Pornography, Community and the Internet - Freedom of Speech and Obscenity on the Internet
Kamiel, Yuval, Wismonsky, Haim, Rutgers Computer & Technology Law Journal
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.
B. 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. …