Pornography, community and the Internet - freedom of speech and obscenity on the Internet.

• Author: Kamiel, Yuval

1. INTRODUCTION

   1. General

      The recent emergence of the Internet has posed new challenges for the legal community. One of the much debated issues among legal scholars is whether the Internet should be regulated by a new independent set of legal principles under the rubric of "Internet" or "cyberspace" law ("cyberlaw") or whether the Internet is nothing more than another important technological device which can be suitably adapted to existing jurisprudence. According to the former "revolutionary" approach, Internet law is a separate, autonomous field with its own developing independent codes and unique guiding principles which cannot be addressed by traditional legal doctrine. As a result, all acts perpetrated in the virtual world are subject to a new and innovative test. (1) Cyberspace is thus perceived as occupying another dimension located on its own "planet," attached to no country and to which most domestic laws do not apply. (2)

      Under the second "moderate" approach, cyberlaw does not have the capability to occupy its own "space." As Justice Easterbrook noted, "there was no more a 'law of cyberspace' than there was a 'Law of the Horse.'" (3) The moderate approach views the Internet as a novel medium that traditional law can address by means of existing tools. (4)

      Both of these approaches form the basis for almost all of the debate surrounding the role of law and the Internet and strongly influence the resolutions of the various legal issues that arise out of Internet use.

      This dichotomy is well expressed by the treatment of criminal offenses that are perpetrated in cyberspace (virtual offenses). The dissemination of obscene material on the Internet is one example that illuminates the problems in attempting to address this issue. Since the dissemination of obscene material on the Internet automatically provides the offense with an international character, a number of interesting points arise: (1) Should jurisdiction be determined according to the perpetrator's place of residence, the victim's place of residence, the place of residence of the Internet Service Provider ("ISP") through which the perpetrator is operating, or everywhere in the world in light of the transnational character of the Internet? Or is it necessary to establish an autonomous jurisdiction to deal with crimes committed in cyberspace? (2) What law should govern the adjudication of any such case? Should the choice of law be determined according to the location of the perpetrator's computer or according to the jurisdiction housing the ISP? (3) Even if an answer could be found for the above two questions, what would be the substance of the law that would eventually cover the offense? Should crimes committed in cyberspace be subject to a new "revolutionary" independent and unique system of law or is a "moderate" solution sufficient, whereby any modifications or adaptations that need to be made will be done within the framework of existing state (or federal) laws in light of the circumstantial nature of the commission of the offense in cyberspace?

      This article will attempt to tackle these issues by focusing on one area of law that is highly relevant to this discussion--the dissemination of obscene materials and the various methods used to determine when such dissemination is transformed into a criminal act punishable by law. To do so, the article will concentrate on methods of recognition by American jurisprudence of the offense of obscenity.

   2. Pornography and Community

      Contrary to regular criminal offenses, which are evaluated against a state or international standard, American obscenity laws are community-contingent offenses where it is the standard of the relevant community that determines if a specific distributed pornographic material is obscene. (5) Since every state is granted sovereignty over the establishment of its own penal code, the laws that are enacted necessarily reflect the legislative body that created them. In democratic systems, this power should express a balance of that society's prevailing interests at any point in time. The determination of whether any behavior achieves the level of criminal obscenity in a given state is therefore dependent on the community of a particular social group in that state. The enacted law in such cases does not determine the contents of this community standard; rather, it only defines the community whose standards will be applied in examining the specific conduct. Thus, the community standard will be applied and defined in an ad hoc manner whenever an instance is subjected to judicial scrutiny.

      Two unique features can be marked while characterizing a community-contingent offense; first, the offense is designed with a specific group in mind, such as the victim or the perpetrator, and therefore does not address the general populace; and second, a community-contingent offense, by its very nature, necessitates an ad hoc reliance on a specific community standard by which criminal behavior will be judged. The latter characterization is a natural derivative of the former. Since a community-contingent offense applies only to a specific segment of the population, the state legislature does not have the ability or even the legitimacy to define the standards for the particular community within the state.

      This article will attempt to examine how the issue of lewd publications and the offense of "obscenity" as an extreme symbol thereof, is affected by the distribution of this type of material in cyberspace. The article will explore the possibility of applying the American community contingency standard to the dissemination of obscenity on the Internet. Obviously, if the connotation of "community" is different in cyberspace, obscenity offenses will have to be modified accordingly. Therefore, the question of whether the Internet has spawned one or more new "virtual" communities with populations that are both personal and borderless, or whether "traditional" communities are equipped to handle the burden of obscenity offenses on their own, must be addressed. The initial presumption is that the "transmission" of offensive activity into cyberspace does not eliminate its community-contingent aspect. That aspect will remain intact while the definition of the specific community which determines the proper standard of conduct will change. (6)

      Section 2 will discuss prevailing American legal thought with respect to the community-contingent aspect of obscenity laws, by reviewing the relevant legislation and case law pertaining to such Internet related acts. Section 3 will explore whether the Internet creates one or more virtual communities by listing the various community characteristics found on the many Internet forums and by a brief philosophical analysis of the political ideology that may form the basis for recognition of separate virtual communities. We will demonstrate that both liberal and communitarian arguments can be made in favor of recognizing the Internet as a creator of virtual communities. An explanation will follow as to why a virtual community standard should be preferred over a local community standard in the adjudication of virtual obscenity cases in American law. The section will conclude by reflecting on a number of serious and practical legal issues that result from the replacement of a local community standard with that of a virtual community. Section 4 will attempt to arrive at a practical application of our proposed model.

2. PREVAILING LAW--SEXUALLY EXPLICIT MATERIALS UNDER AMERICAN LAW: OBSCENITY AS A COMMUNITY-CONTINGENT OFFENSE

   As a by-product of the American principles of constitutionality and free speech, any promulgation of sexual content that does not cross the bounds into criminally prohibited obscenity is deemed permissible.

   The 1973 United States Supreme Court decision in Miller v. California, established criteria, which to this day, serves as the definitive obscenity test. (7) In Miller, appellant Marvin Miller was accused of distributing brochures that contained explicit pictures of sexual acts. (8) The Supreme Court, in a five to four (5-4) opinion, established a three-pronged cumulative test for determining the existence of obscenity: (9)

   1. "[W]hether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest;" (10)

   2. "[W]hether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;" (11) and

   3. "[W]hether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." (12)

      The first component of the Miller test indicates the community-contingent nature of the offense since the application of contemporary community standards is a condition for determining whether certain material will be viewed as obscene. (13)

      It is noteworthy that the offense of obscenity in American law as a community-contingent offense was determined even prior to Miller, in the framework of a test that was established in the 1957 precedent case of Roth v. United States. (14) In Roth, the Supreme Court held that a work would be deemed obscene if: "the average person, applying contemporary community standards, [would determine that] the dominant theme of the material taken as a whole appeals to prurient interest." (15)

      Despite the Court's ruling in Roth, the final and prevalent definition of obscenity in American law was established, as discussed, in the 1973 Miller case, where the Roth "contemporary community standard" test was inserted as the first component of a three-prong test. (16)

      There are two exceptions to the Miller test:

   1. Private possession of obscene materials is permitted as long as such material is not circulated, publicized or exhibited in public. According to case law, the right to privacy and information, manifested in this case by the private and concealed possession of obscene material, supersedes...