Technology and Pornography

Brigham Young University Law Review, 2007 by Nunziato, Dawn C

On appeal, the Third Circuit emphasized a different aspect of the Supreme Court's obscenity jurisprudence-one that goes to the heart of regulating obscene and obscene-for-minors content on the Internet, viz., the autonomy of local communities to determine the contours of obscene (and obscene-for-minors) speech within their communities.74 As discussed above, Miller's first prong requires that there be an inquiry into whether the average member of a community, applying that community's contemporary standards, would find that the work appeals to the prurient interest.75 Miller's second prong (implicidy) carries over this communitarian inquiry to the assessment of whether the expression is patendy offensive.76 These required communitarian analyses would permit a jury in a community such as Salt Lake City to classify certain content as obscene and unprotected within its local community, where such speech might very well be deemed protected by another local community, such as New York City.77 While this constitutionallyrequired, geographically-based determination of obscenity can operate to separate protected from unprotected expression in real space, this geographic variability becomes problematic when applied to expression on the Internet. Given the meaningful geographic boundaries in real space, it is feasible for Salt Lake City to effectively exclude expression contained in books, magazines, or videos that it considers obscene according to its local community standards. Likewise, it is feasible, even if somewhat burdensome for distributors of sexually-themed expression contained in books, magazines, videos, mailings, etc., to take steps to restrict the dissemination of such works into communities that consider such works to be obscene, in order to avoid being prosecuted for purveying obscenity within less "tolerant" communities. And, by exercising its right under Miller to determine the contours of obscenity within its local community, Salt Lake City does not necessarily restrict the ability of other communities to determine for themselves the contours of obscenity within their communities.

Given the absence of meaningful boundaries delimiting one local community from another within Cyberspace, however, it becomes far more difficult for individual communities to determine the contours of obscenity within their borders without substantial spillover to other communities. Because it is not feasible for an Internet publisher of sexually-themed expression to restrict the dissemination of its expression only to those local communities that would likely not find such expression to be obscene, Internet publishers have only one realistic alternative to avoid being subject to obscenity prosecution-forgo dissemination of such expression on the Internet altogether.78 Given the practical inability of Web publishers to restrict the dissemination of expression by geographical location, one community's determination of obscenity spills over to all other communities, thereby impinging upon these other communities' autonomy to determine the contours of obscene and obscene-for-minors expression for themselves.