Do community standards exist in the age of the Internet?

By Robert Peters, Esq.
President of Morality in Media
July 20, 2004

Introduction

From a legal perspective, there are two dimensions to the question, "Do community standards exist in the age of the Internet?" First, there is a "constitutional" dimension because the argument is being made that obscenity laws cannot be applied to the Internet because application of the obscenity test depends in part on application of "community standards." Second, there is a "pragmatic" dimension because the argument is made that how can anything violate community standards when there is so much hardcore pornography around?

Community Standards and Content that is Obscene for Minors

In ACLU v. Reno, 217 F.3rd 162, at 175 (3rd Cir. 2000), a U.S. Court of Appeals held that the Child Online Protection Act (COPA), a law intended to restrict children's access to commercial websites that market sex material deemed harmful to minors, is unconstitutional. The Court of Appeals reasoned that because "Web publishers are without any means to limit access to their sites based on geographic location of particular Internet users," they would have to restrict access to "any material that might be deemed harmful [to minors] by the most puritan of communities in any state." The Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002) rejected the notion that COPA's reliance on community standards rendered the statute unconstitutionally overbroad and remanded the case for further proceedings:

In defense of the Court's disposition, I would point out the following. First, there is no constitutional requirement that judges and juries in Internet obscenity cases must apply local community standards. As the Supreme Court noted in Ashcroft v. ACLU, 535 U.S. at 576, the government in the COPA case maintains that jurors will be "'instructed to consider the standards of the adult community as a whole, without geographic specification.'"

Second, we should not assume that adult standards for what is suitable or unsuitable for minors differ all that much, regardless of the "geographic location," especially when the subject is pornographic materials. I am not a parent, but I have lived in New York City for more than thirty years, and I have been reading the local papers here since the fall of 1977. Even assuming (and I don't) that the "average" adult New Yorker has come to accept hardcore pornographic content that would not be acceptable in other parts of the country, I do not think he or she has come to think that it is now OK to expose children to smut.

Third, technology continues to develop to enable website operators to block access from "geographic locations." As noted in, "New technology limits access," (Newsday, 7/12/2004):

"As geolocation technology improves, websites are increasingly blocking groups of visitors and carving the Web into smaller chunks-in some cases, down to a ZIP code… The major geolocation companies claim accuracy of 80% or more for city-level data."

Community Standards and Content Obscene for Adults

In December 2001, the National Coalition for Sexual Freedom filed a lawsuit in the Manhattan (New York City) federal district court seeking to overturn a provision in the Communications Decency Act (CDA) of 1996 that prohibits distribution of obscene matter on the Internet. In part, the Coalition argued (in the words of plaintiffs' legal counsel John F. Wirenius), "Obscenity is unprotected speech, but not all material is obscene from jurisdiction to jurisdiction. Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied on the Internet?" ["New Suit Targets Obscenity Law," Wired News, 12/12/01] In March 2003, a three-judge federal district court panel refused to issue a preliminary injunction blocking enforcement of the CDA's obscenity provision.

In defense of the panel's refusal, I would point out the following. First, in Miller v. California, 413 U.S. 15, at 29 (1973), the Supreme Court said that the obscenity test was intended to "isolate 'hard core' pornography from expression protected by the First Amendment;" and as I understand the law of obscenity, sex material must constitute hardcore pornography—irrespective of what community standard is applied. The obscenity test gives communities a voice in determining what sex materials appeal to the prurient interest and what hardcore sexual conduct is depicted or described in a patently offensive manner, but that voice is not unlimited. As the Supreme Court said in Jenkins v. Georgia, 418 U.S. at 160-161 (1974)

"Even though questions of appeal to the 'prurient interest' or of patent offensiveness re 'essentially questions of fact,' it would be a serious misreading of Miller to conclude that juries have unbridled discretion in determining what is 'patently offensive'… It would be wholly at odds with this aspect of Miller to uphold an obscenity conviction based upon a defendant's depiction of a woman with a bare midriff, even though a properly charged jury unanimously agreed on a verdict of guilty."

Similarly, the Supreme Court said in Smith v. U.S., 431 U.S. 291, at 305-306 (1977):

"We have stressed before that juries must be instructed properly so that they consider the entire community and not simply their own subjective reactions, or the reactions of a sensitive or callous minority…Finally, it is always appropriate for the appellate court to review the sufficiency of the evidence." [Emphasis added]

To constitute "'hard core' pornography", the material must also be lacking in serious artistic, literary, political and scientific value; and this serious value prong of the obscenity test is not determined by applying community standards. [Pope v. Illinois, 481 U.S. 497 (1987)]

Second, in Ashcroft v. ACLU, 535 U.S. at 576, the Supreme Court noted, "community standards need not be defined by reference to a precise geographic area." In a concurring opinion, Justice O'Connor said (535 U.S. at 587-588): "Our precedents do not forbid adoption of a national standard…To be sure, the Court in Miller also stated that a national standard might be 'unascertainable' 413 U.S. at 31, and 'unrealistic,' id, at 32. But where the Internet is concerned, I do not share that skepticism." In another concurring opinion, Justice Breyer said (535 U.S. at 591), "A nationally uniform adult-based standard—which Congress, in its Committee Report, said that it intended—significantly alleviates any special need for First Amendment protection."

Third, the obscenity concept would still serve its laudable purpose (i.e., to protect society without trampling on the First Amendment) if juries weren't required to apply "community standards." In an article, "Reflections on 'Contemporary Community Standards': The Perpetuation Of An Irrelevant Concept In The Law Of Obscenity" (North Carolina Law Review, Vol. 56, page 1, at pages 27-28, 1978), Frederick F. Schauer makes the argument:

"The concept of community standards exists in present day obscenity law only by historical accident…A rejection of the contemporary community standards concept and its partner in crime, patent offensiveness, would not decrease the protection that the First Amendment now affords…If the contemporary community standards factor is eliminated, the unpredictability of local standards and the concomitant problems raised in Smith are removed…The need to evaluate the impossible that occurred under the national standards formulation would also disappear. Obscenity determinations would be narrowed to the determination of appeal to the prurient interest as a physiological and psychological factor and that of 'serious literary, artistic, political or scientific value.'"

Availability of Hardcore Pornography Not the Same Thing as Community Acceptance

Defenders of hardcore pornography say that the widespread availability of this material is proof that communities now accept it. If that were true, no jury could ever find any sex material to be obscene—because to be obscene sexual material must violate community standards. But as the Supreme Court noted in Hamling v. United States, 418 U.S. 87, at 125-126 (1974):

"As stated by the Court of Appeals, the mere fact that materials similar to the brochure at issue here 'are for sale and purchased at book stores around the country does not make them witnesses of virtue.' Ibid. Or, as put by the Court of Appeals in U.S. v. Manarite, 448 F.2nd 583 (CA2 1971): 'Mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.' Id., at 593."

Undoubtedly, there is a large market for hardcore pornography; but just as with other addictions, a large percentage of hardcore pornography is presumably consumed by a relatively small percentage of people (young and old) addicted to it.

Furthermore, the mere fact that an individual looks at pornography does not mean he or she approves of the materials viewed (many are ashamed of themselves) or of the full array of degrading, perverse and violent hardcore sex materials available on the Internet.

According to an article in USA TODAY ("Online porn often leads hi-tech way," 3/9/04), "one in four Internet users in the USA visited porn sites in December." What the article didn't say is that many visits were by individuals who are addicted to pornography, who are under 18 years of age, or who accidentally went to porn sites while looking for other sites. Even then, 75% of Internet users (a large majority) didn't visit a porn site in December.

In March 2002 and again in March 2004, MIM commissioned Wirthlin Worldwide to ask a question in a national survey about enforcement of federal Internet obscenity laws. Eighty-two percent of adult Americans surveyed in March 2004 said that the Federal laws against Internet obscenity should be vigorously enforced. In a virtually identical question asked by Wirthlin in March 2002, 81% said yes to that question. The question read as follows:

"Since 1995, the World Wide Web has expanded rapidly and is now estimated to contain as many as 40 million [the 2002 poll cited "20 million"] websites. A large number of these Internet websites contain hard-core pornography. The Supreme Court has said that those who distribute hard-core pornography can be prosecuted under obscenity laws. In 1996, Congress expanded federal obscenity laws, making it a crime to distribute obscene materials on the Internet. In your opinion, SHOULD the federal laws against Internet obscenity be vigorously enforced? And do you hold that opinion strongly or just somewhat?"

To help dispel the notion that obscenity has become as mainstream and acceptable as apple pie, MIM attorneys drafted a Concurrent Resolution expressing the sense of Congress that "the federal obscenity laws be vigorously enforced throughout the nation." In November 2003, the Senate adopted S. Con. Res. 77 by unanimous consent. Yes, Senators may have had this year's election in mind, but if obscenity were as popular as some say, there is NO Way Sen.Con.Res.77 would have been adopted by unanimous consent.