How should 'obscenity' be defined in cyberspace?

By Juan Antonio Osuna
CRA Staff

Although our society has traditionally shunned pornography, it has learned to cope by keeping it out of public view--hiding adult videos in back rooms, limiting sex shops to red-light districts and confining the sex industry to big cities where people are more tolerant. But as these activities migrate to the Internet and public bulletin board systems, traditional legal and social mechanisms of control are proving less effective.

Some experts forecast a political storm just over the horizon, especially as the Internet attracts increasing publicity and a wider audience of young children and conservative elders. They even suggest that new technologies ultimately may force the Supreme Court to revisit its 1973 interpretation that balances First Amendment rights with state and local obscenity laws.

"What we are now headed for is a new crisis in obscenity law," Mike Godwin, staff counsel for the Electronic Frontier Foundation, said at the recent Sex, Cyberspace and the First Amendment forum.

Held at the CATO Institute--a conservative, libertarian think tank in Washington, DC--forum participants raised a number of thorny issues regarding the affect of technology on obscenity law.

Perhaps the most pressing legal concern centers around the Supreme Court's standing interpretation of what constitutes "obscene" material. Chief Justice Warren Burger formulated an opinion in 1973 based on "community standards." Material is obscene if, according to local community standards, it appeals to an immoral, prurient interest and has no artistic, literary, political or scientific value.

The court's interpretation of the First Amendment does not seem to take into account the changing social landscape, where geographic communities are being replaced by virtual ones. And this has led many local prosecutors and district attorneys to impose local standards on electronic providers of pornography somewhere across the continent.

"Cyberspace now has the potential of allowing Kansas City to dictate the standards for Times Square," Godwin said. "There's the question of whether the community standards doctrine makes sense any more."

Godwin's concern is more than just theoretical. He is quick to mention the case of Robert and Carleen Thomas of Milpitas, CA, and their "Amateur Action BBS," offering adult forums and sexually explicit graphics.

A Tennessee postal inspector, working with an assistant US attorney in Memphis, joined the Thomases' BBS and later downloaded sexually oriented images, ordered a videotape by mail and sent the couple an unsolicited child-porn video.

A Memphis jury convicted the Thomases on 11 obscenity counts but acquitted them on the child-porn count because of entrapment implications. For each count, the couple now faces a maximum of five years in prison and $250,000 in fines.

What was especially disturbing to Godwin was that the Memphis postal inspector was the only person in Tennessee with an account on the BBS, and still the court imposed Tennessee standards for obscenity on a BBS located in California.

While some national porn vendors have learned to avoid mailing their products to places such as Tennessee, operators of a BBS or a Web server do not always have the technical means of determining the true origin of a caller or client. Nor would it make sense to develop such technology, if values and attitudes about obscenity tend less to follow geographic patterns as they do patterns evolving through online interactions in the Global Village.

If geography is not the issue, what is? Godwin suggested that "we should focus on empowering individuals to make their own choices."

But the issue is not so simple. How does society go about empowering certain users with the choice of not having access or not allowing their children access? Is it appropriate for a company or university to allow students or employees to use limited computer resources to browse sexually explicit graphics requiring high bandwidth?

Such questions were raised by recent events at Carnegie Mellon University, where sex-related newsgroups were removed from university computer systems. After fervent protests from students, the university formed a committee to examine the issue more closely. The question remains, however, whether the university's actions constitute censorship or simply a refocusing of resources.

While CMU officials said they were forced to remove the groups because of state obscenity laws, Godwin suggested another reason. "They were afraid of having to explain [the sex groups] to donors and alumni," he said. "They reached out for a fairly tenuous legal explanation."

These events and the tendency of mainstream media to pursue the Internet's sensational aspects may soon lead to wider public scrutiny of Internet activities and heightened controversy. At CMU, student protests overwhelmed university officials to the point where its Bulletin Board Committee decided to restrict its members from talking to the press, further infuriating student representatives.

It is unlikely the controversy will end with the CMU or California BBS incidents. "There's a certain media hunger for the downside of the Internet, especially when it comes to sex," Godwin said. "Sex over the Internet is the hottest issue now."