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
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. …