IN THE DIGITAL AGE:
Re-Evaluation of Community Standards
By: Lawrence G. Walters,
Esq. and Clyde DeWitt, Esq.
Weston, Garrou, DeWitt
Constitutionally protected erotic expression
“is often separated from obscenity only by a dim and uncertain line.” That line is the tripartite test articulated in
1973 by a quintet of Supreme Court decisions, the centerpiece of which was
Miller v. California. The Miller Test determines whether a
speaker should be hailed as a contributor to the marketplace of ideas or
jailed like a common criminal. Due to the inherent vagueness of the Miller
test, in a 1977 obscenity case, Supreme Court Justice Powell identified
that “the dicey business of marketing [adult] films [is] subject to
possible challenge.”Given the 2003 PROTECT Act’s ratcheting up of the minimum
sentences for federal obscenity convictionsand the Supreme Court’s 1993 approval of wholesale
forfeitures for as few as two related obscenity convictions, the stakes
are significantly higher now.
Generally, the Miller
test holds that, in order to strip erotic speech of its presumed
constitutional protection so that the disseminator may be punished, a
prosecutor must establish, in very general terms, that the materials at
issue (a) appeal to the prurient interest in sex, (b) contain patently
offensive representations of nudity or sexual activities, and (c) lack
serious artistic, scientific, or literary value. While the
particulars of each of those prongs of the Miller test are beyond
the scope of this article, what is important here is that prong (a) and
prong (b) both are a function of “local community standards;” prong
(c) is not a function of community standards, but rather what a
“reasonable person” would conclude. This article questions the definition of
“community” in this day and age, when online communities have blurred
all past definitions of that term. In short, what is a
“community” in the Internet era?
In the context of sale of three-dimensional objects such as books and
films, the concept of “community standards” is hopelessly unworkable.
It is even more cumbersome in the environment of the Internet. Any
recognizable definition of a “local community” is quickly disappearing
in the age of ubiquitous and homogenous media brought about by satellite
and cable television, international news channels, and more recently, the
Internet. Yet prosecutors, and to some extent the courts, have
continued to cling to the archaic notion of “contemporary community
standards” as measured by local geographic boundaries. As the
United States, and indeed the world, becomes more transient, standardized,
uniform, and homogenized, the ability of one community to isolate itself
by erecting a fictitious legal barrier, designed to keep out certain
categories of erotic speech, is quickly evaporating and the law must keep
The time has come for courts to accept the diminished reality of local
geographical standards and the development of a variety of national
communities, whose standards must be considered in the context of American
obscenity law. Assuming the Miller test is not too vague for
the imposition of criminal sanctions in every instance – 4 of the 9
Justices in the Miller quintet believed it was– the definition of “community” must be reexamined
given the realities of the current decade. Although a complete
reassessment of the local community standards requirement of the Miller
test is certainly justifiable with respect to all forms of erotic
media, the most timely place for such recognition to evolve is in relation
to Internet content, which does not exist in any geographic space, and
which cannot be blocked from receipt by any particular, local community.
The Miller Test in Cyberspace
A. Reno v. ACLU
The first opportunity the United
States Supreme Court took to consider application of the Miller Test
in the context of online content was in response to the challenge brought by
the American Civil Liberties Union to the Communications Decency Act of 1996
(“CDA”). At issue were provisions of the CDA that
prohibited the transmission of “indecent” communications by means of a
telecommunications device to persons under the age of 18, or sending
patently offensive communications through use of an interactive computer
service to persons under the age of 18.
The Supreme Court invalidated
the CDA in a unanimous decision. Finding that it constituted a
content-based regulation of speech, the Court subjected the CDA to the
strict scrutiny standard of review. The Court found that the act’s lack of a
precise definition of prohibited behavior would create confusion as to what
was truly prohibited,and due to the “obvious chilling effect on free speech”
the CDA was void for vagueness. The potential stigma of a criminal conviction
and the severe penalties including up to two years’ imprisonment for each
violation would likely cause speakers to remain silent rather than approach
the zone of impermissible conduct.
The government argued that
although the CDA regulated speech that was not deemed harmful to adults, but
was deemed harmful to children, precedent supported such regulations.
The government specifically relied on Ginsberg v. New York,City of Renton v. Playtime Theatres Inc,and Federal Communications Commission v. Pacifica
Foundation.However, the Court held that these cases actually
supported the ACLU’s position rather than that of the government.
The Ginsberg decision
permitted the government to restrict the commercial sale of materials deemed
“harmful” in the hands of a minor, but merely “indecent” in the
hands of an adult. However, the law reviewed in Ginsberg did
not bar parents from acquiring prohibited materials for their children.
Under the CDA, parental consent or even parental participation in the
acquisition of material on AIDS prevention could still hold the provider of
that information criminally liable. Furthermore, the Ginsberg case applied
only to commercial transactions, and the material was required to be
“utterly without redeeming social importance for minors.” The CDA has no such limitations.
Renton dealt with a
zoning ordinance that prohibited adult movie theaters from residential
neighborhoods in an attempt to minimize secondary effects of such
businesses. The target of the regulations was not the speech itself,
but crime and diminished property values. The government’s contention that it was merely
engaging in a zoning of cyberspace was rejected due to the fact that the CDA
applied to all of cyberspace. Upholding this reasoning would have been
analogous to the government placing a zoning ordinance from Key West to
Kodiak, while asserting that it was not a blanket provision.
distinguished by the Court in that the FCC had a history of regulating
radio content and the broadcast targeted was “a significant departure
from traditional program content.” The FCC regulations were “time, place, and
manner” restrictions, and not blanket prohibitions on speech. Finally, and most importantly, the Court
distinguished radio from the internet as a medium because of radio’s
potential to invade the home unchecked, whereas a series of affirmative
steps is required in order to receive internet content. In addition, its analysis that the Internet is
not radio’s younger brother comes from the recognition that radio’s
scarce number of frequencies make each channel a public resource. The Internet’s boundless size defies the
importation of radio’s rules. The Court’s wisdom in refusing to apply
rules properly shackled upon a medium developed in the age of the horse
and buggy should not be cast aside in its discussion and application of
the term “Community.”
The Court’s decision in Reno began the slow descent into a
swirling morass of online censorship jurisprudence, which has plagued the
High Court ever since, and has yet to be resolved. Although this early case (1997) involved only
one prong of the Miller Test, pertaining to patently offensive
material, the Court took the opportunity to compare the elements of the Miller
Test to those used by the CDA. The Court noted that the CDA criminalized all
patently offensive communications, whereas the Miller Test
significantly limited the scope of materials not protected by the First
Amendment by requiring that “the [offensive materials also] appeal to
the prurient interest, and…lack serious literary, artistic, political or
scientific value.” In noting the “wholly unprecedented” scope
of the CDA as defining a new category of criminal speech, a unanimous
Supreme Court struck down the challenged portions of the law as overbroad
and a violation of the First Amendment.
B. Revisiting Miller v. California
A brief review of the basic requirements of the Miller Test is in
order: In 1973, the United States Supreme Court finally settled on a
definition of “obscenity,” for purposes of regulating erotic
materials, after much wrestling, agonizing and debate. Notably, Miller was a 5-4 decision that
reportedly went the other way on the first vote. The dissenters took
the position that regulation of erotica involving only adults could not be
accomplished without violating the Bill of Rights. The compromise
reached in Miller gave us the “basic guidelines” that the trier
of fact must apply in cases involving allegedly obscene materials:
[W]hether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
(b) [W]hether the work depicts
or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and
(c) [W]hether the work, taken as
a whole, lacks serious literary, artistic, political or scientific value.
The federal statutes governing obscenity, including a part of the CDA not
at issue in Reno, incorporate that definition in an effort to
separate unprotected criminal speech from expression protected by the
First Amendment. The concept of “local community standards”
applies only to the first two prongs of the test involving prurient
interest and patent offensiveness. A jury applies its understanding of the
standards of the local community from which it comes to decide whether
that community accepts, or at least tolerates, the erotic materials at
issue. Therefore, the specific geography chosen for prosecution is
inextricably linked to the determination of whether the material is
sufficiently “sexual” and “offensive” enough to constitute
C. Miller as an Anachronism
The primary justification for the community standards test is to ensure
jurors view the material from the perspective of the average adult, rather
than from that of the most sensitive or susceptible member of the
community. Secondarily, the community standards test
purportedly attempts to preserve the rights of states and their respective
communities to define, for themselves, what level of erotic speech is to
be tolerated within a specific geographic area.
However, little guidance has been provided by the courts as to the proper
geographic contours of the “community” to be used in evaluating
allegedly obscene works. In Hamling v. United Statesand elsewhere,the High Court has indicated trial courts may actually
define the relevant community for the jury, or allow jurors to determine
for themselves where the geographic boundaries of the community lie.
This stunning lack of guidance on such an important element of the Miller
Test has resulted in widely varying “communities” being used by
various courts at different times. For example, the Supreme Court in
Miller v. Californiaapproved an area comprising the entire State of California
as an acceptable community from which jurors could draw inferences as to
the proper standards in an obscenity case. In other cases, lesser
geographic areas have been approved, as small as a single county within a
stateor a tri-county area. Using this approach, the community standards
test simply results in the application of “local” attitudes as a
result of a limited geographic area, typically that from which the jury is
drawn, but there is no requirement that the “community” be made up of
any specific geographic space.
The nature of the test
therefore contemplates that material encompassed within its definition may
be found criminally obscene in one jurisdiction, whereas the very same
material may be found to constitute protected speech in another. However, this result was not found to be
problematic by the Supreme Court, which held that the existence of a
federal statute incorporating varying community standards did not chill
speech to such an extent so as to render the statute unconstitutional. Thus, publishers and speakers are left with
little guidance as to which geographic community’s standards will be
applied in determining whether the speaker’s expression is protected by
the First Amendment or treated as criminal conduct.
Enter the World Wide Web. The Internet has been called “the most
participatory form of mass speech yet developed.” According to the Court, the Web is a “unique
and wholly new medium of worldwide human communication.” Significant distinctions exist with regard to
online communications as opposed to more typical broadcast or print media.
“[T]he vast democratic [forums] of the Internet” have not historically
been subject to the type of governmental regulation and supervision that
has been upheld in relation to the broadcast and print industry. One of the primary reasons for this difference
in degree of regulation is the fact that the Internet is not as intrusive
on the viewer or listener as is radio or television. It has been specifically held that
“communications over the Internet do not ‘invade’ an individual’s
home or appear on one’s computer screen unbidden. Users seldom
encounter [Internet] content ‘by accident.’”
Importantly, it has been held that each medium of expression must be
analyzed in terms of its own unique elements, and may present its own
problems. For example, certain justifications for
regulation of the broadcast media have been held to be not applicable to
other speakers. In earlier cases, courts have relied on the
history of extensive governmental regulation of the broadcast media, the
scarcity of available frequencies, and the invasive nature of radio and
television as a basis for regulation of content. In other cases, dealing with obscene telephone
messages, the Court has noted that placing a telephone call is not the
same as turning on a radio and being taken by surprise by an indecent
message. Those distinctions alone warrant a fresh
approach when it comes to application of community standards to online
Notably, the community standards test was developed at a time when
obscenity prosecutions were primarily localized in nature and distributors
intentionally chose the geographic areas in which they distributed or
displayed their material. Purveyors of adult materials could at least
theoretically evaluate the particular community standards applicable in a
given jurisdiction, and make a considered, intelligent decision whether to
disseminate those materials in a given locality, based on the results of
their investigation. The presence of multiple retail outlets where
comparable materials may be rented or purchased by the public may heavily
impact a distributor’s decision to make certain erotic materials
available in a given community, for example. The existence of a
particularly conservative jurisdiction had no impact on the print media
distributor’s ability to sell or display erotic materials in more
liberal jurisdictions, given this ability to pick and choose distribution
points. This theoretical ability to “geotarget”
distribution of traditional adult materials formed the rational foundation
for the earlier federal obscenity cases.
Where online speech is involved, distributors have no reliable means of
limiting the geographic distribution of erotic materials on the Internet. The Internet does not function in relation to
the physical, geographic world, and these crucial differences between the
“brick and mortar” and cyber dimensions affect the First Amendment
analysis. “The Internet is wholly insensitive to geographic
distinctions, and Internet protocols were designed to ignore rather than
document geographic location.” Those considerations require a dramatically
different First Amendment analysis in the context of application of a
community standards test to online media. As observed by the Third
Circuit Court of Appeals, “the unique factors that affect communication
in the new and technology-laden medium of the Web [create] crucial
differences between a brick and mortar outlet, and the online Web that
dramatically affect a First Amendment analysis.”Unlike traditional retail outlets for erotica, the Web is
not “geographically constrained,” rendering geography a virtually
meaningless concept when it comes to the Internet.
The United States Department of Justice (“DOJ”) currently takes the
position that Internet content can be prosecuted in any jurisdiction from
where it is sent, through which it passes, or where it is received. For example, in one of the most recent federal
obscenity prosecutions against an adult Web site operator, the defendants
were prosecuted in the Western District of Pennsylvania, despite the fact
that they operate their website from, reside in, and, with respect to the
relevant transactions, never left the State of California. One of the counts against the defendants in
that case involved transmitting allegedly obscene video clips to computers
in the Western District of Pennsylvania, where the materials were
downloaded by government agents. Therefore, this concern is real, not
conjectural. People will go to jail or be set free depending on the
ultimate resolution of the “community standards” issue.
Historically, the DOJ has ordinarily prosecuted obscenity cases in the
place of receipt, which is almost always more conservative than the place
from where the material was sent.
The government’s position on local community prosecution raises a
significant constitutional concern, often called a “heckler’s veto.”
Purveyors of adult material online cannot comply with the CDA, which
prohibits distribution of obscene materials online, or any other law
premised on application of local community standards, by tailoring their
speech to each individual community’s standard. In order to offer
erotic materials online, those materials must be compliant with the lowest
common denominator – the most conservative community’s standards –
given that all online materials are contemporaneously available in every
community. That is so because the Internet publisher
cannot avoid distributing to more restrictive areas. Publishing materials for viewing by any
community makes them available for all. In order to avoid liability
under a law based on local community standards, the Internet publisher
would need to severely censor its publications to comply with the most
conservative of communities.
Sent back to the drawing board
by the Supreme Court when it rejected the CDA, Congress made a second
attempt to “clean up the internet” by drafting the Child Online
Protection Act (COPA). Before the ink was dry on President
Clinton’s signature, the same groups that challenged the CDA filed suit
seeking an injunction enjoining enforcement of the COPA, on the grounds
that it was overbroad and restricted adult access to constitutionally
In the district court opinion
granting injunctive relief against COPA, the court found that the act
created an “impermissible risk of suppression of ideas.” As an example,
the court used the site of Mitchell Steven Tepper, operator of the Sexual
Health Network, which provides information about sexuality to the disabled
for profit. Tepper’s site is clearly beyond what Congress sought to
prohibit, but was just as clearly in violation of COPA.
Despite Congressional intent to
limit only minor access to commercial pornography, nothing in the text of
COPA did so, and the term “commercial pornographers” never appeared in
the statute. Just as its parent, the CDA “burned down the
house to roast the pig,” COPA had identical pyromaniac tendencies.
The concern with the “heckler’s veto” caused the Third Circuit
Court of Appeals to invalidate COPA, which also incorporated the community
standards test to determine which online materials must be accompanied by
some form of age-verification device. While the United States Supreme Court
ultimately determined that this constitutional concern, by itself, did not
render the statute substantially overbroad for purposes of the First
Amendment, it did generate a significant degree of concern among at least
six United States Supreme Court Justices as to how local community
standards could be applied to Internet communications. For example, Justice O’Connor, in her
I agree with Justice Kennedy
that, given Internet speakers’ inability to control the geographic
location of their audience, expecting them to bear the burden of controlling
the recipients of their speech, as we did in Hamling and Sable, may
be entirely too much to ask, and would potentially suppress an inordinate
amount of expression.
Justice O’Connor further opined that adoption of “national
standards” may indeed be appropriate in cases involving online media. Although noting that Supreme Court precedent
does not forbid adoption of a national standard, she also observed that Miller
called such standards potentially “unascertainable,”and “unrealistic.” If generalizations about the standards
applicable to the people of a state of the size and diversity of
California were discernable in 1973, why would similar generalizations not
be possible for the nation as a whole, in an era of instantaneous,
nationwide (and indeed worldwide) communication?
Although Justice O’Connor was the only Justice in that case to
specifically call for adoption of national standards for Internet speech,
five other Justices expressed varying degrees of concern about the
application of local community standards to online media. For
example, Justice Breyer observed:
To read the statute as adopting
the community standards of every locality in the United States would provide
the most puritan of communities with a heckler’s Internet veto affecting
the rest of the nation. The technical difficulties associated with
efforts to confine Internet material to particular geographic areas make the
problem particularly serious.
Justice Breyer ultimately
concluded that COPA intended to use the standards of the adult community
as a whole, in the United States, as opposed to some specific geographic
standard, and thereby avoided invalidating the law on those grounds.
Justice Kennedy, joined by Justices Souter and Ginsberg, expressed concern
about subjecting Internet speakers to the standards of the most
puritanical community in the United States, through application of local
community standards. That concern, alone, was not sufficient to
invalidate the law under consideration, but the Justices did reaffirm the
important requirement that each mode of expression has its own unique
characteristics, and therefore must be accessed for First Amendment
purposes by the standards best suited to it. Justice Stevens found significant distinction
between online communications and those sent through the mail, as in Hamling,
or over the telephone lines, as in Sable, because the sender
could avoid destinations with the most restrictive senders. In previous cases, he noted, local community
standards were upheld based on the sender’s ability to tailor his
messages to the communities it chose to serve, thus creating a permissible
burden on the speaker to comply. However, the sender of Internet transmissions
must necessarily display his message to all of the millions of Americans
who have access to the Internet if he chooses to display that message to
one; accordingly this “fundamental difference in technologies,”
requires a difference in the rules applicable to that particular medium. Even after a second visit to the United States
Supreme Court, the case involving application of community standards to
the Internet has not yet been resolved, and the High Court has once again
remanded the matter for additional fact-finding in light of advances in
filtering technology since the original rulings.
Problems with Defining “the Community” in Obscenity Cases
A. Standardization of Geographic Boundaries
Despite substantial litigation regarding the proper community standard to
be applied in resolving obscenity cases since the advent of the Internet,
the issue remains an open question. While the question is certainly
a difficult one, and subject to a variety of different analyses, the
changes in technology, and society in general, militate for a
reconsideration of the concept of community standards in obscenity cases.
While the standards of a nation as a whole may have been inherently
unknowable or indiscernible at the time Miller was decided in 1973,
that is not necessarily the case thirty years later. For better or
worse, our nation has adopted commonalities from coast to coast, and is
much more homogenized than it once was in the pre-Miller culture.
Instead of fifty unique states with their own identifying characteristics
and cultures, Americans now eat the same McDonaldsTM
hamburgers, drink the same StarbucksTM coffee, and wear the
same GAPTM clothes. While many mourn the loss of
uniqueness and distinction that was once pervasive throughout our nation,
the reality is inescapable. Whereas differences existed as a matter
of course a few decades ago, cultures such as the Amish must now go to
great lengths to sequester themselves from the mind-numbing sameness that
has taken over the United States like a plague. No county is an
island in this day of worldwide media and entertainment, where we have as
much in common with acquaintances across the country as we do with our
next door neighbor.
It is not only the Internet that requires reevaluation of the concept of
local community standards; it is the progress of mankind itself. The
standardization of information brought about by the Internet is merely a
symptom of an ever-increasing wave of uniformity that tends to average out
all people, of all nations and cultures. The absurdities resulting
from attempts to judge online media by the standards of some local city,
county, or state is merely one example of how technological progress and
convergence of all media distribution mandates a reevaluation of the
standards by which we judge protected speech from illegal obscenity.
B. Technological Advances Allow Greater Monitoring of Standards
Interestingly, whatever standards that might exist in this country are
becoming easier to quantify and determine, from a technological
standpoint. In prior cases, evidence of community standards often
came from introduction of “comparables,” i.e., other similar erotic
materials that are accepted or tolerated within the ideal community.
Often, this evidence took the form of retail sales information generated
from nearby adult media outlets that were willing to cooperate and provide
As one can imagine, such proprietary revenue information was often
difficult to extract from competitors, or those local businesses that
simply chose not to get involved in a criminal prosecution. With the
advent of Internet traffic monitoring technology, detailed statistics can
be generated, identifying the level of consumption (and therefore
acceptance) of various types of adult material in the United States.
Current traffic monitoring programs allow for the detailed analysis of
consumption of a particular adult website, or even specific pages within
an adult website, by number of hits, page views, bandwidth and various
other categories. Web traffic from the United States can be readily
excised from foreign traffic, to provide immediate, real time, accurate
information as to the desirability or acceptance of a particular website
in the United States. Never before has such accurate information been
available in regards to comparable material, or even the allegedly obscene
material itself. For better or worse, the standards that do exist are
becoming easier to prove, and more capable of dissection and analysis on
various relevant levels, given advances in technology.
C. Reduced Presence of Adult Materials in the Community
While the concept of community standards is undergoing a radical shift, it
is also becoming less relevant as the presence of the materials in the
community is becoming more and more intangible. The existence of
modern adult media is barely felt by the community as compared to when Miller
was decided. For example, Internet images do not have any real
presence in the potentially offended community, since they only exist on
the server from which they are requested by the user, and on the computer
on which they are received. With filters, children or particularly
sensitive adults will not accidentally pass by or encounter materials that
violate a particularly conservative community’s standards as they might
have in the ‘70’s or ‘80’s when the vast majority of adult
materials were obtained from retail outlets or theaters. Unlike the
physical presence of an X-rated movie in a rundown cinema with a
suggestive marquis bearing the title for all passersby to see, online
materials only exist for a brief nanosecond on the community’s telephone
lines, coaxial cable or satellite waves that bring them into the
requester’s personal computer. Pay-per-view satellite and cable
television have little, if any, physical presence in a given community,
and should likewise be amenable to a national standards analysis.
Given the right to possess even obscene materials in the privacy of
one’s home,and the developing right to personal sexual autonomy,the community can hardly object to this manner of
“presence” within the geographic community. Most modern media
share these transmission characteristics, and thus should not implicate
the same concerns that were addressed in Miller and its progeny,
relating to each community’s right to regulate the type of erotic
material whose presence is tolerated within the confines of the local
D. Development of Cultural Communities
While the community standards
of the nation as a whole have tended to ‘average out’ and eliminate
the differences in communities based on geography, other distinguishing
factors have created unique ‘communities’ defined by non-geographical
factors. Perhaps the beginning of this analysis must be from a
sociological perspective, rather than a legal one. In 1973 Chief
Justice Burger proclaimed, “It is neither realistic nor constitutionally
sound to read the First Amendment as requiring that the people of Maine or
Mississippi accept public depiction of conduct found tolerable in Las
Vegas, or New York City.” The fundamental principle overlooked by that
statement that is truer now than it was then is that a good many New
Yorkers moved there from Mississippi and vice versa. And,
realistically, the notion of “community” has evolved, as well.
For a dramatic example, given the proliferation of national,
Spanish-language television networks, the values of an American who is
Spanish-speaking is more likely to be influenced by the national viewing
audience of those networks than the average resident of his county,
judicial district or state. The same is true of members of the
National Rifle Association, Republicans, Democrats, gays,
African-Americans, sports fans, and so on.
In 1973, people watched ABC,
CBS, NBC, PBS and a smattering of local independents in larger markets;
they read their local newspapers and Newsweek. Now, they are more
likely to read magazines focusing on their particular area of interest or
the particular group into which they fall, watch cable or satellite
television with the hundreds of available specialty channels, and
“bookmark” Web pages that they check regularly for their particular
interests – whether it be Notre Dame football or growing roses.
And they go to the local Notre Dame Football organization or attend the
Rose Convention. Indeed, with the shrunken world, “communities”
are defined not by neighborhoods, but rather by station in life and
interests. A Baby Boomer is profoundly more likely to share the view
of the average Baby Boomer across the country than of the average
Generation X’r in his or her own county or state.
A particular problem with the
concept of community standards in states like Texas, California and
Illinois arises from the fact that people are more likely to agree with
those in the same station in life than those in the same state; people
from Chicago are more likely to have values consistent with people from
Los Angeles than with people from Downstate Illinois; and those people are
more likely to have values consistent with people from the agricultural
central valleys of California than Chicago.
Turning to the Internet,
current notions of “community standards,” as noted, reduce speech to
the lowest common denominator. Arguably, reducing Internet speech to
that acceptable in the most conservative community is not unlike
"reducing adult population to reading only what is fit for
children” – “to burn the house to roast the pig.” It is time for the courts to recognize that those
offended by materials that are not offensive to a substantial group of
others will have to pay a price for living in a free society – switch to
another channel, rent a different DVD or install Net Nanny on their
If the obscenity test is to continue to embrace the concept of
“community standards,” recognition must be given the modern definition
of “community.” Where the test is applied to Internet
transmissions accessible throughout the entire world, the courts must
change the contours of the “community standards” test to recognize a
mode of communication that nobody dreamed of when that concept was
developed by the courts.
lawmakers and the courts will need to move to some form of regulation of
the time, place, and manner of distribution of hard core erotic speech, as
opposed to outright criminalization using obscenity laws based on the
increasingly irrelevant concept of community standards. Restrictions
that minimize the physical impact on the community, and the viewer’s
ability to shield himself or herself from accidental exposure to erotic
speech, will take precedence over the limited modern utility of obscenity
laws. Tomorrow’s erotic content regulations will likely involve
concepts such as labeling, filtering, warnings, and the like, instead of
outright bans as have been used in the past. To the extent that
state and federal governments have a legitimate interest in regulating the
distribution of erotic materials in a given community, such regulation
will only be successful in the Digital Age if it takes the form of valid
time, place, and manner restrictions, as opposed to full content bans.
(Lawrence Walters and Clyde
DeWitt are partners in the Orlando and Los Angeles offices, respectively, of
Weston, Garrou, DeWitt & Walters, www.FirstAmendment.com.
Both, along with the other members of the firm, have extensively litigated,
lectured and written on issues arising from governmental attempts to
regulate erotic speech over the Internet, as well as more traditional media
such as motion pictures, print media and live performances.)
Bantam Books, Inc. v. Sullivan, 372 U.S. 58,66
See Miller v. California, 413 U.S. 15
(1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973);
United States v. 12 200-Foot Reels of Super 8mm. Film, 413
U.S. 123 (1973); United States v. Orito, 413 U.S. 139 (1973);
Kaplan v. California, 413 U.S. 115 (1973).
Marks v. United States, 430 U.S. 188, 195 (1977).
Pub. L. No. 108- 21, 117 Stat. 650, 676-86.
Alexander v. United States, 509 U.S. 544 (1993).
Pope v. Illinois, 481 U.S. 497 (1987).
Ironically, in Miller, 413 U.S. at 32,
despite the rapid homogenization of the country that was
developing then due to migration and national communication,
the Court moved from the then-prevailing view that obscenity
should be measured by a national standard to local
standards, Chief Justice Burger explaining, “It is neither
realistic nor constitutionally sound to read the First
Amendment as requiring that the people of Maine or Mississippi
accept public depiction of conduct found tolerable in Las
Vegas, or New York City.”
Justice Brennan’s dissent in Miller, 413
U.S. at 47, incorporating his dissent in Paris, 413
U.S. at 73, makes a powerful case for the proposition that
obscenity cannot be measured with sufficient specificity to
adhere to the Due Process Clauses of the Fifth and Fourteenth
Amendments of the Constitution and, indeed, nearly carried the
Reno v. ACLU, 521 U.S. 844 (1997).
47 U.S.C. § 223 (a, d) (2002).
Reno v. ACLU at 871 (noting that serious
discussions about birth control practices, homosexuality,
First Amendment issues raised by the Appendix to the Pacifica
opinion (438 U.S. 726), or the consequences of prison rape
might be perceived by speakers or law enforcement as violating
Reno v. ACLU at 872 (citing e.g. Gentile
v. State Bar of Nev., 501 U.S. 1030, 1048-1051 (1991)).
Reno v. ACLU at 872 (citing e.g. Dombrowski
v. Pfister, 380 U.S. 479, 494 (1965)).
390 U.S. 629 (1968) (Government was permitted to
forbid the sale of materials to minors not obscene to adults
because the state has an independent interest in the welfare
of its youth and the right of parents to regulate the content
of material consumed by children in their household).
475 U.S. 41 (1986) (The Court upheld zoning
ordinances designed to keep pornographic theaters out of
438 U.S. 726 (1978) (Upheld FCC sanctions
administrative sanctions against a radio station that
broadcast George Carlin’s “seven dirty words” routing
because the words were deemed offensive in the context of an
afternoon broadcast with children in the audience).
See id. at 870 citing Red Lion
Broad Co. v. FCC, 395 U.S. 367, 399-400 (1969).
Ashcroft v. Free Speech Coalition, 535 U.S.
234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Ashcroft v.
American Civil Liberties Union, 532 U.S. 1037, 121 S.Ct 1997,
149 L.Ed.2d 1001 (2001); Ashcroft v. American Civil Liberties
Union, _ U.S. _, 124 S.Ct 2783, 159 L.Ed.2d 690 (2004)
Reno, 521 U.S. at 873-74.
Id. at 873 (internal quotation marks
and citations omitted).
Miller, 413 U.S. at 24 (internal quotation
marks and citations omitted).
Smith v. United States, 431 U.S. 291, 301
(1977) (indicating that community standards tests should be
used to judge patent offensiveness).
Nitke v. Ashcroft, 253 F.Supp.2d 587, 601 (S.D.N.Y.
Ashcroft v. ACLU, 535 U.S. 564, 575 (2002)
(Plurality opinion). See generally Pinkus v. United
States, 436 U.S. 293 (1978).
Miller, 413 U.S. at 32; Jacobellis v.
State of Ohio, 378 U.S. 184, 197-98 (1964) (Warren, C.J.,
dissenting) (although decided before Miller approved
the societal value prong, Miller quoted with approval
Chief Justice Warren’s observations in this case).
Jenkins v. Georgia, 418 U.S. 153, 157
Miller, 413 U.S. at 30-31.
Davison v. State, 288 So.2d 483, 487 (Fla.
1973) (rejecting consideration of the community standards of
the entire state).
Skywalker Records, Inc. v. Navarro, 739
F.Supp. 578, 587-88 (S.D. Fla. 1990) (holding that the
appropriate community to be considered was the geographic area
comprising Broward, Palm Beach and Dade Counties).
Hamling, 418 U.S. at 104-05.
Miller, 413 U.S. at 32. In fact, there
have been instances where the same motion picture has been
found obscene by one jury and not obscene by another – in
the same city, same courthouse and before the same judge, with
the two trials occurring within weeks of each other.
Hamling, 418 U.S. at 106.
Reno v. ACLU, 521 U.S. 844, 863 (1997)
(quoting ACLU v. Reno, 929 F.Supp 824, 883 (E.D. Pa.
Reno v. ACLU, 521 U.S. at 850.
Id. (citing ACLU v. Reno, 929 F.Supp
at 844 (E.D. Pa. 1996)).
Southeast Promotions, LTD. v. Conrad, 420
U.S. 546, 557 (1975); ACLU v. Reno, 217 F.3d 162 (3rd
Cir. 2000), cert. granted by, Ashcroft v. ACLU,
532 U.S. 1037 (2001), vacated by, Ashcroft v. ACLU, 535
U.S. 564 (2002), remanded to, ACLU v. Ashcroft,
322 F.3d 240 (3rd Cir. 2003), cert. granted by,
Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and
remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29,
Red Lion Broadcasting Co. v. FCC, 395 U.S.
367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726
Red Lion, 395 U.S. at 399-400; Turner
Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638,
(1994); Sable Communications of California v. FCC, 492
U.S. 115, 128 (1989).
Sable Communications, 492 U.S. at 128.
E.g., Paris Adult Theatre No. I v. Slaton,
413 U.S. 49, 58, (1973).
Nitke, 253 F.Supp.2d at 603.
Id.; Hamling, 418 U.S. at 106.
ACLU v. Reno, 217 F.3d 162, 175 (3rd
Cir. 2000) (“Web publishers are without any means to limit
access to their sites based on geographic location of
particular Internet users.”); Ashcroft v. ACLU, 535
U.S. 564, 575 (2002) (Plurality opinion); Nitke, 253
F.Supp.2d at 603. Although various geotargeting software
devices have been made available in recent times, none have
proved effective at blocking a geographic area as small as a
county, as would be required to avoid exposure to obscenity
prosecutions based on a particular county’s conservative
Cyberspace Communications, Inc., v. Engler,
55 F.Supp.2d 737, 744 (E.D. Mich. 1999), aff’d., 238
F.3d 420 (6th Cir. 2000), summ. judg. granted
same grounds, 142 F.Supp.2d. 827 (E.D. Mich. 2001).
ACLU v. Reno, 217 F.3d 162, 174-175 (3rd
Cir. 2000) (quoting Reno v. ACLU, 31 F.Supp.2d 473, 495
(E.D. Pa. 1999)) (internal quotation marks omitted).
That is not to say the community-standards test did
not wreck havoc on national distributors of traditional erotic
media. Where distribution was national, the distributor
was effectively responsible for learning the community
standards of hundreds of divisions of the 93 federal judicial
districts, the statewide standards of such diverse states as
Illinois, Texas, and California, which all embrace standards
of the entire state, and the various counties of states such
as Florida and Indiana, where county standards apply. As
difficult as it is to predict the standards of one’s own
community, expecting anyone to predict the standards of
hundreds of other communities is totally unrealistic.
Worse, there is no way to judicially learn the standards in
advance. Adult Video Ass'n. v. United States Dept. of
Justice, 71 F.3d 563 (6th Cir 1995)
(upholding the trial court’s refusal to issue a declaratory
judgment as to whether a particular motion picture was
United States v. Thomas, 74 F.3d 701 (6th
Cir. 1996), cert. den. 519 U.S. 820 (1996) (holding
venue proper in district from which viewer accessed
defendant’s bulletin board files); Memorandum of Law in
Support of Motion to Dismiss, filed in Nitke v. Ashcroft,
et. al., Case No. 01-Civ-11476 (S.D.N.Y. 2002) (noting
that a prosecution for sending obscene material from one place
to another is appropriate in the district from which it was
sent, the district in which it is received, or any district
through which it passes). See also Ashcroft v. ACLU,
535 U.S. at 601 (“[P]rosecution may be proper ‘in any
district in which [an] offense was begun, continued, or
completed.’” (quoting 18 U.S.C. §3237(a))). Thus, “it
seems likely that venue would be proper where the material
originates or where it is viewed.” Ashcroft v. ACLU,
535 U.S. at 602.
United States v. Extreme Associates, Inc., et.
al., 2005 W.L. 121749 (W.D. Pa. January 20, 2005).
Id. The trial court in the above-referenced
case ultimately dismissed all of the counts, finding that the
federal obscenity law is unconstitutional.
The court reasoned that
the government failed to meet its burden of demonstrating the
existence of a compelling governmental interest to justify the
restrictions on speech in light of the Supreme Court’s
decision in Lawrence v. Texas, 539
U.S. 558 (2003), which,
as interpreted by this Court, prevented the government from
using the establishment of a “moral code” as a
justification for obscenity laws. That decision is
likely to be appealed by the government, and the issue of
which community’s standards to apply was never resolved.
In a spate of obscenity prosecutions in the late
1980s and early 1990s targeting adult video manufactures in
Los Angeles, prosecutions materially all were brought in the
conservative jurisdiction to which the materials were shipped,
including Oklahoma City, Dallas, Tallahassee, Memphis and
Nitke, 253 F.Supp.2d at 604.
ACLU v. Reno, 217 F.3d 162, 169-170 (3rd
Cir. 2000), rev’d on other grounds, Ashcroft v. ACLU,
532 U.S. 1037 (2001), vacated by, Ashcroft v. ACLU, 535
U.S. 564 (2002), remanded to, ACLU v. Ashcroft, 322
F.3d 240 (3rd Cir. 2003), cert. granted by,
Ashcroft v. ACLU, 124 S.Ct. 399 (2003), aff’d and
remanded to, Ashcroft v. ACLU, 124 S.Ct. 2783 (June 29,
See Kelly M. Doherty, www.obscenity .com:
An Analysis of Obscenity and Indecency Regulation on the
Internet, 32 Akron
L. Rev. 259, 280 (1999).
ACLU v. Reno, 217 F.3d 162 (3rd Cir.
Ashcroft v. ACLU, 535 U.S. at 585-86.
Ashcroft v. ACLU, 535 U.S. at 587 (O’Connor, J.,
Ashcroft v. ACLU, 535 U.S. at 588-89.
Ashcroft v. ACLU,
535 U.S. at 590 (Breyer, J., concurring).
Ashcroft v. ACLU, 535 U.S. at 590-91 (Kennedy, J.,
Id. (citing Southeast Promotions Ltd., v.
Conrad, 420 U.S. 546, 557 (1975); Id. (“Indeed, when
Congress purports to abridge the freedom of a new medium, we
must be particularly attentive to its distinct attributes, for
‘differences in the characteristics of new media
justify…differences in the First Amendment standards applied
to them.’” (quoting Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 386 (1969))).
Ashcroft v. ACLU,
535 U.S. at 602 (Stevens, J., dissenting).
Ashcroft v. ACLU, 124 S.Ct. 2783 (2004).
Stanley v. Georgia, 394 U.S. 557 (1969).
Lawrence v. Texas, 539
U.S. 558 (2003).
Butler v. State of Mich., 352 U.S. 380, 383 (1957)
(striking down a statute prohibiting speech “tending to the
corruption of the morals of youth”).
Original link: http://www.firstamendment.com/digitalage.php