Standards Issue.

• Author: Godwin, Mike
• Position: Community standards in enforcement of Child Online Protection Act

The Supreme Court, "community standards," and the Internet

Chances are that if you're at all acquainted with the arcane legal territory known as "the law of obscenity," you know that in the United States such law is based on "community standards" that shift from one jurisdiction to another: What folks consider obscene--that is, without any redeeming social, cultural, or aesthetic value--in one place may be unobjectionable somewhere else. This is no small matter, as material considered obscene can legally be censored.

What you may not know is that a recent federal Appeals Court decision has called the entire "community standards" doctrine into question and that the U.S. Supreme Court has agreed to weigh in on the matter. This sets up the possibility of the first wholesale revision of obscenity law in decades. While there are reasons to be optimistic that the outcome will increase the realm of protected speech, there are also reasons to worry that we may end up with fewer speech rights.

Here's the background: In 1998, Congress passed the Child Online Protection Act (COPA), which is aimed at preventing minors from getting access to sexually explicit but otherwise legal material. COPA is based on the notion that the government has a role in preventing children's exposure to content that is legal for adults (that is, material that isn't legally obscene) but that nevertheless might be considered "harmful to minors" (sometimes known as "obscene for minors").

Soon after COPA became law, the American Civil Liberties Union challenged it in court, claiming it overly restricted First Amendment--protected speech. A U.S. District Court in Pennsylvania agreed that COPA ran afoul of the Constitution and, in June 2000, the 3rd Circuit Court of Appeals also agreed that COPA was too restrictive. The Supreme Court has agreed to hear the case in the upcoming term, which begins in October.

So why is the 3rd Circuit decision troublesome? In Miller v. California (1973), the Supreme Court came up with a way of dealing with so-called obscene content that got the high court out of the business of deciding at a national level what content is legal and what can be punished. Miller held that the definition of obscenity depends at least in part on the standards of local communities: Content that is acceptable in New York or San Francisco isn't necessarily going to be legal in Waco or Paducah, the court reasoned. At the same time, the court did carve out an exception for...