Sexual Privacy in the Internet Age: How Substantive Due Process Protects Online Obscenity

Jennifer M. Kinsley · 16 Vand. J. Ent. & Tech. 103

Abstract

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence’s potential applicability to online obscenity has created tension in lower-court decisions and produced more questions than it has answered.

In an attempt to address these lingering questions, this Article discusses the burgeoning right to sexual privacy and argues that certain sexual decisions fall within the autonomy of personhood protected by the Fourteenth Amendment, even when those decisions involve some public action. Relying on Stanley v. Georgia and Lawrence v. Texas, this Article examines the intersection of public expression and private decision making in the context of the Internet and argues that online obscenity that neither involves children nor unwitting adult viewers is entitled to privacy protection.