Cybercommunity versus geographical community standard for online pornography: a technological hierarchy in judging cyberspace obscenity.

AuthorKim, Gyong Ho
  1. INTRODUCTION

    For more than twenty years, courts have utilized the contemporary community standard announced in Roth v. United States,(1) and expanded in Miller v. California,(2) to determine obscenity.(3) The rationale behind these decisions was that obscenity standards drawn from one community differ from those of another.(4) In other words, some urban communities like New York City may have relatively liberal points of view about sexual materials while some others, like Maine, may be less tolerant.(5) Therefore, to protect the morality and well-being of its members, an individual community is entitled to draw its own definitions of what is indecent.(6)

    The validity of this geographical contemporary community standard has been questioned with the recent advances of the Internet.(7) This means of communication blurs the boundaries between local communities while creating a cyberspace that exists in virtual reality.(8) No geographic boundaries exist in a cybercommunity.(9) Rather, the Internet is a global community, where neighbors at either side of the globe can instantly communicate with one another.(10) Due to this virtual reality, the Miller concept of community does not apply appropriately to the context of the Internet.

    This paper not only explores significant obscenity cases involving the contemporary community standard, but also discusses where most obscene materials appear, such as the Internet, Computer Bulletin Boards, the World Wide Web, and USENET. In addition, United States v. Thomas,(11) a recent online obscenity case, is analyzed. Finally, this paper proposes a technological hierarchy in judging obscenity to assert that cybercommunity standards should be applied when drawing the line between protected materials and unprotected materials, such as obscene and sexually explicit materials.

  2. THE EVOLUTION OF THE OBSCENITY STANDARD

    An early English standard of obscenity judged material by the effect of isolated passages upon the most vulnerable members of society.(12) If certain sexual materials were obscene to the most susceptible persons, they were deemed obscene to everyone and banned.(13) Some American courts adopted this rule in determining the obscenity of materials.(14)

    However, the Supreme Court invalidated this rule in Roth, holding that obscenity falls outside constitutional protection and should be judged by the average person applying contemporary community standards, not by the most vulnerable members of society.(15) Roth conducted a publication business in New York, which involved mailing advertising circulars to promote the sale of his books, magazines, and photographs.(16) He was eventually convicted of violating a federal obscenity statute that prohibited the mailing of obscene, lascivious, or filthy publications.(17)

    In Roth, the Court defined obscene material as that "which deals with sex in a manner appealing to prurient interest[s]."(18) and has a "tendency to excite lustful thoughts."(19) The Court held that obscenity is not constitutionally protected because it is "utterly without redeeming social importance."(20) Justice Brennan observed that sexual materials should be judged by this test: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest[s]."(21)

    In 1969, however, the Supreme Court limited the application of the Roth standard in a case involving mere possession of sexually explicit materials in the privacy of one's own home.(22) In this case, federal and state agents obtained a search warrant and entered petitioner's home in a search for bookmaking materials.(23) The agents found three reels of eight-millimeter film, which the Court determined to be obscene and in violation of Georgia law.(24) The Court held that "mere categorization of these films as `obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments."(25) The Court also concluded that the right to obtain ideas and information is vital to a free society, regardless of their social value.(26) The First Amendment recognizes a compelling state interest in dealing with obscenity, yet the declaration of that interest is not justified in all situations.(27) In other words, the State's power to regulate obscenity in order to serve a valid governmental interest "simply does not extend to mere possession by the individual in the privacy of his own home."(28)

    Four years later, the Supreme Court decided another obscenity case involving the mailing of sexual materials.(29) In Hamling, petitioner was convicted of mailing an advertising brochure with sexually explicit photographic materials in violation of a federal obscenity statute.(30) The appeals court affirmed the conviction.(31)

    Regarding the application of community standards, the Court said that "distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials...."(32) In reaching this conclusion, the Court stated that:

    A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a "reasonable" person in other areas of the law.(33) The Supreme Court in Sable Communications of California, Inc. v. FCC(34) held that the denial of adult access to prerecorded sexual telephone messages which are indecent but not obscene cannot survive constitutional scrutiny.(35) Sable Communications of California, offering sexually oriented prerecorded telephone messages to callers through Pacific Bell, brought an action, asserting that section 223(b) of the Communications Act of 1934 is unconstitutional.(36) The district court found section 223(b) unconstitutional because it was not narrowly tailored to serve its compelling interest in protecting children from exposure to indecent dial-a-porn communications.(37)

    Affirming the district court's ruling, the Supreme Court differentiated the dial-it medium from other types of media.(38) While unsolicited mailings and other means of expression do not have a "meaningful opportunity" to avoid unwilling recipients, "the dial-it medium requires the listener to take affirmative steps to receive the communication."(39) Thus, the Court said that the "captive audience" problem is not an issue in this context.(40) Furthermore, the Court stated that:

    The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it.(41) Citing Ginsberg v. New York(42) and New York v. Ferber,(43) the Court also said that the state has legitimate interests in protecting the physical and psychological well-being of minors.(44) "This interest extends to shielding minors from the influence of literature that is not obscene by adult standards."(45) However, to be constitutional, legitimate interests must be narrowly drawn to avoid unnecessary interference with the freedoms established by the First Amendment.(46)

  3. CONTEMPORARY COMMUNITY STANDARDS

    Reaffirming its ruling in Roth, the Supreme Court in Miller stated that obscenity should be determined by the average person "applying contemporary community standards."(47) Miller conducted a mass mailing campaign to advertise the sale of adult materials in California.(48) Some of the materials were sent to unwilling recipients.(49) He was convicted under a California obscenity statute that prohibits the mailing of sexually explicit materials.(50)

    The Court rejected the "utterly without redeeming social value" test set in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts(51) because the concept was too ambiguous.(52) According to the new test, the proper way of judging obscenity is to test:

    (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole lacks serious literary, artistic, political, or scientific value.(53) The Court adopted a local community standard in determining obscenity because a national standard appeared "hypothetical and unascertainable."(54) In other words, citizens in various localities differ in tastes as well as attitudes. Therefore, "the absolutism of imposed uniformity," which is a national standard, should not strangle such diversity.(55) Chief Justice Burger stated that:

    [O]ur nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation.... To require a state to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility.(56) Thus, the Court rejected a national standard, stating that it is unrealistic and constitutionally unsound to require "the people of Maine or Mississippi [to] accept the public depiction of conduct found...

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