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Mass Media Law

The Printing Press to the Internet

Arthur S. Hayes

Digital media law is now the dynamic legal territory. Mass Media Law: The Printing Press to the Internet is a textbook designed to introduce students to the panoply of legal theories raised by the Internet revolution as well as those supporting traditional media. The book takes a historical approach beginning with the printing press and the telegraph and proceeding to the digital technologies of today, such as social media and search engines. Concepts such as defamation, broadcast regulation, privacy, and free expression are covered along with new media legal theories including Internet exceptionalism, cyber libertarianism, and digital speech and democratic culture. These are introduced to explain why traditional theories such as First Amendment medium-specific analysis, common carriage, and network neutrality are just as relevant today as they were in the early twentieth century. In order to help readers develop critical reasoning skills, each chapter opens with a highly readable realworld vignette and goes on to identify and explain legal doctrines and tests. Key passages from court opinions are highlighted, and each chapter closes with a list of online media law resources and thought-provoking questions, including legal hypotheticals, to give readers a solid understanding of the area in question. Mass Media Law is designed to be the main text and a valuable resource for undergraduate and graduate courses covering media, mass communication, free expression, and journalism law.

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12. Sexual Expression & the First Amendment

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C H A P T E R T W E L V E Sexual Expression & the First Amendment CONTROVERSY: Had authorities arrested Dwight Edwin Whorley between April 17, 2002, and April 30, 2003, for possession of sexually explicit Japanese anime, chances are he would be a free man today. Anime, or manga, are hand-drawn or computer-animated cartoons featuring characters with highly stylized facial expressions. A variety of the illus- trative form exists that features adults having sex with minors. On March 30, 2004, a woman spotted Whorley downloading such images from a computer at the Virginia Employment Office.1 Whorley had used the Virginia Employment Office computer room, which is often monitored, to access pornography without incident many times before.2 Whorley believed the cartoons, though sexually explicit, were legal because they did not depict actual children. That defense would have worked under the Child Pornography Prevention Act of 1996 (CPPA). That’s because the U.S. Supreme Court ruled in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) that sections of CPPA were unconstitutionally overbroad because they would allow the government to ban sexual depictions of minors where no minors were used, such as by computer imaging, or when adult actors were made to look like teenagers. But the federal child pornography law changed. Under The PROTECT Act of 2003 (“Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today”3), depictions of minors engaged in sex- ual explicit conduct can be obscene whether actors are really underaged, digitally created,...

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