1999 Commonwealth.max


1999 Commonwealth.max

Censorship of the Internet: 
The First Amendment Lost in Cyberspace 

Gerard J. Fitzpatrick 
Ursinus College 

Computer technology is changing faster than the laws governing it, raising 
the question of whether luwo formuluted tu address cunflicto urioing in the "real 
world" are applicable to conflicts in "cyberspace." This question is particularly 
relevant to the debate over sexually explicit material on the Internet. This article 
argues that because the Supreme Court's current approach to the obscenity is 
not transferable to cyberspace, a different legal framework is necessary for deal­
ing with" cybersmut. " 

Largely unheard of just a few years ago, the now popular terms "In­
ternet" and "cyberspace" refer to that" decentralized, globally networked, 
computer-sustained, computer-a'ccessed, and computer-generated mul­
tidimensional, artificiaL or 'virtual' reality in which 'netizens' anywhere 
on the planet can send and receive information almost instantly simply 
by 'uploading' and 'downloading' text, pictures, sounds, and video" 
(Schlachter, 1993, 89). Unlike traditional mode;; of communication, com­
puter networks provide speed, anonymity, ease of access, and the poten­
tial to reach an immense audience to any speaker, no matter how ob­
scure or controversial, on any topic imaginable, making the Internet, in 
the words of one federal judge, "a unique and wholly new medium of 
worldwide human cummunicatiun" (Americun Civil Libertieo Uniun v. Renu, 
1996,844). In fact, Americans now spend as much time "surfing the Net" 
as they do watching rented videotapes (Lewis, 1995, D5). It is no wonder 
that the American Library Association has called the Internet "the most 
important thing that has happened to communications since the print­
ing press" (Lewb, 1996, D2). 

Clearly, we are witnessing a remarkable transformation in the com­
munication process, but where is the "information superhighway" tak­
ing us? Some see the Internet as promising a new dawn in human com­
munication and productivity (see Gates, 1993). They emphasize not only 
the boundle;;;; capacity uf the Internet fur the unbriuleu tran;;fer <lIlU re­
ceipt of information, but also its distinctively interactive character, which 
allows ideas to grow and evolve. Others fear that the Internet is an 
overhyped threat to human values (see Stoll, 1995). Erik Barnouw, a me­
dia historian skeptical of the euphoria surrounding the Internet, warns 
that "the lesson uf hi;;tury i;; that every new meuiurn pruviues new op­
portunities for selling as well as for education, for monopolists as well as 
for democracy, and for abuse as well as for benefit" (Lohr, 1996, El). More 

29 



1999 Commonwealth.max

information is not necessarily better information, and speedier commu­
nication does not necessarily advance a community's interests. Indeed, 
because technological innovation affects who wins and who loses in the 
struggle for power, it can alter political relationships among individuals, 
groups, and the state, thereby changing the very meaning of community. 

Traditionally, a "COIll.1Ul.ll1ity" has been underslood to be a discrele 
geographic site inhabited by a distinctive set of people sharing certain 
customs and values and working together more or less cooperatively for 
their mutual benefit. Changes in telecommunications have brought about 
a new kind of association, the "cyber-community;" wherein like-minded 
people fron. scattered points around the globe come together and inter­
act with one another despite physical distance by using their computers 
to exchange information. Although their members lack physical proxim­
ity, cyber-communities possess the primary attribute of a community: 
they are societies that people join in order to pursue common interests 
und enjoy mutually satisfying relationships. Cybcrcommunitics arc pro 
liferating, but all communities ine~itably experience conflict, and man­
aging conflict requires law. At issue is whether laws formulated to ad­
dress conflicts arising in the "real world" are applicable to conflicts oc­
curring in the" cyberworld." Can new wine be poured successfully into 
old bottles, or do changes in communication technology require signifi­
cant revision of traditional frameworks for analyzing issues concerning 
freedom of expression? 

These questions are particularly relevant to the current debate over 
sex on the Internet. According to a widely selling book, computers are 
hp('oming ",moth!'T tool, anothpr avpnu!', anothpr for1lm for sex" 
(Robinson and Tamosaitis, 1993, xvii). One study found that because 
people can anonymously access "adult" Internet sites from the privacy 
of home, often for free, "one of the largest (if not the largest) recreational 
applications of the users of computer networks [is] the distribution and 
consumption of sexually explicit imagery" (Rimm, 1995, 1861). Oppo­
nents of" cybel'smut"l believe that computerized erotica is abundant and 
can fall too easily into the hands of computer savvy children (Time, 1995, 
38). TIley cll!:lo fear lhcll "ulL-line" <.:OllllllwLicalion Iadlilales lhe illidl 
market in "child pornography;" for not only can pedophiles with com­
puters network with one another to exchange pictures, they can also sur­
reptitiously locate, converse with, and eventually prey upon unsuspect­
ing children.2 Consequently; they pressured Congress to enact the Com­
munications Decency Act of 1996 (47 U.S.C.A. sec. 223, hereinafter 
"CDA"), which prohibited using the Internet either to transmit or to dis­
play "indecency" to minors. Yet, content regulation and censorship are 
concepts derived from the traditional world of print and broadcast me­
dia. Can they be transferred to an intangible and interactive dimension 

30 



1999 Commonwealth.max

like cyberspace, or must a different legal framework be developed to fit 
computer communication technology? 

Although the Supreme Court invalidated the indecency provisions of 
the CDA on First Amendment grounds, it seemed to assume that tradi­
tional obscenity doctrine applies to cyber-communities in the same way 
that it applies to physical communities. This study argues to the con­
trary that the unique character of Internet communication warrants an 
approach to obscenity in cyberspace different from that followed by the 
Court for the past twenty-five years with regard to "regular space." Part 
I reviews the nature of cybersmut and the provisions of the CDA while 
Part II explains why the CDA was found to be unconstitutional. Part III 
shows the problems of trying to apply the Supreme Court's current ob­
scenity framework to cyberspace. Given those problems, Part IV advo­
cates an expansion of the notion of "community" so as to include cyber­
communities as well as geographic communities. Part V presents an 
alternative framework for judging the permissibility of cybersmut based 
upon the nature of cyber-communities. Lastly, the conclusion offers some 
thoughts on the larger significance of this issue for freedom of expres­
sion in a democratic sociely. The study thus hopes to conlribute not just 
to our understanding of evolving constitutional law, but also to the lit­
erature on the theory of freedom of speech and press. 

I. Cybersmut and the Communications Decency Act 

Despite the hype and hysteria surrounding the issue of cybersmut, 
less than 1% of material found on the Internet is sexually explicit (New 
York Times, 1995, A26), and it is dwarfed by the $8 billion Americans spend 
annually on tangible forms of erotica (Harmon, 1997a, A21). Still, while 
the quantity of such material is often overstated, it is plentiful and readily 
available, extending from "the modestly titillating to the hardest-core" 
(American Civil Liberties Union v. Reno, 1996, 844). "Graphic files" are the 
most common form of cybersmut because "scanners" make it easy to digi­
tize photographs into high-resolution computer images. Sexually oriented 
jokes and stories are available in "forums" based upon topic. "Hot chat 
r00111.5" where sexually explicit messages can be exchanged between par­
ticipants in "real time" are increasingly popular. One of the largest loca­
tions of cybersmut is "Usenet," a network of more than 15,000 discussion 
forums known as "newsgroups" whose members daily post more than 
100,000 images and messages that can be viewed, read, and responded to 
by other users. Sexually graphic text and images, as well as sounds and 
videos, are also obtainable from private "bulletin board services" (or 
"BBSSff), the commercial equivalent of U senet news groups whose services 
are available only to "members" who pay a subscription fee to the service's 
system operator (Huelster, 1995, 872-873). Finally, thousands of both free 

31 



1999 Commonwealth.max

and commercial adult sites exist on the World Wide Web. 
Groups like the Christian Coalition, the Family Research Council, and 

the National Coalition for the Protection of Children and Families began 
lobbying Congress in 1995 to enact legislation against cybersmut. Sena­
tor James Exon (D, NB) embraced their cause, declaring that "the infor­
mation superhighway should not become a red light district" (Conf\res­
sional Record, February 1, 1995, S1953). Even though Senator Exon had 
little knowledge of how the Internet works, he became the chief sponsor 
of the CDA, two sections of which ultimately were declared unconstitu­
tional. Section 223a, the "indecent transmission" provision, made it a 
felony punishable by a fine of up to $250,000 and a prison term of up to 
two years to use any telecommunication device t6 transmit knowingly 
to anyone under eighteen years of age" any comment, request, sugges­
tion, proposal, image, or other communication, which is obscene or in­
decent." Section 223d, the "patently offensive display" provision, ap­
plied the same punishment to the transmission or display of any com­
munication that "depicts or desqlibes, in terms patently offensive as 
measured by contemporary community standards, sexual or excretory 
activities or organs," regardless of whether the recipient inill<tted the 
communication. The act was directed at the creators and distributors of 
cybersmut, not at users or access providers. In order to protect innocent 
third parties, it shielded commercial on-line services from liability for 
sexually explicit postings by their customers, and it exempted compa­
nies that merely provide transmission services, navigational tools, or in­
termediate storage for customers moving material from one electronic 
location to another. 

Critics of the CDA like Jerry Berman of the Center for Democracy 
and Technology thought the law was trying quixotically to "design a 
whole city to look like Disney World" (Andrews, 1995, D7). The ability 
of computer users to jump quickly between thousands of different Inter­
net sites, critics said, has blurred the distinction between sending and 
receiving information. They noted too that unlike television and radio 
the Internet is decentralized in that it has no main control point though 
which government could regulate content. Because the Internet can ac­
commodate millions of speakers and publishers, as television and radio 
cannot, governmental control would have to be directed at an inordinate 
number of constantly changing BBSs, WebPages, and Vsenet sites. The· 
task of system operators trying to comply with the CDA would also be 
immense. The law granted them a "good faith" defense if they took 
"reasonable, effective, and appropriate actions" to prevent access by mi­
nors to adult material, to enable customers to block out offensive mate­
rial, and to warn them about inadvertently downloading it (47 V.S.c.A. 
sec. 223e). Critics wondered what this nebulous standard meant and 

32 



1999 Commonwealth.max

how much Internet traffic system operators would have to examine in 
order to satisfy it. Even if the sheer amount of information available on 
the Internet did not render attempts to control it futile, they said, gov­
ernmental efforts to regulate cybersmut would stifle the growth of this 
new medium for legitimate purposes, thereby squandering its potential 
for enhancing the democratic process and separating the United States 
from a growing global information structure. 

Critics noted too that the nature of the hlternet makes sexually ex­
plicit material difficult to track. Cybersmut can be disguised through a 
process known as "encryption" or posted through "anonymous mail­
ers" that make it impossible to identify the sender. In any case, because 
the Internet is global in scope no single nation can regulate it. Much 
erotica is posted to the Internet from foreign countries immune from 
American law, and it is as available as material posted domestically. 
Purveyors of cybersmut based in the United States could circumvent the 
CDA simply by establishing Internet sites outside our borders and elec­
tronically replenish them with new material without ever leaving the 
country. Explains John Gilmore of the Electronic Frontier Foundation, 
"the Nct interprets censorship as damage control and routes around it" 
(Lim, 1996, 319). Combating cybersmut effectively would require an in­
ternational agreement (Shackelford, 1992). As Joel Perry Barlow of the 
Electronic Frontier Foundation concluded, the CDA was the product of 
"the completely clueless, trying to impose their will on a place they do 
not understand, using a means they do not possess" (Levy; 1995, 47). 
Despite these problems, Congress passed the CDA on February 1, 1996 
by a vote of 414-16 in the House and 91-5 in the Senate. Seven days later, 
President Clinton put aside qualms about the CDA's constitutionality 
and signed it in an election year gesture to families concerned with pro­
tccting their children from cybersmut. 

II. The Communications Decency Act and the Courts 

On the same day that the CDA took effect, twenty organizations led 
by the American Civil Liberties Union challenged it in federal court as a 
facial violation of the First Amendment on the grounds that it was vague 
and overly broad.3 A week later, a federal judge issued a temporary re­
straining order against the CDA, finding its "indecency" provision un­
constitutionally vague but upholding its "patently offensive display" sec­
tion. On June 11, 1996 a special three-judge court went further and de­
clared the CDA's "i.ndecency" provision unconstitutionally overbroad 
under the First Amendment and its "patently offensive" standard un­
constitutionally vague under the Fifth Amendment. In trying to protect 
children from cybersmut, the court stated, tl1e CDA U sweeps more broadly 
than necessary and therefore chills the expression of adults" (American 

33 



1999 Commonwealth.max

Civil Liberties Union v. Reno, 1996, 854). Applying" strict scrutiny;" the 
judges said the CDA was not the least restrictive means available to fur­
ther the government's admittedly compelling interest in protecting chil­
dren from cybertlmut. Indeed, they feared that the law could apply to 
legitimate works of serious value such as films, plays, books, and art deal­
ing with sexual themes. The judges also dismissed the CDA's supposed 
protection of content providers who take "reasonable, effective, and ap­
propriate action" to restrict access to minors. There is no effective way to 
limit Inlernel siles lo adults, they noted, since the ages of people on-line 
cannot readily be ascertained. Requiring credit cards or adult access codes 
in order to enter a site would impose a "significant economic cost" on 
non-commercial sites because they would have td pay third parties to 
collect and verify the information. "Tagging" indecent material would 
be so physically burdensome as to be cost prohibitive. Hence, content 
providers could avoid liability only by /I constitutionally intolerable" self­
censorship (American Civil Liberties Union v. Reno, 1996, 882). 

Although Senator Exon predictedlhat the three-judge court's invalida­
tion of the CD A was 1/ so radical and so sweeping in ignoring existing laws 
and previous court rulings that it will crumble under Supreme Court scru­
tiny" (Exon, 1996, 97), the high Court unanimously4 affirmed it in a land­
mark decision on June 26, 1997. The Government had urged the justices to 
treat the Internet like television and radio where regulations of speech 
aimed at protecting children from sexually inappropriate material have 
been upheld. As Deputy Solicitor General Seth Waxman put it, easy Internet 
access threatens "to render irrelevant all prior efforts" to shield children 
from erotica, for with the mere click of a computer mouse any child can 
get "a free pass to every adult bookstore and video store" in cyberspace 
(Greenhouse, 1997, AI). In his opinion for the Court, Justice Stevens con­
ceded the "legitimacy and importance of the congressional goal of pro­
tecting children from harmful material/' but he emphasized that "the mere 
fact that a statutory regulation of speech was enacted for the important 
purpose of protecting children from exposure to sexually explicit material 
does not foreclose inquiry into its validity" (Reno v. American Civil Liberties 
Union, 1997, 2334 and 2347). That inquiry led him to hold that the CDA 
"places an unacceptably heavy burden on protected speech" because it 
lacks the precision required by the First Amendment when a statute regu­
lates the content of speech (Reno v. American Civil Liberties Union, 1997, 
2350). "In order to deny minors access to potentially harmful speech," 
wrote Justice Stevens, the CDA "effectively suppresses a large amount of 
speech that adults have a constitutional right to receive and to address to 
one another" (Reno v. American Civil Liberties Union, 1997(2346). 

The Government based its appeal upon severnl Supreme Court deci 
sions involVing children and indecency. The strongest of these, FCC v. 

34 



1999 Commonwealth.max

Pacifica Foundation (1978), had approved sanctions against a radio station 
that broadcast in the afternoon, when children were likely to be listening, 
a recording by the comedian George Carlin entitled "Filthy Words" that 
repeatedly used several common vulgarities in referring to certain sexual 
organs and activities. Ruling that while government may not ordinarily 
regulate expression based upon its content, it may regulate the "timc, 
place, and manner" in which expression occurs, the Court found the ra­
dio program to be indecent and patently offensive since it was intrusive 
and easily accessible by children. It also said that the First Amendment 
does not prohibit content regulation in the broadcasting realm where con­
stitutional protection is lower than it is for pr:int media and wherc gov 
ernment has a special interest in protecting children from indecency. Jus­
tice Stevens saw sharp differences between the FCC order and the CDA. 
First, the FCC has long regulated a medium with historically limited First 
Amendment protection, whereas the CD A would not be enforced by any 
governmental agency having comparable familiarity with the Internet. 
Second, the FCC had targeted conly a single broadcast that had departed 
dramatically from traditional program content, not banning it entirely 
but merely regulating the time during which it could be broadcast. Not 
only was the CDA vastly broader in scope, unlike the FCC order it was 
also punitive. Third, while the broadcast media can easily issue warn­
ings about program content, such warnings are not feasible in the unique 
world of cyberspace. Finally, the special factors justifying regulation of 
broadcast media, such as their invasive nature and the scarcity of avail­
able frequencies, are inapplicable to the "vast democratic fora of the 
Internet" (Reno v. American Civil Liberties Union, 1997, 2343). 

The Court also was unconvinced by the Government's claim that the 
CDA's reach was limited because it applied only to violations commit­
ted knowingly. Since most Internet forums are open to all comers, the 
Court reasoned, the CDA essentially allowed a heckler's veto in that a 
person opposed to the operation of a sexually explicit Internet forum 
could effectively close it down simply by haVing his or her child present 
in it. Nor was the Court reassured by the Government's declaration that 
legitimate sexually oriented material was outside the scope of the CDA, 
for the text of the law gave no such guarantee, leaving open the possibil­
ity that it could be appliedto serious discussion of topics like rapc, birth 
control, and homosexuality. Finally, like the three-judge court, the jus­
tices thought that section 225e gave less protection to Internet content 
providers than met the eye since "tagging" and age verification systems 
are either technologically ineffective or unduly costly. Since content pro-­
viders cannot be sure as to whether minors arc among their customers, 
to avoid liability they would have to refrain from offering otherwise le­
gal material, thereby burdening communication among adults. Such a 

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1999 Commonwealth.max

burden is unacceptable, the Court said, if less reslrictive alternatives for 
achieving the government's interests exist. The Court emphasized that 
while software allowing content providers to regulate the distribution of 
their material does not currently exist, there are programs offering par­
ents a reasonably effective way to prevent their children from accessing 
material thal paH~1tlt>, at> uppu~ed tu guvernment, deem inappropriate. 
"The interest in encouraging freedom of expression in a democratic soci­
ety," Justice Stevens concluded, "outweighs any theoretical but unproven 
benefit of censorship" (Reno v. American Civil Liberties Union, 1997, 2351). 

While the three-judge court and the Supreme Court invoked the unique 
nature uf cyberspace in ::;triking down the indecency provisions of the CDA, 
they expressly endorsed governmental power to prosecute Internet ob­
scenity. Yet, First Amendment doctrine regarding indecency and obscen­
ity alike rests upon certain premises about the nature of the environment 
in which such expression occurs. If communications technology changes 
that environment, thereby altering doctrine regarding the one concept, 
must not doctrine regarding the oth~r concept change as well? Clues to 
answering this question are in Justice O'Connor's concurring opinion in 
Reno (1997). She saw the CDA as an attempt to create "adult zones" on the 
Internet by segregating indecent material to areas beyond the reach of 
children, an objective that would have been constitutional had the means 
chosen to achieve it not violated First Amendment rights. Adult zones 
work, she said, when applied to a "physical world" based upon "geogra­
phy" and "identity." A child attempting to enter a nude bar, for example, 
would be recognized as being underage and stopped accordingly. She 
fuund the "electronic world" to be "fundamentally different," however, 
since speakers and listeners need not be in close physical proximity and 
they can mask their identities. Nonetheless, she argued that the Internet 
reflects a kind of geography in that sites exist at fixed locations in 
cyberspace around which it is possible to construct barriers, based upon 
some form of adult identification, and use them to screen people seeking 
entry to adult sites, much as a bouncer "cards" young people wanting to 
get into a nightclub. While Justice O'Connor thought, "the prospects for 
the eventual zoning of the Internet appear promising," she nevertheless 
concluded that technolOgical limitations leave cyberspace "largely unzoned 
- clHd un;wneable" (Renu v. American Civil Liberties Union, 1997,2354). 

Justice O'Connor misunderstood the nature of cyberspace in contend­
ing that it is sufficiently akin to the physical world to be amenable to 
zoning. By her own admission, the anonymity and physical separation 
of people using the Internet dramatically alter the supervisory equation. 
After all, her hyputhetical nightclub bouncer can readily see and thus bar 
underage customers, whereas a provider of adult services on the Internet 
cannot. Justice O'Connor's confusion notwithstanding, her distinction 

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1999 Commonwealth.max

between "geographic" and "virtual" worlds is useful in analyzing the 
impact of the Internet on obscenity doctrine. Justice Stevens revealed an 
awareness of "virtual reality" when he recognized that cyberspace is situ­
ated in "no particular geographic location but available to anyone, any­
where in the world, with access to the Internet" (Reno v. American Civil 
Liberties Union, 1997, 2335). Yet, he missed the implicatiuus uf the cum­
munications revolution for the Court's obscenity framework when he 
deplored a scenario wherein a parent who sends his seventeen year old 
college freshman information about birth control via e-mail is prosecuted 
under the CDA "even though neither he, his child, nor anyone in their 
home community, found the material 'i.ndecent' ur 'patently uffensive,' if 
the college town's community thought otherwise" (Reno, 1997, 2348). 
Justice Stevens presumably opposed such a prosecution because the geo­
graphic community containing the college had no business intruding into 
the transmission of the information between parent and child since the 
exdH:wge was a private matter that did nut affect the college community. 
Still, he was willing to accept the same scenario if it involved obscenity 
rather than indecency. Such inconsistency in dealing with the impact of 
the Internet on the First Amendment calls for a reconsideration of the 
Court's obscenity doctrine in light of the workings of cyberspace.s 

III. Cyberspace and the Supreme Court's Obscenity Doctrine 

Congress has long prohibited obscenity in the context of radio, 
television, telephones, the mail, and cable communication. Opponents 
of cybersmut would extend this prohibition to the Internet, but computer 
COllUllwucation does Hul easily Hllhe framewurk establbhed by the Su­
preme Court in Miller v. California (1973) for deternlining what consti­
tutes obscenity. Under Miller (1973, 24), a jury first would have to say, 
"whether the average person, applying contemporary community stan­
dards, would find that the work, taken as a whole, appeals to the pruri­
ent interest." Second, the jury would have lo determine "whether the 
work depicts or describes, in a patently offensive way, sexual conduct 
specifically defined by the applicable state law." Finally; the jury would 
have to decide "whether the work, taken as a whole, lacks serious liter­
ary, artistic, political, or scientific value." Showing that "community" 
has ITlultiple meanings evell when ullderslouu ill purely geugraphic 
terms, the Court emphasized that by "contemporary community stan­
dards" it meant those of specific local communities rather than some 
undifferentiated national community. It is "neither realistic nor consti­
tutionally sound," said the Court, "to read the First Amendment as re­
quiring that the people of Maine or Mississippi accept public depiction 
of conduct found tolerable in Las Vegas or New York City" (Miller v. 
California, 1973,32). Accordingly; local juries were empowered to deter-

37 



1999 Commonwealth.max

mine what appeals to prurient interest and what i::; patently offen:;ive 
because such judgments will vary from one community to another. As a 
result of this localized approach to obscenity, the First Amendment may 
protect sexually explicit material in one community but not in another. 

The reasons that the Court offered in Miller (1973) as to why obscenity 
is not protected under the First Amendment show that it understood a 
"community" to be a discrete, homogeneous, and geographically defined 
locality wherein sexually explicit materials can have a tangible and ad­
verse impact. Obscenity, the Court said, "may be validly regulated by a 
State in the exercise of its traditional local power to protect the general 
welfare of its population" (Miller v. California, 1973, 32-33, note 13). Ac­
cordingly, sex and morality "may not be exploited without limit by films 
or pictures exhibited or sold in places of public accommodation any more 
than live sex and nudity can be exhibited or sold without limit in such 
public places" (Miller v. California, 1973, 25-26). In Paris Adult Theatre v. 
Slaton (1973, 69), a companion casEJ' the Court was even clearer in basing 
the power to ban obscenity on the authority of states to conclude that "pub­
liC' exhihition of obRcene material, or commerce in such material. has a 
tendency to injure the community as a whole." Given the benefits to be 
gained from "stemming the tide of commercialized obscenity," the Court 
held that regulation of erotica is justified by "the interest of the public in 
the quality of life and the total community environment, the tone of com­
merce in the great city centers, and, possibly, the public safety itself" (Paris 
Adult Theatre v. Slaton, 57-58). In short, the Court's obscenity cases viewed 
"communities" as physical territories composed of relatively homogeneous 
individuals sharing a common understanding of the sexual mores of their 
neighborhoods and fearing tangible harm to themselves and to their so­
cia 1 and em nomic environments from the availability therein of obscenity. 

This view of community misperceives what Justice Stevens in a later 
obscenity case called "our diverse, mobile, metropolitan society" (Smith 
v. United States, 1977, 314, note 10). The atomizing forces of contempo­
rary life, including but not limited to the Internet, are undermining the 
baflifl for obflcenity law by eroding the societal homogeneity fostered by 
physical proximity. The Internet enables people with similar interests to 
find each other, for physical connection no longer is necessary to initiate 
and maintain relationships. Computer communication brings more 
people into contact with one another, thereby breaking down geographic 

.. barriers and cultural homogeneity. The range of information available 
to people using computers is likely to surpass that available to people in 
physical proximity, which further changes and diversifies opinions. As 
intellectual interaction increases across geographic communities, toler­
ance within those communities for sexual expression increases too. In 
fact, the Internet gives people a degree of liberating anonymity unavail-

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1999 Commonwealth.max

able to members of a physical community who may feel a need to con­
ceal any unconventional beliefs they might hold for fear of adverse com­
munity reaction should those beliefs be revealed. Consequently, com­
municators via computer need not worry about conforming unduly to 
the values of those around them. In short, "as individuals have more 
choices and greater opportunities to develop their own tastes, tolerance 
for sexual expression can only become increasingly varied among the 
members of local geographical communities" (Sergent, 1996, 710). 

The Supreme Court's narrow view of "community" also ignores the 
vastness of cyberspace. Adult Internet sites cannot target their services 
to particular geographic communities and then tailor their content to 
meet the various decency standards of those' communities. To do so, 
they would either have to establish data bases of people eligible to ac­
cess sexually explicit material or individually monitor each request for 
such material, options that would be both impractical and cost prohibi­
tive (Kabalka, 1996). Nor can service providers know the prevailing ob­
scenity standards of every jurisdiction in the nation that might access 
their products. Even if they could, it would still be impossible to deter­
mine which community's standards ought to be used to determine the 
permissibility of a given transmission. Unlike postal mail, computer 
messages are not sent to identifiable, geographically-based addresses. 
Service providers thus have no way of knowing where customers are 
because they have no control over the physical localities into which their 
products may wander. Even if they do know the location of receiving 
computers, they have no control over people who join their services in 
jurisdictions allOWing obscenity but log in from other jurisdictions where 
such material is not permissible (Sergent, 1996, 710-713). As a result of 
these problems, service providers would have no choice but to alter the 
content of their sites to meet the standards of the most restrictive com­
munity having access to them. In any case, adult Internet sites adminis­
tered by system operators are only one source of cybersmut. One of the 
biggest venues, "Usenet," has no system operators at all but simply lists 
addresses for postings on particular topics. The "local community stan­
dards" framework simply cannot work here. 

The difficulties of applying Miller (1973) to cyberspace can be seen in 
United States v. Thomas (1996), which sustained the first federal prosecu­
tion of an Internet adult site for the interstate transmission of obscenity. 
Robert and Carlene Thomas, operators of a major sex-oriented BBS called 
"Amateur Action," distributed sexually explicit images from their ser­
vice in Milipitas, California to thousands of customers around the world. 
They were indicted in Memphis, Tennessee, where an undercover postal 
agent had downloaded samples from their site, rather than in California 
because prosecutors believed that community attitudes toward obscen-

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1999 Commonwealth.max

ity were more conservative in the "Bible Belt" than they were on the 
West Coast. The Thomases claimed that under Miller (1973) they should 
have been tried in California rather than in Tennessee because that was 
where the pictures came from and because the transmission was iuiti­
ated by the postal agent, not them. They noted too that they had not 
advertised in Tennessee and had no physical presence there. The heart 
of their argument, though, was that because the Internet has broken down 
geographic boundaries, people in one community cannot dictate what is 
morally acceptable for those in another. The trial judge rejected the8e 
arguments, seeing no difference between the Thomases allowing cus­
tomers to download erotica from their site and mailing out such material 
themselves. If an analogy to the physical world is to be made, however, 
a better one, wherein the Thomases would not have been liable, was the 
postal agent traveling to California where erotica was legal, making a 
purchase, and taking it back to Tennessee. The Thomases may have made 
the material available, but it was the agent who introduced it into a juris­
diction where it was illegal (Byassee, 1995, 212-216). 

Furthermore, the belief that sexually explicit material can undermine 
the qUGtlily of life ill a spedfic 10l:al 1:0IIlIIlunity may make sense when 
such material appears in a tangible form such as magazines or videos that 
can be physically transported from one geographic location to another, 
and bought and sold in relatively open display. For instance, applying a 
geographic definition of "community" to physical establishments like adult 
theatres and bookstores seems reasollable bel:Gtuse the 8pillover effects of 
these businesses, such as crime and reduced property values, can affect 
the "total community environment" and "tone of commerce" of the sur­
rounding communitY. This regulatory approach makes little sense, how­
ever, when applied to individuals using computer modems in the privacy 
of their own homes Lo access sexLlGtllllGtteI"iallol:ateu at Internet !:lites un­
related to the local physical community. Such material cannot affect the 
quality of life in the surrounding community because it never physically 
enters it but simply moves unobtrusively over telephone lines from one 
computer to another. Websites differ significantly from town theatres and 
bookstores in that they are not local, stationary plal:eo of public bu:;ine:;!:l 
where patrons can literally walk in, make a purchase, and walk out. Rather 
than sell tangible commodities, they transmit digital information that is 
indecipherable as it travels through the physical community and there­
fore cannot adversely affect that community. Only after it reaches its des­
tination in the pdvacy of a purdlGtseJ'S I:omputer I:alllt be I:onverteu into 
a form that can be read or viewed, at which point it is no longer in the 
physical community in the sense of being exposed to the public eye. Such 
material is not foisted upon the local community by intrusive providers 
but is pulled into private computers by willing purchasers. 

40 



1999 Commonwealth.max

Defining obscenity in terms of "local community standards" based 
upon a view of" community" as a discrete, physical territory is thus inap­
propriate for a medium where information is readily accessible from any­
where on earth. The vagaries of the idea of "local community standards," 
the impracticality of ascertaining them for all localities across the nation, 
and the impossibility of identifying either the geographic source or desti­
nation of much of the material passing over the Internet prevent consum­
ers as well as service providers from determining what level of constitu­
tional protection is granted to erotica. Because the Supreme Court has 
allowed the meaning of obscenity to vary from one locality to another, 
prosecutors are encouraged to engage in "forum shopping" whereby they 
can choose among several jurisdictions the most morally conservative 
one in which to initiate an obscenity case so as to increase the likelihood 
of obtaining a conviction. Similarly; they can prosecute a provider of sexu­
ally explicit material in several jurisdictions simultaneously without vio­
lating the constitutional prohibition against double jeopardy. Fear among 
service providers about the time and expense of defending against such 
prosecutions may have a chilling effect upon the distribution of what in 
many localities might be acceptable material. Afraid of risking prosecu­
tion for trafficking in obscenity; Internet users would be forced to engage 
in self-censorship by adapting their preferences for sexually oriented 
material to the most puritanical locality through which their erotic trans­
missions might pass. The problem with Miller (1973), then, was in as­
suming that geographically-based localities can regulate speech in their 
own jurisdictions without inhibiting expression elsewhere. 

IV. From Geographic Communities to "Cyber-Communities" 

The problems in trying to apply established obscenity doctrine to 
cybersmut suggcst a nccd to cxpand our undcrstanding of the term" com­
munity." Like the Supreme Court did in its obscenity cases, we generally 
think of a community as an association whose partners share member­
ship, participate in communal affairs, imbue the collective with their moral 
values, and feel a commitment toward one another as parties in a com­
mon enterprise. Moreover, like the Court, we tend to equate communi­
ties with particular physical locations having discrete geographic bound­
aries such as a cities, states, and even nations. To be sure, physical place 
stimulates, shapes, and sustains a geographic community because the 
close physical proximity of the community's members necessitates much 
face to face interaction, which not only imbues the communing parties 
with a keen sense of common purpose and identity, but also promote~ 
informed decision-making due to the extensive deliberation that inevita­
bly accompanies sustained personal interchange. In addition to these 
physically situated associations, however, there are also tightly knit non-

41 



1999 Commonwealth.max

geographic communities whose unity is based upon factors other than 
shared geographic location such as ethnicity, kinship, religion, language, 
and profession. Examples of non-geographic communities include Afri­
can··Amcricans, Roman Catholics, political scientists, and Karl Marx's 
"workers of the world." Although members of such communities do not 
necessarily share physical propinquity, they are bonded together by the 
key element of any community: a sense of fellowship based upon shared 
values and interests. A group of people joined together in a common 
enterprise need not be geographically based before it can be called a "com­
munity" so long as it possesses the essential attributes of a community. 

Does cyberspace constitute a "community," or is it merely a vast com­
puterized marketplace for the acquisition and distribution of sterile in­
formation? Some see the Internet as "no more than a library, entertain­
ment center, and telephone all wrapped up into one," making cyberspace 
not a community at all but "simply a huge and heterogeneous group of 
people accessing the Internet for an endless variety of reasons" (Heumann, 
1995,208). Cyberspace may notpe a community in the traditional, physi­
cal sense, but it does possess the defining element of a community: it is 
composed of groups of like-minded people coming together and inter­
acting based upon shared interests and a desire to establish mutually 
satisfying relationships. Howard Rheingold (1993, 1, 5) calls these groups 
"virtual communities," which he defines as "computer-mediated social 
groups" that emerge "when enough people carry on ... public discussions 
long enough, with sufficient human feeling, to form webs of personal 
relationships in cyberspace." People in virtual communities "do just 
about everything people do in real life," Rheingold argues, "but we leave 
our bodies behind." E-mail, discussion groups, and the World Wide Web 
have created countless" cyber-communities" whose members may spend 
more time with people far away than they do with those in their own 
backyards. Whether they are on-line debating public issues, sharing an 
interest in a hobby, or providing support for friends with various physi­
calor emotional problems, members of these cyber-communities have a 
commitment to one another and thus act as good neighbors do in tradi­
tional geographic communities. The only thing missing, but apparently 
not really necessary for forging a strong sense of community, is physical 
proximity for the cyber-community's members. 

Of course, cyberspace is not monolithic. It is best understood as a 
loose federation of many different and often competing communities 
rather than as some unified empire. Some cyber-communities are open 
to anyone, whereas others restrict membership on some particular basis. 
Hence, their orientations differ, some being professional or business-like, 
others more casual or family focused. Says one observer, "the immediacy 
and continuity of the content, as well as the informality of the exchanges 

42 



1999 Commonwealth.max

and the common interest in the subject matter, tend to reveal the person­
alities of the senders and to foster a sense of shared experiences and shared 
goals. When these interactions reach critical mass, communities are cre­
ated" (Byassee, 1995,202). Cyber-communities are thus provisional. Those 
able to sustain themselves prosper, perhaps splitting into subconununi­
ties with more particularized interests and identities, while those unable 
to maintain their cohesion wither away (Dyson, 1995, 27). Cyber-com­
munities lack geographic boundaries, yet they are distinguishable juris­
dictions unto themselves in that they consist of people from all over the 
globe who have chosen to join by voluntarily logging on. The speed with 
which Internet users can exchange informatipn over vast distances obvi­
ates the need for physical proximity. Although they are separated spa­
tially:, their high level of interaction gives members of cyber-communities 
the sense that they share the same place. As Internet communication con­
tint;tes to expand, says Mike Godwin of the Electronic Frontier Founda­
lion, thinking of "local community standards" only in a geographic sense 
will become increasingly "philosophically bankrupt" to members of 
cyberspace, for "where these people's mental space is, is not geographi­
cal at all. It is communities of interest - virtual communities" (1994, 8). 

If a particular group of "netizens" constitute a cyber-community 
wherein sexually explicit materials are not thought to be offensive, must 
traditional geographic communities grant them the right to send and 
receive such material? While this cyber-community would not be of­
fended by computerized erotica, the larger geographic community of 
which they are a part might be. In the event of an obscenity prosecution, 
which "community standards" ought to apply: those of the geographic 
community or those of the cyber-community through which the mate­
rial is obtained? Do the moral standards of geographic communities 
trump those of cyber-communities, which by their very nature transcend 
the boundaries of all physical jurisdictions? The answer to these ques­
tions depends upon whether the abstract, digital dimension of cyberspace 
is simply an extension of concrete, geographic communities. If it is, then 
prohibiting obscenity in cyberspace is pennissible; if it is not, then such 
prohibition not only is unconstitutional but also seriously misguided. 
Invasion of substantial communal interests is necessary before expres­
sion carl be punished, but the sepuration of Internet communication from 
physical communities essentially eliminates any danger to those inter­
ests by allowing opponents of cybersmut to avoid exposure to it. Com­
puter users have considerable control over the content, receipt, and ulti­
mate destination of material transmitted through cyberspace. If mem­
bers of eyber-communities knowingly distribute objectionable material 
to their surrounding geographic communities, holding them liable may 
be appropriate. Otherwise, the ability of the geographic locale to avoid 

43 



1999 Commonwealth.max

unwanted erotica would seem to negate its interest in proscribing 
obscenity. 

These issues are complicated by Stanley v. Georgia (1969), wherein the 
Supreme Court recognized a right to possess sexually explicit materials 
within the confines of one's home as opposed to more public places. 
"Whatever the power of the state to control public dissemination of ideas 
inimical to the public morality," said the Court, "it cannot constitution­
ally premise legislation on the desirability of controlling a person's pri­
vate thoughts" (Stanley v. Georgia, 1969, 566, emphasis added). The Court 
saw no danger that erotica in a private home would be viewed by mi­
non; or unwilli.ng citi:<:t:!w; as cuulU happt:!Il in public plact:!s. Imlt:!t:!u, llit:! 
Court viewed the home as a sanctuary separate from public places. Com­
puter communication is eroding the distinction between private homes 
and public places, however, by making the world an extension of the 
home in that material can travel into homes via the "information super­
highway" without having to pass through outside markets. Download­
ing an obscene video from the Int&rnet is similar to purchasing one by 
mail: a customer places an order, an attempt is made to ensure that the 
customer is an adult, and the order is sent from one place to another. The 
difference is that the Internet customer buys nothing tangible, uses no 
public conduit such as the postal servicc in procuring the order, and never 
contributes to any possible deterioration of the surrounding geographic 
community by patronizing a local retailer of adult products. Does Stanley 
(1969) protect such transactions, or can local communities shield them­
selves from erotica sent over the Internet? The logic of Stanley (1969) 
suggests granting autonomy to cyber-communities, but conclusions are 
difficult since the Court has obscured the scope of this decision, holding 
that while the First Amendment allows people to control the flow of in­
formation into their homes, states can regulate the distribution of ob­
scene materials. 

For example, in Rowan v. United States Post Office Department (1970), 
the Court upheld a federal law prohibiting the mailing of sexually ori­
ented advertisements to people who specifically indicated that they did 
not wish to receive them. The court stressed the privacy interest of 
homeowners in deciding what material would enter their homes. The 
Court later invalidated a federal law banning the mailing of unsolicited 
advertisements for contraceptives on the grounds that people have a right 
to decide what mail to accept and that "the level of discourse reaching a 
inailbox simply cannot be limited lo thal which would be suitable for a 
sandbox" (Bolger v. Youngs Drug Products Corp., 1983, 74). These cases 
emphasized the right of people to control the flow of mail into their homes. 
The same principle ought to apply to material entering via the Internet, 
for prohibiting the transmission of erotica denies people the option of 

44 



1999 Commonwealth.max

receiving it. In United StateD v. Reidel (1971), however, the Court refused 
to extrapolate from the right of an individual to possess obscenity within 
the home a right under the First Amendment for a purveyor of such 
material to sell it to the homeowner. Drawing a distinction between pri­
vate possession in the home and regulation of external speech, the Court 
similarly ruled in United States v. Orito (1973) that the right to possess 
erotica within one's home does not include a right to get it there via the 
postal service. Finally, the Court made an exception to Stanley (1969) in 
Osborne v. Ohio (1990), holding that government's compelling interest in 
combating child pornography extends not just to the production and dis­
tribution of such material but also to its posse,ssion and use, even in the 
privacy of one's home. In short, because Stanley (1969) rested more upon 
the right to privacy than upon the First Amendment, people have a right 
to possess most kinds of erotica at home but may have trouble getting 
such material there in the first place. 

Ullim.ately, applying a geo?raphic understanding of "local commu 
nity standards" to cyber-communities violates the logic of Miller (1973). 
As the Court noted, "different States vary in their tastes and attributes, 
and this diversity is not to be strangled by the absolutism of imposed 
uniformity" (Miller v. California, 1973,33). Since the Internet crosses state 
lines, allowing juries to use local community standards means that com 
puter-transmitted erotica will be judged by the standards of the most 
conservative geographic localities. If there is a clear likelihood of 
cybersmut harming a physical community, such as when children are 
used to produce obscenity, then application of a geographic community's 
standards is appropriate. If, however, regulation is intended either to 
protect unwitting passersby or to prohibit obscenity in a community that 
does not want it, then the standards of the geographic community are 
inapposite inasmuch as cybersmut generally is circulated only electroni­
cally within groups of consenting adults. The geographic locales in which 
these "netizens" happen to reside simply arc not part of the "commu­
nity" in which cybersmut is exchanged and are not affected by it. As 
sexually explicit material continues to move from the open marketplace 
to private computers, "traditional concerns about obscenity, such as ac­
cessibility to children, sensibilities of the general public, and secondary 
effects on the neighborhood surrounding the point of distribution" will 
continue to lose their relevance (Harvard Law Review, 1994, 1094). With 
regard to cybersmut, then, the "local community standards" framework 
ought to be replaced with a "cyber-community standard." Under such a 
standard juries would be drawn neither from computer users in general­
nor from devotees of cybersmut in particular. Indeed, there would be no 
juries because in cases of sexually explicit material confined to cyber­
communities there would be no offense. 

45 



1999 Commonwealth.max

V. Adapting the First Amendment to eyber-Communities 

In expanding our understanding of II community" so as to adapt tradi­
tional First Amendment values to changing technology, two principles 
are crucial. First, an open and decentralized "marketplace of ideas" 6 must 
be maintainE'd. As thE' SUprE'IDP Court said in Associated Press v. United 
States (1945, 20), the First Amendment "rests on the assumption that the 
widest possible dissemination of information from diverse and antago­
nistic sources is essential to the welfare of the public." The mass media 
constitute a closed system because even with cable television offering 
hnndrpds of channE'!s, thE' number of forums is limited and not all views 
are heard since availability is a function of what sells. Moreover, system 
dynamics essentially make network owners information gatekeepers. 
Their control over access and distribution significantly burdens smaller, 
independent programmers who must negotiate expensive carriage agree­
ments with large network operators. By contrast, open access networks 
like the Internet can accommodate an unlimited number of information 
providers and users, thus ensuring a variety of cyber-communities. Fur­
thermore, because the Internet is uecenlrallz;ed, there is no single point 
for origination of content and no need for special arrangements with net­
work operators to send information to other people using the system. 
Lower barriers to entry for independent informati.on providers is espe­
cially desirable since they are more likely to reflect a diversity of opinions 
than are large media conglomerates and they urc more difficult to control 
by the dominant forces in the media industry (Berman and Weitzner, 1995, 
1622-1624). Special solicitude for the Internet might even reverse the trend 
in recent years toward ever-greater concentration of the mass media. 

The second principle necessary for adapting the First Amendment to 
cyber-communities is to ensure their members control over information 
content. The Supreme Court has emphaSized that "at the heart of the 
First Amendment lies the principle that each person should decide for 
him or herself the ideas and beliefs deserving of expression, consider­
ation, and adherence" (Turner Broadcasting System v. Federal Communica­
tions Commission, 1994, 641). Lack of p{fpctivp llflr->r control over "inde­
cent" radio broadcasts largely explains the Court's support for the FCC's 
ban on risque recordings during times when children could be listening 
(Federal Communications Commission v. PaCifica Foundation, 1978). By con­
trast, it invalidated the FCC's ban on "dial-a-porn" telephone services 

. on the grounds that "placing a telephone call is not the same thing as 
turning on a radio and being taken by surprise by an indecent message" 
(Sable Communications v. Federal Communications Commission, 1989, 189). 
Telephone users are less a "captive audience" than ar~ radiu li/;itell~r/;i. 
There are no captive audiences in cyberspace inasmuch as gaining ac­
cess to Internet sites requires people voluntarily to take affirmative steps 

46 



1999 Commonwealth.max

involving more technical savvy than does turning on a radio or a televi­
sion. Also, unlike broadcast viewers and listeners who are not necessar­
ily aware of content to come and may be offended by it, customers of 
adult sites un the Internet know whal lo expecl because such sites warn 
about their content before granting access. As interactive media con­
tinue to supplement traditional media, the very nature of communica­
tion in cyber-communities will highlight the inappropriateness of gov­
ernmental regulation of information based upon its content (Berman and 
Weitzner, 1995, 1632-1634). 

How do these two principles for protecting First Amendment values 
in the face of changing communications technology apply to governmen­
tal attempts to control cybersmut? Clear and narrowly drawn content 
regulation may be permissible, depending upon the nature of the mate­
rial regulated and how computer users obtain or send it. For example, 
government ought to be free to prosecute the intentional distribution of 
actual obscenity to minors, unconsenting adults, or cyber-communities 
that do not wish to receive it. Attempts to ban "indecency," however, 
inevitably present problems of vagueness and overbreadth, as the Court 
held in Reno (1997). In any case, invasiun uf ::;ubstantial priV<H:y inleresls 
is necessary to limit cybersmut, but the interactive nature of the Internet 
greatly reduces these privacy concerns by allowing computer users to 
avoid unwanted communications. Restrictions on the knowing receipt 
of erotica by adult members of cyber-communities have little justifica­
tion, for when computer users cuntrol the information they receive gov­
ernmental regulation is not necessary to protect their privacy interests. 
When they cannot block undesired information, regulation may be valid, 
preferably in a way designed to restore their control. A moderate course 
of action thus seems sensible for regulating obscenity in cyberspace. In 
the words of one observer, "the infurmaliuH superhighway should nei­
ther force the electronic media into the fold of the highly protected print 
media, nor should it leave them exposed to the same types of regulations 
as broadcasting. Rather, careful attention to the underlying interests in 
viewpoint diversity and user control requires a balanced approach" that 
may serve First Amendment values in cyber-conununlties better than 
does the Miller (1973) framework (Harvard Law Review, 1994, 1096). 

Technology exists that would allow people to block cybersmut from 
their computers (American Civil Liberties Union v. Reno, 1996, 839-842). 
Conservatives consider technology to be an inadequate response to the 
problem of cybersmut. Libertarians fear lhal it would Shllply replace 
governmental censorship with private censorship, which while techni­
cally raising no First Amendment problems would still threaten freedom 
of expression by inhibiting the free flow of information in cyberspace 
(Weinberg, 1997, 453-482). Screening can be overly broad, blocking out 

47 



1999 Commonwealth.max

legitimate discussion of sexual topics as shown by the decision of 
"America On-Line" to ban the word "breast" from its" chat rooms," a 
move that dismayed breast cancer patients participating in on-line sup­
poit glOupS (Andrews, 1997). Even CUIIi:iUtutlolli:tlly prott!ctt!d speech 
could be forbidden. A discussion group on First Amendment issues, for 
example, could be banned from using the vulgar reference to the mili­
tary draft that appears in Cohen v. California (1971). Nor do computer 
users necessarily know which sites get blocked or why. Many are blocked 
simply beCause uverburdt!ned software filtt!fS have not reviewed them, 
a particular problem for small, non-commercial sites which are likely to 
be rated late in the process, if at all (Harmon, 1997b). Finally, the sheer 
size of cyberspace makes it difficult to regulate. With more than 50 mil­
lion Internet users and hundreds of thousands of information transfers a 
day, thousands of screeners would be necessary; thereby delaying com­
munication and undercutting the systemfs utility. As one skeptic con­
cludes, trying to rid cyberspace of erotica "is like trying to shoot an ICBM 
at a gnat; it can't be done without the absolutely most Draconian meth­
ods being used" (Lewis, 1994, 34). 

Even more troubling than the practical problems of blocking software 
are the political implications for a society based upon the free exchange 
of ideas. In the physical world, opposing interests confront one another 
more or less openly in the political arena where their voices are readily 
heard as they make their arguments. We may not like what one side or 
another has to say, but in a relatively open political system, we have little 
choice but at least to listen. In cyberspace, by contrast, the right to speak 
does not necessarily guarantee a right to be heard. Blocking software 
can undercut a communications medium that promises the average per­
son the broadest degree of speech yet known. Ironically, then, self-regu­
lation may pose a more potent threat to freedom of expression in 
cyberspace than governmental censorship under the CD A ever could have 
done. The danger is that people may use technology to create "virtual 
gated communities" from which they can screen out expression they think 
inappropriate. As Andrew L. Shapiro of Harvard Law School's Center 
for the Internet and Sodety warns, "democracy doesn't work if you can 
turn off anyone you don't want to hear from" (Harmon, 1997b, D6). Just 
as the CDA threatened to throw the proverbial baby out with the 
bathwater, so too might the alternative of blocking software. Lawrence 
Lessig refers to this growing dependence of constitutional values upon 
tht! capabilitit!~ of computer software as tht! "tyranny of code," whereby 
program designers acquire the power to grant liberties or take them away 
(Harmon, 1997c, E1). Given the control over blocking technology en­
joyed by such gatekeepers of the Internet as Microsoft, Netscape, and 
1/ America On Line," "tyranny" is not too strong a word. 

48 



1999 Commonwealth.max

Although problematic, the best way to deal with cybersmut is to fine 
tune blocking software so as to permit informed self-regulation in a largely 
free market. Let those who want computerized erotica have it, so long as 
lhose who do not arc able to avoid it. In this way, "the programming 
tastes of the many need not be held hostage to the particular sensibilities 
of the few, or vice versa" (Harvard Law Review, 1994, 1095). This approach 
is preferable to governmental censorship because it can be tailored to the 
values of individual families. Besides, censorship is at best an after-the­
fact response to cybcrsmut, whereas blocking software reduces the risk 
of seeing it in the first place. Since these programs can block material 
coming from anywhere in cyberspace, they are to that extent more effec­
tive than governmental censorship, which cannot reach foreign-based 
Internet sites. By focusing on the voluntariness of the user rather than on 
the mores of the user's geographic community, service providers would 
no longer have to guess the "community standards" prevailing in the 
user's locale. A technological approach would thus "provide important 
protection for those creating 'Virtual' communities dispersed across wide 
geographic areas by giving them the ability to define their 'boundaries' 
free from the harassment of individual juries in distant locales" (Sergent, 
1996,724). Just as an on-line group of "cyber-evangelists" could set the 
standards for their virtual community, so too could a bevy of "cyber-lib­
ertines" do so for theirs. By following the preferences of cyber-communi­
ties rather than those of geographic communities, a "virtual community 
standard" would" preserve the framework and tradition of obscenity law, 
while adapting to the challenges created by cyberspace" (Egan, 1996, 152). 

Conclusion 

The Internet is rapidly becoming a vital tool not only for personal and 
professional corrcspondence, but also for banl<ing, commerce, education, 
recreation, politicS, and the dissemination of news and other informa­
tion. Like every new technology, however, the Internet presents prob­
lems as well as opportunities, especially with regard to freedom of ex­
pression. Does the revolution in computer communications require sig­
nificant revision of traditional First Amendment principles first devel­
oped in the simpler context of print and broadcast media? The funda­
mental tenets of freedom of expression ought not be jettisoned just be­
cause communications technology changes, yet it is difficult to imagine 
the First Amendment continuing to exist unmodified as the Internet in­
exorably transforms the communications process. In grappling with the 
problem of cybersmut in particular, the judiciary wilt in the words of 
Jerry Berman of the Center for Democracy and Technology, "decide the 
limits of free speech for the 21st century," but "if the judges don't under­
stand the Internet they may pick the wrong paradigm" (Lewis, 1996, D2). 

49 



1999 Commonwealth.max

In striking down the CDA, the Supreme Court showed an appreciation 
for the dynamics of the Internet against a governmental attempt to ban 
indecency in cyberspace. On the other hand, by assuming that the ob­
scenity paradigm it established in Miller v. California (1973) remains un· 
disturbed by the telecommunications revolution, the Court revealed the 
limitations of its understanding of the significance of cyber-communities. 

Internet users operate in a realm largely independent of physical world 
jurisdictions. Because cyber-communities essentially are self-contained 
associations, the norms of the physical world do not readily fit them. 
Forcing those norms to fit could limit the growth of evolving informa­
tion technologies and quash the new social structures to which they are 
giving rise. Regulation of cyberspace may be unnecessary anyway since 
cyber-communities continually monitor themselves and have adopted 
an informal code of their own called "netiquette" (Rheingold, 1993, 64). 
When necessary, cyber-communities can enforce their own standards of 
conduct as, for example, when members of an unruly Usenet newsgroup 
decide to appoint a moderator, or when members of a "listserv" disci­
pline or even exile an aberrant fellow member. Such informal self-regu­
lation by cyber-communities is possible with regard to more scrious 
matters such as cybersmut. These new associations ought to be given a 
chance to develop and test their own rules and sanctions before govern­
ment attempts to impose what may be less appropriate ones. "An explo­
ration of the culture of cyberspace," writes Ethan Katsch (1995, 1692), 
"may suggest as much about the future role of the First Amendment as 
an analysis of cases and doctrine. At the very least, experiences in 
cyberspace, and the expectations and values fostered by this new envi­
ronment, should be examined along with judicial assessments of the rel­
evance of past decisions and experiences." 

Properly understanding the Internet is vital because "the shape and 
character of our nation's communications infrastructure is critical to our 
democratic values" (Berman and Weitzner, 1995, 1635). Early in our his­
tory, newspapers and the mail system helped to unite the nation. Later, 
television and radio brought Americans closer together. Today this role 
is being played by computers. Communication in cyberspace diffcrs from 
traditional modes of communication in that the Internet gives individu­
als an opportunity to be both producers and receivers of information. 
Whereas the mass media are a single source of information going to 
multiple receivers, and common carriers are a single source of informa­
tion going to either single or multiple receivers, the Internet permits com­
munication from the many to the many, thereby blurring the distinction 
in the communication process between reader and reporter. Further­
more, because the Internet is a means of communication cheap enough 
to allow access to virtually anyone, the influence of users is based not 

50 



1999 Commonwealth.max

upon their wealth ur status, i:U; Is su uftt:!ll the Ci:lt;!:! in the physical wurld, 
but upon their ability to make and disseminate reasoned arguments. The 
Internet thus offers citizens an opportunity to realize the democratic ideal 
of the town hall meeting by providing what could become a model of 
"civil and thoughtful discourse leading to consensual governance" 
(Branscomb, 1995, 1670). III this way, tht:! Illt!:!mt:!t hulus prulll!Se [or 
correcting some of the market failures of democracy, for democracy can­
not function effectively without citizens who are informed and indepen­
dent yet also connected to their fellow citizens. These are precisely the 
qualities that cyber-communities foster. 

Perhaps the most significant aspect of cyb,er-communities for demo­
cratic politics is that they can shield people from the tyranny of demo­
cratic majorities and the governments representing them. James Madi­
son and Alexis de Tocqueville recognized long ago that minorities are 
vulnerable in majoritarian democracies. In cyberspace, however, minori­
tit:!s afe free to form the!l own enclaves operating in anonymity outside 
the boundaries of physical jufisdictions, thus leading to a "world of self­
contained communities that cater to their own members' inclinations 
without interference with anyone else's" (Dyson, 1995, 27). eyber-com­
munities are becoming the key mediating institution of the computer 
age, providing a counterweight to and a check upon the power of terres­
trial societies and governments. In addition, the loyalties fostered by 
cyber-communities may help to restore the core notion of community in 
a world where physical proximity, familial relationships, and associa­
tional institutions like churches and work groups no longer easily forge 
bonds Ilmong people. As one defender of this new order puts it, "we 
now have within our grasp a technology designed to bring together like­
minded individuals, regardless of where they live, work, or play, to en­
gage in the creation of a new type of democratic community: a commu­
nity unbounded by geographical, temporal, or other physical barriers" 
(Branscomb, 1995, 1640). While there is no guarantee that new commu­
nications technology will continue the advancement of democratic val­
ues, because of the Internet we are closer than ever before to having a 
truly open, diverse, and user controlled "marketplace of ideas." 

As with any market, of course, some of the Internet's products, such 
as cybersmut, may not be considered desirable by all of the market's cus­
tomers, but banning them would not be worth the price paid in harm to 
First Amendment values as well as to the increasingly beneficial uses of 
computer communications. Achieving the lnternet's full democratic po­
tential requires judging it in the context of cyberspace rather than in the 
context of paradigms from the past, such as geographic commllnitiefl or 
print and broadcast technology. Traditional First Amendment doctrine 
must not be applied peremptorily to cyber-communities because 

51 



1999 Commonwealth.max

cyberspace is not simply an electronic version of "regular space." Admit­
tedly, "local community standards" ought to be enforced with regard to 
Internet obscenity, but these standards ought to be defined by ryher-com­
munities themselves, not by geographic communities that are essentially 
removed from and little affected by the problem. Since established modes 
of analysis are not readily transferable to cyberspace, more appropriate 
models must be found. Doing so requires reading the First Amendment 
in light of what Justice Louis Brandeis called "the progreils of sdence" 
(Olmstead '0. United States, 1928, 474), for ill the words ofThomas Jefferson, 
our greatest defender of democracy, "laws and institutions must go hand 
in hand with the progress of the human mind .... A:s new discoveries are 
made .. .institutions must advance also, and keep pace with the times" 
(Jefferson, 1905, 12). By thinking about the First Amendment in new ways 
for a new age, we can save it from being lost in cyberspace. 

Notes 
I 

1. Censorship involves two main categories of sexually explicit mate-
rial: obscenity and indecency. Obscenity is legally punishable, whereas in­
decency generally is constitutionally protected. When for purposes of 
clarity these two categories need to be differentiated, this study will do 
so. Otherwise, it will usc the rubric" cybersmut" to refer to a wide array 
of erotic products and services made available on the Internet with the 
intention of sexually arousing either their provider or those persons gain­
ing access to them. 

2. Neither the First Amendment nor the right of privacy protects" child 
pornoeraphy" (see NI'7JJ York 7), Ferber, 1982; and Osborne v, Ohio, 1990). 
Because the Supreme Court's reasons for allowing the punishment of 
such material differ from its reasons for allowing the pUnishment of ob­
I:>cenity generally, child pornography is not relevant to this study. 

3. A vague law is unclear about what it reaches; an overbroad law reaches 
too much. A law will be invalidated on grounds of vagueness if persons 
of "common intelligence must necessarily guess at its meaning and dif­
fer as to its application" (Connally v. General Construction Company, 1926, 
391). Under the overbreadth doctrine governmental objectives "lll,ay nol 
be achieved by means which sweep unnecessarily broadly and thereby 
invade the area of protected freedoms" (NAACP '0. Alabama, 1958). Rather, 
government must use narrow, carefully tailored means to achieve its ob­
jectives. 

4, Justice O'eoxmor filed a concurring opinion, joined by Chief Justice 
Rehnquist. Although she agreed that section 223d of the CD A was overly 
broad, she believed that section 223a could be applied constitutionally in 
cases of deliberate transmission of indecent material to minors where no 
adults are among the recipients. 

5. Hoping to address the Court's objections to the CDA, Congress 

52 



1999 Commonwealth.max

enacted in October 1998 the Child Online Protection Act (47 U .S.c.A. 231), 
which made it a crime for commercial Internet sites to make available to 
those under age seventeen material deemed "harmful to minors." This 
law was clearer and more narrow than the CD A in that it did not apply to 
all Internet users and targeted obscenity rather than mere indecency. 
Nevertheless, a federal judge blocked its enforcement on the grounds that 
like the CDA it had a "chilling effect" on constitutionally protected ex­
pression since the difficulty of verifying patrons' ages would force many 
non-obscene yet sexually frank Internet sites to censor themselves rather 
than risk prosecution (American Civil Liberties Union v. Reno n 1999). This 
ruling is currently pending before the Third Circuit Court of Appeals. 

6. The cornerstone of modern First AmeJ'"dment theory, the market­
place metaphor posits that free expression is valuable more for its soci­
etal benefits, such as the search for truth and the process of self-govern­
ment, than for its intrinsic worth to individual speakers. It assumes that 
truth will be most easily identified and falsehood most easily rejected if 
government stays out of the/marketplace (see Milton, 1951; Mill, 1956; 
and the dissenting opinion of Justice Oliver Wendell Holmes in Abrams 
v. United States, 1919). Deopite ito prominence, the marketplace iuca has 
its critics (see Schauer, 1982; and Ingber, 1984). 

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