I. Introduction

II. Historical Analysis of the Obscenity Carve-Out and Community Standard Analysis

III. Discussion of Problems in Applying Community Standards to the Internet

IV. Approaches That the Supreme Court Could Take in the Application of Community Standards

V. Conclusion

Endnotes

 The current test requires that the trier of fact determine if the allegedly obscene material was in violation of that particular community's standards.  Thus, location played a large role in determining the protection that was given to various forms of expression.  With the Internet, location is no longer as simple as a street address or a home town.  It is because of the universal aspects of the Internet that the Supreme Court will soon have to address the issue of determining the proper community standards for allegedly obscene speech found on the Internet.

 This paper will analyze the route that the Supreme Court took to reach the current obscenity test.  Special focus will spent on the cases which fully analyzed specific issues that arose in the adaptation of the standard.  Next, it will briefly discuss the Internet: its history and usage, its similarities to other media, and its differences from any other avenue from which obscenity has been found to have occurred.  Finally, this paper will address four potential paths that the Supreme Court may take when determining what, if any, use the community standard factor has when the speech in question occurs on the Internet.  A recommendation will not be made, but the positive and negative aspects of each approach will be analyzed, and each approach will be applied to a hypothetical situation, based loosely on a case which occurred in the Sixth Circuit,2 and may very likely arise again.

 Today, it seems almost a given.  Obscenity is not protected speech under the First Amendment.  This fact has woven itself into modern Constitutional analysis, is taught as true, and is true.  The line where obscenity begins and protected speech ends however, is not a given.  The Constitution and First Amendment never mention obscenity3, and it is doubtful that the framers had obscenity in mind when the First Amendment was drafted.4  The framework for the determination of obscenity has been the process of over a half century of Supreme Court decisions.

 A.  Carving Obscenity Out From the First Amendment

 The Supreme Court first addressed obscenity in Chaplinsky v. New Hampshire.5  Ironically, the case did not have anything to do with obscenity, but rather allowed for statutes to prohibit "fighting words."6  However, in dictum, the Court acknowledged that there were classes of speech which could lead to punishment without a Constitutional problem.7  The Court listed the lewd and obscene, the profane, the libelous, and the insulting or fighting words as these classes, observing that "such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."8

 The Supreme Court determined that obscenity was not protected speech fifteen years later in Roth v. United States.9 After determining that there was no protection for obscenity, Justice Brennan's majority opinion analyzed the difference between sex and obscenity.  The opinion made clear that the portrayal of sex was not sufficient to deny constitutional protection.10  The key in determining the distinction between sex and obscenity lie in the interest to which the material appealed.  Obscene materials deal with sex in a manner "appealing to prurient interest."11
 
 The Court next wrestled with how to produce a standard that would safeguard the freedom of the speech that did not treat sex in a prurient manner, and yet allowed for the regulation and prohibition of obscene speech.12  The Court settled upon a test that had been adopted by several lower courts:13 "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."14

 Dissenting from the majority opinion, Justices Douglas and Black argued that the test that was adopted by the majority opened the door wide to the censor.15  The Justices found no way to reconcile a standard which makes "the legality of a publication turn on the purity of thought which a book or tract instills in the mind of the reader" with the First Amendment and its restraints on Congress and by the Fourteenth Amendment, on the states.16   The fact that the material dealt with sex and offended the common conscience of the community should not enable legislatures with a separate or special right to prohibit the material.17  This would be a position which Justice Douglas would support and advocate throughout his tenure on the Court.18

 The obscenity test was refined and adapted with the Supreme Court's decision in Miller v. California.19  Chief Justice Burger's decision marked the first time since Roth that an obscenity case heard by the Supreme Court united a majority of the Court behind any set test to determine obscenity.20  The test supplied three factors which must be met before any material could be found to be obscene under a statute: (a) whether the average person applying contemporary community standards would find that the work taken as a whole, appeals to prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable statute, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.21  It is interesting to note that despite the fact that the test formulated in Miller adopts the test formulated by Justice Brennan in Roth v. United States,22 the Justice dissented.23

 Chief Justice Burger emphasized that the Court would not propose regulatory schemes for states to adopt, but did give examples of what state statutes could define in their regulations under part (b) of the test.24  Specifically listed were patently offensive "representations of ultimate sexual acts, normal or perverted, actual or simulated" and "representation or description of masturbation, excretory functions, and lewd exhibition of the genitals."25  In making these classifications, a majority of the Court agreed that only "hard core" sexual conduct was to be subject for prosecution,26 and also to "concrete guidelines" distinguishing hard core pornography from protected speech.27

 B.   Defining and Refining the Use of Community Standards

 While the Miller test reaffirmed that community standards were to be decisive in the obscenity test, questions regarding applying community standards still remained.  What was a juror to consider when determining contemporary community standards?  Was the country, state, or city to be the relevant community that the trier of fact could use in determining obscenity?  Could a state legislature determine what their state's community standards were?  Would community standards be applied to each relevant factor to be determined by the court?  In the cases that followed, the Court came to conclusions for each of these issues, and the process of applying relevant community standards began to take shape.

 In Hamling v. United States28, a case which was tried prior to the Miller decision, but reached the Supreme Court two years later, the Court analyzed the breadth of a relevant community.  The defendants were tried and convicted of mailing and conspiring to mail obscene materials.29  The trial court instructed the jury that it was to determine if the pamphlets that were mailed were obscene by "what is reasonably accepted according to the community standards the community as a whole ... [meaning] the standards held throughout this country concerning sex and matters pertaining to sex."30  The Court first restated that the standard of the community was not to be a "hypothetical and unascertainable national standard,"31 but rather a community standard.  The Court then addressed what the size of the community could be.

 In Miller v. California, the Court held that a California jury could be instructed that the state of California was its relevant community.32  This level of community was thought to be more realistic for a juror to comprehend, as opposed to a hypothetical and unascertainable national standard.33  However, in Hamling, the court emphasized that the a smaller geographical region was not mandated by the Miller holding.34  Rather, the purpose of Miller was to allow a juror to "draw on his [sic] own knowledge of the views of the average person in the community ... just as he [sic] is entitled to draw on his [sic] knowledge of the propensities of a reasonable person in other areas of the law."35  States were able to constitutionally proscribe obscenity in terms of a statewide standard, but there existed no constitutional requirement that they do so.36  Thus, the law was set that community standards were to mean different things in different parts of the country, and what was obscene in one area of the country would be protected speech in another part of the country.37  This holds true to the present day.

 After it was determined what geographic location could be used for the determination of obscenity, the Court was presented with the question of whether a state legislature could define exactly what the community standards of its state were.  In Smith v. United States,38 the Court held that a state legislature could not prescribe those standards.

 The defendant in Smith argued that because the Iowa legislature had passed anti-obscenity laws that only prohibited pornography with regard to minors, the legislature had determined exactly what the community standards of the state of Iowa were.39  The Court was quick to find that a legislature could not take this action.  The Court in fact found that it would be just as inappropriate for a legislature to define the state's community standards as it would be for the same legislature to define reasonableness for a tort.40  Rather, community standards simply act as the measure "against which the jury decides the questions of appeal to prurient interest and patent offensiveness."41

 The Court did note, however, that this decision did not make obscenity convictions virtually unreviewable.42  Appellate courts could determine if jurors were properly instructed to consider the entire community and not just their own reactions or that of a sensitive minority.43  Also, an appellate court could review whether a work lacked serious literary, artistic, political, or scientific value.44

 The final issue which the Supreme Court addressed was which of the obscenity test factors were to be ascertained by the relevant community standard scrutiny.  This issue presented itself in Pope v. Illinois.45  While the Court mentioned briefly in dictum that literary, artistic, political, or scientific value was not discussed in Miller in terms of contemporary community standards,46 no case directly on point had been decided prior to Pope.

 Prosecuted under an Illinois obscenity statute, the defendants claimed that the statute was unconstitutional because it allowed the jury to determine the value of the questioned material based upon their subjective belief of the values of their community.47  In the majority opinion, Justice White wrote that there had been no previous case in which the Court had stated that the value of a work was to be determined by reference to community standards.48  The value of a work was found not to vary from community to community based on the degree of popular approval, but rather value would exist if a reasonable person would find serious scientific, literary, artistic, or political value in the work.49  Consequently, the jury instruction was found to be unconstitutional.50

 Through these cases, the Court has come to establish that obscenity is in part to be determined by whether a community would find the material as appealing only to the prurient interest and patently offensive.  While never unanimously agreed to, the test has now been in place for nearly thirty years.  However, the new technology of the Internet has made the future of this test uncertain.

 A. Discussion of Internet

 Over thirty years ago in an effort to link military computers with academic and industry networks related to defense research, the Department of Defense created the Advanced Research Projects Agency.51  This new development, or ARPAnet, was absorbed by the National Science Foundation, and the National Science Foundation Network, or NSFnet, was created.52  This was the forerunner to the current Internet, and essentially became a network linking many other networks together.53  The modern Internet was born in 1995, and the result is a wholly separate global medium which links "people, institutions, corporations, and governments around the world."54  "It is no exaggeration to conclude that the content on the Internet is as diverse as human thought."55

 B.  Geographic Ties of Law Break Down
 
From the very beginning, almost every aspect of the law has been tethered to geographic location.  Whether in establishing personal jurisdiction and venue, property rights, or which state's criminal statute was applicable, the question of "Where?" has been of critical importance.  However, just as the courts have faced problems in adapting old laws to new technologies in the past, the courts will now face the dilemma of adapting the current laws of technology to the newest medium, the Internet.  The legal problems presented by the Internet arise because of the medium's differences from the already existing media.

 One of the most touted aspects of the Internet is the fact that any person with a computer and web access can post material on a site that can be viewed by any other person in the world.  There is no license requirement.  There is no limit to the number of web pages that a person can "own."  The medium allows for any person to disseminate almost any information56 to the masses.  However, this freedom of "publication" or "broadcasting" on the Internet has legal consequences.  Despite its similarities to newspapers and radio, the Internet's differences from these mediums are necessary for consideration.

 For the better part of this country's history, newspapers have been local devices.57  Even more so, radio has been limited so that a signal could only cover a determined geographic region.58  They served many purposes, but the populous which was serviced had traditionally been centered around the location from which the paper was published or the station broadcasted.  With each webpage, this is not the case.  A web page posted in Iowa can easily be accessed by a person in Georgia, and a webpage posted in Georgia can easily be accessed by a person in Iowa.  Geographic borders for these pages do not exist.

 Also, rarely is it facially obvious what state a webpage originates from.  If one looks at even the most popular non-pornographic sites,59 it is unlikely that the origin of that printed material will be determined.  It is not explained or listed on the initial pages of a site.   For the practical purposes of the Internet, that location is not important, in contrast to the traditional media of radio and newspapers.

 Due to the technology and qualities of the Internet, the Supreme Could will eventually be faced with a question of how the thirty year old Miller test can, or should, be applied.  Because of the aspects of the Internet discussed earlier, the Court will be faced with either adapting the current standards, or scrapping them and devising a new test.  Regardless of what is done, the Court will be confronted with the reality that unlike the cities and states which have served as the relevant communities under the current test, the Internet does not lend itself so nicely to the community standards analysis.60

 There are four approaches to the application of community standards that have been suggested for the determination of Internet obscenity.  The first approach would determine that the relevant community standards exist in the location where the alleged obscene material was downloaded by a "viewer" from the Internet.  The second approach would hold that the relevant community standard is found where the material was uploaded, or "placed onto," the Internet.  A third approach would use the Internet itself as its own community for the application of the standard.  A fourth, and final, approach discussed would do away with the community standards test either all together, or at least for questions of obscenity on the Internet.

 In the analysis of these four approaches, I will apply the facts of the following hypothetical in hopes that it makes clear the determinations that would occur.  In the hypothetical, Patty Porn has uploaded allegedly obscene material61 onto her personal website.62  Although Patty lives above a strip club on Bourbon Street in New Orleans, her website is accessible from any personal computer in any state.  Richard Righteous lives on Church Street in Dothan, Alabama, a community which has no strip clubs, prohibits the sale of alcohol on Sunday, and to the last person, despises any form of pornography.  He has purchased a new computer with Internet access, and upon a search, accidentally ended up on Patty's website.  Deeply offended, he contacted his local prosecutor to see what could be done.  In fact what can be done shall be determined, almost entirely, by if community standards are applied, and if they are applied, what is determined to be the relevant community.

 A. Apply the Community Standards of the Location    Where the Material Was Downloaded

 Perhaps the most facially obvious step that the Supreme Court could take would be to hold that the community standards of the location where the allegedly obscene material was uploaded should be applied.  In fact, this approach has already been used by the Sixth Circuit.  In United States v. Thomas,63 two California residents were tried for obscenity charges in the Western District of Tennessee for materials which were posted on an Internet bulletin board.64  Under the facts of the case, Carleen and Robert Thomas began operating a computer bulletin board system in 1991.65  On this bulletin board, the Thomas's offered for sale computer files which contained graphic sexual activities and videotapes of graphic sexual activity which could be purchased.66  Potential customers which entered the Thomas's initial site could read descriptions of the material contained on the videotapes and computer files, but a viewer could not see the computer files or purchase the videotapes until after a membership fee had been paid and a special authorization code was received.67  Upon the complaint of a resident of the Western District of Tennessee, a United States Postal Inspector paid the membership fee, and entered the site under an assumed name.68  There, the inspector downloaded several of the files contained in the Thomas's site.69  The inspector also ordered six sexually explicit videos, which were delivered by U.P.S. carrier.70  The Thomas's were subsequently charged and convicted of violating federal obscenity laws.71

 On appeal, the defendants argued both that the community standard principle does not apply for Internet related offenses, or in the alternative, a more flexible definition of community must be determined.72  In arguing that there should not be the application of a community standard, the Thomas's stated that because they never entered Tennessee, had no intent to sell material in Tennessee, and had their material downloaded unknowingly by an agent in Tennessee, it would be improper to prosecute them in Tennessee.73  The court rejected this first argument.   Referencing cases in which mailed materials were found to be obscene, the court held that the Thomas's could have been prosecuted either in the community from which they sent the allegedly obscene material, or in the community where the allegedly obscene material was received.74  The court also noted that it is not unconstitutional to subject interstate distributors of obscenity to the community standards of varying locations.75

 The second community standard argument that the defendants raised was that a new definition of community, based on the notion of cyberspace, was necessary.  Because the nature of the Internet allowed for broad ranging connections among multiple parties in numerous geographic locales, the Thomas's argued that it was not practical to hold material transmitted over the Internet to any one geographic community's standard.76  Without a definition of community that more accurately reflected the actuality of the Internet, bulletin board and Internet users will be put in the position of having to modify their speech to ensure that it does not run afoul of the most conservative and easily offended community in the country.77  According to the defendants, the net result of this would be an impermissible chill on protected speech.

 The court never actually decided the Constitutional question raised.78  Because the defendants had knowledge of the location of the purchaser of the obscene material,79 the defendants had the opportunity to decide not to sell their material in the Western District of Tennessee, and thus not make themselves subject to the community standards of that district.80  Thus, by an affirmative denial of the inspector's application for membership, the defendants could have precluded their risk of liability in that specific district.  The defendants were free to tailor its message to the communities that it chose to serve.81  Because they did not, the Thomas's were subject to liability in Tennessee.

 The Thomas decision briefly lays out several of the arguments for and against the use of the community standards of the download location for obscenity determinations.  The most logical argument in favor of the use of the download location's community standards is consistency.  As noted above, this is the same tact that is used for cases where the obscenity is transported through the mail.82  By following this pattern, the Supreme Court would essentially be adapting its reasoning of the past thirty years to the new technology of the Internet.  Also, under a scenario such as in the Thomas case, where access is sold in the form of a membership, the seller has the choice to either grant access to a person in another part of the country, knowing that the community standards there may be more stringent than those in her own community.  But the option of whether that risk should be taken is hers, and hers alone.

 In addition, following this rule would allow a jury member to more easily comprehend the values against which he is to compare the material.  A prosecutor will be able to argue to a jury, and a judge will be able to instruct a jury that they can use their knowledge of their community and determine how these materials would be received.  This was the purpose of the adoption of the community standard test in the beginning.83

 Since the Thomas decision, there has been much criticism of this approach to community standards.  The first argument made is the one that was not reached by the court in Thomas, namely that the use of this standard will have a chilling effect on speech.84  Because the information posted on the Internet is accessible from a computer in any city in the country, the prudent person will not place any materials which violate the community standards of the most sensitive and conservative community on her website.  Only by acting in such a manner can a person be sure that her material will not be found to be patently offensive and appealing only to the prurient interests anywhere in the country.

 However, by doing this, the speech of the prudent person has been limited.  By our example, let us assume that Patty could post one hundred pictures in New Orleans without violating that community's standards.  However, aware that she could be prosecuted anywhere in the country, and specifically Dothan, Alabama, Patty limits the material that she places on her webpage to the fifty pictures which will not be in violation of Dothan's standard.  While she has succeeded in not violating obscenity law, she has suffered a loss.  Patty was unable to communicate the speech of the fifty pictures that she did not publish on her website.  This self-censuring which occurs as a result of the community standard which is used by the Court is the chilling effect on indecent and constitutional speech which the defendants argued against in Thomas.85  While the value of this speech may be debated,86 Patty's ability to freely provide these materials is severely hampered.87

 A second argument that has been raised is that prosecutors will abuse the community standard application and "forum shop" for a conservative community where there is a better likelihood of a conviction.  It has been theorized that the Department of Justice could simply set up an office in the most conservative of jurisdictions,88 download allegedly obscene material all day, and prosecute one person after another.89  Because the community would not be tolerant, a very stringent standard would be applied, and convictions would be plentiful.90  In fact, the defense attorney for the Thomas's in their prosecution claimed that the trial was "specifically initiated in Memphis rather than in California, in order to take advantage of the more conservative climate prevailing in that community."91  It can only be expected that the Department of Justice in our hypothetical would rather prosecute Patty in Alabama than in Louisiana.  Where the climate is more heated against pornography, the likelihood of a conviction is greater.  Also, because Patty has no control over whether her material is viewed in Dothan, prosecutors can "discover" her site from any state in the country, and then provide a tip to an inspector so that the trial can occur under the more stringent community standards of Dothan.  While this may sound far-fetched, it has been alleged to occur.92

 Finally, while the community standards test may have been beneficial and reasonable when first devised in 1973, some have argued that its time has past.  Even the Supreme Court has recognized that the contemporary community standard prong of Miller is difficult to apply to the occurrences of the Internet.93  One commentator has found that this application "dummies down the debate,"94 while another has found that the current test is simply unworkable and that "the new millennium should witness the birth of a new ... standard."95  If this next millennium will see the Court take a different approach to the application of community standards, it will likely be in the form of one of the following manners.

 B. Apply the Community Standards of the Location From Where the Material Was Uploaded Onto the Internet

 A second standard that has been proposed would apply the community standards of the place where the allegedly obscene material was uploaded onto the Internet.  This approach has several advantages to it.  First, as with the previously discussed approach, the jury would be able to consider the standards in the community in which it lived.  The difference is that the prosecution must now take place in the location where the material is placed onto the Internet.  This alleviates any concern about one location becoming the "capital" of pornography prosecutions.96

 In addition, any concern of the materials on the Internet being judged only against the strictest community standard97 is eliminated.  Now as the Supreme Court intended in Hamling v. United States, a jury member will be able to draw on his or her "own knowledge of the views of the average person in the community,"98 and this community will also be the place from which the challenged material will have originated.  That, according to the logic of the Miller test, gives the juror the best opportunity to correctly assess the nature of the material.99

 However, while this approach alleviates many of the problems feared from the test applied in Thomas, many of the same problems also hinder this approach.  First, the Internet will be no easier for a jury to assess under this approach than under the previously mentioned approach.  The application is every bit as difficult as it was when analyzed in Reno v. ACLU.100

 More importantly. the exact opposite of some of the problems that occur under an approach where the download community is the community used occur when the upload community is used.  Instead of some communities not being able to view all of the materials that they would otherwise be able to see, now communities that would hold materials to be obscene would be subject to potentially viewing those materials.  Using our example, now instead of Patty being unable to safely place one half of her pictures on the Internet, she will be able to place all of them on the Internet without concern that she will be prosecuted for their content.101  Just as in the initial description of our events, Richard will find these pictures on the Internet from his home in Dothan.  However, when he goes to his local prosecutor to see what could be done, he will get a different response.  Patty can not be subject to the same values and standards that the citizens of Dothan are.  Instead, she is only checked by those of her hometown.  Consequently, because she is not prevented from placing her materials on the Internet by the standards of New Orleans, the citizens of Dothan can not prevent these materials from being available in their city.102

 Here is seen the greatest weakness of this approach.  Instead of the most conservative jurisdiction serving as a hindrance to speech, now the most permissive community can serve as a shelter from which otherwise obscene material can enter into communities.  Instead of a prosecution capital, now there will be an Internet porn capital.  If pornography and borderline obscenity is a lucrative business, there would be no way to stop the majority of peddlers of the material from relocating to one area of the country and downloading their material from there.  A cyber-Soddom and Ghamorah will set the standards of tolerance for indecent speech, by which every other community in the country, no matter its own standards, would have to abide.

 Despite the aforementioned problems, at least one commentator has found this approach to be the best alternative that exists.103  While recognizing that the First Amendment was the most important factor in his decision,104 Professor Mark Alexander stated that while he was unsure if this was the "best answer," it held the best chance of not shutting down otherwise permissible speech.105  Alexander further recognized that this approach held the potential of enabling one community to become the "Internet porn capital," but that the residents of that community should be the ones with the power to decide whether that is acceptable.106  Only by this approach would it be ensured that "someone else [did not] shut down the basic purpose of the First Amendment."107

 Therein lies the primary conflict for the use of a community standard from either the community from which the material was uploaded, or the community where the material was downloaded.  Two interests of importance must be balanced against each other, and one must be chosen as superior.  Is the First Amendment right of speech and ability to present material of lesser value108 more or less important than the right of a community to be free from unwanted obscene material?  Only upon a determination of this question can a choice be made between these two alternatives.
 
 C. Recognize the Internet as Its Own Community, and Do Not Tether Community Standards to Geographic Considerations

 Another alternative solution that has been discussed is recognizing the Internet as a community of its own for the purpose of the application of community standards.109  The initial benefits of this type of system are obvious.  A person will not be prosecuted for material that was placed on the web merely because it violates the most conservative and strict community standards in the country110. Just the same, a person will not be able to post material that would be obscene in all but one community on the Internet and not be subject to prosecution.111  Instead, the standards of the Internet community would be used to determine if materials were in violation of obscenity laws.
 
 This Internet community standard "would involve instructing the trier of fact about the nature of the Internet, extent of pornography upon the Internet, availability of blocking devices, and other information that reasonably represents the culture of Cyberspace."112  There is an inherent logic to this Internet community approach.  Just as the owner of a store which sells potentially obscene materials would recognize that he may be subject to prosecution for the materials that he distributes in his community, so would the Internet distributor be able to recognize that he may be liable for the materials that he is distributing in his cyber-community.113

 If applying this rationale to our hypothetical, we can see that because Patty did not intend to distribute her materials in Dothan, she would not be subject to the that community's obscenity standards.  On the other hand, Richard and the other residents of Dothan do not need to be concerned with the fact that sellers of pornography will be able to invade their community with their materials.  Instead, any prosecution of Patty will be successful only if her pictures are obscene in comparison to the other pictures that can be found on the Internet.  This application avoids the potentially chilling effect on speech114 while protecting the country from having a red-light district determine the tolerance for obscenity for the entire country.115

Despite these positive factors,this application of community standards has some pitfalls also.  First, the purpose of the community standard test as explained by Miller116 and Hamling117  was to provide a reasonable region which a juror could ascertain what the average person would think.118 It was believed that a juror would be able to do make these determinations if the community was narrowly  Despite these positive factors,structured.  An Internet wide standard moves away from this reasoning.  Now, a juror is responsible for recognizing the standards and tolerances of not only her neighbor, but also citizens from every corner of the country who access the Internet.  This community would be a legal fiction, existing only in jury boxes, and necessary only for questions of obscenity.

 In addition, the qualities of the Internet may very well make this application impossible, as it is unlikely that a juror would be able to recognize on the Internet many of the necessary factors for applying a community standard test.  First, Because of the make-up of the Internet,119  it would be impossible for a user of the Internet, or a juror trying to put herself in that position, to be able to identify how many citizens are using the Internet at any given time.  It is believed that more than seventy million Americans had used the Internet by 1998.120  That number has only grown as more and more Americans have had the opportunity to become members of this proposed Internet community.  Also, because there is no universally organized registration, it is impossible to know which Americans are using the Internet at any given time.  Consequently, any determination by a juror as to what a member of the Internet community would believe would be merely an estimation of what an average American would feel.  In this way, the Court would be returning to a de facto national standard.121   Also, a juror would need to be able to know what other content existed on the Internet.  Due to the millions of computers linked to create the Internet, and the millions of pages which exist on the Internet,122  this is not practical.  While a prosecutor or defense attorney could show to the jury pictures of specific other web pages that displayed either obscene or indecent but not obscene materials, there would be no way to determine exactly what percentage of the content of the Internet fit into these categories, or what percentage of Internet users visited these sites.123  Most importantly, how could a juror know what the other Internet users thought of these sites?  A juror could only guess.

 Finally, the community standard is defined by the members of that community.  If this is the case, from where would a jury be drawn?  Commentators have found this application impossible specifically for this reason.124  And because of these difficulties, the commentators have argued that this method of applying community standards should not be used.125

 D. Abolish Community Standards for Internet Obscenity, and Focus Only on the Nation as a Whole

 The final option that this paper will examine is the possibility and consequences of the Supreme Court deciding to do away with the application of the community standard analysis for Internet obscenity cases.  The most obvious reason for the Supreme Court to do this is that it is the only way that a uniform and equal definition of obscenity will be possible.  While this argument has been pushed to the side since the adoption of the Miller test,126 the advent of the new technology of the Internet has caused this position to once again step to the forefront.  Now, however, the basis of this position has shifted.  The argument is centered upon the opinion that there is no way to effectively establish a community standard for Internet obscenity cases, because the entire existence of the material occurs outside the bounds of our notion of community.127  In an event that happens completely inside and between computers, the justifications for each community establishing its own values to determine the limits of decency seem greatly decreased.  Further, as the previous discussion of the application of community standards should have shown, there is no clear and clean answer as to which set of community standards should be applied.128

 One approach for a national standard that has been proposed turns the entire notion of obscenity law on its head.  Rather than focusing on how individuals in the community would respond to any given material, the court should determine if "a person is harmed by the manufacture, distribution, or viewing of the material in question."129  By doing this, the focus has shifted from the difficult and perhaps overly subjective question of the appeal of the work,130 to the actual harm that occurred because of the allegedly obscene material.131  By applying this test, the arbitrary nature of the community standard test would be eliminated, and in its place would be a system more in line with that used to determine if other crimes had been committed.132

 Applying this proposal to our hypothetical leads to rather consistent results.  If when Richard visits Patty's website, he is appalled and goes to his prosecutor, the first question that will need be asked of him will regard what harm Richard has suffered.  If he is offended by the nature of Patty's materials, but has suffered no other harm or injury that is discernible, a prosecution will not be able to go forward.  It doesn't matter if the case is started in Dothan or in New Orleans, and consequently, for the first time, the location is not relevant.  This ensures a fair and equal result.

 On the other hand, if Patty is debating whether she wants to put her potentially obscene material on the Internet, she is placed in the same situation as any other businesswoman who is releasing a product into the marketplace.  She needs to decide if it is worth taking the risk of her material harming a viewer.  This will likely result in deliberation over the substance and value of the pictures.  However, this is beneficial to the other debates over value that have been discussed earlier, because now it is the speaker who needs to analyze and determine the worth of her speech, instead of a jury after the fact.  Patty will only be liable if her materials cause some type of ascertainable harm, not if this material might be seen as offensive.

 The same problems as were initially described for a national standard still may exist.  If the court instructs a jury to determine the nature of allegedly obscene material on the basis of what an average American would find, this places the jurors in the situation that community standards were developed to prevent.  Again, the jurors must try to pin down a "hypothetical and unascertainable national standard."133  At least one commentator looks at this potential situation as having "some superficial appeal, [but] in practice it degenerates into a local community standard, again depending on the jurisdiction in which the person is prosecuted."134  However, if the test for Internet obscenity is modified into the system that was just discussed, then the courts run the risk of either having two separate and substantially different obscenity tests, or having to scrap the entire premise on which the past thirty years of obscenity law has been built.

 The various methods which have been proposed for determining the community standards for obscenity on the Internet are a mixed bag of positive and negative results.  While each has its benefits and rationale for application, each also would have a negative impact on one or more aspect of the analysis.

 Because none of these applications seem to be a perfect fit, this may provide an opportunity for the Supreme Court to take a fresh approach to the general law of obscenity.  It may be possible that because of the difficulties that will occur in the analysis of Internet obscenity cases, the Court will adopt a new standard that is more in line with the new technology, and less bound to the geographic ties of the land.  Even if not, the Court will eventually be presented with the issue of the application of community standards on the Internet, and when that occurs, an unsettled area of the law will hopefully become a bit clearer.

1  I apologize for the admittedly bad pun from Justice Stewart's regrettable statement describing hard core pornography.  See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J. concurring) (stating that he would not try to define hard core pornography, because "... I could never intelligibly do so.  But I know it when I see it and the motion picture involved in this case is not that.").
2  United States v. Thomas,  47 F. 3d 701 (6th Cir. 1996).
3  U.S. Const. amend. I.  (Congress shall make no law ... abridging the freedom of speech.).
4  See  Roth v. United States, 354 U.S. 476, 514 (1957) (Douglas, J., dissenting) (stating that unlike the law of libel, "there is no special historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted the First Amendment).
5  315 U.S. 568 (1942).
6  Id. at 573. (holding as Constitutional a New Hampshire Statute which prohibited "the face-to-face words plainly likely to cause a breach of the peace by the speaker--including 'classical fighting words', words in current use less 'classical' but equally likely to cause violence, and other disorderly words").
7  Id. at 572-73.
8  Id.
9  354 U.S. 476, 485. (Holding that "obscenity is not within the are of constitutionally protected speech or press.").
10  Id. at 487.  (describing sex as both "a great and mysterious force in human life, ... indisputably ... a subject of interest to mankind throughout the ages," and as "one of the vital problems of human interest and public concern").
11  Id.
12  See id. at 488.
13  Id. at 489 n.26.  (listing two federal appellate and four state supreme courts which adopted the test)
14  Roth v. United States, 354 U.S. 476, 489 (1957).
15  Id. at 509.
16  Id. at 508
17  Justice Douglas went on to describe the standard of "the common conscience of the community" as hostile to freedom of expression:

  The standard of what offends 'the common    conscience of the community' conflicts in
  my judgment with the command of the First    Amendment that 'Congress shall make no
  law ... abridging the freedom of speech,
  or the press.'  Certainly that standard    would not be an acceptable one if religion,    economics, polities, or philosophy were
  involved.  How does it become a
  constitutional standard when literature
  treating sex is concerned?

Id. at 511-512.
18  See Miller v. California, 413 U.S. 15, 43 n.7 (1973) (Douglas, J. dissenting) (listing cases in which he argued that the First Amendment does not include an implied exception for obscenity)
     See also United States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123;  United States v. Orito, 413 U.S. 139;  Kois v. Wisconsin, 408 U.S. 229;  Byrne v. Karalexis, 396 U.S. 976;  Ginsberg v. New York, 390 U.S. 629;  Jacobs v. New York, 388 U.S. 431;  Ginzburg v. United States, 383 U.S. 463;  Memoirs v. Massachusetts, 383 U.S. 413;  Bantam Books, Inc. v. Sullivan, 372 U.S. 58;  Times Film Corp v. City of Chicago, 365 U.S. 43;  Smith v. California, 361 U.S. 147;  Kingsly Pictures Corp. v. Regents, 360 U.S. 684;  Kingsley Books Inc. v. Brown, 354 U.S. 436;  Superior Films Inc. v. Department of Education, 346 U.S. 587;  Gelling v. Texas, 343 U.S. 960.
19  413 U.S. 15 (1973).
20  Id. at 22.
21  Id. at 24.
22  354 U.S. at 489.
23  414 U.S. at 47 (Brennan, J. dissenting).  (finding the California statute to be overbroad in its efforts to protect juveniles).
24  Miller v. California, 413 U.S. 15, 25 (1973).
25  Id.
26  Id. at 27. (announcing that "no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed).
27  Id. at 29.
28  418 U.S. 87 (1974).
29  Id. at 92-93.
30  Id. at 103.
31  Id.
32  Miller v. California, 413 U.S. 15, 33-34 (1973).
33  Hamling, 418 U.S. at 104.  (explaining the misinterpretations of the Miller holding made by counsel).
34  Id.
35  Id. at 104-105.
36  Id. at 105.
37  Id. at 107.
38  431 U.S. 291 (1977).
39  Id. at 298.
40  Id. at 302.
41  Id.
42  Id. at 305.
43  Smith v. United States, 431 U.S. 291, 305 (1977).
44  Id. at 306.
45  481 U.S. 497 (1987).
46  431 U.S. at 301.
47  481 U.S. at 499.
48  Id. at 500-01  (noting that the proper inquiry is "not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in the material").
49  Id.
50  However, the convictions of the defendants were not reversed, but vacated and remanded to the Illinois Court of Appeals upon the Court finding the erroneous instruction to be a harmless error.  Id. at 504.
51  American Civil Liberties Union v. Reno, 929 F. Supp 824, 831 (E. D. Pa. 1996).
52  Dominic F. Maisano, Obscenity Law and the Internet: Determining the Appropriate Community Standard After Reno v. ACLU, 29 U. Tol. L. Rev. 555, 556 (1998).
53  Id.
54  ACLU, 929 F. Supp at 831.
55  Id. at 842.
56  As should be apparent by the fact that this paper has been written, the common law and statutory limits to speech and press still apply in some, if not all, of the same circumstances that they do otherwise.
57  The point can be made that the New York Times, Washington Post, and Wall Street Journal have served as national newspapers.  Obviously, the purpose of USA Today is to serve as a national newspaper.  Further, many newspapers such as the Chicago Tribune, Los Angeles Times, and Boston Globe have served as regional newspapers that provide news to a multi-state region far beyond their title city.  However, each of these newspapers started as local forms of communication, and  for a vast number of papers printed today, the target market is still the city listed on the newspaper's banner.
58  It should be noted that until the dawning of web-based radio stations, there really did not exist an actual national radio station.  Syndicated programming may have caused much of the information and entertainment to be received by large portions of the country, but like the syndicated columns in newspapers, this is but a national part of a local whole.
59  While hardly scientific, a quick look at the front pages at such popular sites such as Yahoo.com, cnn.com, espn.com, excite.com, eBay.com, amazon.com, and even whitehouse.gov will not inform the viewer of the state from which the material originated.
60  I recognize that a presumption has been made that in fact, the states and cities are workable communities for this analysis.  However, even if this presumption is not made, the new technology of the Internet muddies the application of this standard in a manner more complicated than previously envisioned.
61  For the purpose of this hypothetical we will be assuming that the material has no serious literary, artistic, political, or scientific value.
62  I will be assuming that this is not child pornography.  Often there are specific statutes dealing with child pornography, and use of it for this hypothetical will only complicate the matter.
63  74 F.3d 701 (6th Cir. 1996).
64  Id. at 705-706.
65  Id. at 705.
66  Id.
67  Id.
68  United States v. Thomas, 74 F.3d 701, 705 (6th Cir. 1996).
69  These files contained depictions of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination.  Id. at 705.
70  Id.
71  Id. at 706.
72  Id. at 711.
73  United States v. Thomas, 74 F.3d 701, 711 (6th Cir. 1996).
74  Id.;  See also United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981) (holding that prosecutions are allowable if the material sent is obscene under the community standards of the city where the material arrived, even if the material would not be found to be obscene in the community from which the material was sent).
75  Thomas, 74 F.3d at 711.
76  Id.
77  Id.
78  Id. (citing Brockett v. Spokane Arcades Inc., 472 U.S. 491, 502 (1985), and stating that a constitutional question should not be reached unless the facts of the case squarely present it).
79  The court found this knowledge in the application that was completed and the membership fee that was paid by the inspector.  Id.
80  United States v. Thomas, 74 F.3d 701, 712 (6th Cir. 1996).
81  Id.
82  See supra note xx and related discussion in the text.
83  See supra notes xx-xx and accompanying text.
84  See supra note xx and accompanying text.
85  Thomas, 74 F.3d at 711.
86  See New York v. Ferber, 458 U.S. 747 (1982) (holding for the first time that some types of speech have less social value than others).
87  See  Mark C. Alexander, Jurisdiction and the Miller Obscenity Standard, 8 Seton Hall Const. L.J. 675, 681 (1998) (stating that while obscene material need not be disseminated to every computer in America, use of this approach will squelch the robust public debate that defines us and our character as a nation.".
88  For our purposes, that is Dothan.
89  Mark C. Alexander, Jurisdiction and the Miller Obscenity Standard, 8 Seton Hall Const. L.J. 675, 679 (1998).
90  Id.
91  Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspace, 104 Yale L.J. 1639, 1652 (1995).
92  Id.; see also Rieko Mashima, Problem of the Supreme Court's Obscenity Test Concerning Cyberporn: Community Standards Remaining After ACLU v. Reno; 16 No. 11 Computer Law 23, 26 (1999)(finding that obscenity cases are often tried in Tennessee as opposed to other states specifically because of the state's strict community standards on pornography).
93  Reno v. American Civil Liberties Union, 521 U.S. 844, 874 (1997).
94  Alexander, 8 Seton Hall Const L.J. at 682.
95  Dominic F. Maisano, Obscenity Law and the Internet: Determining the Appropriate Community Standard After Reno v. ACLU, 29 U. Tol. L. Rev. 555, 580 (1998).
96  See also  Alexander, 8 Seton Hall Const L. J. at 680. (noting that this problem will be eliminated if prosecutions are forced to occur where the material was posted, or at least where the defendant resides).
97  See supra note xx and accompanying text.
98  Hamling v. United States, 418 U.S. 87, 104-105 (1974).
99  See  Miller v. California, 413 U.S. 15 (1973).
100  521 U.S. 844, 874 (1997)
101  Remember, we are working under the assumption that these pictures are not in violation of the community standards of New Orleans.  With how indeterminate and undefined community standards are, it is unlikely that anyone could feel this confident about the materials that she would post on the Internet.
102  Again, because of the indeterminate nature of the community standard, it is unlikely that the prosecutor would know the community standards of New Orleans.  However, it would be fair that the prosecutor would at least realize that Patty would not be subject to the same standards as if she lived in Dothan.
103  Alexander, 8 Seton Hall Const. L.J. 675, 682.
104  Id. at 681.
105  Id. at 682.
106  Id. (noting that the key factor is that the community standard be tied to the person disseminating information, not the community where the material is viewed).
107  Id.
108  See  supra note xx.
109   See Patrick T. Egan, Virtual Community Standards: Should Obscenity Law Recognize the Contemporary Standard of Cyberspace?, 30 Suffolk U. L. Rev. 117, 147 (1996).
110  See supra Section IV. A.
111  See supra Section IV. B.
112  Egan at 147.
113  See id. at 148.
114  See supra Section IV. A.
115  See supra Section IV. B.
116  Miller v. California, 413 U.S. 15 (1973).  See also supra notes xx-xx and accompanying text.
117  Hamling v. United States, 418 U.S. 87 (1974).  See also supra notes xx-xx and accompanying text.
118  See supra note xx.
119  See supra Section III. A.
120  Phillip E. Lewis,  A Brief Comment on the Application of the "Contemporary Community Standard" to the Internet, 22 Campbell L. Rev. 143, 156 (1999).
121  The positives and negatives of a national standard are discussed in Section IV. D.
122  See Lewis at 160 (recognizing both the incomprehensible number of websites currently in existence and the rapid growth of the number of sites that is occurring).
123  And that is to assume that by visiting a pornographic and potentially obscene site on the Internet a viewer condones of the materials on that page, and finds it within his community's accepted level of decency.  There is not necessarily any reason to believe that this is the case.  As in our hypothetical, some visits to sites of any kind are accidental.
124  See Alexander, 8 Seton Hall Const. L.J. 675, 680 (determining that this type of community standard would be unworkable in part because it is unknown how a jury could be picked); see also Maisano, 29 U. Tol. L. Rev. 555, 577 (stating that until trials take place on the Internet, there is no way that this application can be viable).
125  Alexander at 680; Maisano at 577.
126  See Miller v. California, 413 U.S. 15, 33-34 (1973) (dismissing the appellant's arguments that a national standard "is necessary in order to prevent unconscionable burdens on the free flow of interstate commerce").
127  See Phillip E. Lewis, A Brief Comment on the Application of the "Contemporary Community Standard" to the Internet, 22 Campbell L. Rev. 143, 160-161 (1999) (noting that the typical conception of community disappears when considered in the context of the Internet); see also Dominic F. Maisano, Obscenity Law and the Internet: Determining the Appropriate Standard After Reno v. ACLU, 29 U. Tol. L. Rev. 555, 580 (1998).
128  See supra notes xx-xx.
129  Phillip E. Lewis, A Brief Comment on the Application of the Contemporary Community Standard to the Internet, 22 Campbell L. Rev. 143, 166 (1999).
130  This seems like an especially appropriate place to remember the struggle of Justice Stewart as he tried to determine what was hard core pornography.  See supra note 1.
131  Lewis at 166 (qualifying that there is no harm when someone only happens to view obscene materials without any other consequence aside from being offended by the works).
132  Id. at 167.
133  Hamling v. United States, 418 U.S. 87, 103 (1974); see also supra note xx-xx and accompanying text.
134  Mark C. Alexander, Jurisdiction and the Miller Obscenity Standard, 8 Seton Hall Const. L.J. 675, 680 (1998) (claiming that forcing a juror to decide what the average American would support as the boundaries of obscenity will result in a juror deciding based upon the area in which he lives).