GVPT333: Group Community
Kimberly Carter, Dave Dobin, Tim Hammond, Chris Rushing

The Problem with Applying Community Standards to a Borderless Community

Democracies like the United States gather their legitimacy through informed consent of those being governed. The First Amendment guarantees that citizens have the right to communicate their ideas freely, no matter how unpopular. The Internet and its disjointed nature challenge both of these ideals. The current state of technology is not one that easily and cheaply supports legal censorship based on geographical boundaries. "Consent of the governed" is usually provided by citizens of a particular state or jurisdiction, so how can a law produced in one area rightfully govern Internet users in a different geographical region? Community standards, currently tied to physical and legal boundaries, pose a problem to the Internet community. No technology currently exists that would easily enable Internet service providers (ISPs) to filter material by physical boundaries.
A national service provider, such as UUnet, cannot block banned sites from Minnesota and still make them readily available to citizens in California. In effect, Minnesota laws regarding Internet usage would govern California residents. The residents of California neither vote for the Minnesota lawmakers nor do they necessarily subscribe to the same type of community standards and belief systems. The California residents are being governed without their consent, and are therefore subjected to illegal laws in respect to their community.

State laws regarding decency have been challenged in court cases such as Miller vs. California (1973), United States vs. Thomases (1994), and ACLU vs. Reno (1996), which deals with the Communications Decency Act. When state laws are routinely struck down in court, the nation has two options. The first is to continue leaving moral and ethical matters up the state courts and the second is to create laws delineating national standards. Twenty years ago, Miller vs. California demonstrated the main problem with national involvement in community standards; the definition of "standards" varies widely across a nation as vast and heterogeneous as the United States. The outcome of the court case "established three-part guidelines for determining if material is obscene under the law (and not protected by the First Amendment):

(1) It depicts sexual (or excretory) acts whose depiction is specifically prohibited by state law;
(2) it depicts these acts in a patently offensive manner, appealing to prurient interest as judged by a reasonable person using community standards;
(3) it has no serious literary, artistic, social, political, or scientific value."

In "A Gift of Fire," Sarah Baase contends that the second portion of the guidelines "was a compromise intended to avoid the problem of setting a national standard of obscenity in so large and diverse a country." Although this case took place before the Internet, the same problem regarding the setting of moral and ethical standards in a diverse society persists online.

Unlike Miller, the United States vs. Thomases case forced the United States to deal with community standards in the new realm of the Internet. In the Thomases case, a postal inspector in Tennessee downloaded images deemed illegal in his state from the Amateur Action BBS site in California, where it was legal to possess such material. The couple that ran the BBS were tried in Tennessee and found guilty by its community standards, although they were legal residents of California. It is also interesting to note that the postal inspector, who asked for the material in order to trap the couple, was the only "member" in Tennessee. Also, it was the postal inspector who made the call to the BBS and began the transfer of files. In essence, the California couple (the Thomases) did not actively send him the obscene electronic files. His actions of calling up the BBS and initiating the download of files are analogous to him traveling to California and picking up the material himself. If he had actually driven to California and taken the files home to Tennessee, the couple in California would not have been charged under Tennessee law for illegal activity. This discrepancy outraged both the ACLU and many Internet communities. According to an ACLU spokesman, trials like this declare that "nothing can be put on the Internet that is more racy than would be tolerated in the most conservative community in the U.S." If this is true then regulation of the Internet, even at the national level, threatens the First Amendment rights of citizens beyond the "most conservative community."

The Amateur Action BBS was an online community, yet its actions were restricted by laws created in a physical community governed by lawmakers it did not elect. Although downloading the files was the same as picking the files up physically, why was the couple in California prosecuted for distributing the electronic material? Should the rights of online communities be protected the same as the rights of physical communities? While online "personalities" are physically only data sets represented in zeroes and ones, Lawrence Tribe, Tyler Professor of Constitutional Law at Harvard Law School, contends that "although information and ideas have real effects in the social world, it's not up to government to pick and choose for us in terms of the content of that information or the value of those ideas."

This case also deals with the earlier mentioned problem of determining borders and legal jurisdictions on the Internet. Did the offense occur when the material reached his computer, when it left California, or when the Tennessee man became a member (despite the fact that the Constitution protects the right to join groups)? These questions require a well-defined classification of Internet communities and moral/ethical "standards" before they can be answered. The United States government is not finding this task easy. One of the largest and most recent case studies about the United State's foray into the arena of a national standard for the Internet involves the Communications Decency Act (1996).