Cybercontent Regulation: From Proximate-Community Standards To Virtual-Community Standards?

The framework for regulation of pornographic content was developed in 1973 in a case involving the mailing of unsolicited sexually explicit materials, Miller v. California, as a 3-prong “community standards” test:

(a) whether the average person, applying “contemporary community standards” would find that the work appeals to the prurient [this word apparently means “an excessive interest in sexual matters”] 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.

This Court rejected a national “community standard,” and held the applicable community standard was that of the State of California.

In Jenkins v. Georgia the Court expanded on this approach and allowed states the freedom to define an obscenity in terms of “contemporary community standards” without any further specification of the applicable community.

In Smith v. United States the Supreme Court held where federal obscenity laws apply, state laws cannot define the “contemporary community standards.”  In federal prosecutions, those issues remain fact questions for juries.  Additionally, federal courts have ruled prosecutors may elect to bring obscenity charges against defendants in either the district in which the communication in question originated or the district in which it was received, in order to discourage forum shopping by distributors.

FCC v. Pacifica made the broadcast of “indecent” material an offense separate from the broadcast of “obscene” material. The Pacifica Court ruled that non-obscene “indecent” material permissible for adult audiences could be prohibited for children.

In Sable v. FCC, the Supreme Court found unconstitutional an amendment of the Communication Act that banned indecent commercial telephone messages, but upheld the ban on obscene commercial telephone messages.  The Court held the ban on commercial indecency was overbroad.  The Sable Court also distinguished private commercial telephone communications from public radio broadcasts, finding that an indecent telephone message received as a result of “affirmative steps” was less invasive than the “unexpected outburst on a radio broadcast.”

In upholding language banning obscene commercial telephone communications, the Sable Court minimized the difficulty of applying the “contemporary community standards” requirement from Miller.

What are the “community standards” applicable to telecommunication services that inherently cross the boundaries of geographically defined, proximity-based communities?  In order to comply with diverse obscenity standards throughout the country, the Court proposed commercial providers of the adult services either monitor the source of calls on its own or contract with the telephone carrier to arrange for the advanced identification of calling communities and determination of their community standards of obscenity. However, it is unrealistic to assume that information providers can ascertain “communities” and their “standards.”

In 1996, President Clinton signed into law the Telecommunications Act, Title V of which is referred to as the “Communications Decency Act of 1996,” which subjects to criminal penalties anyone who knowingly, in interstate or foreign communications, makes, creates or solicits and initiates obscene communications (or indecent communications, in the case of recipients under 18 years of age) by means of a “telecommunications device,” even if the creator of the message did not initiate the communication.  The Act also penalizes the person in control of a “telecommunications facility” who knowingly allows such an activity. Although not defined, these terms appear to expand existing coverage from “telephone” to include cyber systems.

The Act also extends criminal penalties to anyone who knowingly uses an interactive computer service, in interstate or foreign communications, to send or display any material that describes in terms “patently offensive as measured by contemporary community standards, sexual or excretory activities or organs” to a person under 18 years of age. This extends indecency prohibitions recognized in Pacifica and Sable to the cyber arena.  The “Comstock Act” codifies federal criminal obscenity law.

In U.S. v. Robert A. Thomas and Carleen Thomas operators were convicted in federal court of interstate transmission of obscene material. The Court of Appeals rejected claims that interstate transportation included only “physically tangible objects” and not “intangible computer data” sent over telephone lines.

The appeals in the Thomas case raised the issue of the appropriate community standard.  Robert Thomas asserted the trial court should have applied the community standards of Northern California, rather than those of Memphis, Tennessee. Thomas claimed he did not mail the GIF files and contends his service is like an electronic bookstore to which customers travel to review and retrieve material. Therefore, the community standards where the store was located should apply, as they would to a traditional bookstore.  Thomas argued standards of geographic communities are inappropriate for dealing with modern “cyberspace communities,” and the applicable standards are those of relevant “computer-oriented communities.”  The Appeals Court rejected this argument.

“Community” is difficult to define, but a basic definition would include two components: a network of transportation or communication as a necessary material condition, and a shared “imagination” as a sufficient symbolic condition.

Traditionally, the “thick” interpersonal communication networks within the constraints of physical proximity enabled shared imagination; all communities were proximate communities.  As technologically mediated communication developed, it became possible to maintain “thick” communication linkages without physical proximity.   Groups of non-proximate persons with shared imaginations and virtual communities have increased in the past century.

Community and the sharing of imagination include “a sense of place, a sense of what is accepted and not accepted here.” This sense distinguishes one community from another.

The article argues the possibility that factors may have finally created the conditions for the replacement of the legal fiction of community as exclusively proximate.

The article argues four points:

First, the definition of community as proximate community has been stretched thin.

Second, the legitimacy of classic content regulation has been eroded; many citizens are willing to subvert the rules.

Third, attempts to regulate content on cybernetworks flies in the face of systemic tendencies favoring mobility of goods and services.  The classic cybercontent regulation found in the Telecommunications Act is contrary economic liberalization.

Fourth the Telecommunications Act of 1996 mentions alternative policies that allow communities to regulate cybercontent according to their community standards. The Telecommunications Act encourages the use of technological solutions for controlling access via public telecommunication networks to objectionable content.  Persons acting to restrict access are shielded from prosecution, and the Act protects from civil suits individuals and access providers acting in good faith to block or screen access to material the access provider or users consider obscene.  Access providers providing technological means to filter retain immunity from liability for content.

The “demand” for cybercontent regulation may be caused by one of two things. First, persons belonging to a specific community wanting to extend their standards to other communities backed by the power of the state.  Second, the increase of technologically mediated communication may be creating difficulties of managing the inflow of messages.

Analysis of current U.S. policies regarding the regulation of cybercontent found strong language favoring extra-territorial jurisdiction.  The offenses created by the Communications Decency Act apply to persons outside the U.S. who use a telecommunications device “in foreign communications with the United States” to knowingly engage in the prohibited acts.  These criminal provisions extend restrictive U.S. community standards of obscenity and indecency to cybercommunication with or from more permissive foreign communities.

This aspect of U.S. communication policy is likely to lead to frictions with trade and communication partners whose cooperation the U.S. will need for the creation and maintenance of effective international communication regimes.

For example, when the Canadian government began regulating with the v-chip, it could ensure v-chip attachments were available to Canadian TV users and programming originating in Canada was properly encoded.  However, a majority of content on Canadian television originates in the U.S.  Unless this content is encoded, the v-chip will not be fully effective.  If Canada tries to coerce foreign suppliers of TV programs to code according to Canadian standards, foreign governments may charge that Canada is placing barriers to trade and retaliate.  In order to implement the new form of content regulation, Canada had to seek agreement from the U.S.

It is clear that regulation of the Internet is challenging, but I do not believe it is impossible or unnecessary.  Critics, such as Amy White in her article “Virtually Obscene: The Case for an Uncensored Internet” argue that regulation of the Internet degrades society, reduces the usefulness of the Internet, and would create a slippery slope that would encumber other types of free speech.  Although I believe there is a lot of gray area in what constitutes obscene speech vs. indecent speech, and though I agree that many of these standards are purely subjective, I think the same could be said of the “reasonable man” standard used in Tort law.  What is reasonable to one person may be unreasonable to another, but the majority of people have similar ideas of what content should or should not be regulated.

In the end, this is a question for the trier of fact, and speech that may be considered subjectively regulated will ultimately be determined by juries on a case-by-case basis.  In the meantime, the most important thing is to do something, to get the ball rolling and protect our children from the ever increasing free access to pornographic material.

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~ by Daniella on October 25, 2010.

14 Responses to “Cybercontent Regulation: From Proximate-Community Standards To Virtual-Community Standards?”

  1. I have little to say because I agree with just about everything you wrote.

    The reasonableness standard is applied in many different contexts, including criminal law. My problem generally is that courts tend to interject their personal views into what is considered “reasonable.” Still, you are right that SOMETHING needs to be done.

    This is a topic that I think, at least until we can more appropriately develop the law (I hesitate to say that we should just start writing laws when we don’t have the information and tools to effectively do so), parents should be involved. Education about parental oversight into what their kids are doing may help the problem. Also, much as craigslist charged adult content people a small fees, ISPs could charge a fee to porn sites.

    I have no idea how that would work and it could be impossible, but it’s just a thought. I guess I’m saying that the solution should not just come from the legislative and executive branches in the form of laws and law enforcement. Parents and internet providers can play their part to.

  2. I think the key is that community standards needs to remain regional and not national. All across the nation people have different view points and usually those viewpoints are based somewhat on the area they are located. For example, Southern states are generally more conservative than NY or Cali. What would be considered to prurient in the South would probably be considered artistic in California.

    My real question is why do we need to regulate internet porn? If adults want to view porn online, that would be their own decision and one we shouldn’t regulate. If kids want to view porn online, that should be something left to the parents to stop. Not the government.

  3. Although I don’t have any proof of it, I would guess that the people that would be the most in favor of a national standard are the more conservative regions. More liberal regions like California probably don’t care as much that more conservative regions like Texas don’t have the same standards as them. It’s the people who want to push the anti-adult content agenda nationwide that are going to want this standard, and will be the people that lobby for it, pressure politicians to create a (heavily regulated) national standard, and will make their agenda known.

    Whether or not that’s a good or bad thing is up for debate, but it needs to be taken into consideration, especially when thinking about things like foreign trade and communication partners.

  4. I agree with you as well on this issue. Obviously, something needs to be done to “get the ball rolling” as you said, but what? As always, it comes back to parental education for me. Making parents aware of what is out there and what their children can potentially be exposed to, so that the parents can make informed decisions about how to protect their children seems to be the best (and safest, constitutionally) option. As Frankie said, simply put, porn is not (usually) illegal, so why regulate it at all? Regulating it is unconstitutional. Regulating what some people somewhere may perhaps possible someday decide is “obscene” just opens the flood gates for regulating other forms of Internet free speech that should not be regulated. I feel like even using a Reasonable Man standard is tough for a topic like this. The best bet for me is that parents self-regulate what they do and do not want their children to view on the Internet and be aware of the potential dangers they face with their children viewing “obscene” materials.

  5. You make good points and I agree with you that something needs to be done to protect children from all the graphic material freely available on the internet. The internet is a global network and policing every jurisdiction will be nearly impossible, if not impossible, not to mention where should one even draw a line? (Any line that is?) I will have to say that some countries have been able to limit internet access. Not necessarily in a way to which I fully agree, but some countries have been able to block access to parts of the internet… so it is possible, yet at the same time we criticize these nations for censorship. Once again, where do you draw the line…

  6. I’m flat out against attempts to regulate content on the Internet to “protect the children.” Have children? “Protect” them yourself from things you simply don’t agree with.

    Some countries attempt to block parts of the Internet. But just like most technological barriers, people who want to get around them are able to do so, minors included. http://www.nytimes.com/2009/05/01/technology/01filter.html. Wikipedia’s entry on Chinese Internet filtering describes circumvention as “trivial,” and that represents a concerted effort on the part of an entire nation to filter content. That is an effort against content the Chinese government views as subversive and promoting civil unrest and even terrorism. Does the U.S. have the resolve (or the resources given our current state of affairs) to do a better job to combat merely “offensive” conduct?

    I really take issue with the community-based standard for obscenity in general. As the article points out, it’s greatly outdated given the state of communication today. In a more general sense, the individual liberties granted by the Bill of Rights are inherently anti-majoritarian. They are designed to protect the rights of individuals to be free from an oppressive majority despite the unpopularity of the way those individuals exercise those rights. I really think the community-based standard turns that value on its head with respect to allegedly obscene material. The use of the “local community” standard, as opposed to the community to who the content was directed, in light of instant, worldwide communication exacerbates the problem.

  7. The way I see it, the Internet is technically a subscription service. We all pay to access it. It should be viewed as similar to cable TV, which isn’t actually regulated at all, as it too is something people pay to access. To regulate a service for everyone in the country in the name of protecting children in the absence of parenting is inexcusable.

    Additionally, I feel the concept of “community standards” is at odds with the legal precepts of this country. To arbitrarily set standards in legal actions is equivalent to judicial lawwmaking. Indeed, standards vary regionally, but even then there is so much variation demographically and religiously that to declare a regulation to be determined by community standards is a crapshoot that will limit the rights of those of us who desire no protection while surfing the Internet.

  8. The Telecommunications Act has a surprisingly broad definition of what is prohibited. From my reading of the language, it appears to criminalize content-based communications even between consenting adults. It also seems to cover certain wholly private conversations between two consenting individuals under the age of 18.

    Although I understand the harm sought to be prevented, this seems like overshooting the mark a bit. Particularly given the special weight free speech interests have always enjoyed in this country, the overbreadth of that statute seems unjustifiable, even against the strong interests in protecting kids from cybervillains. And I’ve never fully understood the application of the “community standards” concepts– they seem so subjective and nebulous as to frustrate any utility they might provide.

    Amy White has got it right (great campaign slogan, eh?) in that the internet has a special purpose and function not fulfilled by any other communications medium, and that accordingly it deserves special protection. Overzealous regulation and censorship, as suggested in your article, could lead to a dangerously slippery slope which causes far more harm than good.

  9. I agree, the reasonableness standard is pretty subjective, and I think that in this context it is even more subjective than in Tort Law. It really all boils down to a person’s upbringing. Some cultures/communities are more open with what they talk to their children about or let their children listen to/watch. While I’m not saying that parents in some cultures allow their children to watch porn, I’m saying that some don’t look at certain things as “indecent” or “obscene,” and are far less conservative than others. I’m unclear about the discussion regarding communities though…how does that come into play here? I understand the “sense of place, sense of what is accepted and not accepted here,” but how does that play a role in regulation?

    Also, I think that many steps have already been taken to regulate sexually-oriented material, and that a lot is being done to warn parents about what their child will see/hear when they purchase something, such as a CD. The music recording industry’s adoption of a voluntary labeling system to make parents aware of content not appropriate for minors is a huge step, and I don’t know what more they could do to regulate.

  10. I can understand the valid interest in protecting children from obscene (and indecent) materials online and in other walks of life. However, I think that, like California’s proposed censorship of violent video games, the “community standards” standard is too broad and unclear to protect both children and speech. If “community standards” are to survive as a means of judging content on the internet, it seems a major shift in the definition of a community is in order to preserve both their vitality and efficacy online. If content is to be judged by the community which it reaches, it should be judged by the rules of the online community which it is targeted at. I think allowing the system architecture of the internet itself (the rules and regulations of online communities embodied in the efforts of those communities to self regulate through filtering, banning, etc) is the best means of regulating content on the internet.
    I think Holly is right, regulating where your child goes on the internet is just as important as where they go IRL. Parents, and filtering software, are better able to protect their children than amorphous legislation that treads the thin line of Constitutionality in its application.

  11. I can’t say I like the community standards idea. In the internet context, it just makes no sense to regulate some one according to a community that he or she has no intention of reaching. The fact that community standards lead to a situation where the most restrictive standard always wins doesn’t make any sense. There are always going to be many variances among community opinions, one community shouldn’t win because it is the most restrictive.

    Ultimately, it seems like the internet is too difficult to regulate to maintain much regulation at all in the long term. While there may be some legitimate goals, the potential for an offshore market for anything anyone could offer on the internet makes attempts to regulate almost useless. I guess the idea is that at least you get the “bad behavior” out of the United States.

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