National Community Standard for Obscenity?
Not yet . . . but some courts have started discussing such a definition. First a little review . . .
The definition for obscenity comes from a Supreme Court case, Miller v. California. In it, the Justices stated that obscenity is not protected by the First Amendment. In addition, they provided this 3-part definition of obscenity:
- whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest,
- whether the work depicts or describes , in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
In order to be obscene, the work must come before a court of law and the court must find that each of these three elements is true. FYI – pornography is not illegal.
One of the issues brought forward in USA v Paul F. Little, is the definition of the phrase “contemporary community standards” in an Internet world. In the original case – Miller v. California – this phrase meant the local community standard.
With the widespread use of the Internet, some are stating that there is no “local community standard” anymore; we must create a national community standard. By using the local standard, we may be stating that all Internet content must be acceptable to those communities with the strictest standards.
The 11th Circuit Court of Appeals upheld this part of the original decision. That is, Paul F Little was rightly accused of marketing and selling obscene materials. The original definition of local community standards was confirmed as the current one. This ruling only applies in Florida, Alabama, and Georgia.
The legal profession, for a number of reasons, comes later to these types of technology-based issues. It will be interesting to follow this issue to see whether the definition of obscenity will change. Another piece of this discussion is, of course, the global definition, as the Internet passes our borders. What would happen if there was a global community standard? If there was, I wonder what it would be . . .