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Back to the Marty Rimm study. The study, and Elmer-DeWitt's treatment of it, were designed to play on the hypocrisy which surrounds most of the debates on pornography, where people profess to be shocked - SHOCKED - that such filth is being peddled in our fair etc., etc. The tenor of this debate is designed to obscure what everyone knows about pornography: many people like it. Furthermore, the more anonymously they can get to it, the more they will consume. (Increased anonymity also seems to be a factor in increasing use of pornography by women.) This is a pattern we have seen with the growth of video tapes, CD-ROMs and 1-900 numbers as well as on the net.

That many people like pornography seems self-evident, but the debate is usually couched in terms of production, not consumption. The ubiquity of pornography is laid at the feet of the people who make and distribute sexually explicit material: they are accused of pandering, of trafficking in porn, even of being pushers, as if the general populace has some natural inclination not to be interested in erotic stimulation, which inclination is being deviously eroded by amoral profiteers.

The net is the death knell for this fiction, and the anti-smut crusaders are in terror lest the law take note of this fact.

We are so comfortable with the world of magazines and books and video tapes that we often fail to notice the differences between data in a physical package, which has to exist in advance of a person wanting it, and data on the net, which does not. Physical packages of data have to be created and edited and shipped and stored and displayed, all in the hopes that they will catch someone's eye. Data on the net, in contrast, only gets moved or copied when someone implicitly or explicitly requests it.

This means that anyone measuring net pornography in terms of data - bandwidth, disk space, web hits, whatever - is not measuring production, they are measuring desire.

Pornography on the net is not pushed out, it is pulled in. For a million people to have a picture of Miss September, Playboy does not have to put a million copies of it on its Web site; it only has to place one copy there and wait for a million people to request it. This means that if there are more copies of "Blacks with Blondes!!!" than "Othello" floating around cyberspace, it is because more people have requested the former than the latter. Bandwidth measures popularity.

You Can See Where This Is Going

The legal effects of demonstrating porn's popularity on the net may well be precisely the opposite of what the anti-smut crusaders believe they will be. If they can truly demonstrate that pornography is ubiquitous on the net, it will be much harder to regulate under current case law, not easier. In particular, if the net itself can be legally established as a "community," whose contemporary standards must be consulted in determining obscenity, all the hype will likely mean that it will become difficult to have much net porn declared obscene under Miller.

This notion of the net as a community is not as far-fetched as it sounds. There is a case winding its way through the courts right now where a California man, Robert Thomas, running the "Amateur Action BBS" out of his home, was convicted for violating the community standards of Memphis, Tennessee, where his images were downloaded by a postal inspector trying to shut his BBS down. Part of the defense is the question of which community's standards should be used. If the verdict is ultimately upheld, every community in the country will have the same standards for net porn as Memphis, because any BBS in any other U.S. jurisdiction can be reached from Tennessee by phone. If the verdict is overturned, no community anywhere in the U.S. will be able to regulate obscenity any more stringently than the most permissive community that has a porn-distributing BBS. If the net itself is found to be a non-geographic community, then there will be two sets of laws, one for people with modems!

and one for people without.

The Likeliest Casualty

In any case, the likeliest casualty of this case and others like it will be Miller itself. The very notion of contemporary community standards resonates with echoes of Grovers Corners, of a tightly knit community with identifiable and cohesive values. Communities like that, already mostly a memory in 1973, are little more than a dream now. The original Miller descision, which was 5-4, has held together mostly because the challenges raised to individual materials have usually focussed on the idea that the works in question had some serious value (e.g. the Mapplethorpe photos trial in Cinncinnatti.) Sometime in the next couple of years however, Miller is going to run directly into a challenge to the idea of local control of a non-localized entity like the net. The result will likely be the first obscenity law geared to 21st century America. Watch this space.