Historical Context of Indecent Speech
Historical Context of Community Standards
The Nature of the Internet with Respect to the Law
Bibliography of Background Readings
Though an absolutist interpretation of the freedom of speech "to protect every utterance"1 has not been recognized by either Congress or the Court in all the years of their existence, the primary question that arises in cases of obscenity and indecency is whether or not they fall within the realm of unprotected speech. It is a well known fact that the Court, Congress, and the common laws of the United and Great Britain have never considered obscene forms of expression Constitutionally protected, as mentioned in Roth v. United States.2 However, it is equally known that Congress and the Court have not determined an appropriate definition of what obscene material is such that one may know whether his expression will result in prosecution. Creating such a definition has proven difficult because "[t]he area of obscenity is honeycombed with hazards for First Amendment guarantees"3 and "deal[s] with tastes and standards of literature." 4 Indeed, so difficult is it to determine obscene from non-obscene forms of expression that Justice Stewart in Jacobellis v. Ohio admitted that he possibly could never succeed in intelligibly defining the difference, but that he knew it when he saw it. 5
Compounding the confusion in determining the unprotected speech is the varying definitions presented in legal precedence. For the purposes of 18 U.S.C. 1461, which deals with the mailing of "obscene, lewd, indecent, filthy, or vile" matter, the Court has realized that "[w]hile in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex"6 and, thus, have been used synonymously. With the introduction of 18 U.S.C. 1464, which deals with broadcasting "obscene, indecent, or profane" language, the Court recognized a definite difference in meaning because "[t]hough prurient appeal is an element of 'obscene,' it is not an element of 'indecent,' which merely refers to noncomformance with accepted standards of morality."7
Obscene material is currently determined by the test developed by the Court in Miller v. California. According to its opinion, "a work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value."8 Regardless of all of the arguments one could make for the legalization of obscene material, it is the matter of indecent expression, as defined in F.C.C. v. Pacifica Foundation,9 on the Internet that the plaintiffs are contesting. Under this definition, indecent speech only reflects expression which "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."10
The Court realized in its decision in Pacifica that its broader definition of what is constitutionally protected for the broadcast media was intended strictly for those media. The reason for the broader interpretation was that "broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive" and that "broadcasting is uniquely accessible to children."11 When Congress tried to place a ban on similarly defined indecent speech on telephone dial-a-porn operations, the Court determined that such bans were unconstitutional because there were mechanisms capable of keeping access away from minors,12 thus, allowing a complete ban on the dial-a-porn services would violate the precedent set in Butler v. Michigan which declared reducing available materials only to that which is fit for children is unconstitutional. 13
However, after Miller, the Court has made decisions based on state and local community standards of decency and obscenity.16 This shift seems based on Justice Brennan's observation in Roth that "the domain of sexual morality is pre-eminently a matter of state concern" so the "Court should be slow to interfere with state legislation calculated to protect that morality."17 Even Justice Harlan in his dissenting opinion in Roth had stated, "The fact that the people of one State cannot read some of the works of D. H. Lawrence seems to me, if not wise or desirable, at least acceptable. But that no person in the United States should be allowed to do so seems to me to be intolerable, and violative of both the letter and spirit of the First Amendment."18
Of course, similarly to its broadened regulatory allowances in the domain of free speech in broadcast media, the Court effectively created a special case for the application of a national standard of decency in Pacifica contrary to its unwillingness to do so explicitly in other media. Television broadcasts are nationwide and radio broadcasts can potentially be heard nationwide. The only way to control content is at a national level, which the Federal Communications Commission (F.C.C.) does. However, this national scope of defining indecent material which cannot be broadcasted must be gauged by what is acceptable in the most conservative communities in the nation if it is to have the effect of protecting sensibilities on the broadest scale. It seems apparent that this situation is in direct conflict with disallowing censorship based on its indecent nature as decided in Butler. Despite this contradiction, the Court has upheld this practice as Constitutional.
It seems reasonable that Congress's adoption of the Pacifica definition of indecent speech was applied for perceived similar reasons that the Court ruled that definition constitutional for broadcast media. In fact, some aspects of the Internet are very much like a broadcast medium. The World Wide Web, which has been the mass-market's view of the Internet, and USENET, the large collection of "newsgroups" that provide international forums for discussions on various topics, can be considered as broadcasting because any message a person makes available via these mechanisms propogates with few controls as to who may view it. Certainly, this is a scary situation for those wishing to protect children from "harmful" content on the Internet.
If the state of technology were left at that, the proponents of the indecency provisions of the CDA would have a reasonably good chance of having their way. Though Congress did not bother to study alternatives to such a drastic measure as the ban imposed by the CDA,19 there are mechanisms available that would provide restrictions to what minors can access. World Wide Web servers are now capable of restricting access based on the user providing credit card information or access codes, which were deemed sufficient safeguards in Sable.20 Additionally, products have been placed on the market which allow parents to filter and block all Internet services for content. Based on the reasonable ability to restrict access to indecent material from minors in these manners, it is unlikely that these provisions of the CDA will pass constitutional muster.
There also exists the matter of community standards applications. The Internet is an international network of computers. The laws on obscenity and indecency are at least as diverse globally as they are within the United States. Even if everyone in the United States is scared into submission by the indecency ban of the CDA, no foreign citizens are bound by our laws if not on our soil and our children would still have free and open access to potentially indecent material from these foreign locales. This means that the filtering and blocking products mentioned previously will still be required by those who do not want access to such material on the Internet. Since "decent" citizens must have such protection anyway to safeguard themselves and their children from foreign indecency, there is no reason to ban indecent expression within the United States for adults in violation of Constitutional guarantees.
2 Roth, 354 U.S. 476 (1957)
3 Manual Enterprises v. Day, 370 U.S. 478 at 500 (1962)
4 Miller v. California, 413 U.S. 15 at 40 (1973)
5 Jacobellis v. Ohio, 378 U.S. 184 at 197 (1964)
6 Manual, 370 U.S. 478 at 482-483 (1962)
7 F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978)
8 Miller, 413 U.S. 15 (1973)
9 142 Congressional Record at H1128
10 Communications Decency Act of 1996, Title V, Section 223(d)
11 Pacifica, 438 U.S. 726 (1978)
12 Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115 at 128 (1989)
13 Butler v. Michigan, 352 U.S. 380 (1957)
14 Jacobellis, 378 U.S. 184 at 193 (1964)
15 Manual, 370 U.S. 478 at 488 (1962)
16 Miller, 413 U.S. 15 (1973)
17 Roth, 354 U.S. 476 at 502 (1957)
18 Roth, 354 U.S. 476 at 506 (1957)
19 142 Congressional Record at S692
20 Sable, 492 U.S. 115 at 128 (1989)
21 Smith v. California, 361 U.S. 147 at 160 (1959)
22 Roth, 354 U.S. 476 at 512 (1957)
23 Roth, 354 U.S. 476 at 513 (1957)
24 Butler, 352 U.S. 380 at 383 (1957)
Manchester, Colin. "Computer Pornography", Criminal Law Review, July 1996, 546-555.
Handelman, Eric. "Obscenity and the Internet: Does the Current Obscenity Standard Provide Individuals with the Proper Constitutional Safeguards?", Albany Law Review, Winter 1995, v. 59, n. 2, 709-737.
Hellwege, Jean. "Internet Regulation: Lawmakers Try to Tame Cyberspace", Trial, January 1996, v. 32, n. 1, 11.
Huelster, Pamela A. "Cybersex and Community Standards", Boston University Law Review, May 1995, v. 75, n. 3, 865-888.
Peters, Robert W. "Information Superhighway Or Technological Sewer: Which Will It Be?", Federal Communications Law Journal, December 1994, v. 47, n. 2, 333-339.
Phelan, Tara. "Selective Hearing: A Challenge to the F.C.C.'s Indecency Policy", New York Law School Journal of Human Rights, v. 12, 347-392.
Shafer, Bradley J. "Patent Offensiveness: The Black Hole of Miller", Thomas M. Cooley Law Review, January 1993, v. 10, n. 1, 1-69.
Stanmeyer, William A. The Seduction of Society. Ann Arbor, Michigan: Servant Books, 1984.
Zanghi, John S. "Community Standards in Cyberspace", University of Dayton Law Review, Fall 1995, v.21, n. 1, 95-117.