The end of obscenity

June 28, 1996|By Jeffrey Rosen

WASHINGTON -- On June 11, three judges in Philadelphia struck down parts of the Communications Decency Act. The decision, ACLU v. Reno, is being justly celebrated as an occasion for dancing in the chat rooms. The three judges understood how the old First Amendment battles are being overtaken by new technologies; and in an endearingly self-dramatizing touch, they had their separate opinions distributed on floppy disks.

But for all their sophistication about the technical difficulties of regulating free speech in cyberspace, the judges were forced by the Supreme Court's archaic obscenity doctrine to rely on an implausible premise: that it's possible to distinguish obscenity (which can be banned) from indecency (which must be protected) in an age when cyberspace has made the notion of local community standards untenable.

The best of the three Reno opinions was written by federal District Judge Stewart Dalzell, who concluded that the Internet is entitled to at least as much protection as traditional print media, if not more, because it realizes the goals of the First Amendment even more completely.

The new cyberspace technologies are reducing the costs of entry for both speakers and listeners and creating relative equality among them. As a result, Judge Dalzell noted, in cyberspace, even more than in newspapers and magazines, ''astoundingly diverse content is available,'' fulfilling Oliver Wendell Holmes' romantic metaphor of a perfectly deregulated marketplace of ideas.

Judge Dalzell recognized the decentralized chaos of the Internet as a central First Amendment value. Since the 1920s, leading free-speech theoreticians, from Walter Lippmann to Robert Bork, have emphasized the communal value of civic debate about ''matters of public importance'' and have downplayed the competing libertarian value of individual self-expression. This communitarian tradition has been invoked to justify censorship of purportedly ''worthless'' speech, from anarchist polemics during World War I to racial epithets today.

Judge Dalzell, by contrast, celebrated the fact that, in cyberspace, the lack of a centralized censoring authority means that decisions about what speech is valuable and what is worthless are left in the hands of individual speakers and listeners.

By purporting to regulate ''indecent'' speech, as measured by ''contemporary community standards,'' he concluded, the Communications Decency Act threatens the very chaos that represents the Internet's greatest strength. Because there's no technologically feasible way to limit the geographic scope of every Internet ''speaker,'' and no economically feasible way to screen the location and age of each potential ''listener,'' everyone runs the risk that his speech will be found ''indecent'' or ''patently offensive'' in some community he had no intention of entering. Graphic language ''routinely acceptable in New York City,'' such as Tony Kushner's ''Angels in America,'' might be actionable if downloaded in Tennessee.

All three judges concluded, therefore, that the ''indecency'' standard was too subjective to give citizens fair notice of what speech might be illegal.

But isn't the federal obscenity standard vulnerable to precisely the same objections? ''The government can continue to protect children from pornography on the Internet through vigorous enforcement of existing laws criminalizing obscenity and child pornography,'' Judge Dalzell declared. But his own reasoning undermines the distinction between indecency and obscenity. If indecency can't be coherently defined, because of the elasticity of ''community standards,'' defining obscenity is even harder.

Judge Dalzell points approvingly to the only federal Internet obscenity conviction, United States v. Thomas, affirmed by an appellate court last year. The images in question were uploaded on the Amateur Action Bulletin Board in Milpitas, Calif., and were downloaded in the heart of the Bible Belt in Memphis, Tenn. The Thomases claimed they were entrapped by a postal inspector, who intentionally chose to download the pictures in Memphis to take advantage of Tennessee's conservative community standards.

Virtual vs. geographic

But the Thomas case confirms Judge Dalzell's most powerful insight: In an age when cyberspace has broken down physical boundaries, it makes little sense to allow the morals of a geographic community to dictate what is acceptable for a virtual community of consenting adults.

Judge Dalzell's Maginot line between indecency and obscenity is being threatened by cultural changes, too. In 1973, when the Supreme Court declared that obscenity should be judged by local rather than national community standards, there was an informal consensus that hard-core material could be banned, while soft-core material had to be protected.

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