order to determine if something is obscene, a court would examine the material under both the Miller Test and the applicable state definition of obscenity. Only “hard-core” materials can be considered obscene.

The Miller test was less stringent than any other attempt by the Court to hone in on obscenity because it let many works that had any remotely identifiable social value to slip through the cracks. For example, a film like Caligula (1980), quite possibly the highest budgeted porn movie of all time, about a schizophrenic Roman Emperor, was not found to be obscene despite its depictions of rape, incest, bestiality, and orgies. The thread of a political theme found in the storyline saved it from the obscenity vault: courts agreed that the movie did have at least some political value.

The Miller test applies not only to books, movies, and magazines, but also to material found online. Under the Miller test, would Mark’s website be found obscene? The answer depends in part on the applicable state law because the Miller test takes into consideration a state’s definition of obscenity. For example, if someone in Oregon found Mark’s website obscene and brought a suit against him, Oregon obscenity laws would be considered, even though the content on Mark’s site is accessible by anyone anywhere. If, however, Mark could prove that his site has serious literary, artistic, political, or scientific value, the criminal charges against him might be dismissed. He may want to consider displaying or linking to content that has something other than pure sexual value, such as information about health care issues in the adult entertainment industry, safe sex information, discussion of fetishes, or political links to other websites. This wouldn’t turn his pornographic site into something with serious literary, artistic, political, or scientific value, but it may make his site less of a target.


National Definition of Obscenity -- There isn't one actually but here is a close second!

Rule: In order for material to be obscene, three elements must be met beyond a reasonable doubt:
(1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Scenario: Until a landmark case called Miller v. California came along, the Court didn’t have official criteria for obscenity. “I know it when I see it!” one judge vaguely offered. During the early 1970’s, pornography became increasingly prevalent, and it therefore became clear that there would have to be some guidelines as to how to determine obscenity. An adult entrepreneur named FIRSTNAME Miller spurred the Court to set up new guidelines, and his case set up the framework for modern day obscenity law.

Miller conducted a mass mailing campaign to advertise illustrated “adult” books. One day, he mailed five unsolicited advertising brochures to a restaurant in Newport Beach, California. The manager of the restaurant and his mother complained to the police, and Miller was convicted of violating a California statute.

The Court defined the standards that must be used to identify obscene material were:

(1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
(3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
It’s interesting to note that the first two prongs of the Miller test are linked to the geography of the prosecution, referring to “contemporary community standards” and to “applicable state law.” The third prong, however, is not judged by community standards. It acts as a counterbalance to the inclusiveness of the first two prongs by allowing a uniform limitation on the definition of obscenity based on whether or not the material has societal value. Under these standards, Miller was declared not guilty, and the decision of the lower court was vacated.

Hard-core Pornography

Rule: “Hard-core” pornography is obscene, and therefore unprotected by the First Amendment.
Scenario: In addition to setting forth the current obscenity guidelines, the Miller court also took a concrete stance that “hard-core pornography” is obscene. But what is it? The Court shies away from giving a straightforward definition of “hard-core,” but later cases offer guidance here. In the case Paris Adult Theatre I v. Slaton, the owner of an adult movie theatre in Georgia showed two films entitled “Magic Mirror” and “It All Comes Out in the End.” The Court held that these two films, which depicted scenes of simulated fellatio, cunnilingus, and group sex intercourse, were “hard-core” and therefore not protected by the First Amendment.

Recognizing National Diversity:
Examining the Contemporary Community Standard

Issue: What is a Contemporary Community Standard, and why is it important?

Brief Summary: When analyzing an allegedly obscene work, a court takes into consideration the community standard, each state’s definition of obscenity, within the context of the Miller test. Since communities throughout the nation have differing standards of what constitutes obscenity, it wouldn’t be fair to impose a national standard in communities that will vary in conservativeness. The Court allows States to define obscenity for themselves as long as they describe what constitutes “patently offensive ‘hard-core’ sexual conduct.” Community standards can vary not only from city to city or state to state, but from neighborhood to neighborhood too. This means that what is obscene or indecent in a rural town in Nebraska could be quite acceptable in more liberal areas like San Francisco. If a publisher were to choose to send potentially obscene material into a community, he would have to research and abide by that community’s standards. If he decides to send the material into every single community in the nation, he would have to tailor the material to each community’s standard. The Court may define the relevant community or allow the jury to decide for itself regarding the extent and nature of the community, but, ultimately, the community standard is tied to where the offense took place and where the prosecution occurs.


State Standards of Obscenity

Rule: As long as it satisfies the constitutional standard for obscenity set out in the Miller test, the community or state standard ultimately defines what is obscene in that community.

Scenario: FIRSTNAME Kaplan owned an adult bookstore called Peek-A-Boo Bookstore in Los Angeles, California. In response to complaints by citizens, an undercover police officer went into Kaplan’s store to investigate. Upon Kaplan’s recommendation, the police officer bought a plain-cover, un-illustrated book called Suite 69, which described explicitly sexual material. Kaplan was convicted of violating a California obscenity statute. California’s definition of obscene was:

‘Obscene’ means that to the average person, applying
contemporary standards, the predominant appeal of the matter,
taken as a whole, is to prurient interest, i.e. a shameful or morbid
interest in nudity, sex, or excretion, which goes substantially
beyond customary limits of candor in description or representation
of such matters and is matter which is utterly without redeeming
social importance.

At trial, the officer testified that in his opinion, Suite 69, taken as a whole, predominantly appealed to the prurient interest of the average person in California, and that the book went “substantially beyond the customary limits of candor” in California. Part of Kaplan’s appeal was based on the claim that there was no “expert” state testimony offered that the book was obscene under “national standards,” not only California’s standards. The Supreme Court held that the contemporary community standards of California, as opposed to “national standards,” were enough to establish that Suite 69 was obscene. The Court vacated and remanded the conviction, sending the case back to the state appellate court only so it could determine whether California’s obscenity statute was in accord with the Miller test, which had not been enacted at the time Kaplan was convicted.

A Man’s Home is His Castle:
The right to view obscene materials at home

Issue: Private versus public use of obscene material.

Brief Summary: There is a major difference between possessing obscene materials at home and displaying or distributing them in public. This is because there is a fine line between enjoying your liberty to do and see whatever you want, and exercising that right by imposing on another’s right to liberty. Obscene materials are contested usually because their use and distribution affects others, not just the viewer or purveyor.
The problem is twofold. First, people may feel violated because they don’t want to be exposed to obscenity, and they are. Second, there is a concern over the negative influence such material will have on children who are exposed to it. Thus, one’s liberty imposes on another’s. For example, Miller mailed out offensive advertisements to a random restaurant. The owner and his mother didn’t want to see such material, yet they were exposed to it. While it’s true that the materials weren’t considered obscene by the Court, many legally obscene materials are imposed on non-consenting people, whether intentionally or inadvertently. However, when you keep the hard-core porn at home and view it within the privacy of your own home, you don’t affect anyone else.


Private Possession of Obscenity
Rule 1: The First Amendment protects the right to possess obscene materials in one’s home.
Scenario 1: It’s nobody’s business what you do at home, including what kinds of movies you watch or websites you visit. The Constitution protects the right to receive information and ideas. To take away this freedom would infringe on the “life, liberty, and pursuit of happiness” that the Declaration of Independence calls our “unalienable rights.” Despite this, FIRSTNAME Stanley had to go all the way to Court to establish his legal right to keep obscene films at home.
Police entered Stanley’s home one day under a search warrant to try to find evidence of gambling activity. Instead, they found three reels of film in his bedroom, which were projected and declared obscene. Stanley was arrested and convicted of violating a Georgia obscenity statute that prohibited a person from possessing obscene matter. The Supreme Court reversed the conviction, ruling that the First Amendment prohibits making mere private possession of obscene material a crime.

Obscenity and Adult Establishments
Rule 2: Obscene films are not protected from prosecution simply because their exhibition is limited to consenting adults.
Scenario 2: Viewing obscene material in the privacy of your own home is not the same thing as viewing or showing obscene material in the “privacy” of an a commercial adult theatre, even if the exterior of the building itself is harmless. There is no constitutionally protected right to show legally obscene material, even in the privacy of a commercial establishment. The owner of Paris Adult Theatre I in Georgia showed films that depicted scenes of simulated fellatio, cunnilingus, and group sex intercourse. He made sure the entrances of the theatre were inoffensive to passers-by and displayed no pictures. Furthermore, on the door itself was a sign saying: “Adult Theatre – You must be 21 and able to prove it. If viewing the nude body offends you, Please Do Not Enter.”
The owner was prosecuted under Georgia civil law. While the Court decided to remand the case so that the films could be reconsidered under the Miller test, it established a new rule: A film can still be obscene even if it is shown within an establishment to consenting adults. It also announced that states don’t even have to control commercialized obscenity if they don’t want to. But if they do have interests in regulating it, the state has a right to protect its interests as long as communication of ideas protected by the First Amendment, the privacy of one’s home, or any other areas of constitutionally protected privacy are not involved. “The fantasies of a drug addict are his own and beyond the reach of government, but government regulation of drug sales is not prohibited by the Constitution.”

The Business of Exploiting Erotica

Issue: The effect of exploiting erotica on whether a material is considered obscene.

Brief Summary: If the entrepreneur’s only emphasis of the allegedly obscene work is its sexually provocative aspect, it’s easier for courts to assume that the material is without redeeming social importance. And if it doesn’t have any redeeming social importance, than courts can assume that the material is obscene.
Since Mark makes a business out of selling the adult content on his website, he is especially susceptible to being prosecuted. Courts generally are turned off by the pandering, or selling of adult material, especially if it seems like the whole focus of the material is the sexual nature of it. As one case demonstrates, if courts want to find your material obscene, they will. In other words, how you distribute, advertise, or sell the adult material will influence the court. Since Mark goes through the effort of advertising his website business through flyers, courts may have more of a reason to want to go after his site.


Rule 1: The type of advertising tactics used to market the material can make a work appear more obscene than it really is.
Scenario 1: FIRSTNAME Ginzburg and three corporations under his ownership mailed allegedly obscene literature including an expensive hard-cover magazine about sex called EROS containing articles and photo essays on love and sex, a bi-weekly sexual newsletter called Liason dedicated to "keeping sex an art and preventing it from becoming a science," and a short book called The Housewife's Handbook on Selective Promiscuity. They were convicted of violating a federal statute prohibiting the mailing of obscene materials. The Court didn’t find the content of the material obscene, per se. Ginzburg tried to obtain mailing privileges from cities with names that sounded sexual in order to add to the materials’ salacious nature. For example, he tried to get early mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. When they told him they couldn’t handle the bulk of mail he anticipated, he then tried Middlesex, New Jersey. The Court was so turned off by the manner in which Ginzburg distributed and sold the material that they ruled that the material was obscene just because he produced, sold, and publicized the items by deliberately representing the publications as erotically arousing, and commercially exploiting them as erotica solely for the sake of “prurient” appeal to his customers.

Divide and Conquer:
Zoning Laws

Issue: The purpose and constitutionality of zoning laws.

Brief Summary: Zoning ordinances are laws used by municipalities to enhance the quality of life in their neighborhoods by regulating where, when, and how an establishment may conduct business. There are no national zoning ordinances. It is up to each state to regulate its own laws.
There are two types of adult use zoning laws designed to suppress the proliferation and concentration of adult establishments within a city. The first type keeps adult establishments within a particular area of the city, creating a “porn district.” The advantage of this type of ordinance is that it points citizens who want porn directly to the area in town where they can get X-rated entertainment and lets people who don’t want to be exposed to it know which spots to avoid.
This method, however, isn’t as favored as the second type of zoning law, which dilutes the deleterious effects of the businesses by scattering them throughout town. This way, the effects on any one particular area are minimized. Typically, these laws ban adult businesses from residential areas and prohibit them from setting up shop right next to each other, though the exact distance required varies from city to city.
States, too, have a strong interest in regulating commerce in obscene material and its exhibition in public places, including in “adult” theatres. First, there is a concern about the possibility that exposure to pornography leads to crime, pedophilia, and promiscuity, as well as promotes violence and discrimination towards women. In the past, two national commissions were set up to study the detrimental effects of pornography, but they didn’t find concrete proof of such a link. Secondly, there is a fear that such businesses will downgrade the surrounding property value and affect nearby businesses. Thirdly, it is believed by some that adult establishments are magnets for “weirdos,” and there is a fear of attracting social dangers to a city.
Some states go as far as not only to ban or regulate strip clubs, but also to ban the sale of sex toys. Recently, the 11th Circuit Court upheld an Alabama obscenity law that makes selling sex toys a crime because it believed that such sexual devices and related orgasm-stimulating paraphernalia encouraged prurient interests in autonomous sex. The penalty for selling a sex toy in Alabama is a maximum $10,000 fine and up to a year of prison. Currently, the only states that ban the sale of sex toys are Alabama, Georgia, and Texas. This law spurred understandable protest, as one of the complainants stated in an interview: “They set out to eliminate strip clubs, but along the way they snuck in sex toys…Not only did they take away your entertainment, but when they were don’t they also took away your right to entertain yourself.” Despite medical experts who testified that some women are prescribed sex toys because of sexual dysfunctions that prevent them from having orgasms without the toys, the panel ruled that the law was to be upheld.
This law has obvious privacy implications. The Court acknowledged that states have the right to control the personal autonomy, or right to make personal choices, of individuals, as well as what they do in the privacy of their own homes. But discussion of the privacy issue will have to wait until the next chapter.


Rule: If a city can decrease negative secondary effects of adult businesses by enacting zoning laws, it may do so, so long as it doesn’t restrict the accessibility of the adult businesses.
Scenario: Dozens of adult establishment zoning laws have been challenged in courts on First Amendment grounds, and almost all have been upheld. For example, in 1981, the city of Renton, Washington, enacted a zoning law requiring adult motion picture theatres to stay at least 1,000 feet from any residential zone, residence, church, park, or school. Playtime Theatres, Inc. and Sea-First Properties, Inc. were owners of two adult movie theatres in downtown Renton that showed feature-length adult films. They sued the city for infringing on their First and Fourteenth Amendment rights. The Supreme Court held that since the Renton ordinance was aimed not at the content of the films, but at the secondary effects of such theatres on the surrounding community, such as violence and protecting the city’s retail trade, the city’s zoning interests were “unrelated to the suppression of free expression.” Since the ordinance was designed to serve a substantial government interest and reasonable alternative avenues of communication remained available, the Court held that the ordinance did not violate the First and Fourteenth Amendments.

Prostitution and Other Illegal Activity
Rule: It is within the bounds of the First Amendment to close or prosecute an adult establishment for violating laws unrelated to the suppression of free expression, such as prostitution.
Scenario: "Village Books and News Store" in Kenmore, New York, was an adult bookstore that sold sexually explicit books and magazines with booths where you could watch sexually explicit movies. The materials in the store were not obscene. During September and October of 1982, the police department conducted an undercover investigation of the bookstore after receiving reports of illicit sexual activities going on in the store. The police observed instances of masturbation, fondling, and fellatio by patrons on the premises of the store, which the owner of the store was aware of. The officer also noticed the solicitation of prostitution and was himself solicited at least four times by men who offered to perform sexual acts in exchange for money. The owner was also “fully aware” of the sexual activity going on inside his store. The Supreme Court ultimately decided that, under a New York law, the bookstore could be closed for being a “place of prostitution, lewdness, and assignation as public health nuisances.” The First Amendment did not prevent the closure of the store because the sale of books in an establishment used for prostitution did not grant First Amendment protection from a valid statute designed to criminalize illegal uses of premises.

Pasties and G-Strings:
Restrictions on nude dancing

Issue: What kinds of restrictions on nude dancing have been held constitutional or unconstitutional, and why?

Brief Summary: As with zoning ordinances, it is important to understand that there are no national laws concerning what may or may not go on inside an adult establishment as long as it is not obscene. Since nude dancing is a form of expression, it is protected by the First Amendment. And since there is nothing states can do to stop nude dancing, they usually enact laws separate from zoning laws that help to regulate at least what goes on in establishments offering live nude dancing. These laws dictate codes of behavior for dancers as well as patrons at adult establishments. When the courts step in, it is usually to determine whether such laws are constitutional or not. Most of the time, the Court has upheld state laws enforcing clothing requirements, touching limitations, etc. The following rules of the road pertain to individual states, and are not indicative of national law.


Rule: It is not unconstitutional to require nude dancers to wear pasties and G-strings.
Scenario: Indiana enacted a public indecency law requiring nude dancers to wear pasties and G-strings. The owners of the Kitty Kat Lounge, Inc., and Glen Theatre, Inc., operate businesses with nude dancing and sued the city on the grounds that the law violated their First and Fourteenth Amendment rights. One of the dancers at Kitty Kat also sued, claiming that she believed she would make more money if she were allowed to dance completely nude. The Supreme Court held that the Indiana statutory requirement that the dancers in the establishments must wear pasties and a G-string does not violate the First Amendment. It stated that requiring the dancers to be at least scantily clad didn’t lessen the erotic message of the dance. Rather, it simply makes it less graphic.

Rule: Laws restricting nude dancing must be clearly defined in order to give people reasonable opportunity to know what is prohibited and act accordingly.
Scenario: On July 6, 2001, police officers in plainclothes went to a newly-opened strip bar in Virginia called Gold City Showgirls. They paid the cover charge and saw ten women strip down to pasties and G-strings for tips. One of the erotic dancers, Sharon Boyd, was charged with public nudity, and the owners of the strip bar, Dianna Lee White and Donna Jean, were charged with aiding and abetting Boyd's violation. All three were convicted of violating the Henrico County public nudity ordinance. Boyd was sentenced to a fine of $125, plus costs. Donna White and Dianna Jean were sentenced to ten days in jail, with ten days suspended, and fined $500, with $250 suspended, and costs of $61.
The ordinance made it a misdemeanor to:
…expose the human male of female genitals, pubic area or buttocks
or to cover any of them with less than a fully opaque covering, or the
showing of the female breast or any portion thereof below the top of
the nipple. Or covering of the breast of any portion thereof below the
top of the nipple with less than a fully opaque covering.
The exception to this rule, however, was for theatrical and dramatic performances. Specifically, it didn’t apply to the exhibition, presentation, showing, or performance of any play, ballet or drama. The dancer and owners appealed, arguing that the ordinance violated their First Amendment right to erotic dancing, and that it didn’t apply to them because their striptease fell within the theatrical and dramatic performances exception. They claimed that because their dancing fit within the exception, the ordinance was too vague and should be void. The Supreme Court relied on the well-established principle that a statute is unconstitutional if its prohibitions are not clearly defined and found that the ordinance did not clearly define the proscribed conduct. It determined this because the record indicated that neither the city’s attorney nor the police were able to define clearly what would constitute a violation of the ordinance. During cross-examination, one officer stated that determination of whether a particular item of clothing violated the ordinance would have to be made on a “case-by-case basis,” while another officer testified that liability would depend on “the type of G-string a person was wearing.” Furthermore, only several of the dancers were cited for violating the ordinance, even though the officer told White that they were all in violation. This selective enforcement was another sign that the law was too vague and lent itself to subjective application. The Court thus held that the ordinance didn’t provide fair warning about what would constitute a violation and reversed the decision of the trial court.

Taming the Beast
Freedom of Speech on the Internet

Issue: How does the government regulate obscenity in terms of Internet activity? What are the constitutional boundaries of such regulations?

Brief Summary: New forms of technology put pressure on constitutional doctrines to adapt to evolving forms of communication. One such technology is the Internet. The Internet connects more than 45,000 separate networks and 25 to 30 million users in more than 100 countries, and is growing at the rate of 750,000 new users per month. Until the boom of the Internet during the early 90’s, there were distinct media; the Internet, however, collapses such distinctions, blurring together lines of print media, broadcast media, and common carriers into one super-source of information. The Internet has become a remarkably convenient and profitable medium through which to view and download materials, as well as conduct business, which our friend Mark is certainly doing. And, as new as the Internet is, the Supreme Court has stated that it deserves as much First Amendment protection as any other information source.
Displaying obscene content on your adult website or home page is as punishable a crime in the United States as distributing obscene films or magazines is. This section will focus on the law regarding obscenity and the Internet, as well as Congress’ attempts to restrict freedom of speech on the Internet, which have been met with successful resistance.
The limitless nature of the Internet poses new challenges to legislation, such as figuring out the appropriate mix of state regulation and First Amendment freedom that should apply to the Internet. One such challenge was to the enactment of the Communications Decency Act of 1996, which was Congress’ first attempt to censor speech online. The Act prohibits U.S. citizens from transmitting over any form of electronic network "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age." The Supreme Court promptly struck down the CDA the following year in 1997 for being unconstitutional. After the CDA was overruled, Congress passed another law in 1998 called the Child Online Protection Act, or COPA. Known as the “sequel” to CDA, COPA prohibits websites from publishing any information that qualifies as harmful to minors.
Just as in other media, contemporary community standards apply over the Internet. This means that people like Mark have to be prepared to defend their websites in any state, depending on where the prosecutor is located. Any website can become a potential target for criminal prosecution: websites and resources make reporting allegedly obscene websites to the United States Attorney General as easy as filling out a simple form and clicking “send” when finished. Because of such ease, it is absolutely vital for a site proprietor to understand the rules of the road in this area.


Record Keeping Requirements
Rule: Anyone whose adult website displays sexually explicit conduct must create and maintain individually identifiable records pertaining to each performer or model portrayed in such a visual depiction.
Explanation: Congress enacted federal record keeping requirements in order to regulate and enforce the legitimate use of models or performers in adult media involved in interstate or foreign commerce. You must record the performer’s name (including maiden names, alias, nicknames, and stage or professional names), date of birth and have the performer provide you with proper identification as prescribed by regulations. This information must be kept at the place of business. There are some websites that offer template legal forms regarding such record keeping, but they only offer guidance, and should not be taken as a guarantee of immunity from legal action.
Since Mark didn’t collect this information from his models, he could be fined and sent to prison for up to 2 years. The statute enforces a heavier punishment for those who have already been warned or convicted. For example, if Mark had already been convicted of violating the statute, in addition to being fined, he would be subject to up to 5 years in prison, and not less than 2 years.

Congress’ Attempts at Controlling the Internet Through Legislative Acts
Old Rule: You could be fined up to $250,000 and sentenced to two years in prison for knowingly transmitting obscene or indecent messages to any recipient under 18 or knowingly sending or displaying patently offensive communications in a manner that is available to a person under 18. (Communications Decency Act)
The Supreme Court Strikes Down the Communications Decency Act: In 1997, the Supreme Court overruled the Act because it violated the First Amendment. Supporters of the CDA argued that the Act was comparable to zoning laws, and, since the Court in Renton upheld zoning laws as being constitutional, the CDA was too. This argument didn’t fly with the Court because, while the zoning ordinances in Renton dealt with the secondary effects of “offensive speech,” the CDA was rather a direct “content-based restriction of speech,” and, as such, was unconstitutional.
The Supreme Court’s main problem with the CDA was that it was too broad and vague. Congress didn’t tailor the CDA enough to meet its goal of protecting minors. For example, the CDA didn’t even define the terms “indecent” and “patently offensive,” which are an important part of the statute. Also, because only obscenity is regulable, the regulations would permit suppression of speech available to adults “to only what is fit for children." The Court stated that material reaching one’s mailbox shouldn’t be limited to that which is suitable for a sandbox.
Furthermore, the Court was worried that the CDA extended to non-pornographic material with serious educational or informational value. For example, the CDA would essentially criminalize discussions about safe sex and artistic images with nude subjects. Under the CDA, a parent sending her 17-year-old child in college an email about having safe sex could be a criminal!
Lastly, the Court found that the credit card or age verification system that would let some people off the hook wasn’t fair because it would put a burden on noncommercial sites that don’t have the money to maintain such features.

Old Rule: It is illegal to make material “harmful to minors” available to minors on the World Wide Web for commercial purposes. (Child Online Protection Act)
Scenario: Undeterred by the Reno ruling, Congress remained committed to its goal of restricting minors’ access to pornography on the Internet and enacted another freedom of speech muzzle. In 1998, Congress passed and President Clinton signed into law the Child Online Protection Act, or COPA. COPA prohibited websites from publishing any information that qualifies as harmful to minors and authorized up to $50,000 in fines and 6 months in prison for violators.
It was more limited than the CDA for three main reasons. First, it applied only to material in websites, not to e-mail messages. Second, COPA only covers material made “for commercial purposes.” Third, while the CDA used broad and undefined terminology to restrict communications, COPA narrowed the scope of restriction to that which is “harmful to minors.” COPA defined “harmful to minors” as meaning:
…any communication, picture, image, graphic image file,
article, recording, writing, or other matter of any kind that
is obscene or that—
(A) the average person, applying contemporary community
standards, would find, taking the material as a whole and with
respect to minors, is designed to appeal to, or is designed to
pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently
offensive with respect to minors, an actual or simulated
sexual act or sexual contact, an actual or simulated normal
or perverted sexual act, or a lewd exhibition of the genitals
or post-pubescent female breast; and
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Like the CDA, COPA contained affirmative defenses to those subject to prosecution under the statute:

If a person, “in good faith, has restricted access by minors to
material that is harmful to minors –
(A) by requiring the use of a credit car, debit account, adult
access code, or adult personal identification number;
(B) by accepting a digital certificate that verifies age; or
(C) by any other reasonable measures that are feasible under
available technology.
COPA Meets Resistance in Court: COPA has never actually taken effect, and it probably never will. Its implementation has been suspended due to the opposition it has faced in court. Currently, because of recent rulings, it appears as if COPA will be struck down for good, after a relatively short-lived battle in court. However, it’s still important to understand the brief procedural history of this Act in order to fully grasp why it will probably go down like its predecessor, the CDA.
Despite the fact that Congress believed COPA was narrow enough to withstand constitutional challenges, in 2000 the Third Circuit Court of Appeals affirmed an earlier Philadelphia District Court decision that COPA was unconstitutional for using “contemporary community standards” to identify material “harmful to minors.” Since the Internet transcends geographical borders, Web publishers would have no way of limiting access to their sites based on where Internet browsers lived.
In 2002, the Supreme Court reversed the Third Circuit, holding that COPA’s use of contemporary community standards to define what was harmful to minors in Internet obscenity cases did not offend the First Amendment. However, this judgment was not unanimous. In a dissenting opinion, three Supreme Court Justices voiced their concern that COPA’s community standards would enforce the most conservative community standard upon the entire nation.
In a very recent ruling, the Supreme Court decided that the Third Circuit was
correct to affirm the District Court’s ruling that enforcement of COPA should be enjoined, stating that “the statute likely violates the First Amendment.” The Supreme Court agreed that there are less restrictive alternatives to COPA, such as blocking and filtering software, which can easily be turned on and off. This would be much more convenient than having your entire Internet access censored, particularly if you don’t even have children at home. Furthermore, filters may be more effective than COPA because a filter can prevent minors from seeing all pornography, whereas COPA only restricts pornography posted to the Web from America.

- Contemporary Community Standards On the Internet -
The Internet is a unique forum for entrepreneurs. While other forms of communication, such as magazines or videos, allow you to distribute and sell the materials in a particular location, thereby choosing to do business there and to be prosecuted in the corresponding jurisdiction, the content of an adult website can be viewed by anyone anywhere with a computer and Internet access. This means that, regardless of where you, your pictures, or server are located, you risk prosecution if a prosecutor anywhere views your adult website or home page and believes that the content is obscene.

Rule: An online adult entrepreneur or website owner risks prosecution in any jurisdiction, depending on where the content is viewed.
Scenario: A California couple operated a Bulletin Board System (BBS) from their home in Milpitas, California. The BBS provided, among other things, access to GIF scans for a membership fee. The GIF files contained images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination. A U.S. Postal Inspector purchased a membership from Memphis, Tennessee and was given an access code. The Inspector brought six counts against the couple under 18 U.S.C. § 1465 for using a means of interstate commerce (a combined computer and telephone system) for the purpose of transporting obscene images. A jury determined that the material was obscene by the “contemporary community standards” of Memphis, and the couple was convicted on all six counts, and a few other counts as well, including mailing a sexually explicit video to Tennessee. As a result, their computer system was "forfeited" , the husband was sentenced to 37 months in prison, and the wife was sentenced to 30 months. The Appeals Court upheld their convictions, and the Supreme Court refused to hear the case.
Mark, our fictitious entrepreneur, runs his business out of his home in Reseda, California, and his website server is in New York. However, online entrepreneurs have a geographically wider audience than other businesses and, as such, are subject to being prosecuted anywhere. So Mark could be hauled into court in Alabama because the content on his website offended the obscenity standard in that state – which clearly would be a huge inconvenience for him.

- Misleading Domain Names, a.k.a. “Typo-squatting”-
In 2003, President Bush signed into law the PROTECT Act (Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today Act), which prohibits people from knowingly using innocent-sounding domain names on websites to link to sexually explicit material. This Act is also commonly referred to as the “Amber Alert Bill,” or the “Truth in Domain Names Act.” An offender can be fined up to $250,000 and receive a prison sentence of up to two years for deceptively drawing people to sexually explicit material. However, if the offender was intentionally attempting to attract minors to the material, the prison sentence is four years, in addition to the $250,000 fine.
The statute specifically limits the term “harmful to minors” to communication that consists of “nudity, sex, or excretion,” which, “taken as a whole and with reference to its context:
(1) predominantly appeals to a prurient interest of minors;
(2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(3) lacks serious literary, artistic, political, or scientific value for minors.”


The Case of the Pied Piper of Porno
Rule: It is a federal offense to use a misleading domain name on the Internet with the intent to deceive a minor into viewing material that is harmful to minors, regardless of whether the material meets the legal definition of obscenity.
Scenario: John Zuccarini registered at least 3,000 misleading domain names,
including multiple misspellings of legitimate domain names, in order to attract children to porn sites. Among them were and, which are misspellings of the websites for cartoon shows Bob The Builder and Teletubbies, and instead of The viewers, more often than not children, were directed to adult-oriented websites with hard-core pornography such as "” He earned between $800,000 and $1,000,000 per year from these web sites for bringing viewers to their sites.
The FTC filed a suit against him in 2001, seeking monetary judgment against him and a permanent injunction. The judge found Zuccarini guilty of violating an FTC Act. He was fined $1,897,166 and permanently enjoined from launching websites or web pages that belonged to unrelated third parties and misleading Internet users. He was also barred him from participating in advertising affiliate programs on the Internet. Despite the injunction ordered against him, Zuccarini kept tricking Internet users, and in September 2003 was arrested and sentenced to 2.5 years in prison. This was the first prosecution under the 2003 Truth in Domain Names Act.

Child Pornography and “Dirty Pixels,”

Issue: What is child pornography, and what are the relevant laws?

Brief Summary: As stated earlier, the First Amendment is not an absolute protection for free speech. It doesn’t protect two categories of speech: one is obscenity, and the other is child pornography. It is a crime to create child pornography, to send it to others, even to keep it in your own home. Child pornography has been defined under federal statute as a visual depiction of a minor, a child younger than 18, engaged in sexually explicit conduct. It became apparent to Congress in the early 1980’s that they needed to take legislative action to control child pornography because, by the mid 1970’s, the child pornography industry had become a “highly organized, multimillion dollar” industry that operated on a “nationwide scale.”
There has always been a fierce social, moral, and legal interest in protecting children from exposure to pornography. For example, although both are failed attempts, this was clearly the intent of both the CDA and COPA. If the intent of such laws, and even some zoning laws, was to protect children from pornography, it’s not difficult to imagine the reaction that courts and our government have to the idea of children in pornography. So it’s no surprise that Congress has passed Acts that, in essence, make it illegal to have anything to do with child pornography.
New technological advances have, of course, brought new and unexpected First Amendment challenges regarding child pornography. One example is that of “virtual” porn. Pornographers use incredibly sophisticated digital technology to create computer generated images, often "morphed" from actual photographs, to depict children engaged in sexual conduct. Usually, these images are indistinguishable from actual photographs of real children. Congress was swift to keep legislation in line with technology and amended the law to make not only the sexual exploitation of children illegal, but also the exploitation of anyone who “appears to be” a child.
Congress’s attempts at controlling freedom of speech have usually not fared well in courts, as shown by the Supreme Court’s reaction to both the CDA and COPA. However, with regard to child pornography, the government and the courts agree that there should be no tolerance of it, whether or not banning child pornography is an unjustifiable muzzle on freedom of speech.
If Mark’s website comes under the strict scrutiny of someone who goes through the trouble of researching the ages of his models, Mark will most likely be charged with violating child pornography laws. He may have a defense if he can prove that he didn’t know his models were minors; however, this defense might fail because Mark didn’t even require his models to provide proper identification verifying their ages.


Child Pornography
Rule: The First Amendment does not protect the use of children as subjects in pornography nor the distribution and possession of such pornography, even if the material does not meet the applicable definition of obscene.
Scenario: By 1981, Congress and 48 states had enacted statues designed to eliminate the child pornography industry by prohibiting the possession and distribution of child pornography. Now, almost every state has its own child pornography laws. In 1977, Congress passed the Protection of Children Against Sexual Exploitation Act, which prohibited “knowingly transporting, shipping, receiving, distributing, or reproducing child pornography.” However, since these state and federal laws prohibited material that was not legally obscene, they presented First Amendment problems because, according to Miller, a material had to be obscene to be banned. A case involving a bookstore owner changed this rule.
In 1978, Paul Ferber owned a bookstore in Manhattan, New York, that specialized in sexually oriented material. An undercover police officer came in, and Feber sold him two films depicting young boys masturbating. Although the jury didn’t find the films obscene, Ferber was still convicted of violating a New York criminal statute prohibiting anyone from knowingly promoting sexual performances by children under 16 by distributing material depicting such performances, even if the materials were produced out of state. The U.S. Supreme Court ultimately held that the New York statute was constitutional. It described child pornography as being a form of child abuse, and declared that the First Amendment did not protect child abuse. One authority quoted by the Court stated:
Because the child's actions are reduced to a recording,
the pornography may haunt him in future years, long after
the original misdeed took place. A child who has posed for
a camera must go through life knowing that the recording is
circulating within the mass distribution system for child
Because child pornography is not entitled to protection under the First Amendment, it may be regulated regardless of whether it would otherwise be considered obscene under the Miller test. The Miller test wasn’t meant to reflect the guidelines regarding the sexual exploitation of children. In other words, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person doesn’t shed light on the issue of whether a child has been physically or psychologically harmed in the production of the work. Also, it wouldn’t be constitutional to apply the community standards of the Miller test to child pornography. This would require “that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City." Using the Miller test for child pornography would equate a community’s toleration for sexual material to the legislative ability to protect children from sexual exploitation.
Rendering the Miller test inapplicable to child pornography means that the Courts give states the freedom to formulate their own child pornography laws. This also means that a film or book wouldn’t have to feature child pornography from cover to cover or from one scene to the next to be banned because the “taken as a whole” standard wouldn’t apply.

Nude Versus Partially-Nude
Rule: You can be prosecuted under child pornography laws even if the child portrayed is not nude.
Scenario: Knox ordered video tapes by mail of girls between the ages of ten and seventeen who wore bikini bathing suits, leotards, or underwear and, in the Court’s words, "were dancing or gyrating in a fashion not natural for their age." None of the girls in the videos was nude. The girls were being directed by someone off camera, and the photographer zoomed in on the children's pubic and genital area, displaying a close-up view for an extended period of time while the girls danced to music.
The government also seized catalogues from Knox’s apartment that described in detail the contents and intended effect of the films that could be purchased:
Just look at what we have in this incredible tape: about 14 girls between the ages of 11 and 17 showing so much panty and ass you'll get dizzy. There are panties showing under shorts and under dresses and skirts; there are boobs galore and T-back (thong) bathing suits on girls as young as 15 that are so revealing it's almost like seeing them naked (some say even better).
Knox was prosecuted under United States Child Pornography laws. Although Knox argued that "lascivious exhibition of the genitals or pubic area" of the federal child pornography statute meant that the girls had to be nude, the Court disagreed and held that there was no nudity requirement in the statute: "the statutory term ‘lascivious exhibition of the genitals or pubic area,’ as used in 18 U.S.C. § 2256(2)(E), does not contain any requirement that the child subject's genitals or pubic area be fully or partially exposed or discernible through his or her opaque clothing."
Private Possession of Child Pornography
Rule: Viewing or possessing child pornography is not protected by the First Amendment.
Scenario: The right to possess obscene material in one’s home, as established in Stanley v. Georgia, does not extend to child pornography. In Ohio, the police found four photographs in Clyde Osborne’s home depicting a nude fourteen-year old male posed in sexually explicit positions. He was arrested and convicted of violating a state statute that made it a crime to possess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity, except under certain circumstances. Osborne was sentenced to six months in prison and appealed his conviction. The Supreme Court held that the Ohio statute was constitutional because, unlike in Stanley, the state wasn’t trying to regulate Osborne’s mind. Instead, it only wanted to penalize those who possess and view the product to decrease the demand and
destroy the market for exploiting children. The Court reversed Stanley’s conviction for separate, independent grounds but ultimately held that Ohio had a right to prosecute those who viewed or possessed child pornography.

Scienter – Knowledge of Age
Rule: In order to convict a defendant for violating child pornography statute, the defendant must have knowledge (scienter) of the sexually explicit nature of the material and that the person(s) depicted in the material were under 18 years of age.
Scenario: Traci Lords was an underage porn queen of the mid-80’s who caused a media stir when people found out that she was underage. By the time Traci was 18, she had starred in one hundred and seven adult films. An undercover police sting targeted X-Citement Video, Inc., which was owned and operated by Rubin Gottesman. During the sting operation, a police officer posed as a pornography retailer and bought 49 videotapes from Gottesman all featuring Traci Lords while she was under the age of 18. Two months later, Gottesman shipped 8 of these tapes to the police officer in Hawaii. He was arrested and charged with violating the federal child pornography statute, along with one count of conspiracy to violate the statute. Since it was proven at trial that Gottesman knew of Traci’s underage performances, the Supreme Court reversed the Court of Appeals decision and convicted him.

“Virtual” Child Pornography
Old Rule: “Virtual” child pornography was outside the ambit of First Amendment protection.
Scenario: Child pornography takes place largely over the Internet, so most child pornography cases involve computer files of images. Defendants now routinely try to escape conviction by claiming that the computer image isn’t of a real child. Up until 1996, there was a loophole embedded in the definition of "child pornography" in federal law that allowed people to use enhanced computer technology to replicate virtual models of children to use in pornography. However, with the Child Pornography Prevention Act of 1996, or the “Dirty Pixels” law, Congress amended the definition of "child pornography" to include images or advertisements that suggest images that appear to depict minors engaging in sexually explicit conduct, whether or not the images were of actual minors or were just computer-generated images, “virtual children.” This meant that an adult website featuring a legal-age model in a school-girl uniform with a lollipop and a stuffed animal could potentially be prosecuted, if the model looked younger than 18. This Act faced many constitutional challenges for its too-vague phrases, “appears to be a minor,” and, “conveys the impression,” which ultimately brought the Act before the Supreme Court.

New Rule: Child pornography that is produced without using an actual minor is
protected by the First Amendment.
Scenario: Eventually, in 2002, the Supreme Court ruled that the “Dirty Pixels Act” was unconstitutional. An adult entertainment coalition including a trade association for the adult entertainment industry, the publisher of a book advocating the nudist lifestyle, a painter of nudes, and a photographer specializing in erotic images sued the United States Attorney General and the United States Department of Justice. They alleged that the Act was unconstitutional and infringed on their freedom of speech rights guaranteed by the First Amendment.
The Supreme Court struck down the Act for being substantially overbroad and unconstitutional for several reasons. First, virtual child pornography, unlike real child pornography, was “not intrinsically related to the sexual abuse of children.” Second, banning virtual child pornography might possibly ban works having significant literary or artistic value. Third, the Supreme Court declared that banning virtual child pornography based on the possibility that pedophiles might use such pornography to seduce children or that such pornography might encourage pedophiles to engage in illegal conduct was unjustified. Furthermore, the statute was too broad in that it would prohibit Hollywood movies that depicted sexual intercourse but were filmed without any child actors, if the jury believed the actors to be minors. The Act was also overbroad since it proscribed speech which was neither child pornography nor obscene, thus abridging the freedom to engage in a substantial amount of lawful speech. The Dirty Pixels Act unlawfully prohibited speech that recorded no crime and created no victims.