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Community standards sword rather than shield

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© St. Petersburg Times
published May 19, 2002

A reader once sent me a letter he had received when trying to order an adult video by mail. The letter was from the distributor, who wrote that the order could not be filled in Florida because the community standards were too strict. He could go to jail for sending it.

Outrageous. This was not the case of a porn shop trying to open up in some neighborhood, with the possibility that street-level displays and prostitution might accompany the activity. This was a guy who wanted to see a movie in the privacy of his own home and was prevented by laws that give theoretical standing to his neighbors. Essentially, an adult in Florida cannot enjoy his own choice of entertainment -- as lowbrow as it might be -- because of "community standards."

These vague "community standards" have been the linchpin of obscenity prosecutions since 1973, when the U.S. Supreme Court ruled in Miller vs. California that prurient material is not protected by the First Amendment if it lacks serious value and violates the general level of tolerance in the community.

Gauging what is acceptable in a community is hard enough (especially when jail is the consequence of not getting it right), but a more fundamental question is: What constitutes a community? In the Miller case, the community was the entire state of California. In other cases, the relevant community has been smaller, but in each case it has been associated with a particular locale.

Using geography may work when pornography is sold on the street or sent by mail, but the technological age brings a new quandary. What is the community for the Internet? There is no technologically viable way to limit the geographic scope of freely accessible Web sites. Does that mean that "community standards" are now national in scope? Must people in San Francisco abide by the same standards as those in Lincoln, Nebraska? Will the least tolerant community become the moral arbiter for the nation?

This is an untenable situation for free speech. The law and technology are colliding, and a new formulation needs to emerge -- one that recognizes the unique qualities of cyberspace.

But don't look to the U.S. Supreme Court for clarity. Last week, it did a poor job grappling with the issue in Ashcroft vs. American Civil Liberties Union. The court was asked to determine whether the Child Online Protection Act, a law that prohibits commercial Web sites from exposing minors to harmful material, violates the First Amendment. Specifically, it was asked whether "community standards" determine what is harmful to a minor.

The court answered with five splintered opinions, with only Justice John Paul Stevens writing definitively that, relative to the Internet, "community standards has become a sword, rather than a shield." He would have invalidated the Protection Act on that basis alone, but the rest of the court kicked the case back to the federal appeals court for further consideration.

Justice Clarence Thomas explained why the court could not abandon the concept of community standards: "If we were to hold COPA unconstitutional because of its use of community standards, federal obscenity laws would likely also be unconstitutional as applied to the Web."

Precisely. This is the direction the court needs to be moving. Otherwise, obscenity prosecutions can be deeply unfair. Prosecutors could easily exploit this glitch in the law, attacking sexually explicit Web sites not from where they are published but from Bible Belt towns in which they can be viewed.

This tactic just might backfire, though. In obscenity prosecutions, part of the job of the defense is to demonstrate that there is a wide availability of pornography in the area. This evidence provides a baseline for community standards. If the content of the Internet is considered material in the community and prosecuted as such -- no matter where it originates -- then it is only fair to consider every other graphic Web site that has not been prosecuted as part of what is tolerated. Any community allowing access to the Internet, then, would effectively be adopting the community standards of the most liberal and tolerant city, both here and abroad.

What a turnabout that would be. Then you would see the likes of Attorney General John Ashcroft, rather than the ACLU, arguing that community standards in the cyber-realm are unworkable. Yup, that would be a good day for freedom.

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