Behind closed doors?

Electronic devices bring potentially obscene images into public

Laptops, smartphones, iPads and other forms of wireless access have made it possible for people to view in public images that some others might deem inappropriate. Enlarge photo

JERRY McBRIDE/Durango Herald photo illustration

Laptops, smartphones, iPads and other forms of wireless access have made it possible for people to view in public images that some others might deem inappropriate.

Pornography has always enjoyed a robust American following, but, historically, its fans have been a furtive, sheepish lot whose province was filthy theaters, back-alley shops and dark rooms – until today.

Thanks to wireless Internet, smartphones and electronic tablets, pornography’s adherents can enjoy graphic sexual imagery in public, including coffee shops, libraries, airplanes, offices and even schools.

New technology renders even sophisticated systems of Internet filtering ineffectual.

Mike Freeburn, assistant principal at Durango High School, said that in eight years he has never disciplined a student for accessing obscene material at school.

“On the high school computers, good luck accessing any pornography,” he said. “But a student carrying a smartphone in their pocket could access all sorts of pornography.”

James Torres, executive director of educational technology at DHS, said the Internet available to students is “heavily filtered.”

“There’s no way to be 100 percent effective except to pull the plug altogether. But students’ safety is always in our forethoughts when we make decisions about electronic access,” he said.

Thanks to smartphones, teens can even create child pornography. Freeburn said the practice of “sexting,” or sending sexually explicit photos and content via cellphone, is gaining ground among high school students.

“It’s a really new phenomenon that has surfaced in just the last two years,” he said – one that increasingly causes him to call the police.

“We’ve had issues with students posting nude pictures of themselves online or texting them and other students forwarding them. Suddenly these minors are trafficking in child pornography – that is a felony situation that could require them to register as a sex offender and a lifetime of misery,” said Freeburn.

A recent study published in Pediatrics found that 10 percent of adolescents between 10 and 17 have sexted.

New technologies also have drastically altered adult life, undermining one of the tacit premises of our civic compact: that grown-ups were permitted pornography, but in secret, and exclusively within the confines of private property.

Local historian Duane Smith said that while Durango has “a long history of smut,” pornography’s ubiquity is new.

“We had two prominent red-light districts into the 1950s. Prostitution was an economic boon to the town, it brought in customers, very publicly,” he said. “But pornography was always kept in the closet, and certainly stigmatized. The only way to get it was to order magazines that came in plain envelopes, from the big cities – until the Internet, that is.”

Lt. Ray Shupe said that Durango police have been summoned to the Durango Public Library to evict pornography enthusiasts of the more implacable mold on several occasions.

“We’ve had to deal with it,” Shupe said. “Usually library personnel will try to handle it. They only call us when the problem is chronic.”

Andy White, director of the Durango Public Library, said that although the terms and conditions of using a library computer forbid accessing pornography, “We’ve had people say, ‘That person is viewing pornography.’ And sure enough, they are.”

Laws governing pornography have changed as much as the technology enabling its public consumption. Once upon a time, the government used the notoriously inelegant esquire of obscenity law to suppress pornographic materials, including Lady Chatterley’s Lover, a novel esteemed by living critics but targeted by authorities at the time of its publication in late 1920s for its explicit sexual descriptions of adulterous liaisons and racy language.

Since the Reagan administration, such prosecutions have been extremely rare. Indeed, the 1976 pornographic film “Deep Throat” became a surprise cultural phenomenon and remains the most profitable such film in history.

Jeffrey J. Douglas, an attorney who has defended multiple pornographers charged with obscenity and chairman emeritus of the First Amendment Lawyers Association, said, “The likelihood of a successful obscenity prosecution arising from looking at an X-rated video on a personal communication device? It would be hard to get a jury to convict.

“Assuming that I am in the presence of adults, nothing legally prohibits me from displaying sexually explicit material,” Douglas said.

Douglas said it is societal norm – not law – that deters people from consuming pornography in public. Viewing a pornographic film in a coffee shop with free Wi-Fi is “completely legal but socially prohibited. Appropriately, the cultural standard is much more restrictive than the legal standard,” Douglas said.

Yale Law School professor Jack Balkin, a leading academic authority on the First Amendment, said that according to the complicated and highly technical legal criteria by which judges deem materials obscene, “Today, most pornography is protected speech.”

For a work to be obscene, it must, when taken as a whole, lack serious literary, artistic, political or scientific value, depict sexual conduct in a patently offensive way and violate contemporary community standards, Balkin said.

“So most pornography available on the Internet would not be classified as obscene today because pornography is so widespread – it would not violate community standards,” Balkin said.

While adult pornography is all but decriminalized, the public carrying on of its emboldened devotees might yet provoke widespread rebuke.

“While people’s tolerance for pornography has certainly grown, that was in the context of private viewing,” Balkin said. “What’s interesting is what happens if people start to think they can view it in public. I suspect most businesses would say we don’t have a problem with you viewing this in your home, but they don’t want you doing it on their premises, discomfiting the other customers.”

While Tim Wheeler, owner of Durango Coffee Co., said most of his customers “are using the wireless for something more prosaic than nudity,” he agreed that someone looking at porn would make everyone uncomfortable.

“Most customers would likely say something,” said Wheeler.

cmcallister@durangoherald.com