Obscenity and the World Wide Web

Justice Harlan referred to it as "the intractable obscenity problem."1 Since the Supreme Court began narrowing the scope of obscenity in 1957 and suggested that some portrayals of sex or nudity may be constitutionally protected notwithstanding their negative effects on some members of society,2 it has struggled to identify the line between protected and non-protected pornography.3 The problem, in a nutshell, has been to identify a definition of obscenity that preserves the power of government to regulate the worst forms of pornography for public welfare, and yet does not deter speech of actual value to society. Now, in the age of mass electronic communication, a new dimension to this problem appears. Whereas the Supreme Court has held that obscenity is defined by reference to "contemporary community standards," it is not clear whose community standard applies for purposes of Internet communication. Is it fair or necessary to hold a publisher on the World Wide Web to the most restrictive community standard in the nation? Or is it necessary for every community connected to the Web to lower its standards to those of the most tolerant locations? Does the Constitution require any particular geographic definition at all? I argue here that it is constitutionally permissible to apply the traditional test for obscenity, the Miller standard, to the Internet, including its reference to "contemporary community standards," without any requirement for a more particular definition. The "contemporary community standards" part of the Miller test was not meant to impose geographically varying First Amendment rights for publishers, and the fact that this standard sometimes results in geographic variation is more incidental than it is a matter of constitutional principle. The community standards component of the Miller test exists to acknowledge the role of juries in making findings of feet on matters of imprecise judgment. Use of an undefined community standard is no more constitutionally problematic in an Internet obscenity case than in any other kind of obscenity case. It is analogous to applying a "reasonable person" test to a person's business dealings over the Internet: while it is possible that juries in different parts of the country could sometimes apply that phrase differently, it is not designed as a geographically varying standard, and requires no special geographic definition. Moreover, if geographic variation in community standards is a matter of constitutional principle or right (and the law is not clear that it is), it only makes sense for it to be a right belonging to civic communities wishing to enforce their standards-not to individual publishers and distributors. Other key elements of the obscenity test are designed to protect individual rights and to ensure that obscenity law does not chill valuable speech in any community. The mere fact that some communities tolerate some types of obscenity that they could constitutionally prohibit does not give publishers in such locations a constitutional right (much less does it give them a right to impose such material on others outside of their community). Contrary to popular assumption, the Supreme Court has never held that publishers have a constitutional right to publish according to the standards of their own local vicinage. Nor has it held that publishers have a right to some kind of nationally averaged community standard. In fact, Miller v. California squarely rejected this idea, holding that "[i]t is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City."4 The stakes of this dispute are high. If the Internet requires an exception to the current rules for adjudicating obscenity, and if that exception requires juries to discern the standards of some community other than their own through the use of expert evidence, it will significantly tip the scales in obscenity cases toward defendants. …