Obscenity is actually a very recent crime, as crimes go. If you look back in history, especially ancient history, you find that people were not concerned about what we would call obscenity. They seemed to enjoy it, actually.
In the Anglo-American legal tradition, the criminalization of obscenity dates back to 1727, when the English Court of King’s Bench held that it was a crime to publish material that was “objectionable solely because of its offensive sexual content.” Dominus Rex v. Curl, 93 Eng. Rep. 849 (K.B. 1727).
Since obscenity didn’t become a crime in England until long after English colonists had settled America, there really wasn’t any interest in prosecuting obscenity in before the nineteenth century. There a couple of obscenity prosecutions in the first part of the nineteenth century, but it really became an issue in the 1870s when groups concerned “for society’s moral character” began lobbying to have obscene material suppressed.
The most successful of these groups was Anthony Comstock’s New York Society for the Suppression of Vice. In 1873, Comstock persuaded Congress to pass the Comstock Act, which criminalized the transportation and/or delivery of “obscene, lewd or lascivious” material. Comstock’s ideas as to what was obscene were pretty all-encompassing; as the Wikipedia entry on him notes, he was even able to ban anatomy textbooks from being sent to medical students via the mail. (He also apparently bragged about driving some people who had written what he considered obscene material to commit suicide . . . obviously a lovely man.)
What, you ask, does this have to do with cybercrime? Well, Anthony Comstock may be long gone, but we still have obscenity crimes. Earlier this year, two defendants charged with violating a federal obscenity statute moved to dismiss the charges, arguing that the unconstitutional when applied to the dissemination of allegedly obscene material online.
In 2007, the Department of Justice charged Max World Entertainment, Inc. and Paul Little a/k/a Max Hardcore with 5 counts of violating 18 U.S. Code § 1465 by using the Internet to sell and distribute obscene material. U.S. v. Little, 2008 WL 151875 (U.S. District Court for the Middle District of Florida 2008). The allegedly obscene material were video files; if you want to find out what kind of files they probably were, check out Max Hardcore’s entry on Wikipedia.
Section 1465 makes it a federal crime to use the Internet (or the mails or other means of transportation and communication) to distribute an “obscene. . . picture, film, . . . or other article”. (The Supreme Court has held that it is not a crime to possess obscenity; it is a crime to receive it, sell it, transport it or distribute it. U.S. v. Orito, 413 U.S. 139 (1973).
So, to violate this statute the video file at issue had to be “obscene.” The Max Hardcore defendants argued that the statute was unconstitutional when it was applied to what they had done. Specifically, they argued that federal obscenity statutes are “`unworkable when applied to the Internet.” U.S. v. Little, supra.
In order to convict someone of violating § 1465, the trier of fact (the jury in a jury trial or the judge in a bench trial, i.e., a trial without a jury) must find that the material at issue is obscene. To make that determination, the trier of fact must apply this test, which comes from the U.S. Supreme Court’s decision in Miller v. California, 413 U.S. 15 (1973):
(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 state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.The Max Hardcore defendants argued that this test cannot “be applied to the Internet because it is impossible to know what work `taken as a whole’ means when all web content is interconnected, and it is equally impossible to determine the community standards by which the material should be judged when the Internet reaches across the nation and across the world.” U.S. v. Little, supra.
More precisely, the defendants had two arguments and the government had its own counter-arguments:
The Defendants argue that in attempting to apply the Miller test to the facts of this case, the Court and the Jury must look at the Max Hardcore website as a whole, which includes numerous different web pages and interconnection to the World Wide Web, creating an impossible task for both the Judge and the Jury. The Government . . . argues that . . . the work to be considered under the Miller test are the five video files which were downloaded from the Max Hardcore web site. This Court agrees with the Government in that under the Miller test, the material to be considered, viewed and `taken as a whole’ . . . are the five video files that Defendants created and made available as down loadable files on their web site.
Similarly, Defendants argue that. . . . because the Max Hardcore website can be viewed from anywhere in the world, the community standards to be applied when determining whether the video files at issue are obscene would be the community standards of the world, which are impossible to ascertain. The Government argues that under the Miller test the community standards to be applied can be the standards of the community into which the allegedly obscene material moves or is sent, as well as the standards of the community from which it is sent. This Court again agrees with the Government.U.S. v. Little, supra. This Florida district judge essentially said she was going with the government because if the Supreme Court wants a different standard – a standard other than the community standards approach set out in Miller – to apply to Internet obscenity cases, it’s going to have to say so . . . which it has so far not done.
It might do that, though. In Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), the Supreme Court’s opinion, which was written by Justice Thomas, held that the use of the Miller test did not by itself make a statute that prohibits disseminating obscenity to minors unconstitutional. But other Justices, writing separately, pointed out that the Internet is a very new medium of communication, one that make any reliance on the standards of a particular community problematic.
Personally, for whatever it’s worth, I agree with those Justices and I agree with the Max Hardcore defendants. Even if the Miller test made sense thirty-five years ago, when print and video materials had to be physically shipped into a particular community, it makes no sense at all now. As the Max Hardcore defendants and other defendants in similar cases have pointed out, it makes no sense to talk about community standards when you’re dealing with content that is posted on a website which is accessible from essentially anywhere on the globe.
You don’t have the element of intentionality you had when a purveyor of obscene materials knew what was being loaded on trucks and where the trucks were going (Tulsa, San Francisco, Milwaukee, etc.). The Internet reverses the dynamic you had with the physical transportation of obscenity into a particular community in a specific state. Instead of sending obscenity into a particular location, the operators of sites like the Max Hardcore site put the material online and their customers, in effect, come to them. They are not injecting obscenity into the local community (Tulsa or Dayton or Salem or Tallahassee); members of that community are seeking the material out and retrieving it on their own.
I’m personally not a fan of obscenity, but I really don’t care if others are. It seems to me that the logical thing is to get rid of the Miller test and come up with something else, if there IS a workable obscenity standard in the era of the Internet. Maybe we should just de-Comstock the federal criminal code (and state codes that have similar provisions) and go back to a world in which no one really cares about obscenity. I, for one, would much rather have law enforcement officers and prosecutors pursuing people who do “harm” to others -- like terrorists, murderers, rapists, thieves, fraudsters, etc. – that to spend their time on this kind of thing.
But, of course, I could be wrong.