The federal government has promised to use obscenity laws to crack down on Internet erotica. Training sessions have been conducted to teach federal prosecutors how to use obscenity laws in the 21st Century, and the first prosecutions have already begun against webmasters in Texas and West Virginia. State prosecutors in Indiana, Alabama, Utah, Kentucky, and Florida have recently used these outdated obscenity laws to justify arrests of video storeowners and webmasters. Expressive materials have been seized in these raids. Utah appointed a "porn czar" whose sole job is to evaluate potentially obscene material and then target it for prosecution, however her job was eliminated in budget cuts. There is no "safe harbor" provision under federal law that will protect Webmasters from obscenity prosecutions. Attorney General John Ashcroft has already blamed the media for the violence at schools, and gleefully announced that he might trade First Amendment rights if it would improve the culture. It is doubtful that adult websites fit in with Ashcroft’s "Culture of Responsibility" that should be promoted by the media; and adult websites are surely one of the enemies in what Supreme Court Justice Clarence Thomas has dubbed the "cultural war" in which he and others are now engaged. All hope is not lost, however, and those in the industry who have never faced a criminal obscenity prosecution should take heart in knowing that significant constitutional challenges and factual defenses can be mounted against use of obscenity laws in the Digital Age. This is especially true in the event that an obscenity prosecution is brought against a Webmaster for content found on a Website. Our firm has defended numerous obscenity prosecutions across the country, and has litigated obscenity issues before the U.S. Supreme Court. We have drawn upon our experience to put together…the Top Five Reasons why Obscenity Laws are Inappropriate in the Digital Age.
Reason Number 5: Because the Web is Seamless and Ever-Changing
Most Adult Webmasters know the test for determining whether a work is obscene was set forth in the case of Miller v. California: First, the average person, applying contemporary community standards, must find that the work,taken as a whole, appeals to the prurient interest. Second, the work must depict or describe sexual conduct in a patently offensive way, based on contemporary community standards. And third, the work must, taken as a whole, lack serious literary, artistic, political or scientific value as measured by a reasonable person. The courts therefore require that any work subjected to the obscenity test must be evaluated "as a whole," at least with respect to prurient interest and serious value.
The requirement that the work be evaluated "as a whole" prohibits the judge from simply ripping out certain explicit pages from a book or magazine, and determining that those portions meet the test, thereby declaring the entire work obscene. However, although evaluating material as a whole might be a workable concept for traditional media, such as books, magazines, films or even videotapes, it does not work for Internet content such as Websites. This is true, as a practical matter, for several reasons:
First, a Website really has no coherent, tangible boundaries. Assume, for example, that a zealous prosecutor were to claim that Yahoo!.com™ was obscene. Such a charge seems pretty far-fetched because of the sheer volume and diversity of the content contained on a large site such as Yahoo!; however, some adult mega sites can rival Yahoo!’s content. What constitutes the challenged "whole work?" Must all Webpages be reviewed? What about framing and linking relationships? Under current technology, the lines readily blur as to what constitutes "the Website." It can certainly be argued that the court and the jury must consider the entire site, including all pages and all links. An argument can even be made that the whole work consists of links on linked sites, and so on and so on. Taken to its logical extreme, this argument requires the jury to consider the totality of the Internet as the "whole work." Otherwise, there is no logical place to cut off the analysis. While consideration of such infinite amounts of material would be difficult as a practical matter, a substantial volume of content must be considered if the jury is to comply with its directive to evaluate the work "as a whole." It should be noted that application of the test in this manner could expose a Website to tremendous liability for content contained on linked sites. Several prosecutions have already occurred against webmasters for images found on linked sites.
Second, it is difficult to evaluate a website as a whole since each site takes up varying amounts of bandwidth at any given time, and is not an identifiable "thing" in the traditional, physical, sense. It expands and contracts depending upon the amount of information that the Webmaster chooses to upload onto the site, at any moment. To "capture" the Website’s existence, one must freeze it in time. A Website has some characteristics of both a live performance, and of fixed media such as film. It is "broadcast" 24 hours a day, and most sites change their content regularly. Many adult sites provide live streaming videos, which are, by definition, ever changing. How much of this "eternal show" must be considered to evaluate the work as a whole? A magazine that is alleged to be obscene, contains the same information, and can be evaluated the same way yesterday, today and tomorrow. However, a jury may come to differing conclusions as to the legal obscenity of a Website depending on whether it considers the site yesterday, today or tomorrow; because of its ever-changing nature. When, in time, is the Website to be evaluated? When it is seized by law enforcement? Upon arrest? At trial? On appeal? How long must the jury look at the site? Minutes or Hours or Days? These questions demonstrate the unique issues facing the courts and law enforcement when alleging that a Website is "obscene."
Reason Number 4: Because the Words "Patently Offensive" and "Prurient" Have No Common Meaning
Should you be unfortunate enough to become the target of an obscenity prosecution, your guilt or innocence will hinge on a jury’s understanding and application of the words "prurient" and "patently offensive." In order for a work to be deemed obscene, it must be patently offensive and appeal to the prurient interest in sexual activities. Any other kind of interest in sexual activities is, okey dokey. The basic obscenity test was crafted in 1957 and included obscure, seldom-used terms that are heard even less today. Yet, these words form the lynchpin of the obscenity test even in modern times.
In 1997, the U.S. Supreme Court decided ACLU v. Reno, which involved the constitutionality of the Communications Decency Act. In that case, the Court implied that the term "patently offensive," like the word "indecent," is too vague to provide the basis for a criminal charge in modern times. The Court stopped short of declaring the term unconstitutional, however many other court decisions suggest that these terms encourage arbitrary and discriminatory enforcement, rendering them unconstitutionally vague. Many constitutional scholars agree that perhaps the time has come to stop using these archaic terms to convict people of criminal offenses.
In defending against obscenity prosecutions in Central Florida, we have introduced empirical evidence demonstrating that the word "prurient" has fallen out of common usage in both conversation, and in print media. We were able to prove that the local newspaper had not used the term prurient in over a million words of publication. A statistically relevant sampling of the local community also demonstrated that over 98% of the residents admitted that they did not know what the word "prurient" meant. Those who claimed to know the definition could not accurately use the word in a sentence. The term simply has no commonly understood meaning.
Constitutional concepts including Due Process require that juries be adequately instructed on the legal principles they are to apply in rendering a verdict of innocent or guilty. Some courts have held that these terms, as defined in the court decisions, have sufficient meaning for purposes of the obscenity definition. However, other legal principles require that laws be written in language that is relevant to today’s society. Since the obscenity laws require juries to apply ambiguous terms such as "patently offensive" and "prurient," it is time for the courts to take a fresh look at these laws in light of current language and societal conditions.
Reason Number 3: Because You Don\\\'t Know Whether You\\\'re Guilty Until the Jury Renders Its Verdict
A criminal defense lawyer’s clients are presumed to be innocent. Occasionally, the lawyer simply does not know whether his client is innocent or guilty, but the client almost always knows whether he or she is really guilty of the offense charged. A major exception to that concept is obscenity. When asked; "Did you do it?" the client can legitimately respond; "I don’t know." Unlike with drugs, there is no field test that can be used on pornographic materials to determine whether they are obscene. Usually, no one is disputing that the film, magazine or videotape was sold and that it depicted sexual activity. Yet the same work may be considered obscene in one city, and perfectly acceptable free speech in another. Accordingly, the verdict in an obscenity case is, by definition, always a surprise, even to the accused.
The more troubling aspect to this defect in obscenity laws is the inability for law abiding Webmasters to steer clear of inadvertent violations of the law. It is an essential element of any fair criminal justice system that all laws must adequately advise citizens how to comply with them, and more importantly, how to avoid breaking them. Citizens should not be so uninformed that they avoid lawful conduct in order to keep from violating an inadequately defined law. For example, Congress has determined that no one should drive faster than 65 miles per hour, but it is perfectly fine-and in many cases citizens are encouraged-to drive right at the speed limit. Every driver understands his or her rights and obligations, and can easily comply with the law. Imagine the chaos and outcry if the speed limit were defined as "the highest speed measured in cubits per hour that the average person, if polled today, would find that a Unicorn could gallop, with a serous purpose as measured by a reasonable person in the community." Imagine how slowly people would go; imagine how many tickets would be written for speeding. Imagine how long it would take for such an inane standard to be repealed.
While it may come as a surprise to the current Justice Department, most Adult Webmasters prefer to operate within the confines of the law. They’re not rebels without a cause, looking to pick a fight with the closest morality group. However, both law enforcement and the courts have preserved this vague obscenity standard knowing that it will result in significant self-censorship. In other words, Webmasters will be overly careful not to cross the line into obscene materials by voluntarily censoring vast amounts of content that a prosecutor thinks may cross the line, but in reality do not. This is what’s known in the law as a "chilling effect" on protected speech. While obscenity laws have consistently been upheld despite their obvious chilling effect, these arguments must be made to give courts the opportunity to recognize and rectify the error of their previous decisions. In no other context would such a test be upheld, or used to determine guilt on such a widespread basis. For example, we, as a society, would never allow juries to decide based solely on their personal belief system whether a particular chemical compound was a "controlled substance," thereby justifying a drug trafficking conviction. Yet the courts do not bat an eye in allowing juries to make essentially ad hocdeterminations on whether to send someone to jail, and forfeit large amounts of assets based solely on their subjective conclusion that a communicative work is "prurient," "patently offensive" or "obscene."
Reason Number 2: Because there is No Local Community in Cyberspace
As is apparent by the obscenity test quoted above, the "average person" is required to apply "contemporary community standards" in deciding whether a work is obscene. In deciding the Miller quintet of cases, the Court rejected a nationwide standard for obscenity, and, instead, allowed each local community to develop its own standards of acceptance or tolerance for adult materials. What that meant is that a small, rural community could determine what erotic materials could be sold in its community in a much different, and more restrictive way than, for instance, New York or Los Angeles. What the Court did not tell us, in crafting the obscenity test, is how the geographic scope of the community is to be analyzed. Is it the city? The county? Perhaps a larger area, or even the whole state could form the "community." How the community is measured becomes exceedingly important in some obscenity cases where the issue of acceptance of comparable materials exists. In some courts, the jury will be allowed to review other sexually oriented material available in the community to make a decision as to whether the materials on trial exceed the scope of what is accepted in the locale. If, for instance, there are no adult retail establishments in the city where the defendant is charged, it may be important to draw the scope of the community to include a larger geographic area. The reasons for this should be obvious: If the community is larger, there may be materials available throughout that larger community for the jury to consider in determining whether the work charged falls within the scope of accepted erotic materials. More importantly, the larger the community, the less likely a small, insular group of narrow-minded people will be able to impose their views on other more tolerant neighbors.
In the Miller case, the Court ruled that the relevant community was the entire State of California. We have received rulings in other cases that the community constitutes the County, a Tri-County area, or the entire State of Florida. There appears to be no consistency or logic in these decisions.
Given the changes in society that have occurred over the last ten years, even a statewide community standard may well be illogical and unworkable. For example, how does one establish a community standard for California and its nearly 40 million residents? Additionally, in modern times, we all have access to global communications in the form of the Internet and satellite television. Saddam Hussein watches the same CNN broadcast as President Bush. Chinese teenagers dress like Brittany Spears. Media has become globalized, and it is no longer possible for some small community to isolate itself in the attempt to claim that its value system somehow differs from the rest of the world’s. As the Third Circuit Court of Appeals recently noted, the concept of a local community standard is simply "out the window" when it comes to Internet communications. If we were to allow a small repressive community to dictate standards of acceptability for Internet communications, all Internet communications would necessarily be reduced to the level acceptable in that small community since the entire Internet is accessible in every community. Any legislation which depends on the application of a local community standard to Internet communications is therefore unconstitutional; not to mention impractical. Yet the federal obscenity laws applicable in all 50 states do exactly that. Should state or federal law enforcement officials chose to bring obscenity charges against Internet content, they will ultimately be faced with a defense premised on the local community standard problem. We raised this defense in the highly publicized obscenity case against Tammy Robinson, a.k.a. BeckaLynn, involving a Website in Central Florida. Fortunately for the client, the State dismissed the charges before trial, and before a ruling on the local community standard issue. However, it is only a matter of time before this issue surfaces again. Potentially, the next court will see it the same way as the Third Circuit Court of Appeals and strike down the obscenity laws as a violation of the First Amendment.
Reason Number 1: Because Times Have Changed
Lets face it ladies and gentlemen, we do not live in Ward and June Cleaver houses anymore. Yet Leave it to Beaver was a popular show when theMiller decision was written. The Internet allows users to obtain adult materials in the privacy of their own homes without the presence of retail establishments in the local community, and Internet-spawned consumption is steadily on the rise. The adult cable and satellite industries generate 310 million dollars in annual revenue, according to Forbes Magazine; "Porn Goes Public" (June 6, 1999). In 1999, X-rated videos generated five billion dollars in sales and rentals; double the revenue from five years before. Id. The adult Internet industry itself generates nearly one billion dollars currently and is set to triple within five years. Reuters.com, "Sex on the Web Industry to Multiply," (May 21, 1999). Recent articles have exposed the fact that several Fortune 500 companies have tangential involvement in adult video entertainment. Most hotel chains offer in-room adult movies. Satellite television services include a number of channels devoted exclusively to the broadcast of sexually explicit media. Mainstream music videos depict increasingly explicit sexuality.
Images of erotica have become omnipresent in modern culture. Yet Adult Webmasters and other purveyors of erotic materials face draconian sanctions under puritanical obscenity laws, which have simply not recognized significant changes in societal attitudes toward erotic materials. Many young Adult Webmasters have been lulled into a false sense of security by the obvious changes in societal mores toward eroticism in recent times. They have come to the reasonable conclusion that these changes should provide a layer of protection against criminal charges for the display of adult materials via the Internet or other media. However, Adult Webmasters and others in the adult entertainment industry remain vulnerable targets for politicians seeking to use outdated obscenity laws to placate repressed or cynically expedient special interest groups. Ironically, the same Administration that is pushing for less regulation of business in general will likely try to hyper-regulate the adult industry. Compounding the problem is the fact that while the reality of society has changed, very few jurors are comfortable or courageous enough to acknowledge and embrace those changes in the deliberation room. More commonly, jurors will pretend to be much more conservative and judgmental than they really are, in order to increase their chances of approval and esteem in the small group deliberation setting. Obscenity deliberations are one of the few, if not the only situation, where individuals are required by the government to discuss their attitudes toward erotica in a group setting. How many people will want to discuss their attitudes towards sex and erotica in a public setting?
Perhaps the most significant development in technology justifying a change in the Obscenity laws is the advent of the use of the Internet by individuals in their homes. The adult industry is often regulated by reference to alleged "adverse secondary effects" presumed to be caused by adult businesses, such as decreases in surrounding property values, urban blight and increased crime. Viewing erotic material, or even obscene material, in the privacy of one’s home has been immune from governmental regulation for many years, however. The Supreme Court has acknowledged that there exists no legitimate societal or governmental interest in prohibiting the simple possession of even obscene material by adults in the home. Since Internet transmissions usually occur from one private setting to another, the government will be hard-pressed to identify any compelling interest in regulating the content of such transmissions, among consenting adults. Because there are no retail stores involved, there will be no evidence of urban blight around the homes of adult website subscribers. Crime will be no more likely in the homes of Internet users. The existence of secondary effects has never been alleged to be caused by mere receipt of adult materials. However with Internet communications, dissemination and receipt are instantaneous and private. These changes in technology will give attorneys the opportunity to make new arguments to the courts on the continued viability of the obscenity laws.
Until the courts are willing to acknowledge recent societal and technological changes, justifying a major overhaul of the obscenity laws, those in the adult industry will remain on the front lines of the freedom versus morality debate. The potential application of obscenity laws to Internet content highlights the practical and legal difficulties inherent in this legislation. Seven states have already abandoned the whole concept of obscenity laws, altogether. These states have adopted the more enlightened, logical approach of allowing consenting adults to create and view erotic materials without restrictions on content so long as children are not involved. Ultimately the courts or Congress should adopt this standard by modifying, repealing or invalidating outdated obscenity laws and, instead, trust adults to make their own informed decision
Lawrence G. Walters, Esquire, is a partner with the law firm Walters Law Group. Mr. Walters practices in the Orlando area, and represents clients involved in all aspects of adult media. Walters Law Group handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters firstname.lastname@example.org or www.FirstAmendment.com