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In Florida, a lawyer is asking a judge to consult an expert regarding the community standards for obscenity in Pensacola. That expert? Google. The defense intends to suggest that Pensacola residents have more prurient interests than many realize by showing that they have generated more web searches for words like “orgy” than, for example, “apple pie.” Meanwhile, the FCC is proposing nationwide free wireless access, but with a caveat – it will be heavily filtered. According to the FCC, the filters will prevent users from accessing “images and text that constitute obscenity or pornography and, in context, as measured by contemporary community standards and existing law, any images or text that otherwise would be harmful to teens and adolescents.”
These two situations present the same problem – the role of the Internet in determining community standards. Miller v. California, a landmark obscenity case, requires the Court to consider the “average person” applying “contemporary community standards.” Even before the Internet, that part of the three-pronged Miller test has always been a difficult one to pin down. The question is – which community? The Florida lawyer’s client ran a pornographic website accessible to anyone in the world, but in this case, the only standards that matter are those of Pensacola – it is unclear as to whether the judge will consider it a positive or a negative that the Google data only applies to Internet users in Pensacola. Likewise, if the FCC’s proposed filtered wireless network ever sees the light of day, will filtering vary wildly from place to place or will it be based on the country as a whole? Should it instead be the standards of the Internet as a whole?
Last year around this time, there was much to-do over at Livejournal, a popular blogging community, when a new company took over and began deleting accounts that it considered unsafe for children or obscene. When the administrators of the site cited the Miller test, thousands of confused Livejournal users were suddenly asking: which community standards? California, where Livejournal’s company is based? My hometown? What if I’m in another country with completely different obscenity standards? Or are the standards those of the the Livejournal Internet community?
When the Miller Test was conceptualized in 1973, accountability involving community standards made sense because the community on which it was judged was the same in which the obscenity (adult movie houses, sexually explicit magazines, etc.) was taking place. Today, however, the person living next door to me could be operating a website that a Nashville resident might consider obscene, but neither I nor anyone else living in Nashville ever even knows it exists. Meanwhile, there is an entire community of Internet users, perhaps mostly in other countries, or in different parts of the United States, who are using this website and have an entirely different definition of obscene. By whose standards should the material be judged – those who see it or those who don’t?
Ultimately, that lawyer in Florida is just trying to come up with a simple, concrete way to gauge a community’s tastes – which is difficult enough in itself without adding onto it the issue of which community. However, one thing that the courts – or the FCC – should consider is whether they are comparing apples and oranges – or, well, apple pie and orgies.
- Casey Fiesler
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