Creating the Pay-Per-Mile High Club
By Gabriella Ripoll
Reviewed by Jennifer Williams
Can airplanes become bastions of airporn? Sexual speech, even speech short of obscenity, has not been held particularly dear by the Supreme Court in their First Amendment jurisprudence, with zoning regulations as to pornographic theaters and laws banning nude dancing both being held to be within Constitutional rights. E.g. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Erie v. Pap’s A.M., 529 U.S. 277 (2000). So what legislation might airlines expect in response to the development of in-flight pornography on demand for fliers? Austin Considine, “Pornography on Airplanes, Where You Can’t Look Away,” NYTimes, Nov. 18 2011, http://www.nytimes.com/2011/11/20/fashion/pornography-on-airplanes-where-you-cant-look-away.html?_r=1&ref=fashion
The most salient issue, at a glance, may be the problem of a minor viewing content inappropriate for their eyes. This makes a ban on such content seem likely and allowable unless an airline decides to develop adults-only flights where such content would be allowed, or devise other self-help techniques such as the screen only viewable at a direct angle mentioned in the New York Times article. These techniques would likely be required to allow viewing of such content, because though such self-help may put airlines in somewhat murkier territory, given the Court’s views of the “secondary effects” of sexual speech, legislatures would be able to require such safeguards. Compare Erie v. Pap’s A.M., 529 U.S. 277 (2000), finding pasties and g-strings to be reasonable legislative safeguards against the secondary effects of nude dancing clubs on their surrounding neighborhood. It is in the best interest of an airline to have developed such safeguards before making pornographic materials available on their flights to preempt potential and obvious liability from children glimpsing the explicit content, or other perceived problematic effects.
As a financial transaction, it is likely that flights already include choice of law clauses within their terms of sale, so before investing, airlines would do well to have a legal eye take a second look at the jurisdiction they have chosen to determine what obligations the jurisdiction may include regarding the viewing and screening of pornographic materials. If not, however, then airlines may spend excessive amounts on cases in different jurisdictions.
Given the possible legal complications as opposed to the likely minimal gains (given the public nature of an aircraft passenger seat and the likely arising stigma for such a rental dissuading potential renters), the smartest investment for airlines may be to abstain altogether.