Return to Cyberspace Law & Policy Institute Home Page.THE COMMUNITY STANDARDS CONUNDRUM IN A BORDERLESS WORLD:
MAKING SENSE OF OBSCENITY LAW IN CYBERSPACE
Fred L. Wilks
Spring 1998
I. Introduction
One of the greatest challenges to the maintenance of our Constitutional rights has been the proliferation of unforeseen circumstances brought about by technological advances. How could anyone over two hundred years ago have contemplated that the First Amendment would apply to an electronic message sent out instantaneously to a mass audience? Could the Framers have meant that such a message should receive First Amendment protection even when it is sexually explicit? While most sexually related material is protected, it is well settled that the First Amendment does not protect the distribution of materials depicting ultimate sex acts, defecation, and similar "obscenity." (1) The more controversial issue, however, has proven to be the task of defining the scope of this obscenity exception to the First Amendment. (2) What is or is not too offensive to bear and by whose standards are juries to decide? May they consider only whether material is offensive to themselves and their neighbors or must they consider the sensibilities of groups in more distant communities? Though these are not new questions, they must be re-examined in light of the advent of the Internet. For it is within this context that these questions have come to weigh so heavily on the breadth of our First Amendment rights.
Providing inexpensive access to near instantaneous global communication for anyone with a home computer, the Internet has effectively dismantled the barriers to communication previously posed by geographical limitations. (3) As a result, the Internet has rendered moot legal distinctions with respect to speech that are based on the geographic locale in which the communication takes place. No longer can a local government protect its citizens from sexually explicit material without also preventing other communities from receiving such material. Similarly, a local government can no longer protect the right of its citizens to communicate and receive sexually explicit material without forcing upon the citizens of more distant communities potential exposure to such material. A balance must therefore be struck between the right of the government to protect the sensibilities of its citizens and the right of those with unpopular messages to speak. (4)
Part II of this comment will examine the current Constitutional jurisprudence restricting the power of the government to regulate obscenity over the Internet. It focuses on two provisions of the Constitution: the Commerce Clause and the First Amendment. Part III discusses the current obscenity standard as applied to communications via the Internet. It concludes that the current standard as applied in Cyberspace is both repugnant to one of the basic tenets of the Commerce Clause and under protective of First Amendment rights. Part IV explores the suitability of possible alternatives to the current obscenity standard concluding that the only alternative which sufficiently protects Free Speech rights while taking into consideration the right of the government to protect its citizens from depraved material is a standard which is applied uniformly across all of the United States. Rather than applying a national standard that would allow speech to be outlawed if offensive to the "average" community’s standards, however, speech should be protected unless found to be patently offensive to the most tolerant communities’ standards. At the same time, the sensitivities of less tolerant communities should be accommodated by allowing less protection for speech that might intrude uninvited upon the eyes and ears of those communities’ citizens. Only under such a consistent national framework can the right to disseminate unpopular messages be given proper consideration where the subjectivities of a local community jury threaten to rule the speech of an entire nation.
II. Background
A. The Dormant Commerce Clause In Cyberspace
The Commerce Clause has two components: an affirmative grant of power to Congress (5) and a less obvious restriction on the power of state governments to regulate interstate commerce. (6) Generally, the later (known as the Dormant Commerce Clause) is viewed as an anti-protectionist safeguard--a constitutional restriction on the power of local authorities to pass regulations for the purpose of placing local economic actors in an improved competitive position. (7) Even where such improper motives are absent, however, the need for an effective national infrastructure nonetheless limits local authority. (8)
For instance, in Southern Pacific Co. v. Arizona ex rel. Sullivan, (9) the Supreme Court observed that the practical effect of a state law dictating the length of trains was to control the operation of trains beyond the boundaries of that state. (10) Train operators would be forced to break up their trains at state borders, or be abide by the regulation wherever they traveled. (11) Such a regulation, the Court held, was the type of disabling burden (12) on interstate commerce that could not withstand scrutiny under the Commerce Clause. (13) The railroad system was therefore a mode of transportation deserving of uniform national treatment. (14)
More recently, in American Libraries Ass’n v. Pataki, (15) a Dormant Commerce Clause attack was mounted against a New York act making it a crime to communicate over the Internet material found to be obscene as to minors. (16) The court made short work of the threshold question of whether the Internet constituted an instrument of commerce by observing that the Internet serves as a conduit for the transportation of goods. (17) Next, the court reasoned that because a distant content provider on the Internet could not deny citizens of New York access, (18) the regulation at issue had the practical effect of restricting Internet activity wholly outside the borders of New York. (19) Because of this burden, it held the Internet to be a mode of commerce demanding consistent treatment on a national level. (20) This meant that the local New York government lacked the power to enact such a regulation. (21)
B. Obscenity Is Outside the Ambit of the First Amendment
The Supreme Court has offered more than one rationale for carving an obscenity exception out of the First Amendment. First, it is argued that a review of history demonstrates that the Framers of the Constitution did not intend for the freedom of expression to include protection of obscene material. (22) Second, obscene speech is of such slight social value in the marketplace of ideas that any interest the purveyors of obscenity may have is outweighed by the public interest in order and morality. (23) Finally, purveyors of obscenity should not be free to invade the sensitivities of unsuspecting citizens. (24)
Whatever the merit of these rationales, it is well settled that the First Amendment does not protect speech that is obscene. (25) Distinguishing between that speech which is obscene and that which is merely "indecent,"(26) however, has never been a simple matter. Under current obscenity law, it is not enough for a speaker to merely know what the allegedly obscene material contains in order to predict its legal status. A speaker must also consider 1) the community into which the material is being sent and 2) the age of those who might access the material.
1. Local Community Standards
The current legal test for obscenity was set forth by the Supreme Court in Miller v. California. (27) There, the Court held that in order to find sexually explicit speech obscene, a trier of fact must determine:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the 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. (28)
Much importance is attached to the phrase "applying the contemporary community standards." Prior to Miller, the Court had ruled that one national obscenity standard should be employed by a trier of fact since the Constitution was intended to and should apply uniformly across the United States. (29) Under the Miller ruling, however, jurors are required to draw upon their "own knowledge of the views of the average person in the [local] community or vicinage"(30) in order to determine what appeals to the "prurient interest" and what is "patently offensive."(31) The third prong of the three-part Miller inquiry requires the application of a more objective national perspective. (32)
In light of this emphasis on the application of local community standards, the issue of proper venue in obscenity prosecutions under Federal law has become a critical issue. For example, where borderline obscenity has been transported from San Francisco to Memphis, Tennessee, the criminality of the distribution may depend entirely upon the choice of venue since 1) it is the jury’s local community standards that will apply and 2) the community standards of Memphis are presumably much less tolerant than those of San Francisco. (33) The Miller standard allows the government to subject distributors of allegedly obscene materials to the community standards of the various localities into which they transmit their materials. (34) Accordingly, Congress has granted federal prosecutors carte blanche to prosecute violations of federal obscenity laws "in any district from, through, or into which" the allegedly obscene material moves. (35) The result is that the criminality of borderline material may depend on the choice of venue made by the prosecutor himself.
This raises the issue of whether obscene materials available via the Internet can be fairly said to "move through" or "into" every district from which an individual accesses them. The argument that there is no tangible thing being transported is ill conceived. (36) Nevertheless, some would argue that merely creating a website or posting material on a newsgroup should not be sufficient contact with a distant jurisdiction to find venue there proper. (37) Considering the size of the potential audience for Internet messages and the absence of a viable method of limiting access based on a receiver’s location, (38) it seems unlikely that a sender of information may successfully deny having knowledge that one or more members of distant communities will view it. (39) Thus, venue for an obscenity prosecution is most likely proper wherever the material is received.
Due in large part to the fact that providers of sexually explicit material are subjected to scrutiny under the standards of far off communities, Miller’s focus on local standards has drawn more than its share of criticism. One reason the Miller Court held its construction to be necessary was the fact that the United States is "simply too big and too diverse . . . to reasonably expect that such standards could be articulated for all 50 States in a single formulation . . ."(40) That is, a "national" standard would be unrealistic since it would be impossible to ascertain and apply. (41) Critics, on the other hand, have argued that the community standards construction is unconstitutionally vague and inevitably chills speech "far beyond the government’s constitutional power to [prohibit it]."(42) Under the local community standards construction, distributors of national magazines are forced into self-censorship in order to avoid prosecution in any of several intolerant communities. (43) The rejoinder to this attack is that magazine distributors need not censor their magazines at all. Instead, they need only to refrain from distributing uncensored materials in communities where such materials are illegal.
More recently, the contemporary community standards construction was challenged in United States v. Thomas (44) on the ground that the on-line world had created a de facto national standard. The case involved a northern California couple who had been operating a computer bulletin board system which provided sexually explicit photographs. After providing access to an undercover United States Postal Inspector in Tennessee, they were indicted and convicted under 18 U.S.C. § 1465 (45) for knowingly using a means of interstate commerce to transport obscene material. On appeal, the Thomases argued that the court below had improperly instructed the jury to apply the local community standards of Memphis rather than a new definition of community "based on the broad-ranging connections among people in cyberspace."(46) They argued that under the traditional conception of local standards, their inability to control access to their bulletin board materials would force them to censor their materials to the extent necessary to protect themselves from prosecution in the community with the most restrictive standards. This argument distinguished previously known forms of distribution which could be limited to certain geographic communities (such as magazines) from on-line distribution which is an everywhere-or-nowhere undertaking. As the Sixth Circuit observed, however, the facts did not present a situation where the defendant bulletin board operator had no control over the geographic areas in which his materials were distributed. (47) Accordingly, the court correctly held the Thomas’s conduct indistinguishable from the distribution of obscene materials through magazines or the mail. (48) Whether the same rule would be applied where an Internet content provider could not bar access to citizens of sensitive communities is a question that remains unanswered.
2. Obscenity as to Minors
The jurisdiction in which a speaker is to be tried for distributing obscene material is not the only variable that affects whether the material at issue will fall within the obscenity exception. The age of the persons to which the material is made available is a key factor in the determination as well. Governments at the state and national level may constitutionally prohibit the distribution to minors of sexually explicit material that is obscene as to minors. (49) They may not, however, "reduce the adult population . . . to reading only what is fit for children" by enacting wholesale bans on material that is obscene as to minors, but not as to adults. (50)
The Court expanded on the meaning of this in Sable Communications of California v. F.C.C. (51) There the Court held that when the government enacts regulations aimed at protecting children from literature that is obscene only as to children, it must do so by narrowly drawn regulations designed to protect children without unnecessarily interfering with the First Amendment freedoms of adults. (52) Specifically, the Court held that "indecent" dial-a-porn could not be completely banned in order to protect children absent a finding that there were no less restrictive means available to achieve that aim. (53) It also distinguished the dial-a-porn messages from television and radio broadcasting which receive less First Amendment protection (54) by pointing to the fact that a listener was required to take affirmative steps to receive the communication. (55) Such distribution is materially different from a situation where a listener does not invite or is surprised by the received message. (56)
More recently, the Court articulated the standard by which regulations on indecent speech should be reviewed in Reno v. A.C.L.U. (57) Where a large amount of speech that adults have a constitutional right to receive is suppressed for the purpose of protecting children, the burden on speech is unacceptable where "less restrictive alternatives would be at least as effective" in achieving the purpose that the statute was enacted to serve. (58) The Court pointed to several factors that supported its holding that the Communications Decency Act (CDA) (59) was not narrowly tailored. First, the Court noted that in the absence of viable age verification procedures, (60) a sender of information via the world wide web, usenet, or chatrooms would have to be charged with knowing that one or more minors would likely view it. (61) Thus, the only way one could avoid criminal liability under the CDA was to abstain from transmitting sexually related speech altogether--to adults as well as children. Second, the court noted that like the phone messages at issue in Sable, Internet users "seldom encounter content by accident."(62) While the Court pointed to alternatives to the restrictions on indecent speech such as "tagging,"(63) it did not expressly hold that such alternatives were as effective as the CDA. Instead, it imposed an "especially heavy burden" on the government to explain why less restrictive alternatives would not be as effective. The government could not satisfy this burden. (64)
III. Constitutional Concerns and the Application of Local Community Standards to the Internet
A. Local Community Standards And The Dormant Commerce Clause
Since under Pataki states may not regulate obscenity on the Internet, only a Federal regulation such as 18 U.S.C. §1465 may restrict allegedly obscene Internet speech. Under the Miller community standards formulation, however, Internet speech does not receive uniform treatment even under a Federal regulation. Because of this, the Miller standard is repugnant to one of the principle underlying purposes of the Commerce Clause (65) when applied to Internet speech and should not therefore be constitutionally applied to such speech.
Dormant Commerce Clause challenges have in the past been directed at regulations enacted by local authorities. Such challenges have been founded on one or both of the two rationales underlying the Dormant Commerce Clause: the anti-protectionist doctrine (66) and the need for an effective national infrastructure. (67) Challenging a Federal regulation on anti-protectionist grounds would make little sense since Congress would hardly enact legislation in order to favor the economy of one locality to the detriment of others. Nonetheless, a Federal regulation that establishes inconsistent local restrictions on a mode of interstate transportation or communication would arguably violate the Commerce Clause despite its status as a Federal regulation and lack of protectionist motive. (68) For instance, a Federal restriction of trains that are "too long" according to local standards should be as violative of the Commerce Clause as the local regulations in Southern Pacific since the effect is the same. Varying local standards would subject train operators to disabling discordant responsibilities.
Similarly, 18 U.S.C. § 1465, which prohibits the distribution of obscene material in interstate commerce, violates the Commerce Clause when it is applied to Internet speech since the material in any given case will be judged according to local standards. Under such a rule of law, Internet content providers, unlike speakers in other mediums who can choose not to distribute to particular commonties, are inevitably subject to "discordant responsibilities." (69) Put another way, two individuals found to have distributed the very same material and prosecuted under the very same 18 U.S.C. § 1465, might find themselves in quite different legal positions when prosecuted in different jurisdictions applying different community standards. (70) Had Congress written into law such a rule--whereby the standard for a national medium are determined by local actors--the principle of uniform national regulation would be frustrated. Such a rule of law, if written by Congress, should therefore be viewed as prohibited by the Commerce Clause.
It is not 18 U.S.C. § 1465 as drafted, however, which violates the Commerce Clause since that regulation does nothing more than restrict the distribution of obscenity. The real culprit is Miller’s local community standards--a constitutional definition of obscenity written into existence by the Supreme Court. Such a rule of law should be treated no differently from acts of Congress. That is, if law contradicts a basic premise of the Commerce Clause, it should be invalid however it was created. Thus, the local community standards element of the Miller standard should not be viewed as constitutional today simply because it was viewed as such by the Court 25 years ago where it applied to mediums of speech that differ in a fundamental way from the Internet.
B. Local Community Standards as a Form of Variable Obscenity
It has long been recognized that the constitutional standard for obscenity varies according to the age of the audience. (71) Less obvious is the fact that Miler’s community standards formulation is merely another form of variable obscenity. Indeed, both where children are involved and where a community is particularly sensitive, the sexually explicit material at issue is especially likely to be found obscene. (72) This principle can be stated more generally as follows: where a specific class of individuals has a particular sensitivity to sexually explicit material, it is constitutionally permissible for the fact-finder to apply an appropriately accommodating test for obscenity.
This perspective implicates an interesting analogy between the Court’s jurisprudence with respect to the application of the Miller community standards doctrine and it’s jurisprudence in the area of restrictions on material obscene as to children. First, the Internet is distinguishable from the bulletin boards in Thomas. Web-sites, newsgroups, and chatrooms must be made available to every geographic community or to none at all. Thus, if speekers on the Internet are to be held to the community standards of every jurisdiction into which their material passes, then they will be forced to censor their material so as not to offend the sensitivities of the least tolerant community in the nation. (73) This is not what Chief Justice Burger intended when he wrote that the nation’s diversity should not be "strangled by the absolutism of imposed uniformity."(74) The idea was that the Court should not impose uniformity on the tastes and attitudes of the nation’s diverse communities. The Court had no occasion to consider a situation where the medium itself imposed a de facto national standard. (75) This is exactly how the Internet functions since anyone who wishes to speak over the Internet must abide by the least tolerant community’s standards. Miller’s rationale that a national standard is unrealistic is therefore rendered moot. The real question then is not whether there should be a national standard, but what the national standard should be.
Second, once we recognize that the standards of Memphis, or Salt Lake City (or wherever else might be least tolerant) will control the speech of the entire Internet, we should ask whether this state of First Amendment law is justified. That is, if the government may not "reduce the adult population . . . to reading only what is fit for children"(76) why then should it be permitted to reduce the entire nation to reading only what is fit for the citizens of Memphis? The short answer is that it should not. If it is the same concern for the special sensitivities of particular groups that drives both the varying standards for children and for intolerant communities, then there really is no justification for allowing one heightened standard (that of the conservative community) to control the eyes and ears of the entire nation while the other (what is fit for children) is limited in its application. If anything, we should be more ready to protect the eyes and ears of our children than those of our sensitive adults.
Third, if this proposition is accepted--that the government may not reduce the entire nation to reading only what is fit for the citizens of Memphis--then the courts must decide exactly what sort of restrictions fit into this description. In the context of obscene speech as to children, Reno held that since age verification over the Internet was either impossible or prohibitively expensive,(77) the CDA was overly restrictive and therefore strict scrutiny should apply. (78) Similarly, current technology provides no way for content providers to deny access to individuals based on their geographic locale. (79) The real question then is whether the Miller community standards formulation should apply in a situation where the breadth of the restriction as applied, like in Reno, would be "wholly unprecedented"? (80) Stated another way, should the Miller test apply where the Court has held that acts of Congress which operate in much the same way are subject to strict scrutiny? (81) Certainly what is an unconstitutional act for Congress cannot be a Constitutional rule of law where it is woven out of whole cloth by the Court. Both branches have sworn to uphold the same Constitution after all. Moreover, Reno pointed to the lack of findings of fact by Congress as presumptive proof that the government could not satisfy its heavy burden of showing why less restrictive regulations would not have been as effective. (82) This reasoning should apply similarly to the Miller community standard construction since it was adopted by the Court long before it had occasion to consider the application of the First Amendment to the borderless Internet.
IV. Solving the Conundrum
For the reasons discussed above, this comment concludes that the borderless world of the Internet has caused the Miller standard to occupy a position inconsistent with both the First Amendment and the Dormant Commerce Clause. It should therefore be replaced with a more workable alternative. This raises the question: what should the alternative test look like?
A. A "Cyber-Community" Standard?
The Thomases argued before the Sixth Circuit that courts should apply to alleged on-line obscenity a "cyber-community" standard. (83) This new definition of community, they argued, should be "based on the broad-ranging connections among people in cyberspace" rather than the standards of the community in the geographic locale of the criminal trial. (84) Though the facts of Thomas did not implicate the application of such a standard, commentators have generally agreed that a "cyber-community" definition should otherwise apply to on-line obscenity cases. (85) There have been two basic arguments in support this new definition. The first argument is that where transactions take place on-line, the rules and customs (and standards) of the cyber-community should apply since that is the community affected. (86) The other argument suggests that no geographical community standards can apply since no geographical community is affected by Internet communications. (87) This comment concludes that neither rationale sufficiently justifies the application of cyber-community standards to on-line obscenity trials.
Putting the above rationales aside for a moment, it is first important to recognize that applying a cyber-community standard assumes the geography based construction would continue to apply in cases not involving the Internet. But once we begin to apply a national "cyber-community" standard, there is hardly any remaining justification for continuing to apply Miller community standards at all since a cyber-community standard would undermine the rationale for applying local standards in the first place. It almost goes without saying that the Internet is every bit as large and diverse as our nation is outside of cyberspace. (88) Why then would it be acceptable for a jury to consider some sort of cyber-community standard where the Court has already held that a national standard would be "hypothetical and unascertainable" due to its diversity? (89) Would the First Amendment call for consideration of expert testimony regarding a cyber-community standard even though such testimony evidencing a national standard would be "an exercise in futility"? (90) The answer is that if the community standards’ focus on geographic localities is to be abandoned in on-line obscenity cases, then there is no real justification for retaining a geography based community standard outside of cyberspace.
This point becomes clearer in light of the Miller Court’s assertion that the First Amendment does not require the people of less tolerant communities to accept sexually explicit material "found tolerable in Las Vegas, or New York City."(91) The reasoning is that the sensitivities of the citizens of such intolerant communities should be protected against offensive speech even though it is not obscene in other more tolerant jurisdictions. A definition of cyber-community standards, however, would surely be more tolerant of sexually explicit speech than the standards of such intolerant communities. These communities would therefore be forced to acquiesce in the distribution of materials via the Internet within their jurisdiction despite their status as obscene by local standards. Once this occurs, what justifies finding the very same material legally obscene when accessed via telephone, (92) or ordered through the mail? (93) In all three situations, there is no risk that an unwitting bystander will view the material. In all three situations, one could argue with equal force that the geographic community is unaffected by the speech. Nevertheless, under a regime where a court applies geographic or "cyber-community" standards alternatively depending on the medium of expression, some individuals would be deprived of their freedom and imprisoned for communicating over the phone or through the mail what they have a constitutional right to communicate on-line. There is no reason why such a rule could be said to remain faithful to the spirit of the Freedom of Speech.
Moreover, even if we reject this criticism of adopting a "cyber-community" standard, it would nevertheless be unwise to adopt such a standard since it would further complicate (94) an increasingly patchwork First Amendment jurisprudence. As the law stands to date, radio and television broadcasting receive less protection than do movie theaters, (95) which in turn receive less protection than cable television providers, (96) who in turn receive less protection than the print medium. (97) This medium-specific method of analysis has been criticized as too far removed from the text and original intent of the First Amendment. (98) It also detracts from the sanctity of First Amendment values and from societal faith in the judicial decision-making process. Thus, without something more than the doctrine of stare decisis to justify retaining the Miller formulation, First Amendment analysis should not be further burdened by piling a new definition of community atop the old.
B. Limiting Venue to the Federal District from Which the Content Provider Transmits His Message
Another proposed solution to the problem of applying local community standards to Internet communications would be to require that providers of sexually explicit material be prosecuted only in the district from which they transmit the alleged obscenity. (99) Under this approach, local community standards would apply in all cases. The only persons who could be prosecuted in a given Federal District for on-line obscenity, however, would be those individuals residing within that District--in other words, the local content providers in the district of prosecution or the local citizens who accessed the obscene material. (100) This solution would remain faithful to the practical principle underlying the community standards doctrine while simultaneously avoiding some of the pitfalls of a "cyber-community" standard. (101)
There are a number of reasons why this would not be a sound legal approach. First, this approach would not abandon the local community standards construction, but would merely alter its application. Thus, this solution would encounter the reverse of the problem a local standards construction poses where speakers can be prosecuted in any jurisdiction. (102) Instead of the least tolerant community imposing its "law" upon the communications of the rest of the nation, here the most tolerant community would be allowed to create a de facto national obscenity standard for the Internet. Communities such as Memphis would be forced to bear the distribution within its borders of speech its "law" deems to be obscene. From a conservative perspective this is an unsatisfactory result because local community standards are designed to prevent access to such speech in less tolerant communities.
From a broader First Amendment standpoint, the analysis of free speech rights would become an even more entangled undertaking than it currently is or would be under a "cyber-community" standard. (103) For instance, would it make sense to allow a distributor of pornography based in New York City to be prosecuted in Memphis under its standards while the very same material is supplied legally by another New Yorker via the Internet? A "cyber-community" approach, by contrast, would at least allow both speakers to be hailed into court in Memphis so that a determination could be made regarding the status of the material. Also, would it make sense to allow the prosecution of an Internet provider based in Memphis, while the very same material is posted on the very same Internet by a New Yorker? Both the Miller approach and a "cyber-community" approach would allow for an equal degree of First Amendment protection on the Internet wherever the speaker’s physical operation is based. But by varying among citizens (based on their geographic location) the right to speak to a national audience, a limited Venue approach would further fragment First Amendment freedoms in a wholly unwarranted manner. Instead, the goal should be to harmonize rather than complicate and confuse the jurisprudence derived from the simple imperative that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." (104)
C. The Search For a National Standard
Because neither of the alternative approaches discussed above present satisfactory solutions to the problems created by a borderless Internet in a Miller world, this comment concludes that the idea of applying local community standards in obscenity trials should be abandoned in favor of a national standard. It is not enough however to conclude that a national standard should be adopted without inquiring into how such a standard should look. Indeed, it was the difficulty of this question in part that convinced the Court to opt for a local standard in the first place. Thus, if a national standard is to be adopted, questions that the Miller Court was convinced could not be answered must be considered once again.
To start, if obscenity really should be outside the ambit of the First Amendment, nothing about the Internet is so different from any other medium of communication as to justify changing the fundamental elements of the Miller Test. Juries should still ask whether the material at issue appeals to the prurient interest and is patently offensive. The real issue posed by dropping the local community standards element is this: if juries should not consider the obscenity question from the point of view of the "average person, applying contemporary community standards"(105) what point of view should juries consider?
There are three possible solutions to this problem. (106) The first possible version of a national standard would be one that allows for speech to be found obscene if it would offend the moral standards of the least tolerant community. This "restrictive" standard would, in effect, be a de jure version of the de facto national standard that results when local standards are imposed on Internet speech. Instead of applying solely to Internet speech, however, this "restrictive" national standard would apply to sexually oriented speech across all mediums. As discussed above, however, this standard would have the effect of reducing the entire nation to reading only what is fit for the citizens of Memphis (107)--a result wholly inconsistent with the aims of the First Amendment. If the Freedom of Speech means anything, it means that the morals of a minority may not stifle the voices of far away speakers.
The second possible version of a national standard would be the objective "reasonable person" standard or the "average person applying contemporary national standards." This is basically the standard under which juries are currently instructed to consider prong three of the Miller test. (108) One of the arguments against considering an objective national standard is that the Constitution does not require juries to make their decisions based on expert testimony regarding a "hypothetical" national standard. (109) This argument fails to address why, if that is so, the constitution requires a jury to make a decision based on its own non-expert knowledge regarding a community standard that likely is every bit as hypothetical. Moreover, assuming it were true that the Constitution should not require a jury to consider expert testimony regarding a national standard, there is really no explanation for why the Constitution should not allow the jury to consider such testimony.
The real problem with this "average" national standard is that such a standard would in some instances be less protective of speech than the current formulation. Under a national standard, materials not currently obscene in tolerant communities would suddenly fall into the obscene category according to the "average" standard. (110) Thus, not only would less tolerant communities be forced to bear the distribution of more speech than under the current local standards formulation, more tolerant communities would also lose Constitutional protection for some speech currently protected by the First Amendment. Such a revocation of First Amendment protection is unwarranted by the need to create a uniform standard.
The third and best alternative to the current community standards formulation is a national standard that allows the restriction of speech only if it would be judged obscene according the standards of the most tolerant communities. This "permissive" standard would alleviate the problem of assessing a "hypothetical" national standard since it would not be difficult to focus a jury’s attention on the standards of a few select communities as opposed to the standards of the nation as a whole. It would also avoid one of the potential problems with the "average" national standard in that it would not remove First Amendment protection from previously protected speech in more tolerant communities.
The obvious drawback with this most protective standard, of course, is that many communities would suddenly be forced to tolerate speech that is currently considered obscene. But what do we really mean when we say a community must "tolerate" speech? Must a community stand by while the eyes and ears of its citizens are bombarded by the depraved images of ultimate sex acts, bestiality, and excretory functions? Must we be offended by pornography merely because our distant neighbors may not mind it as we do? The answer is that this problem would be best solved not by retaining a more restrictive standard of obscenity, but by instead ensuring that those who wish to avoid offensive material may do so. In other words, we should refocus the inquiry on (1) whether affirmative steps are required to access the allegedly obscene material, (111) and (2) whether the material at issue can be said to pass through or tangibly affect the local community. (112) Where a court answers yes to the former and no to the latter, then it cannot be said that the allegedly obscene material is likely to fall upon uninviting eyes or that the local community must in some way "tolerate" the material. Such speech should therefore be protected unless it is found to be obscene by even the most tolerant community’s standards. After all, once the sexually oriented material enters the home, who are we protecting and from what? (113) At the same time where mediums of communication create the potential for messages to take viewers by surprise, the First Amendment should allow sexually oriented speech somewhat less protection. (114)
This framework can be more fully understood by examining how it would apply to different communication media. Consider for example an allegedly obscene web page. As before, obscene images would fall outside the ambit of the First Amendment and could therefore be banned outright. (115) But since websites (1) require the viewer to take affirmative steps (116) and (2) do not pass through or tangibly affect the local community outside of the home, a jury should be instructed that in order to find the message obscene, it must find that the message appeals to the "prurient interest" and is "patently offensive" according to the standards of the "most tolerant" communities. (117)
Similarly, borderline obscenity ordered and sent through the mail requires the receiver to take affirmative steps. The closer question would be whether the mail could be said to pass through or tangibly affect the local community. Its physical passage through the streets via the hands of postal workers would suggest that perhaps the mail would fail this prong of the inquiry. The true concern with this prong, however, is whether a reasonable possibility exists that the material might fall out of the "right" hands thereby creating a danger that it might fall into the "wrong." Since materials sent through the mail typically find their way into the privacy of the home, this prong would be satisfied. Unsolicited sexually explicit mail (or e-mail) on the other hand could be proscribed as intrusive indecent speech. (118)
This framework would allow a local government to prohibit individuals from carrying outside the home materials which would be protected inside the home. It would allow restrictions on the sale of pornographic magazines at the newsstand whereas they could be accessed on-line or over the telephone. Why? Because these activities thrust sexually oriented material into the public sphere.
At first glance, this seemingly brings us back to square one with regard to materials in the public sphere. That is, once a message has been thrust into the public sphere causing the "most tolerant" communities’ standards to be inapplicable, what standard are we to judge that message by? The answer is that the overwhelming majority of this material should be judged by the "obscenity as to minors" standard applied uniformly across the nation.
One might argue that this framework would look every bit as patchwork as one that adopts a cyber-community standard. (119) That is, if we should reject a cyber-community standard because it creates inconsistencies, why are the inconsistencies created under the proposed framework any more acceptable? The answer: whereas a cyber-community standard would treat substantially similar communications (telephone messages and web pages) differently, the proposed First Amendment framework would treat communications according to real distinctions based on valid concerns for the protection of children and the sensitivities of their older counterparts.
Another argument against adopting a "permissive" national standard for sexually oriented speech is that an entire community need not view sexually explicit material in order to be affected by it. That is, even if individuals who do not wish to view sexually explicit material are not exposed to such material, they are affected by it when their neighbors become corrupted by it. Thus, according to this argument, the public’s interest in order and morality (120) is more than a desire to protect uninviting eyes from sexually explicit material. The government has an interest in preventing the moral decline of society in general.
The answer to this is that obscenity laws such as 18 U.S.C. § 1465, when applied to the Internet, are so hopelessly under inclusive that the goal of preventing the distribution of obscenity is not advanced in any meaningful way. (121) The Pataki court found that nearly half of all Internet communications originate from outside of the United States and are therefore outside of its control. (122) As a result, no matter how many of our own citizens the government chooses to imprison, those with Internet access will have little trouble accessing obscene material supplied by foreign Internet operators. Moreover, once an individual has taken possession of sexually oriented material (obscene or not), the state may not infringe on his right to keep it in his home. (123) Thus, whatever moral harm to society in general is caused by obscenity, it cannot be prevented by a ban on Internet speech effective only within the United States. This reality severely cripples the argument that such speech should be prohibited in order to guard against its aggregate moral impact on society.
V. Conclusion
Insofar as the Internet operates without regard to geographical barriers or political borders, it is the quintessential example of a mode of national infrastructure that requires uniform national treatment. Thus, a standard by which Internet speech is judged by taking into account the sensitivities of the citizens of a given geographic locality makes no sense. Nor does it make sense to retain a local community standards formulation when a national "cyber-community" standard has been recognized for Internet speech. Another possible solution may be to limit venue for prosecution to those districts from which the material was transmitted. There would be little justification for prosecuting anyone under such a rule if others beyond the reach of prosecution in more tolerant communities may reach the very same audiences that local obscenity laws seek to protect. Thus, the best solution is one which protects speech unless it violates the sensitivities of even the most tolerant communities. At the same time speech that does not quite meet this level of indecency need not be tolerated by citizens who do not wish to view it. In order to ensure that they do not, this "permissive" standard should be reserved only for those few modes of expression which pose little danger of intruding upon the eyes and ears of those who have not requested nor wish to receive such messages.
Footnotes
1. See Sable Communications v. F.C.C., 492 U.S. 115, 124 (1989); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69 (1973); U. S. v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 126 (1973); Miller v. California, 413 U.S. 15, 23 (1972); Ginsberg v. State of New York, 390 U.S. 629, 641 (1968); Jacobellis v. Ohio, 378 U.S. 184, 187 (1964); Roth v. United States, 354 U.S. 476, 483 (1957).
2. Compare Hamling v. United States, 418 U.S. 87, 141 (1974) (Brennan, J., dissenting) (asserting that the First Amendment denies the Federal and State Governments power to suppress the distribution of sexually oriented material in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults); Stanley v. Georgia, 394 U.S. 557, 565 (1969) (holding that the First Amendment protects an individual’s right to satisfy his intellectual or emotional needs by reading whatever he chooses, including sexually explicit material otherwise obscene, in the privacy of his own home) with Paris Adult Theatre I v. Slaton, 413 U.S. 49, 54 (1973) (holding films available only to "consenting adults" in a private theater are unprotected by the First Amendment); United States v. Orito, 413 U.S. 139, 141-42 (1973) (holding that a statute prohibiting the transportation of obscene material in interstate commerce is not unconstitutional on the ground that it fails to distinguish between "public" and "non-public" transportation of the materials).
3. See American Libraries Ass’n v. Pataki, 969 F. Supp. 160, 167 (S.D.N.Y. 1997) (finding that once an Internet user posts content, it is available to all other Internet users worldwide). Pataki also found that Internet users have no way to determine the age or location of their audience. Id.
4. See e.g. F.C.C. v. Pacifica Found., 438 U.S. 726, 747 (1978) (asserting that constitutional protection accorded to a communication containing offensive sexual language need not be the same in every context). "It is a characteristic of speech such as this that both its capacity to offend and its ‘social value,’ . . . vary with the circumstances. Words that are commonplace in one setting are shocking in another." Id.
5. U.S. CONST art. I § 8 provides: "The Congress shall have the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."
See also Gibbons v. Ogden, supra, 195 (1824) ("the power to . . . prescribe the rule by which commerce is to be governed. . . . like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the constitution."); North Am. Co. v. Securities and Exchange Comm., 327 U.S. 686, 704 (1946).
6. See Ogden, 22 U.S. at 231 (Johnson, J., concurring) ("If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints"); Wyoming v. Oklahoma, 502 U.S. 437, 454 (1992) ("It is long established that, while a literal reading evinces a grant of power to Congress, the Commerce Clause also directly limits the power of the States to discriminate against interstate commerce").
7. See Barclays Bank v. Franchise Tax Board of California, 512 U.S. 298, 310 (1994) (holding that the Commerce Clause prevents discriminatory state legislation on the national commerce even where Congress has not acted); JAMES L. JONES, AMERICAN JURISPRUDENCE Commerce § 7, at 15A (2d ed. 1976) ("the commerce clause prohibits economic protectionism, that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors"); Donald Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1092 (1986) (arguing that the sole purpose of the Dormant Commerce Clause is to prevent economic protectionism).
8. See Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 767 (1945) (holding the length of trains to be a phase of commerce demanding regulation by a single authority); Wabash, St. L. & P. Ry. Co. V. Illinois, 118 U.S. 557, 575 (1886) ("For the regulation of commerce . . . there can be only one system of rules, applicable alike to the whole country . . ."); Cf. Donald Regan, Siamese Essays: (I) CTS Corp. V. Dynamics Corp. Of America and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 Mich. L. Rev. 1865, 1885 (1987) (arguing that the extraterritoriality principle is a foundational principle of our federalism which we infer from the structure of the Constitution as a whole).
9. 325 U.S. 761 (1945).
10. Id. at 775.
11. Id. at 773-74.
12. See id. at 773.
13. See id. at 775.
14. Id.
15. 969 F. Supp. 160 (S.D.N.Y. 1997).
16. For a discussion of obscenity as to minors see discussion infra Part II.B.2.
17. Pataki, 969 F. Supp. at 173. The sweep of the Dormant Commerce Clause applies to restrictions on transportation regardless of whether the transportation is commercial in character. Edwards v. California, 314 U.S. 160, 172 n. 1 (1941).
18. Id. at 183 ("an Internet user cannot foreclose access to her work from certain states or send differing versions of her communication to different jurisdictions"); see also American Civil Liberties Union v. Reno, 929 F. Supp. 824, 844 (E.D. Penn. 1996).
19. Pataki, 969 F. Supp. at 169.
20. Id. at 181.
21. Id.
22. See Roth, 354 U.S. at 483; but see Kalven, The Metaphysics of the Law of Obscenity, 1960 SUP. CT. REV. 1, 9 (arguing that the fact that obscenity was outlawed at the time of ratification is an unconvincing justification for recognizing an obscenity exception since the same justification could be offered for restricting blasphemy and seditious libel).
23. See Roth, 354 U.S. at 485.
24. See Pacifica, 438 U.S. at 748-49 (upholding the power of the F.C.C. to discipline broadcasters for transmitting profanity where such pervasive speech was likely to invade the unsuspecting ears of listeners); Rowan v. United States Post Office Dept., 397 U.S. 728, 736 (1970) (upholding a prohibition on the intrusion into the privacy of the home of unwelcome speech through the mail which could not otherwise be banned); see also Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 128 (1989) (holding sexually explicit dial-a-porn to be protected speech since it did not pose a "captive audience" problem); but see Cohen v. California, 403 U.S. 15, 21 (1971) (Reasoning that audiences offended by profanity "could effectively avoid further bombardment of their sensibilities simply by averting their eyes").
25. See Supra note 1.
26. Not all lewd sexual expression rises to the level of obscenity. Speech which is "indecent but not obscene" is protected by the First Amendment. Sable Communications, 492 U.S. at 126; see also Carey v. Population Servs., 431 U.S. 678, 701 (1977) (holding that speech offensive to some, but not obscene, is deserving of First Amendment protection).
27. 413 U.S. 15 (1973).
28. Id. at 24.
29. Jacobellis v. Ohio, 378 U.S. 184, 194-95 (1964). ("Communities vary . . . in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution. . . . we see no reason why [the Court] should do so here. . . . It is, after all, a national Constitution we are expounding.")
30. Hamling, 418 U.S. at 104; see also Smith v. United States, 431 U.S. 291, 302 (1977) (holding that a legislature may not define for the jury what the contemporary community standards are).
31. See Miller, 413 U.S. at 30.
32. See Pope v. Illinois, 481 U.S. 497, 500-501 (1987).
33. An underlying assumption of the local community standards construction that local standards are more "provable" than a national standard would be. See Miller, 413 U.S. at 31-32 (citing Jacobellis, 378 U.S. at 200 (J. Warren, dissenting)).
34. See Hamling v. United States, 418 U.S. 87, 106; United States v. Bagnell, 679 F. 2d 826, 830 (11th Cir. 1982), cert. denied, 460 U.S. 1047.
35. See United States v. Peraino, 645 F. 2d 548, 551 (6th Cir. 1981) (citing 18 U.S.C. § 3237(a)) (holding that venue was proper in the district to which a film was transported and shown); United States v. Thomas, 74 F. 3d 701, 709 (6th Cir. 1996), cert. denied, 65 U.S.L.W. 3233 (U.S. Oct. 7, 1996) (No. 95-1992) (holding venue proper in the district from which a viewer accessed defendant’s bulletin board files where the defendant provided a password to the viewer with knowledge of his location).
36. See Thomas, 74 F. 3d at 707; see also United States v. Gilboe, 684 F. 2d 235, 238 (2nd Cir. 1982) (holding that the electronic transfer of money constituted transportation of money).
37. Cf. Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 301 (S.D.N.Y. 1996) (holding defendant’s website alone to be insufficient to establish the "minimal contacts" necessary to establish personal jurisdiction). The plaintiff in Bensusan had argued that personal jurisdiction over the defendant website operator was proper since the defendant should have foreseen user access of the site in distant jurisdictions. The court rejected this argument where the maintenance of the website was "not an act purposefully directed toward the forum state." Id. See also Donald T. Stepka, Note, Obscenity On-Line: A Transactional Approach to Computer Transfers Of Potentially Obscene Material, 82 CORNELL L. REV. 905, 939 (1997) (Arguing that accessing on-line material should be analogous to traveling to the geographic location of the content provider and returning home).
38. See supra note 3.
39. Cf. Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2347 (1997) ("Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it"). If one can be charged with knowing that a youth will likely access on-line material, there seems to be little reason why one cannot also be charged with knowing that individuals located in various regions of the United States will access material. For further discussion of the analogy between protecting intolerant local communities and protecting children, see discussion Infra Part III.B.
40. Miller, 413 U.S. at 30.
41. Id. at 31.
42. See Hamling, 418 U.S. at 144-145 (Brennan, J., Dissenting). The application of community standards arguably eliminates two checks on the uncertainty of subjective judgments as to what is obscene. First, expert testimony concerning the standards of any geographical area larger than the local community is irrelevant under Miller. Relevant expert testimony is therefore difficult to provide. Second, since the jury is in the best position to know its community’s standards and the record does not reflect what standards they actually apply, their decisions in this area are effectively unreviewable. Smith, 431 U.S. at 316 (1977) (Stewart, J. Dissenting). Thus it becomes "almost impossible to predict whether particular borderline sexual material will be found obscene." Eric Handelman, Obscenity and the Internet: Does the Current Obscenity Standard Provide Individuals with the Proper Constitutional Safeguards? 59 ALB. L. REV. 709, 736 (1995).
43. See Hamling, 418 U.S. at 144 (Brennan, J. Dissenting) ("the people of many communities will be ‘protected’ far beyond government’s constitutional power to deny them access to sexually oriented material"). Such a construction renders the constitutionality of an obscenity law suspect. Id.
44. 74 F. 3d 701 (1996).
45. 18 U.S.C. § 1465 provides:
Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service . . . for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.
46. Thomas, 74 F. 3d at 711.
47. Id. The Thomases had in fact approved access to the postal inspector with full knowledge of his location and could limit access to their bulletin board however they saw fit. Id.
48. Id.
49. See Ginsberg v. State of New York, 390 U.S. 629, 633 (1968), (upholding a conviction based on the finding that the material distributed to a minor (a) appealed to the prurient interest of minors, (b) was patently offensive to the standards of the adult community with respect to what was suitable material for minors, and (c) was without social importance for minors).
50. Butler v. State of Michigan, 352 U.S. 380, 383 (1957); see also Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983) ("regardless of the strength of the government’s interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox").
51. 492 U.S. 115 (1989).
52. Id. at 126.
53. Id. at 129.
54. See F.C.C. v. Pacifica Foundation, 438 U.S. 726, 748 (1978) (upholding an F.C.C. restriction on the radio broadcast of profanity due to the pervasive nature of radio).
55. Sable Communications, 492 U.S. at 128.
56. Id.
57. 117 S.Ct. 2329 (1997).
58. Id. at 2346.
59. 47 U.S.C. §§ 223(a)-(e). The challenged provision provided that whoever in interstate communications knowingly uses any interactive computer service to display in a manner available to a person under 18 years of age material obscene under local community standards shall be fined or imprisoned for no more than two years. 47 U.S.C. § 223 (d).
60. The District Court below had found that there was "no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms and that it would be prohibitively expensive for speakers with web sites to verify that their users are adults. Reno, 117 S. Ct. at 2347 (E.D. Penn.) (citing American Civil Liberties Union v. Reno 929 F. Supp. 824, 845-848 (findings 90-116)).
61. Reno, 117 S. Ct. at 2347.
62. Id. at 2343 (citation omitted).
63. Arguments before the Court had discussed the possibility of "tagging" indecent material in a way that would facilitate parental control of accessibility through the use of screening software. Id. at 2348.
64. Id. In particular, the Court noted the lack of detailed findings or even hearings addressing the problems concerning the CDA. Id.
65. But see Miller, 413 U.S. at 32 n. 13 (holding that the obscenity of materials may be validly judged according to local standards despite some incidental effect on the flow of such materials across state lines).
66. See supra note 7 and accompanying text.
67. See supra note 8 and accompanying text.
68. But see Secretary of Agriculture v. Central Roig Refining Co., 338 U.S. 604, 616 (1950) (asserting that the Commerce Clause does not impose requirements of geographic uniformity and that "Congress may devise . . . a national policy with due regard for the varying and fluctuating interests of different regions"); Currin v. Wallace, 306 U.S. 1, 13 (1939) (holding that in establishing its regulations for interstate and foreign commerce, Congress is not restricted to making of uniform rules, since "there is no requirement of uniformity in connection with commerce power").
In neither of these cases, however, was the Court presented with Congressional restrictions on a mode of national transportation. In Central Roig Refining, the Court was presented with Congressional allocations affecting the sugar market. 338 U.S. at 611-12. In Wallace, the Court considered regulations concerning the inspection of tobacco warehouses. 306 U.S. at 13. The requirement that our national infrastructure be controlled by uniform regulations would justify an exception to the rule laid down in these cases. See supra note 4 and accompanying text.
69. See Pataki, 969 F. Supp. at 182. In addition to finding the New York restriction on Internet speech to be beyond the constitutional power of the state legislature, the Pataki court observed that even a nationwide restriction on obscene speech would be repugnant to the basic tenets of the Commerce Clause since such a restriction would subject Internet speakers to inconsistent local standards. Id.
70. In reality, individuals believed to be distributing obscene materials over the Internet will find themselves hailed into the courts of only a select group of conservative communities. The Miller standard provides prosecutors with a strong incentive to anticipate which courts will most likely find sexually explicit material to be obscene and therefore incentive to forum shop. Though such activity is constitutionally suspect, see United States v. Peraino, 645 F. 2d 548, 553, (6th Cir. 1981) (citing Blucher v. United States, 439 U.S. 1061 (1979)), it would be difficult to prove improper intent on the part of prosecutors in individual cases.
71. See supra note 49 and accompanying text.
72. See Discussion Supra Parts II.B.1 and II.B.2.
73. See Reno, 117 S. Ct. at 2347.
74. Miller, 413 U.S. at 33 (emphasis added). The Chief Justice also argued that a "national" standard would pose just as great a danger of suppression as a local community standard construction since the "average" national standard would provide less First Amendment protection in more tolerant communities. Id. at 32 n. 13. This argument assumes that a national standard must be the "average" among the differing community standards. A national standard, however, can be defined in a variety of ways. See discussion infra Part IV.C.
75. Unlike speakers over the Internet, distributors of magazines, books, and unsolicited mail can avoid charges in intolerant jurisdictions by taking steps to prevent distribution of their material in such jurisdictions.
76. Butler, 352 U.S. at 383.
77. Reno, 117 S. Ct. at 2337 (citing Reno, 929 F. Supp. at 846 (finding 102)).
78. Id. at 2347-2348.
79. See supra note 18.
80. See Reno, 117 S. Ct. at 2347.
81. See Id.; Sable, 492 U.S. at 126.
82. Reno, 117 S. Ct. at 2348.
83. 74 F. 3d at 711.
84. Id.
85. See Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspace, 104 YALE L.J. 1639, 1653-54 (1995); William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 WAKE FOREST L. REV. 197, 209 (1995); Joanna H. Kim, Comment, Cyber-Porn Obscenity: The Viability of Local Community Standards and the Federal Venue Rules in the Computer Network Age, 15 LOY. L.A. ENT L.J. 415, 430 (1995). It is generally assumed that a cyber-community standard would be more libertarian than the standards of most geographical communities. While this may or may not be true if we considered only present Internet users, there is no reason to think that cyber-standards will not become less tolerant as new segments of society are introduced to Internet use. See Stepka, supra note 37 at 936.
86. See Branscomb, supra note 85, at 1654.
87. See Byassee, supra note 85, at 209.
88. As for the diversity of the Internet, Pataki found that nearly half of all web sites originate from outside of the United States. 969 F. Supp. at 178. The demographics of the Internet users must be at least as diverse as those within the United States. With respect to the size of the "cyber-community" recent figures show that about 62 million people in the U.S. alone use the Internet. Thomas E. Weber, Who, What, Where: Putting The Internet in Perspective, WALL ST. J., Apr. 16, 1998.
Even if one rejects the characterization of cyberspace as every bit as large and diverse as the United States at present, one must keep in mind that the size of the Internet community is growing exponentially. See Weber, supra (noting that nearly 25% of the 62 million users in the U.S. were newcomers to the Internet in 1997). Thus, rationalizing a construction of the Constitution by saying that the cyber-community is less populated and therefore more ascertainable makes little sense. The Constitution should be interpreted to endure the test of time.
89. Miller, 413 U.S. at 31; see also Byasee supra note 85 at 210 (acknowledging that a cyber-standard may be at least as elusive as a "national standard").
90. Id. at 30.
91. Id. at 32.
92. The Sable Court held that obscene speech accessed over the telephone was no more deserving of First Amendment protection than was any other type of obscene speech. 492 U.S. at 124. It also upheld that application of local community standards to telephone speech. Id. at 124-25.
93. In Hamling, the Court upheld a statute prohibiting the mailing of obscene material and the application of local community standards to such material. 418 U.S. at 105.
94. See Stepka, supra note 37, at 935-936 (arguing that the courts would have to consider whether to apply a separate e-mail standard and a separate usenet standard or perhaps even a separate standard for each newsgroup).
95. Compare Pacifica, 438 U.S. at 748 (holding that broadcasting deserves less protection because of its unique pervasiveness) with Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1978) (holding that a drive-in movie theater has a protected right to exhibit depictions of nude bodies since offended passerbys can avert their eyes).
96. Compare Young v. American Mini-Theaters, 427 U.S. 50, (upholding zoning restrictions on movie theaters exhibiting pornography) With Denver Area Educ. Telecomm. Consortium, Inc. v. F.C.C., 116 S. Ct. 2374, 2397 (1996) (plurality opinion) (striking a permissive regulation on "patently offensive" programming on public access cable channels).
97. See Denver Area Consortium, 116 S. Ct. at 2390 (asserting that programs which might not otherwise be restricted may be restricted when broadcast during certain times of day).
98. See Stephen C. Jacques, Comment, Reno v. ACLU: Insulating the Internet, The First Amendment, and the Marketplace of Ideas, 46 AM. U. L. REV. 1945, 1988 (1997); Jonathan Wallace and Michael Green, Bridging the Analogy Gap: the Internet, The Printing Press and Freedom of Speech, 20 SEATTLE U. L. REV. 711, 721 (1997) (arguing that First Amendment freedoms should apply similarly to new technologies since they are generally similar to other mediums of communication).
99. See Stepka, supra note 37, at 939 (analogizing the downloading of on-line material to traveling to purchase the material and returning home). The problem with this analogy is that the one distinction between these two activities--the physical leaving of one jurisdiction to another and back again--is the dispositive factor with respect to venue. Where no such leaving of the jurisdiction has taken place, where citizens are obtaining contraband within the district’s borders, that district should have the power to prosecute those responsible.
100. In Stanley v. Georgia, 394 U.S. 557, 565 (1969) the Court held that an individual has a right to possess even obscene material in the privacy of his own home. It is not clear whether under Stanley an individual would be protected from prosecution for accessing obscene material via the Internet in his home. It is doubtful since Stanley has thus far been limited to only the right to possess obscenity in one’s home, not to acquire or distribute obscene materials. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 66 (holding that Stanley was decided "on the narrow basis of the ‘privacy of the home’ which was hardly more than ‘a man’s home is his castle’"); Sable, 492 U.S. at 124 (upholding a restriction on obscene telephone messages).
101. See Stepka, supra note 37, at 939.
102. See discussion supra Part III.B.
103. See discussion supra Part IV.A.
104. U.S. Const. Am. I.
105. See supra note 28.
106. See Stepka, supra note 37, at 918 (Identifying the "restrictive" national standard, the "permissive" national standard, and the "average" national standard).
107. See discussion supra Part III.B.
108. See supra note 32 and accompanying text. It is somewhat illogical to assume that juries can consider whether a work lacks serious literary, artistic, political, or scientific value as judged by a "national" standard, but would be unable to consider whether a work is patently offensive or appeals to the prurient interest under a "national" standard.
109. See Miller, 413 U.S. at 30.
110. See supra note 74 and accompanying text.
111. See supra note 55 and accompanying text.
112. See Byassee, supra note 85, at 209 (arguing that since messages over the Internet do not pass through or affect the physical community, the rational that the passage of pornography through the local community constructively affects the community is substantially undermined).
113. In Stanley, the Court asserted that "[o]ur whole constitutional heritage rebels at the thought of giving government the power to control men’s minds" 394 U.S. at 556.
114. See supra note 55-56, and accompanying text.
115. See supra note 92.
116. See Reno, 117 S. Ct. at 2343.
117. Presumably evidence concerning which are the most tolerant communities and the nature of their standards would be offered at trial.
118. Cf. Rowan v. Post Office Department, 397 U.S. 728 (1970) (upholding right of householder to exercise control over unwanted mail); see also supra note 92.
119. See discussion supra Part IV.A.
120. See supra note 23 and accompanying text.
121. See Pataki, 969 F. Supp. at 178.
122. Id.
123. See supra note 100.
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