Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller's "contemporary Community Standards"

• Publication year: 2010

Georgia State University Law Review

Volume 26 j ^

Issue 3 Spring 2010

3-21-2012

Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller's ""Contemporary Community Standards"

Shannon Creasy

Follow this and additional works at: http://digitalarchive.gsu.edu/gsulr Part of the Law Commons

Recommended Citation

Creasy, Shannon (2009) "Defending Against a Charge of Obscenity in the Internet Age: How Google Searches Can Illuminate Miller's "Contemporary Community Standards"," Georgia State University Law Review: Vol. 26: Iss. 3, Article 6. Available at: http://digitalarchive.gsu.edu/gsulr/vol26/iss3/6

This Article is brought to you for free and open access by the College of Law Publications at Digital Archive @ GSU. It has been accepted for inclusion in Georgia State University Law Review by an authorized administrator of Digital Archive @ GSU. For more information, please contact digitalarchive@gsu.edu.

DEFENDING AGAINST A CHARGE OF OBSCENITY IN THE INTERNET AGE: HOW GOOGLE SEARCHES CAN ILLUMINATE MILLER'S "CONTEMPORARY COMMUNITY STANDARDS"

Shannon Creasy*

Introduction

Freedom of speech is one of our most fundamental¹ and treasured rights, requiring "ceaseless vigilance ... to prevent . . . erosion by Congress or the States."² However, "the right of free speech is not absolute at all times and under all circumstances."³ Despite the broad language of the First Amendment, certain types of speech are not afforded protection under the Constitution.⁴ Such unprotected speech is subject to government regulation that can include bans and criminal punishment.⁵ Obscenity is a type of unprotected speech, having been described by the Supreme Court as expression "utterly without redeeming social importance."⁶

*

J.D. 2010, Georgia State University College of Law.

1. Roth v. United States, 354 U.S. 476,488 (1957) (referring to speech as a "fundamental freedom" that has "contributed greatly to the development and well-being of our free society").

2. Id.

3. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942).

4. Miller v. California, 413 U.S. 15, 20 (1973) (citing Roth, 354 U.S. 476) (stating that key to the holding was "the Court's rejection of the claim that obscene materials were protected by the First Amendment"); Chaplinsky, 315 U.S. at 571-72 (explaining that certain "narrowly limited classes of speech" including obscenity, "fighting" words, and libel fall outside the protections of the First Amendment); JANINE S. HlLLER & RONNIE COHEN, INTERNET law & policy 50-51 (2002).

5. Roth, 354 U.S. at 492-93 (holding that the state criminal obscenity statute is constitutional); Chaplinsky, 315 U.S. at 572 (citing Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940)) (discussing categories of unprotected speech and stating that criminal punishment for use of '"epithets or personal abuse'" would not offend the Constitution); HlLLER & Cohen, supra note 4, at 50-51; H. Franklin Robbins, Jr. & Steven G. Mason, The Law of Obscenity - or Absurdity?, 15 St. thomas L. REV. 517, 535-36 (2003) (discussing the potential penalties that accompany criminal obscenity convictions).

6. Miller, 413 U.S. at 20 (citing Roth, 354 U.S. at 476) (stating that key to the holding was "the Court's rejection of the claim that obscene materials were protected by the First Amendment"); Roth, 354 U.S. at 484 ("We hold that obscenity is not within the area of constitutionally protected speech or press."); Chaplinsky, 315 U.S. at 572; HlLLER & COHEN, supra note 4, at 50-51. But see Roth, 354 U.S. at 509 (Douglas, J., dissenting) (citing Dennis v. United States, 341 U.S. 494, 502-11 (1951)) (for "speech to be punishable [it] must have some relation to action which could be penalized by [the]

1029

1030 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 26:3

Obscenity law has been controversial since its inception, and over the years prosecutions of violations have been sporadic.⁷ Under the George W. Bush Administration, the federal government stepped up

Q

enforcement of federal obscenity laws. "Mounting the biggest attack on pom since the Reagan Administration," the government secured forty obscenity convictions during Bush's first term, compared to four convictions during President Clinton's two terms in office.⁹ Revealing an intention to continue the trend of aggressive enforcement, former Attorney General Alberto Gonzales identified prosecuting obscenity offenses as fourth on the list of priorities for the Department of Justice in 2005.¹⁰

Widespread Internet access has also brought renewed attention to the issue of regulating obscene materials.¹¹ Although older obscenity cases often targeted literary works and then began focusing on films, modem criminal prosecutions typically involve images of sexual conduct,¹² which are nearly ubiquitous on the Internet.¹³

government"); Bob Woodward & Scott armstrong, The Brethren 194 (1979) ("The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place.").

7. Jan Samoriski, Issues in Cyberspace, Communication, Technology, Law, and Society on the Internet Frontier 267, 269 (Allyn & Bacon eds., 2002) ("Pornographers invariably put themselves at risk when producing and distributing their products, especially in the face of laws that leave the definition of pornography open to interpretation and make enforcement subject to the political winds of change."); Bret Boyce, Obscenity and Community Standards, 33 yale J. Int'L L. 299, 324-25 (2008); Bradley J. Shafer & Andrea E. Adams, Jurisprudence of Doubt: Obscenity, Indecency, and Morality at the Dawn of the 21st Century, 84 mich. bar J. 22 (2005), available at http://www.michbar.org/joumal/article.cfm?articleII>=873&volumeII>=66. See also Roth, 354 U.S. at 496, 508-13 (dissenting opinions of Justice Harlan, Justice Douglas, and Justice Black reflect controversy over whether, and to what extent, government can regulate speech).

8. Robert D. Richards & Clay Calvert, Obscenity Prosecutions and the Bush Administration: The Inside Perspective of the Adult Entertainment Industry & Defense Attorney Louis Sirkin, 14 VlLL. Sports & Ent. L.J. 233, 235-37 (2007) (citing Seth Lubove, Obscene Profits, Forbes, Dec. 12, 2005, at 98).

9. Id.

10. See Shafer & Adams, supra note 7 (discussing Attorney General's stated priorities).

11. Dick Ackerman, Technology & Obscenity: Ever-Changing Legal Challenges, 10 NEXUS: J. Opinion 37, 37 (2005) ("[TJhese individuals are upset because pornography is no longer confined to little shops on the back streets of a city that they can avoid."); Sean Adam Shiff, Comment, The Good, the Bad and the Ugly: Criminal Liability for Obscene and Indecent Speech on the Internet, 22 wm. Mitchell L. Rev. 731, 734-35 (1996) (discussing difficulties that new technologies create for courts with regard to applying obscenity standards and how recent legislative attention has focused on obscenity on the Internet).

12. Robbins & Mason, supra note 5, at 542 (discussing the book burnings of Ulysses as obscenity, despite it being listed as one of the "greatest novels of the twentieth century"); Doug Linder, Exploring Constitutional Conflicts, Regulation of Obscenity (2008), http://www.law.umkc.edu/faculty/projects/

2010] MILLER'S "CONTEMPORARY COMMUNITY STANDARDS" 1031

Technological advances that allow pomographers to efficiently stream online video and view pictures have led to an explosion in the pornography market.¹⁴ As of 2006, sources tracking pornography statistics reported that there were approximately 4.2 million pornographic websites, accounting for 12% of the total sites on the Internet.¹⁵ Annual pornography revenue in the United States is estimated at over $13 billion.¹⁶ Additionally, every second, there are as many as 372 people searching "adult" terms online.¹⁷ This easy access to pornography has revived arguments on each side of the regulation issue, with anti-pornography groups calling for increased

18

prosecutions to prevent moral decline and addiction, and free speech activists insisting that obscenity prosecutions violate the freedoms guaranteed by the First Amendment.¹⁹ Obscenity jurisprudence remains controversial because "in the hands of a

ftrials/conlaw/obscenity.htm (discussing early prosecutions focusing on classic literary works, such as Ulysses and Lady Chatterley's Lover, and more recent charges aimed at visual images).

13. Clay Calvert & Robert D. Richards, Stopping the Obscenity Madness 50 Years After Roth v. United States, 9 Tex. Rev. Ent. & Sports L. 1, 15 (2007) (discussing how the Internet now makes it easy to receive and consume sexual imagery in your own home); All-Spy Blog, Internet Pornography Statistics, www.all-spy.com/blog/2008/07/04/internet-pomography-statistics/ #time (last visited Mar. 15,2010) (discussing widespread availability of pornography on the Internet).

14. Shiff, supra note 11, at 735-36 ("[T]he recent proliferation of Internet pornography can be attributed to [the ability of users to] indulge their fantasies in the privacy of their own home. It can also be attributed to the ease with which users can download such images."); All-Spy Blog, Internet Pornography Statistics, http://www.all-spy.com/blog/2008/07/04/intemet-pomography-statistics/ (last visited Oct. 11,2008).

15. Family Safe Media, http://www.familysafemedia.eom/pornography_statistics.html#time. (last visited on Mar. 15,2010).

16. Dan Ackman, How Big is Porn?, forbes.com, May 25, 2001, http://www.forbes.com/ 2001/05/25/0524porn.html (discussing estimates of porn revenues as high as $14 billion annually). But see Ackman, supra (discussing that cited pornography revenues are exaggerated and estimating Internet pornography revenues as approximately $1 billion).

17. Family Safe Media, http://www.familysafemedia.com/pomography_statistics.html (last visited March 23,2010).

18. Ackerman, supra note 11, at 43 (explaining that easy and quick Internet access to pornography has motivated increased...