The SCOTUS today said that the Miller obscenity test is applicable to the Internet, upholding that portion of the COPA (Child Online Protection Act), by a measure of 8 to 1. I've been saying this would happen for three and a half years, but no one believed me. :-) One justice, Stevens, said the Miller test can't be used for the Internet, because community standards vary too much. While this is a problem with Miller, it's always been dealt with reasonably before.
The law still has to go back to lower courts for a handful of other tests, and it may die yet, but it's still alive, and the ACLU was smacked down, as I hoped they would be, on this important issue.
Re:community standard do vary too much
pudge on 2002-05-13T21:00:47
The short answer to "how it can work" is that it is a lot more complex than it appears, and you can't just look at the words used and judge based on that. There's a lot of caselaw and precedent behind it.For starters, you need to look at how similar cases have been handled, where the distributed content was not specific to a particular community. From the current decision, in re a decision about a national mailing (Hamling):
When the scope of an obscenity statute's coverage is sufficiently narrowed by a 'serious value' prong and a 'prurient interest' prong, we have held that requiring a speaker disseminating material to a national audience to observe varying community standards does not violate the First Amendment.Note the important first half of that sentence: we are talking about a very limited scope, things that do NOT have serious value, AND are of a prurient interest. And:
The fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional.So there's the first part: it is not unconstitutional to require them to abide by the various standards of individual communities. This was, Justice Thomas notes, affirmed later in a case of a dial-a-porn operator:
There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If 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.However, that isn't the whole story (nothing in law ever is the whole story
:-). This case is distinct from Hamling and Sable: The Court of Appeals below concluded that Hamling and Sable "are easily distinguished from the present case" because in both of those cases "the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it" whereas "Web publishers have no such comparable control."However:
In neither Hamling nor Sable, however, was the speaker's ability to target the release of material into particular geographic areas integral to the legal analysis.And:
Respondents offer no other grounds upon which to distinguish this case from Hamling and Sable.So there's the question: is the lack of ability to geographically target specific locations sufficient to distinguish it? If so, the case wasn't adequately made. On one level, which you addressed, which Justice Stevens based the lone dissent on, yes, it seems that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message," and that this is unfair. However, Justice O'Connor, in her superb concurring opinion, wrote:
The plurality's opinion argues that, even under local community standards, the variation between the most and least restrictive communities is not so great with respect to the narrow category of speech covered by COPA as to, alone, render the statute substantially overbroad. I agree, given respondents' failure to provide examples of materials that lack literary, artistic, political, and scientific value for minors, which would nonetheless result in variation among communities judging the other elements of the test. Respondents' examples of material for which community standards would vary include such things as the appropriateness of sex education and the desirability of adoption by same-sex couples. Material addressing the latter topic, however, seems highly unlikely to be seen to appeal to the prurient interest in any community, and educational material like the former must, on any objective inquiry, have scientific value for minors.So she notes that (paraphrased), "OK, you think standards may differ significantly, but you gave not one example of how they might differ in the narrow field of vision in COPA." How can the Court be expected to rule that these standards applied to the Internet are unfair when not one example of them being unfair is presented?
[And as a side note, I get really pissed off at the ACLU lawyers who pretend that things like sex education have anything at all to do with this case, since they clearly have serious educational value, and are therefore not within the narrow scope of COPA to begin with. In one document from a few years ago, the ACLU contended that the Starr Report would be illegal under COPA, despite having unquestionably clear political value -- as it formed the basis of evidence for the impeachment of a President -- and ignoring the fact that it is privileged communication, being a part of the Congressional Record, and therefore not subject to such laws anyway. It's a smokescreen tactic, and it's entirely dishonest.]
So, all that said, O'Connor then floats the idea that national standards may be called for. The current statutes do not define what constitutes a community; indeed, in the original Miller case, the community was "the State of California."
If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole.I don't know if you've spent much time up and down California, but it is by far the most diverse state, by region, that I've ever been in. Oakland and Reading and Los Angeles and San Francisco and San Diego all have wildly different standards. So if this is reasonable, why not national standards? Should this be the case, it would demolish all of the claims in your comment (for U.S.-based content only of course, but foreign content is a completely different discussion anyway).
But really, even without this possible remedy to the problem, the point that O'Connor makes that no evidence at all was presented of any content that would cause any such problems with varying standards is telling. I don't think the ACLU simply forgot to come up with examples. I think they were unable to find one that would convincingly make their point. If that is the case, then it's hard to take the claim seriously.
Re:community standard do vary too much
jjohn on 2002-05-14T12:07:30
Note the important first half of that sentence: we are talking about a very limited scope, things that do NOT have serious value, AND are of a prurient interest.
That accurately describes every TV commercial ever made. And Howard Stern. And Jerry Springer. And Oprah.And South Park. And the History Channel's XY Factor. And the news coverage of the Lewinsky investigation including the Government sponsored snuff piece known as the Starr report. I'd support universal descency laws if those little pieces of hate could be banned along with Romancing the Bone.
If the idea of national standards on smut are appealling (after all, smut is naughty) and somehow we can have a big-tent (huh huh) agreement on what goes over the line (who but NAMBLA is going to defend child pornography?), then let's also have a national driver's license and uniform national gun laws. Bullets and cars are a nearly as dangerous as titties, don't you think?
It may be that the most harmful element of society isn't really porn or TV or bullets or Republicans, but people. If we could just get rid of the bad ones and keep the good ones, this country would be so much the better. Unfortunately, a fringe political party that came to power in Germany in 1923 really soured the pot for the rest of us on that idea. At the risk of getting metaphysical, the intent to do harm is what we ought to be targetting. With enough motivation, I'm sure a body could turn a hanky into a weapon or read Little Red Riding as a child rape story.
To my thinking, "decency laws" are a way of branding certain ideas as harmful and dangerous. This is a little weird. I don't know if ideas are the problem so much as action. I can certainly support restricting harmful action. In fact, I believe that's what most laws do now. It continues to be argued that ideas directly lead to action. At the very least, some ideas seem to trigger Really Bad behavior in some people. While I don't have the professional credentials to support or deny such a claim, I can say that despite a very spotted history, the Catholic Church has done some good for some people. I'm sorry, was I supposed to be talking about porn?
Re:community standard do vary too much
pudge on 2002-05-14T13:08:24
That accurately describes every TV commercial ever made. And Howard Stern. And Jerry Springer. And Oprah.And South Park. And the History Channel's XY Factor.
It is not JUST that it might be found to appeal to prurient interest and lacks serious value. That's just two parts of the three-part Miller test. You are forgetting (?) the second prong (huh huh) of the Miller test, which is that the material must also depict, in a patently offensive manner, actual or simulated sex or exhibition of the genitals.
And the news coverage of the Lewinsky investigation including the Government sponsored snuff piece known as the Starr report.
That's simply false. This material was specifically related to an investigation and impeachment of a President. To say this material lacks serious political value is wrong by any objective standard.
As to national driver's licenses and gun laws, no, that doesn't follow at all. Gun laws and driver's licenses, while there are some jurisdictional issues that nationalizing might address, do not have nearly the same problems with local standards that Internet-based obscenity determinations do. Here we are talking about one local standard dragging down everyone's right to free speech. That's far more significant in scope. It's not about the danger of the material involved, it is about preserving the individual freedom of those who would have such material. O'Connor made the point that the best way to preserve your individual freedom is to not have your web site be subject to the standards of Tennessee.
Further, no one is contending in this bill that the material is dangerous or evil. Yes, traditionally, Miller was used to keep out certain material entirely. But this scope is far more limited than even the traditional Miller test, in that it only has anything to do with material that is available to minors. It may be, as the entire SCOTUS (huh huh) agreed, that there are other issues about overbroadness here, but the Miller test is not one of them.
The point is that this is not about whether or not people are bad or material is bad, but about allowing parents to have a little bit more control over what their children may freely/easily get their hands on. It's not like we don't already have laws prohibiting the distribution of pornography to minors. We have these laws everywhere, and this law is merely an attempt to extend that to the Internet.
And no, this law has not one thing to do with branding any idea dangerous. It has to do specifically not with any idea, but with how ideas are depicted. Miller is very specific in that regard. This law is not a wholesale attack on pornography or information about sex. It is a very limited law that prohibits ONLY material that depicts sex in a graphic and patently offensive manner, AND appeals to prurient interest, AND lacks any serious value, AND is readily available to minors. It's a very high bar to reach, and most web sites that distribute such material -- as you well know, jjohn -- already block children through means that would be acceptable under this legislation, so its affect would be entirely negligible, except for the few sites that don't do any blocking, of content relevant to this law, through "adult verification."
I don't know if this law is good enough to be enforcable, or should be enforcable, but the concept is sound. If COPA is not reasonable on the grounds of "free speech" in general, than neither are any laws prohibiting distribution of porn to minors. Maybe that's what some people want, maybe that's what some people think is reasonable. But most people certainly don't think that, in this country.
Re:community standard do vary too much
wickline on 2002-05-14T12:19:02
thought of one possible example...
Some speech regarding the "swinger" lifestyle would be seen as immoral porn by some communities and as protected speech by others. Few communities would claim that "swinging" education belongs in a sex ed curriculum.
I've sent a more detailed sketch to the ACLU...
-matt
Re:community standard do vary too much
pudge on 2002-05-14T12:41:14
Not informational text, no, it would not have anything to do with COPA. It would need to depict sexual acts in a patently offensive way. Simply remarking that people have sex with certain other people is not a depiction or description of the sexual act that falls under the Miller test. Now, if the speech did go into graphic detail about how that sex "worked", then it might be covered under COPA, perhaps. But mere educational materials about the nature of swinging clearly do not fall under the Miller test, no matter how many people find them offensive, and therefore have nothing to do with COPA.
Re:community standard do vary too much
wickline on 2002-05-14T16:26:32
I'm thinking of a swinger community site... where you'll find not only informational material, but also "personal adds" type things where folks may have explicit photos and descriptions of interests, as well as irc-type chat rooms for discussion including "chat sex". Some might find that material offensive, particularly in the context of sexual relations not limited to one's spouse.
I included more detail for the ACLU... maybe they'll see something useful to extract from the example. Maybe not.
-matt
Re:community standard do vary too much
pudge on 2002-05-14T16:38:44
Well, many explicit photos could be covered under this law. That does not render the entire site illegal. I am not sure what your point is supposed to be. The whole point of the law is that certain "pornographic" material would be illegal if readily available to minors, and I can't see what swinging has to do with anything in the law, nor what putting that material on a swinging web site has to do with anything.
Re:community standard do vary too much
wickline on 2002-05-14T18:18:13
> variation between the most and least restrictive
> communities is not so great with respect to the
> narrow category of speech covered by COPA as to,
> alone, render the statute substantially overbroad
OK, so OC is saying that variation is not so great. The swinger example is intended to be a possible instance where variation might be greater.
> I agree, given respondents' failure to provide
> examples of materials that lack literary, artistic,
> political, and scientific value for minors, which
> would nonetheless result in variation among
> communities judging the other elements of the test
A swinger web site could be viewed (by a litigious non-swinger parent, for example) as lacking in literary, artistic, political, and scientific value for minors.
(one prong: "non-serious")
...and could nonetheless result in variation among communities judging the other elements of the test.
(the other prongs: "prurient" and "sexually explicit")
Suppose we take for granted that the site contains sexually explicit material. That leaves us with the "prurient" prong. Swingers will say that their lifestyle is as prurient as Mr. and Mrs. MarriedCouple having sex in their own bedroom: ie, not at all. Some non-swingers will say that their lifestyle is the work of the devil, the cause of the collapse of the family unit, and a root of imorality in general.
These communities will judge differently.
The intent was to provide an example of the sort which OC explicitly noted was absent from the ACLU's case, and which from her words, would at least have made the court think a bit more... even if they ultimately reached the same judgement.
I'm not trying to make an argument, just to provide an edge case which was noted to be absent. The ACLU may or may not find the edge case to be appropriate or interesting or useful.
-matt
Re:community standard do vary too much
pudge on 2002-05-14T18:34:36
I think you are misunderstanding the "sexually explicity" test. Perhaps not. But the material must depict, describe, or represent, in a patently offensive manner, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast.
A swinging web site could not, even if it were found to appeal to prurient interest and found to have no serious $foo value, be found to violate this law unless it had graphic depiction of sexual acts. I admit I don't look at swinging web sites very often, but the point here is that the fact that it is swinging has nothing to do with it. The lifestyle is not in question here, it is whether or not sexual acts are graphically depicted, in a patently offensive manner. If a swinging web site -- or any web site -- wants to put up such material, it would just need to put it in a section that has some barrier to children. This would also hold true for a web site catering to singles that had similar content.
Maybe you are trying to make the argument that some people would find the swinging web site's depiction of sexual acts to be more patently offensive than a singles' web site's similar depictions by virtue of the swinging nature. I frankly find that unrealistic; few people are going to say, "that picture of a blowjob would be OK if it weren't swingers doing it." I just don't see that happening.:)
Frankly, most of this will merely hinge on whether or not the material is pornographic, and while "pornographic" is not a legal term, you know it when you see it, and that's always been, when you get down to it, what most juries in Miller cases have decided on.
Re:community standard do vary too much
wickline on 2002-05-14T18:50:05
> Maybe you are trying to make the argument that some
> people would find the swinging web site's depiction
> of sexual acts to be more patently offensive than a
> singles' web site's similar depictions by virtue of
> the swinging nature
well, I'm trying to provide an interesting case... not really to make an argument. However, part of *why* I think it is an interesting case is related to your comment above. You say "more patently offensive" above, while I think that I mean to say that some members of a community would find it *more* offensive while other members of a community would simultaneously find it *less* offensive.
Swinger's view:
> this photo shows my spouse and I engaged in
> perfectly normal sexual expression with five
> of our closest friends and two strangers. It
> is no more offensive than this illustration
> in a sex education text of a man and wife.
Non-Swinger's view:
> this photo shows a gross act of perversion
> which is much more abhorent than some other
> photograph of seven consenting *single*
> adults because it conveys an explicit anti-
> family and immoral message when taken in
> the context of the swinger literature which
> surrounds the photo.
-matt
Re:community standard do vary too much
pudge on 2002-05-14T18:59:53
If it were of the same essential manner as an illustration in a sex education text, then it won't appeal to prurient interest, and the law is therefore not applicable anyway... if it does appeal to prurient interest, then so would the other, and you must consider its education value. If this photo is clearly framed as being of an educational nature, as the one in a sex education text clearly is, then again, I see no potential problems (leaving aside abuse of the law by prosecutors and juries, which is possible with *any* law, and is part of why we have an appeals process to begin with :-).
