Cybercommunity versus Geographical Community Standard for Online Pornography: A Technological Hierarchy in Judging Cyberspace Obscenity

By Kim, Gyong Ho; Paddon, Anna R. | Rutgers Computer & Technology Law Journal, Fall 1999 | Go to article overview

Cybercommunity versus Geographical Community Standard for Online Pornography: A Technological Hierarchy in Judging Cyberspace Obscenity


Kim, Gyong Ho, Paddon, Anna R., Rutgers Computer & Technology Law Journal


I. INTRODUCTION

For more than twenty years, courts have utilized the contemporary community standard announced in Roth v. United States,(1) and expanded in Miller v. California,(2) to determine obscenity.(3) The rationale behind these decisions was that obscenity standards drawn from one community differ from those of another.(4) In other words, some urban communities like New York City may have relatively liberal points of view about sexual materials while some others, like Maine, may be less tolerant.(5) Therefore, to protect the morality and well-being of its members, an individual community is entitled to draw its own definitions of what is indecent.(6)

The validity of this geographical contemporary community standard has been questioned with the recent advances of the Internet.(7) This means of communication blurs the boundaries between local communities while creating a cyberspace that exists in virtual reality.(8) No geographic boundaries exist in a cybercommunity.(9) Rather, the Internet is a global community, where neighbors at either side of the globe can instantly communicate with one another.(10) Due to this virtual reality, the Miller concept of community does not apply appropriately to the context of the Internet.

This paper not only explores significant obscenity cases involving the contemporary community standard, but also discusses where most obscene materials appear, such as the Internet, Computer Bulletin Boards, the World Wide Web, and USENET. In addition, United States v. Thomas,(11) a recent online obscenity case, is analyzed. Finally, this paper proposes a technological hierarchy in judging obscenity to assert that cybercommunity standards should be applied when drawing the line between protected materials and unprotected materials, such as obscene and sexually explicit materials.

II. THE EVOLUTION OF THE OBSCENITY STANDARD

An early English standard of obscenity judged material by the effect of isolated passages upon the most vulnerable members of society.(12) If certain sexual materials were obscene to the most susceptible persons, they were deemed obscene to everyone and banned.(13) Some American courts adopted this rule in determining the obscenity of materials.(14)

However, the Supreme Court invalidated this rule in Roth, holding that obscenity falls outside constitutional protection and should be judged by the average person applying contemporary community standards, not by the most vulnerable members of society.(15) Roth conducted a publication business in New York, which involved mailing advertising circulars to promote the sale of his books, magazines, and photographs.(16) He was eventually convicted of violating a federal obscenity statute that prohibited the mailing of obscene, lascivious, or filthy publications.(17)

In Roth, the Court defined obscene material as that "which deals with sex in a manner appealing to prurient interest[s]."(18) and has a "tendency to excite lustful thoughts."(19) The Court held that obscenity is not constitutionally protected because it is "utterly without redeeming social importance."(20) Justice Brennan observed that sexual materials should be judged by this test: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest[s]."(21)

In 1969, however, the Supreme Court limited the application of the Roth standard in a case involving mere possession of sexually explicit materials in the privacy of one's own home.(22) In this case, federal and state agents obtained a search warrant and entered petitioner's home in a search for bookmaking materials.(23) The agents found three reels of eight-millimeter film, which the Court determined to be obscene and in violation of Georgia law.(24) The Court held that "mere categorization of these films as `obscene' is insufficient justification for such a drastic invasion of personal liberties guaranteed by the First and Fourteenth Amendments. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Cybercommunity versus Geographical Community Standard for Online Pornography: A Technological Hierarchy in Judging Cyberspace Obscenity
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.