Adult webmasters, like other retailers and distributors of pornography, are in a difficult position. The very foundation of their business - whether or not their product may even legally be sold - is based on an inherently subjective question: is the product so sexually explicit or outrageous that it crosses the line from pornography (which is protected by the First Amendment) to obscenity (which enjoys no First Amendment protection)?
The question is hardly academic. If a state or federal prosecutor is able to persuade twelve jurors that your materials are obscene, then you may face heavy fines, jail time, or both. As various panelists at the September ia2000 conference in New Orleans made clear, there have been remarkably few obscenity prosecutions during the past eight years, but that may well change in either a Gore or Bush administration. By the time you read this, we'll know who'll be picking Janet Reno's replacement, even if we may not know yet who the replacement will be. In any case, he or she is unlikely to give the pornography industry in general (and online pornography in particular) the free ride that it has enjoyed under Reno.
In this uncertain legal climate, it is important to understand the criteria by which your products will be judged. The decision as to whether the materials you sell are "obscene" or merely pornographic is governed by a three-part test announced by the United States Supreme Court in 1973 in Miller v. California. In order to find that sexually explicit material is obscene, a jury must determine:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
If the jury answers all three questions in the affirmative, then the work in question is obscene and the artist, producer, and/or distributor are subject to whatever penalties are set forth in the obscenity law used in the prosecution. Each of the fifty states has its own obscenity law, as does the federal government.
The delightfully vague standards set out in the Miller case raise a number of interesting legal questions (What is a person's "prurient interest"? What is "patently offensive"?), but the focus of this article is on the phrase "contemporary community standard." In particular, the goal today is to look at whether technological innovations like the phone, VCR, or computer are changing the definition of "community" as it was used by the Miller court.
The "community standards" clause was included by the Supreme Court for two main reasons: First, the more conservative members of the Court felt that the federal courts as a whole were becoming too involved in the obscenity debate; and second, the conservative majority felt that individual communities should be able to set and enforce their own particular standards of decency. To support these arguments, the Miller majority relied heavily on the argument that the sale of sexually explicit materials in a community creates a variety of unwanted secondary effects, including increased crime, lowered property values, and general moral decay. While the existence of such secondary impacts has been strongly questioned, they remain a popular justification for legislation restricting sexual activity and the sale of sexually explicit materials.
The practical consequence of the Miller test is that the producers, distributors, and retailers of sexually explicit materials must be careful about what materials are shipped to and sold in specific communities. A mail-order sex toy company, for instance, might decide that while it is safe to ship a dildo to Memphis, the risk of shipping a hard-core adult video is simply too great. Even if a jury might not ultimately convict the company for distributing obscenity, the cost of the defending against the charges is likely to be substantial. Similarly, a company might decide that it is worthwhile to set up an adult video store in San Francisco, but the cost and hassle of trying to do so in Cincinnati far exceeds any potential profit (although it is worth noting that most of the more conservative regions of the country rent just as many adult video titles as their more liberal neighbors).
In the short run, the Miller decision had precisely the impact that the conservative activists had hoped. National publications like Playboy and Penthouse made their covers less explicit so that they could continue national distribution without fear of prosecution in more conservative jurisdictions. Adult filmmakers such as the Mitchell brothers (who themselves were the subject of a recent Hollywood film, starring brothers Charlie Sheen and Emilio Estevez) limited distribution of their films to California and other liberal states. And in Memphis, Tenn., Assistant U.S. Attorney Larry Parrish successfully prosecuted Deep Throat stars Linda Lovelace and Harry Reems, producer/director Girard Damiano, and a handful of others under the Miller obscenity standard.
Despite the short-term impact of Miller, however, the pornography industry has continued its steady and often spectacular growth. When the Miller case was decided in 1973, revenues for the entire adult industry were estimated at between $1 and $2 billion per year. Today, most analysts agree that the industry is grossing at least $10 billion and perhaps as much as twice that amount.
The primary engine behind the industry's growth has been technology. When Miller was handed down, the technological landscape was far different than it is today. There were no videocassette recorders, for instance, or personal computers. Pay-per-call technology and the Internet had both been invented, but neither could be used by the public to set up and run a business.
Just ten years after the Miller decision, however, technological innovations began changing the way the pornography industry does business, and in the process, began raising questions about the continued applicability of the community standard. The first major development was the phone sex industry, which got its start when the editor of High Society, Gloria Leonard, entered the magazine in the lottery for one of New York Telephone's 21 pay-per-call lines in 1983. The magazine was one of the winners and soon began grossing more than $50,000 per day with its three-minute recordings of sexual activity.
The rapid success of the phone sex industry (and horror stories of teenagers running up thousands of dollars in phone sex charges) caught Congress's attention. After several unsuccessful attempts to regulate the industry, Congress in 1988 passed a complete ban on both indecent and obscene interstate commercial telephone calls.
The constitutionality of the law was quickly challenged by Sable Communications, a Los Angeles-based provider of prerecorded phone sex messages. Sable argued that the ban was unconstitutional because it created a national standard of obscenity and required the company to tailor its message to the least tolerant communities in the nation.
The Supreme Court concluded that the law was constitutional (except for the part that banned "indecent" material) and that it was Sable's responsibility to "develop and implement a system for screening the locale of incoming calls...." The Court explicitly concluded that "[i]f Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages."
Despite the Supreme Court's ruling, however, there have been few if any phone sex-related obscenity prosecutions. Both state and U.S. attorneys know that any phone sex prosecution will be time-consuming, expensive, and fiercely defended. In addition, the problem of underage access has been largely eliminated, primarily through the use of credit card requirements.
At about the same time that the phone sex industry was taking off, the first personal computers were being built by Apple and IBM. While the earliest computers were limited to text and the most primitive graphics, by the late 1980s, it was possible to use computers to display increasingly sophisticated images. By hooking up a scanner and a modem, computer users could save and distribute photographic images. The time required for bulletin board operators to see the potential profit in collecting and distributing sexually explicit images could be measured in nanoseconds.
By the end of 1980s, a number of bulletin board systems around the country were making large amounts of money catering to computer users interested in downloading sexually explicit material. Attracted by the promise of substantial profits, Richard and Carleen Thomas set up and began operating the Amateur Action Bulletin Board System in Milpitas, CA, in 1991. The AABBS quickly became one of the most notorious in the country, with its unabashed advertising of sexual materials and provocative descriptions of specific photos. (The captions used by the Thomases frequently suggested such taboos as child pornography and incest, and in some cases actually depicted bestiality, sado-masochism, oral sex, and urination.)
In 1993, a U.S. Postal Inspector in Memphis, Tenn. signed up as a member of the AABBS and downloaded a number of images from California to Tennessee. After the images were reviewed by the U.S. Attorney and a U.S. District Court Judge, a search warrant was issued for the Thomases's property. Following the search, the Thomases were indicted in Tennessee for using a computer/telephone system to ship obscene material by interstate commerce, in violation of 18 U.S.C. � 1465. After being found guilty at a July 1994 trial, Richard Thomas was sentenced to 37 months in prison and his wife Carleen to 30 months. The both appealed their convictions to the Sixth Circuit.
In their appeal, the Thomases argued in part that the jury should have been instructed to apply the community standard of Milpitas, their home town, and in part that because of the nature of computer networks, a new, non-geographical definition of "community" is needed. In a ruling that sent a chill through the nation's slowly-growing cybercommunity, the Sixth Circuit flatly rejected both arguments. Under well-established federal law, the court said, prosecution was appropriate in any jurisdiction into which the allegedly obscene material moves, which in the Thomas case included Memphis.
More importantly, the court concluded that the fact that the Thomases were being prosecuted for distributing materials by computer had no impact on the Miller standard. The Sixth Circuit based its decision on the fact that before becoming a member of AABBS, each person was required to fill out an application that included, among other things, their address. In the court's view, the Thomases could have used that information to reject potential members living in jurisdictions that might have stricter obscenity standards than their own community. In that regard, the court concluded that the Thomases were in the same position as Sable Communication, and ruled that it was their responsibility to take steps to avoid sending material to more conservative jurisdictions or to tailor their content to avoid prosecution.
When the Sixth Circuit's decision was handed down in January 1996, there was tremendous concern that it would lead to more prosecutions of online pornographers or would cause a chilling effect on the types of materials being distributed. In the nearly five years since the Thomas decision, however, neither has occurred. By the time the Thomas case reached its conclusion (the U.S. Supreme Court declined to take the case later that year), the nation's computer bulletin board systems had already been largely replaced by the rapidly growing World Wide Web.
More importantly, the uncertainty created by the passage of first the Communications Decency Act in February 1996 and the Child Online Protection Act in October 1998 helped reduce prosecutor enthusiasm for Internet-related obscenity prosecutions, apart from those involving child pornography. While the laws under which the Thomases were convicted were not directly affected by either of the new laws, the effort of Congress to rein in pornography on the Internet has muddied the legal waters.
In its 9-0 ruling against the Communications Decency Act, the Supreme Court only discussed the "community standard" test in passing, although it did note that the application of that standard to the Internet would result in all speech being judged by the least tolerant community. The real issue in ACLU v. Reno, however, was whether a ban on "indecent" speech on the Internet was constitutional. The Court concluded that the ban was illegal under the First Amendment in light of its conclusion that the Internet is entitled to the highest level of protection from government restriction.
A little more than a year after the CDA decision, Congress again tried to limit Internet pornography by passing COPA. Instead of barring "indecent" speech, COPA imposes restrictions on the distribution of material "harmful to minors." Despite expressing his personal regret in doing so, the trial judge in the U.S. District Court in Philadelphia concluded that COPA too is unconstitutional, largely because it would prevent adults from accessing materials to which they are entitled and because it is not the least restrictive means for the government to achieve its objective (e.g., protecting children by limiting their access to pornography).
As with the CDA, there was no specific reason for the District Court to discuss the "community standard" in concluding that COPA is unconstitutional. In a highly unusual step, however, the Third Circuit Court of Appeals ignored the District Court's reasons and declared that COPA is unconstitutional specifically because Web publishers (including pornographers) lack any mechanism "to limit access to their sites based on the geographic location of particular Internet users."
Specifically, the court noted that to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system. Shielding such vast amounts of material behind verification systems would prevent access to protected material by any adult 17 or over without the necessary age verification credentials. Moreover, it would completely bar access to those materials to all minors under 17, even if the material would not otherwise have been deemed "harmful" to them in their respective geographic communities.
The government argued that under cases like Sable, it is a Web publisher's obligation to either screen visitors or tailor their content to avoid prosecution. The Third Circuit concluded, however, that the unique nature of the World Wide Web makes it impossible for Web publishers to perform that type of screening with the technology available today. Since the terms of COPA would require Web publishers to substantially limit their speech to avoid prosecution in conservative jurisdictions, the court reluctantly concluded that the law is overbroad and thus unconstitutional. The Court's conclusion, in fact, contains this remarkable sentence:
"Miller... has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications."
While the Third Circuit's decision was a wide-reaching rejection of COPA and a serious challenge to Miller, it may be only a temporary victory for online pornographers. First, the court left open the possibility that in time, technology may make it possible for online publishers to determine the geographic origin of visitors, in which case the Web will be subject to the same standard applied to mail order companies and phone sex operators.
Second (and perhaps more likely), the Third Circuit's analysis may be rejected by the U.S. Supreme Court when it ultimately hears the COPA case. Despite the reservations expressed by the Supreme Court about the applicability of the community standard to the Internet, it would still be quite surprising if the Supreme Court went as far as the Third Circuit did in questioning the applicability of Miller.
For publishers of sexually explicit material, the better long-term prospects lie in the way the Internet is changing the nation's sexual attitudes. In ways both subtle and gross, the Internet is literally altering how communities across America view sexual materials. In December 1999, for instance, both Penthouse and Hustler began publishing explicit photos of sexual intercourse for the first time. Representatives of both magazines said that they felt they could publish more explicit photos because the Internet had changed the standards of the communities themselves. It is a process of change that will only accelerate as the Internet continues to grow.
Frederick S. Lane III is a writer and attorney specializing in Internet legal issues. A graduate of Amherst College and Boston College Law School, he spent two years clerking for the Honorable Frank H. Freedman, Chief Judge of the U.S. District Court for the District of Massachusetts. Since 1993, Mr. Lane has written and lectured extensively on emerging technologies and their legal, social, and cultural implications. He has also served as an expert witness in Internet and computer-related litigation. Mr. Lane is the author of Obscene Profits: The Entrepreneurs of Pornography in the Cyber Age (Routledge 2000) and co-author of Vermont Jury Instructions, Civil and Criminal (Michie/Butterworths 1993). He is currently working on a new book for Routledge on corporate espionage and employee surveillance. Visit www.fsl3.com for more information or to order Obscene Profits from Amazon.com.
