Obscenity is defined as material dealing with sex that gives rise to prurient interest or lascivious longings.[1] In 1957, long before the creation of the Internet, the Supreme Court espoused a test for determining whether materials are obscene. The Miller test asks a jury to determine:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the 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.[2]
The Supreme Court recognized that States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the way the material is disseminated carries a risk of exposure to “unwilling recipients or of exposure to juveniles.”[3] In other words, States have the right to maintain a decent society.
However, Justice Warren Burger once stated that: “it is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”[4] It follows that it would not be constitutionally sound to force the citizens of Las Vegas or New York City to adhere to the perceptions of what is obscene or offensive to people in Maine or Mississippi. Yet, “American obscenity laws are community-contingent offenses where it is the standard of the relevant community that determines if a specific distributed pornographic material is obscene.”[5] As the Miller test is applied today, the “relevant community” is the community from which the obscene material is accessed—”the situs of the recipient(s).”[6]
The problem of varying tolerances in different communities may be solved, or at least alleviated, by geolocation software. Geotargeting is the method of delivering different content to different Internet users based on their geographic location.[7] For example, one method of geotargeting is the use of Internet Protocol (IP) addresses:
Internet Protocol (IP) addresses [are] associated with each domain registry to track the location of users. Typically a geo-location company “maps” all the domains and their associated IP addresses to their real-world locations and stores that large amount of information into a private database. When a user access a certain website, his or her originating IP address can be compared to the records in the database, giving an educated guess about the access-seeker’s location.[8]
By utilizing geolocation software, online publishers of prurience can simply censor users from less tolerant communities from accessing the online material. This will alleviate the concern that online publishers of obscene material must “cater to the most puritanical communities,” which could in turn suppress speech of adults in more tolerant communities.[9] However, as the Miller test is applied today, courts are “not obligated to provide the trier of fact with any geographical reference by which to base their decision.”[10] This practice leads to “significant variances based on class, culture, and neighborhood.”[11] Instead of allowing juries to determine what is obscene for the whole community—which is likely influenced by their own subjective values and thus arguably comparable to the Supreme Court’s unsatisfactory Redrup practice—voters should have a voice in the matter.
The ideal implementation of this geolocation software begins with determining “community standards” on a county-by-county basis in local elections, where persons can vote on what material they believe crosses the line into obscene. Once each county has set its community standards, all online publishers of prurience must adhere to these standards and block unwilling communities from accessing the website through the utilization of geolocation software. That is, with geotargeting, “online publishers can be required to [censor] the geographic areas” of less tolerant communities “or face criminal consequences.”[12] Thus, the less tolerant communities will be able to maintain their decency and protect their children’s purity by being unable to access certain websites containing material they voted obscene during local elections; however, if persons from unwilling communities circumvent the geolocation software in order to access the obscene website, the publisher will not be held responsible because they complied with the community’s standards.
While geotargeting may result in some form of censorship to more tolerant individuals living in less tolerant communities (or may offend less tolerant individuals living in more tolerant communities), this approach is not the same nationwide federal censorship that would be imposed if a national standard for obscenity prosecutions was adhered to. In addition, this approach will alleviate the concern that online publishers are being forced to adhere to the standards of the nation’s most conservative communities, thereby suppressing the free speech of consenting adults in more tolerant communities.[13]
*J.D. Candidate, 2020, Florida International University College of Law
[1] See Arthur D. Hellman, William D. Araiza, Thomas E. Baker, & Ashutosh A. Bhagwat, First Amendment Law 127 (4th ed. 2018).[2] Miller v. California, 413 U.S. 15, 24 (1973).
[3] Stanley v. Georgia, 394 U.S. 557, 567 (1969).
[4] Miller, 413 U.S. at 32.
[5] Yuval Karniel & Haim Wismonsky, Pornography, Community and the Internet—Freedom of Speech and Obscenity on the Internet, 30 Rutgers Computer & Tech. L.J. 105, 107 (2004).
[6] Id. at 147.
[7] See Mason J. Kjar, 2 Obscenity Standards, 1 Neat Solution: How Geotargeting Extends Traditional Obscenity Law to the Internet, 3 Case W. Res. J.L. Tech. & Internet 155, 176 (2011) [hereinafter 1 Neat Solution].
[8] Id.
[9] Noah Hertz-Bunzl, A Nation of One? Community Standards in the Internet Era, 22 Fordham Iintell. Prop. Media & Ent. L.J. 145, 177 (2011) [hereinafter A Nation of One?].
[10] Russell L. Weavel, Understanding The First Amendment § 3.06 (2017).
[11] Id.
[12] Kjar, 1 Neat Solution, supra note 7, at 180.
[13] See Hertz-Bunzl, A Nation of One?, supra note 9, at 177.