August 11, 2016

VIDEO: Is Distributing Pornography Illegal? Obscenity Law Explained

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Dani Pinter from the National Center on Sexual Exploitation’s Law Center explains obscenity law and it’s implications for Internet pornography today.

All speech is presumptively protected under the First Amendment. However, “obscene pornography” is not.

There are large categories of speech that are unprotected, for example child pornography, blackmail, or defamation. Obscenity falls into this category of criminal speech.

That is why federal law is acting within the bounds of the First Amendment in its law that prohibits the distribution of obscene adult pornography on the Internet, on cable/satellite TV, on hotel/motel TV, in retail shops, through the mail, and by common carrier.

So what is obscenity?

Obscenity is determined in a court of law by a jury on a case by case basis.

In Miller v. California, the Supreme Court established a three-pronged test for determining whether a “work” (i.e., material or a performance) is obscene and therefore unprotected by the First Amendment.

To be obscene, a judge and/or a jury must determine:

First, that the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

AND second, that the work depicts or describes in a patently offensive way, as measured by contemporary community standards, “hardcore” sexual conduct specifically defined by the applicable law;

AND third, that a reasonable person would find that the work, taken as a whole, lacks serious literary, artistic, political and scientific value.

Hardcore pornography today typically meets these criteria, and is therefore most likely illegal, or at least open to prosecution by the Department of Justice.

The U.S. Supreme Court has repeatedly upheld obscenity laws against First Amendment challenges, explaining that obscenity is not protected speech. Even so, the U.S. Department of Justice (DOJ) refuses to enforce existing federal obscenity laws.

All girls, boys, women, and men have a natural human dignity and thus a right to live lives free from sexual exploitation. All pornography is degrading, dehumanizing, exploitive, and a violation of this right.

Our nation is now suffering from an emerging public health crisis fueled by the widespread distribution of adult, hardcore pornography, and the Department of Justice bears a great burden of responsibility for this crisis.

Dani Pinter, Esq.

Senior Legal Counsel for the NCOSE Law Center

Dani Pinter, Esq. serves as Legal Counsel for NCOSE and its Law Center. In this role, she drafts and consults on state legislation to help unravel the complex web of sexual exploitation. Dani also serves as a voice for human dignity in precedent-setting legal cases by authoring legal briefs and providing research and advice to attorneys and will launch litigation on behalf of victims of sexual abuse and exploitation. Dani speaks regularly on a variety of exploitation topics, with a special focus protecting youth in a digital age and on legal solutions to curb the demand for prostituted and sex trafficked individuals.

Dani Pinter originally joined the NCOSE Law Center at its inception in August of 2015. Dani was instrumental in reinvigorating the law center and traveled the country building relationships and raising awareness. Notably, she drafted the first piece of legislation recognizing the public health impacts of  pornography. This innovative piece of legislation has since been adopted in more than a dozen states. Dani also authored a key legal brief in a case involving a child predator who claimed a constitutional right to find children online and talk to them about sex in an arousing and exploitive manner. Her legal brief helped convince the Georgia Supreme Court to rule against the child predator and shut down the agenda of pro-child exploitation forces to go state by state trying to toss out such laws.

In 2016. Dani moved back to her home state of Florida to start a family and there joined the State of Florida’s Department of Children and Families as a Senior Attorney in Children’s Legal Services. In that role, Dani litigated cases involving child abuse, abandonment, and neglect. She worked tirelessly to serve the children and families in need in her home state. During this time, Dani saw first-hand the devastation that sexual abuse inflicts on children and families and the cycle of abuse and trauma it creates.

Throughout her time with Children’s Legal Services, Dani brought the knowledge she gained from NCOSE to every one of her cases. She could not help but note the policy changes and education that were needed in this field. So, when an opportunity to work with NCOSE again arose – Dani seized it without hesitation. Dani rejoined the NCOSE law center in 2019 as Legal Counsel.

Dani has always had a passion for human rights issues especially those affecting women and children. This passion is what led her to Regent University School of Law. Upon acceptance, Dani received the Wilberforce Award, a full academic scholarship for those with human rights interests. While at Regent, Dani was in the Honors Program, a member of the Moot Court Board, the Journal of Global Justice and Public Policy, and the Student Bar Association. During her studies Dani interned with the American Center for Law and Justice (ACLJ) and the Florida Attorney General’s Office of Statewide Prosecution.

Prior to law school Dani worked as a government relations intern for multiple DC policy organizations and graduated from the University of Central Florida with dual degrees in Psychology and Marketing.

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