Community Standards on the Internet, Where is the “Community?”

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

The Miller test was written in 1973 — long before the advent of the Internet, and in a day and age of far less mobility than we live in today. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.

Walters (disclaimer, he is the managing partner of my law office) finally got to test out his theory in a recent case taking place in Florida’s panhandle — as reported in Adult Video News:

ESCAMBIA COUNTY, Fla. – Circuit Court Judge Ron Swanson ruled Tuesday that the community standards of a four-county area will be used in determining whether videos Ray Guhn produced are obscene.

While Swanson rejected the grounds for the case’s dismissal, which were brought by Guhn’s attorney Larry Walters, the judge granted Walters’ request that jurors use the community standards of Escambia, Santa Rosa, Okaloosa and Walton counties, instead of those of only Santa Rosa County. The effect of this ruling was to nullify the prosecution’s earlier transfer of the case from Esacambia to Santa Rosa County.

This will benefit the defense, Walters said.

“This is a victory and an important ruling for our case,” Walters told AVN Online on Wednesday. “We are slowly chipping away at this concept that county standards are appropriate for the Internet. While we believe it should be the nation or the state, at least we received a larger area than just one county. We argued that it would be too small of an area without enough diversity.”

In a 1973 case, the U.S. Supreme Court ruled that in order for material to be deemed obscene, it has to offend community standards. While courts usually have applied a local or state community standard, Walters argued for national community standards to be used because of the universal nature of the Internet. (source)

2 Responses to Community Standards on the Internet, Where is the “Community?”

  1. blevinsj says:

    I do not attack “community standards” because I believe it is unnecessary. Miller is completely inapplicable to the internet. The internet does not have a community with cognizable standards. Further, Miller did not foresee the type of medium similar to the internet. You do not need Miller on the web. Based on my proposal, the nature of the internet, specifically its passivity, does not require a test for obscenity. Ultimately, the individual has the choice whether the view any and all information on the internet. Miller works in the offline world because people may not be able to avoid “obscene” material.

    A Superficial Look at the Internet as “Pure” Public Forum

    The internet is a unique forum for the dissemination of ideas. It transcends borders (domestic and international), it has a wholly anonymous creator, it has no centralized authority, it is readily accessible by almost anyone at any given time, and has applications left to be utilized. The internet itself is not a form of technology so unique that the rule of law cannot compensate. However, in the realm of free speech restrictions the Court has taken a path that appears to create the potential for a unique forum for the distribution and consumption of public ideas. The hypothetical forum is “pure” and is more restrictive of speech regulation than those “immemorially held in trust for use of the public.” International Soc. of Krishna Consciousness v. Lee, 505 U.S. 672, 679 (1992). By restricting the government’s ability to extend criminal and civil penalties to cyberspace with the same breadth as in the offline world, the Court has inadvertently created an institution that is beyond regulation. Concurrently the Court holds that the internet is not a traditional public forum, which does not provide the government a working framework to create constitutional restrictions online. Therefore, the internet may be outside of current precedent and left open for any and all publicly displayed information. The cure for offensive, tortious, or obscene speech may lie with the individual and a localized filter.
    The United States Supreme Court recognizes three distinct types of fora for the dissemination of ideas and speech: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Perry Educ Assoc. v. Perry Local Educator’s Assoc., 460 U.S. 37, 45 (1983). The traditional public forum is the most restrictive of governmental regulation regarding speech. Id. (stating “in a traditional public forum…[the] First Amendment protections are subject to heightened scrutiny”). If the Court finds the restriction to be content based then the government has the burden to demonstrate the existence of a compelling state interest and that the restriction is the least restrictive alternative to achieve that interest. Turner Broad. Sys. v. FCC, 512 U.S. 622, 643 (1994). In the alternative, if the Court finds a restriction to be unrelated to speech and content neutral the government still retains the burden to show the restriction is narrowly tailored to an important of significant governmental interest which also leaves open ample alternative channels of communication. Ward v. Rock Against Racism, 491 U.S. 781 (1989). The analysis of restrictions on protected free speech and the dissemination of ideas on the internet is unique. The uniqueness is the product of the Court’s reluctance to recognize the internet as a certain type of forum. While the government’s burden is heightened on traditional public forum, there remains a test that may be overcome. However, relying on the precedent established by International Soc. of Krishna Consciousness, Inc., 505 U.S. at 679, the court close mindedly held, “[t]he doctrines surrounding traditional public forums may not be extended to situations where history is lacking.” United States v. Am. Lib. Assoc., Inc., 539 U.S. 194 (2003). It appears the Court will not extend the traditional public forum analysis to the internet until there is sufficient history to substantiate the claim. There is no definite time frame for this to occur.
    The argument supporting the internet as a pure public forum is strengthened by the inability of the government to constitutionally impose criminal and civil penalties on illicit uses of the medium. The government was unable to extend criminal penalties to internet sites that posted child pornography because it substantially prohibited protected speech. Ashcroft v. Free Speech Coal., 535 U.S. 234 (2002). The courts have also restricted the extension of civil penalties to almost every facet of internet usage besides the individual that was the genesis of the information. Essentially, the law in the online world only applies to the initial individual that posts the information. In order to enforce any penalty on the violative individual, the government needs the assistance of the immunized entities. The specific and general deterrent effect is lacking given the current state of the law online. The law has created a “lawless” forum.
    Even if the Court were willing to extend a classic forum analysis to the internet, the government restriction of information and speech would be hindered by its ability to demonstrate an interest in the regulation. An important factor in determining whether the government can restrict speech is the captivity of the audience. The Court has found the private residence was the most protected forum because it was the “last vestige of the weary soul” to avoid unwanted speech. Frisby v. Schultz, 487 U.S. 474 (1988). The home computer and internet connection are not analogous to a private residence. The distinction lies in the form of the individual control over the access to the internet. Frisby and similar cases deal with the privacy interest by weighing it against the invasion by unwanted speech. The internet is, by its nature, passive. An individual must choose to access the connection, access the information, and contact the distributors of information. Zeran v. AOL, Inc., 129 F.3d 327 (4th Cir. 1997). The unwanted material is not thrust upon an individual by simply owning a computer. The individual can determine not to enter the web or to place a filter on their end of the connection. Therefore, by accessing the internet without a filter, the individual has relinquished any level of captivity by freely entering a public realm.
    The above analysis is superficial at best but the point remains the same, without a proper legally recognized designation the Court may be without recourse to decide a constitutionally viable restriction of free speech on the web. The conclusion of an unregulated internet is not necessarily a horrible idea. In fact, a “lawless” internet may be more aligned with the notions and fundamental principles of the First Amendment. The Court reaffirmed that the principle behind allowing otherwise offensive or defamatory speech into public consumption was to allow for the free flow of information into the marketplace of ideas. New York Times Co. v. Sullivan, 376 U.S. 264 (1964). The history of the internet embodies this concept of unfettered information, good or bad. By allowing the internet to exist as a “pure public forum,” the dissemination of ideas and the identification of truth will grow exponentially. The marketplace on the internet is immense and transcends all boundaries. By allowing the internet to exist without limits, the individual will gain the power and ability to view and absorb information at his discretion.

  2. […] To make things even worse, you have to apply “community standards.” What is obscene in one town can be completely acceptable in the next. What is run of the mill in Miami will shock a jury in Bibleburg, Tennessee. When it comes to the internet, this entire concept throws every card into the air. See Community Standards on the Internet, Where is the “Community?” […]

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