Internet pornography is governed by both California state law and by federal law too. Generally, the purposes of the internet pornography laws are similar to pre-existing pornography laws that govern such things as books, magazines, and pornographic videos. Many of the laws either fall under the category of obscenity laws or laws that were created to prevent the exploitation of children.
Obscene material, whether it is on the internet or in magazines is considered illegal and a person can be prosecuted for selling such material. There is no First Amendment right to obscene speech. According to current Supreme Court law on obscenity, material is considered obscene when “to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.” This confusing language is quite ambiguous and the Supreme Court often finds itself debating about the meaning of this standard. A conviction for obscenity crimes can result in both civil and criminal forfeiture.
The question of obscenity is one for the jury. Therefore, it is best to use an experienced and qualified criminal defense attorney who can develop a rapport with the jury. Often times in American history, overzealous prosecutors with political intentions have prosecuted obscenity cases. These cases are often controversial and high profile. It is important to use an attorney who is used to the spotlight and not a person who may not be able to handle the pressure that such cases bring to bear upon the defendant and the defense team as well.
Federal and state law prohibit images that depict a minor either engaging in or simulating sexual conduct. This prohibition extends to anyone who mails, transports, distributes, reproduces, advertises, promotes, solicits, or presents such material. The state and federal definitions do vary, so it is important to get a qualified criminal lawyer who knows the differences. Furthermore, the penalties and fines between California law and federal law vary too.
The California Penal Code states that, every person who knowingly possesses or controls any matter, representation of information, data, or image, including, but not limited to, any film, filmstrip, photograph, negative, slide, photocopy, videotape, video laser disc, computer hardware, computer software, computer floppy disc, data storage media, CD-ROM, or computer-generated equipment or any other computer-generated image that contains or incorporates in any manner, any film or filmstrip, the production of which involves the use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct, is guilty of a public offense and shall be punished by imprisonment in the county jail for up to one year, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both the fine and imprisonment.”
Federal law requires anyone who produces any book, magazine, periodical, film, videotape, digital image, digitally- or computer manipulated image of an actual human being, picture, or other matter which contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct that will be interstate or foreign commerce, shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction. This requires that a person producing such material to get proper identification from the performer as well as to ascertain any information that may be necessary to determine the performer’s age. A producer is considered someone who creates the original material or someone who puts the material in a catalogue or on a website as a thumb nail. The definition of producer is broad and therefore, almost anyone who puts images of persons engaged in actual sexually explicit conduct on the internet will be required to maintain such detailed records. For purposes of this law, “actual sexually explicit conduct” means actual but not simulated conduct. This differs from the standard that is applied to performers under the age of 18.
Internet pornography law is very much influenced if not the same as laws that govern pornography in the US and throughout the states. It is important to find legal counsel who has an understanding of the often complex issues involved in pornography cases.