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Obscene material on the net which is within the jurisdiction of the U.S. does not now and has not ever enjoyed the protection of the First Amendment. The Supreme Court was unambiguously clear on the right to regulate obscene material in Miller v. California (413 U.S. 15 1973), the landmark case which sets the current U.S. standard for obscene material. The ambiguity in that decision is in defining what precisely is obscene (about which more later), but once something is so declared, states may regulate it however they like, no matter what medium it is in.
Many people who have been sold on the net as a kind of anarchist paradise react badly to this news, arguing that since the U.S. has not bothered enforcing these laws on the net so far, it is unfair to do so now. Indeed, it probably is unfair, but the law concerning obscenity has little concerned itself with fairness. Prosecution for obscenity is almost never directed at an elite - as long as sexually explicit materials are not readily available to the general populace, the law has usually ignored them. Once they become widespread, however, both regulations and enforcement generally become much more stringent.
The Current Regulations
The most memorable thing ever said about "hard-core" pornography in the Supreme Court was the late Justice Stewart's quote "I know it when I see it." The force of this sentiment is so strong that although it no longer has anything to do with case law, more people know it than know the current Miller standard, which comes much less trippingly off the tougue. Miller does not define pornography per se, but rather "obscenity," which is roughly the same as hard-core pornography. Material is obscene if it matches all three of these criteria:
1. The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; and
2. The work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. The work, taken as a whole, lacks serious literary, artistic, political or scientific value.Every phrase in that tri-partate test has been gone over with a fine-toothed legal comb, but it is the first part which is the oddest, because it introduces as a test for obscenity the legal entity "contemporary community standards."
Which Community? What Standards?
"Contemporary community standards," is a way of recognizing that there are different standards in Manhattan, New York and Manhattan, Kansas. Both "prurient interest" and "patently offensive" are considered local constraints. (The third test, for "serious literary, artistic, political or scientific value," is taken to be a national standard, and most recent and notable obscenity trials recently have hinged on this clause.) The effect of these locally determined qualities is to grant First Amendment protection to materials which a community does not consider offensive. Put another way, with the "contemporary community standards" benchmark, pornography which is popular cannot be obscene, and pornography which is obscene cannot be popular.
© Copyright 1995 Urban Desires