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Recently, the internet has been filled with articles about how the Internet is being regulated by the Court of Appeals of the State of New York, in the matter of allowing free porn to be accessible on the web. In many ways, this ruling flies in the face of what many people (and businesses) believe is a free-for-all in the realm of the World Wide Web. The Court’s decision was, in fact, based upon a law that it had previously declared in an unrelated case. The Court’s reasoning in this latest case, however, goes much further than simply protecting adult material off-site: it also requires that all content – even material that some would consider to be offensive or improper – be allowed on any site that happens to be accessible to anyone. So, how is this new ruling affecting those who enjoy free porn on the web?

The Court of Appeals ruled that the state had every right to ban two sites from distributing free porn because they both contained nude photos. The two sites in question were X Playboy and Nude Photos Network. According to the Court, X Playboy was hosting nude photos of “a minor.” And, Nude Pictures was providing nude photos of individuals who were in apparent violation of New York state law prohibiting adult material from being distributed on the web. Essentially, the Court found that these sites violated the rights of the individuals in question, as well as the rights of the public at large.

The Court of Appeals of New York did not, however, rule that all adult content on the web needs to be free. It merely ruled that the state had a lawful interest in regulating the distribution of free adult content, especially if that content was being distributed unconstitutionally. In other words, the Court found that the laws in question, which were designed to prevent the distribution of pornography in general, were being applied in this case as applied to the issue of free porn. Thus, the Court found itself in a position that seemed to render its earlier decision inapplicable.

The Court of Appeals also determined that it did not have the power to decide that nipples and other forms of visible genitalia were protected speech and therefore were not subject to regulation by the First Amendment. Instead, it held that the state had an interest in regulating free pornographers because there is a legitimate public concern about the proliferation of pornography on the internet. The Court also cited a number of other cases in which it has determined that particular forms of expression are protected by the First Amendment. It stated:

It is immaterial whether aesthetic or nipple is attached to a pornographic publication. A State may proscribe free pornographers because it has a legitimate interest in protecting its citizens’ reasonable interests in avoiding exposure to materials that are offensive, corrosive of morals, or somewhere in which it is perceived that the material will be used by minors to commit criminal acts. Some have suggested that the Court’s reasoning in Ginsberg v. St. Lawrence may be stretching to permit a conviction for exposing underage viewers to depictions of naked adults in a movie. The Court has never before addressed the question of whether a work of fiction can ever be viewed by anyone other than the intended recipient, and there is no reason why it should do so here. The fact that magazines and books of this type are readily available in libraries and bookstores does not make them beyond the constitutional reach of the State.

The Court is likely to revisit the issue of nudity in the future. The decision in Ginsberg v. St. Lawrence, although it seems clear that Ginsberg was correct when she sought a constitutional guarantee of free speech, left a serious dent in the historical development of our Nation. There will undoubtedly be additional discussions and challenges to the enforcement of existing restrictions. The Court has already recognized that the definition of pornography has wide-ranging and uncertain boundaries, and the same deference should be given to the determination of what constitute a work of pornography.

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