Legal Issues with LodgeNet

The Law v. LodgeNet™

Not a Privacy Issue

Many pornographers like to argue that people have a right to view hard core pornography in the privacy of their hotel room or their home. This is an attempt to take the attention away from the fact that they are pandering hard core pornography, NOT using it privately. In order for it to be “viewed,” it first has to be “pandered.”

The U.S. Supreme Court addressed these issues by pointing out in Stanley v. Georgia (1969) and in Miller v. California (1973) that there is a difference between what people do in privacy and in the actual public distribution of illegal material. If someone chooses to distribute hard core pornography across state lines, they can be prosecuted under Federal law.

Satellite Signals Cross State Lines

Title 18 – CRIMES AND CRIMINAL PROCEDURE
PART 1 – CRIMES
CHAPTER 71 – OBSCENITY

§ 1462. Importation or transportation of obscene matters

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce-

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or

(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or

(c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

Whoever knowingly takes or receives, from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful-

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

By this standard, it appears the materials that LodgeNet™ is selling is prosecutable under Federal law.

Miller v. California 

In 1973, the U.S. Supreme Court gave an example as to what types of material could be prosecuted under Federal or state laws. In Miller, the Burger Court noted:

This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. “The First and Fourteenth Amendments have never been treated as absolutes [footnote omitted]…”

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.

Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can be exhibited or sold without limit in such public places…

Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive “hard core” sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. (emphasis added)