Posted: August 13th, 2022

Public law 4

Public law 4
The State of Freedonia passes a law that says

“In order to protect minors from access to potentially obscene websites, no person in this state shall place, or cause or be placed, any material on any publicly available website that shall portray any act of sexual intercourse, deviate sexual intercourse or sexual contact unless such person shall demonstrate that adequate safeguards exist to ensure that no person under the age of 18 shall have access to such site.”

Mark hosts a website that contains sexually explicit videos and pictures. However, whenever a person clicks on a link that would allow him or her to view the image, a popup window asks the viewer if he or she is 18 years of age. Only by clicking a button that says “I hereby affirm that I am 18 years of age or older” can a person access the images.

Mark is arrested for violating the above statute. The prosecutor argues that simply having the viewer affirm that he or she is of age does little or nothing to prevent minors from accessing the website.

Mark argues that the statute is a violation of freedom of speech and is unconstitutional and in violation of the First Amendment, either on its face, or as applied to Mark.

Please write an essay discussing whether the statute should be upheld and applied to Mark. Please discuss both issues that Markraised:
1) whether the statute is unconstitutional on its face and
2) whether it is unconstitutional as applied to Mark.

Public law 4
Since the early nineteenth century, courts have struggled with obscenity cases where pornography and obscenity have been the most controversial area in first amendment laws. The major problem involves lack of a clear definition of obscene materials (Szafranski, Szwedo, and Klein, 2018). The United States laws and regulations prohibit possession of obscene materials, selling or distributing, transporting and importing from one country to another. The paper is a discusion of violation of Freedonia laws on protection of minors from access to obscene materials online.
1. Laws concerning protection of minors from obscene materials are strict where the convicted person faces harsher punishment compared to cases involving adults. According to the United States, section 1470, the act restricts transfer of obscene content via the United States email to anyone under the age of sixteen (Szafranski, Szwedo, and Klein, 2018). Additionally, producing obscene material intentionally, possessing or distributing sexually provocative content, is considered illegal. Nevertheless, it is unlawful for any person to create obscene content and use computer services to showcase the images making it accessible to minors under the age of eighteen.
The Fredonia statute is unconstitutional because it is a violation of the first amendment laws and freedom of speech. The rules provide significant exemptions of the first amendment laws where the legislation does not protect various behaviors and interpreting freedom of expression in different ways (Adler and Alvarez, 2020). Obscenity, child pornography, and speech of fighting words receive no protection from the first amendment act. Additionally, the first amendment offers no protection to slander speech considered toxic to minors, especially content displayed through digital platforms such as televisions.
Constitutionally, one has the right to possess obscene material in the privacy of their home, but one gets restricted from providing the obscene content for private use or possession. However, the statute is unconstitutional because, constitutionally, no one can give obscene material regardless of whether distributing to minors or adults (Adler and Alvarez, 2020). The figure promotes freedom of speech but does not exempt non-content based content such as sexual or obscene content concerning time, place, and manner. The icon should apply the miller test to determine the nature of the material before allowing it online. Nudity and other sexual content should receive scrutiny because it causes secondary effects such as premature sexual behaviors and early pregnancies and contraction of HIV/AIDS.
2. Mark’s action and application of the statute is unconstitutional because the first amendment only protects pornography in general but restricts child pornography and obscenity hence regulations do not apply. Mark protects minors from vulgarity through safeguards to determine the person’s age before access, which is unacceptable to obscene materials according to the first amendment (Adler, and Alvarez, 2020). Mark has the right to possess obscene material but does not have the right to provide the illegal substance. The communication act of 1934, restricted obscene content and indecent materials but only the content that involved children under eighteen years. Indecent pornography, which is not obscene s protected by the first amendment, where minors get restrictions from access.
The government and other organizations propose the use of credit cards, access codes, and different rules to restrict children’s access to obscene materials. Still, the laws and regulations have not been sufficient enough. Even after various scrutiny, the use of access codes such as age limitation still stands. Marks’ act of restricting minors from access to obscene content is constitutional, where children under the age of eighteen are restricted from access. The laws might not be enough to justify marks behavior, but more laws on obscenity should be provided, and clarification and detailed information provided on how to use the safeguards (Adler, and Alvarez, 2020). Lastly, obscenity should be banned totally, to protect social morality instead of living and following undefined laws and statues about obscenity.
Freedonia statutes should be enacted according to the constitution and should not contradict the constitution. Pornography laws can be regulated, but obscenity and child pornography cannot be adjusted according to time, manner, and place. Since obscenity and child pornography does not get protection from the first amendment, the acts should be banned regardless of the government interests.

References
Szafranski, A., Szwedo, P., & Klein, M. (2018). Comparative Perspectives of Adult Content Filtering: Legal Challenges and Implications. Cath. UL Rev., 68, 137.
Ayub, Z. A., & Yusoff, Z. M. (2020). Right of online informational privacy of children in Malaysia: a statutory perspective. UUM Journal of Legal Studies, 9, 221-241.
Adler, B. E., & Alvarez, A. A. (2020). Property Rights in Children. Notre Dame Law Review, 95(4), 1629.

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