In the last couple of months, we in the US have had 3 major lawsuits dealing with obscenity. For some people it's not an issue, they either don't create erotic works, or they are distinctly 'safe' in what they do create. For other people, this ranges from worrisome to terrifying.

The Supreme Court's 1973 ruling in Miller v. California sets out a 3 part standard for ruling content obscene:

1. an average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
2. the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and
3. the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Most frightening about this in conjunction with the internet is the fact that law officials have not only stated they have jurisdiction over the entire internet, but they've actually enforced it. Looking back to 2005 we have a Florida Sheriff quoting (Sheriff Judd as quoted in the Online Journalism Review)

"This might be the first [case we've dealt with] where the alleged server is out of the country," Judd said. "But it makes no difference, because if you fed that server or you could receive information off that server in this county, then it gives us jurisdiction. ... Technically I could charge someone in Kansas, if I received child pornography here, obtained a warrant and had him extradited from Kansas and tried here."

This is in the case of Chris Wilson, who was sued for obscenity in Polk County FL. While Mr. Wilson did live in Polk county at the time, Judd's comments make it clear that he, at least, has no doubt that the only community standards which apply are those in the community of the viewer.

While prosecutions for obscenity are rarer in the present Bush administration than they were in the his father's, prosecutors have often taken to upping the ante by tacking on RICO charges. Arguing the rather convoluted point that producing & marketing materials that might in the future be declared obscene (but aren't legally obscene until then) is engaging in a conspiracy to commit a felony.

The current example in point is Clinton McCowen's case in Florida. The charge is that 'bukkake' photographs, as posted on the website, are obscene. Take it as you will, the argument is that the manufacture & presentation of these photographs - which at the time of the photography have not been declared 'obscene', and in fact may never be - constitutes a conspiracy.

The obvious problem with this argument is that both the first and second portion of the Miller test are flexible. There are several states where the sale of a dildo is a criminal offence - notably Alabama instituted a new one at the turn of the century. Were Alabama to further it's stance that "No one cares a hoot about what they do [in the privacy of one's bedroom.]" - as quoted by the measures author State Sen. Tom Butler - and make possession of a dildo a crime, then every photograph showing a dildo in use would fall afoul of the 2nd part of the Miller Test.

Does this mean that every website dedicated to insertion pictures is now engaged in a mass conspiracy of obscenity?

Worse still is that the first test in the Miller Test - is hopeless. Utah has a reputation for being quite straight laced when it comes to their morals. Knowing several people from Utah, it is both a well deserved and totally false reputation. Like Boston's Pilgrim immigrants, the appearance of propriety and morality is often a thin shell covering a lot of repressed sexuality. In Boston's case, it resulted in an entire day every month for paternity court. In Utah, a 2000 court case in Provo revealed that people in Provo UT were not only renting exactly the same movies they were trying to declare obscene, they were renting them in substantially larger numbers than the national average.

This specific example shows exactly how dangerous a 'community standard' yardstick is. Not only were people in Provo UT secretly consuming mass quantities of porn, their elected officials were blithely arguing that it was an affront to the communities standards to make it available. In his blog, Lawrence G. Walters addresses the other side of the issue: that people often act & behave much more prudishly in public than they really are. This falls back to what sex researchers generally joke about: everyone lies about sex, and the ones who don't - are.

Essentially, once an obscenity case is brought, they are almost always won because the jurors will often rate something as offensive to the community standard, even if they themselves don't find it offensive. Usually, only when presented with large bodies of evidence that people in fact are consuming the type of porn involved will juries acquit. There are obvious problems with this - first off, it is not the defences job to prove innocence. The burden of proof should lie with the prosecution. It is they who should be required to prove what exactly the community standard is.

Setting aside the question of who should be providing proof, the second problem is - how do you prove what the community standard is? In Utah it was done by showing the volume & type of of porn movies being rented in secret. Often it is done by trying to get merchants to identify the type & volume of sexually oriented materials they sell. Obviously, most merchants who deal in sexually explicit material aren't exactly thrilled about the idea of getting dragged into the middle of an obscenity witch hunt.

In Florida, the defendant in the McCowen case was trying to use Google Trends - an advertising aid which can be used to break Google keyword searches down into regional areas, thus showing how often specific keywords are being used in specific regions. Unfortunately for us, this case was just settled without ever having a chance to show just how effective this would be as a tool in showing what the standards actually are where it counts for web publishers - at home, in private, and in front of the computer.

In short, Justice Potter Stewart's "I'll know it when I see it" definition of 'Obscene' has never worked for a country as diverse as the US. Now in the Internet age, it is not only broken, it's damaging. In 2001, Barbara Nitke sued the US govt over the CDA claiming that the Miller Test applied to the CDA chilled her First Amendment Rights to free expression through her photographs. The reasoning to her argument is that given the thousands of 'community standards' throughout the US, only by playing to the least common denominator can she be certain of not being charged with obscenity.

In that case, the Supreme court refused to hear the case after a 3 judge panel for the Federal District Court ruled against her based not on the chilling effect of the law and not on the inability to regulate which communities to which a website was made available, but rather on the fact that Nitke was unable to present sufficient evidence of what is available on the internet that might be obscene in one community but not in another. It is also noted that they did not present any information on what level of evidence would be sufficient or what type.

By today's Miller Test, the only way to see if something is obscene is to have an obscenity trial - was the district court honestly suggesting that we hold an obscenity trial in every courthouse in the US judging randomly selected websites in order to determine if there is in fact sufficient variance in 'community standards' to warrant actually judging the CDA on the merits of the chilling effect?

As that cannot possibly be the desired level of proof, why don't we just admit that the Miller Test is not viable when the producers of erotic material cannot restrict the area of distribution. The other option is to create an actual standard against which people can actually measure their works. This option is also fraught with danger as it creates a line in the sand which cannot be moved without retracing all of the steps which we have so far taken - this time against the weight of a clear guideline.

Ideally, the government will get out of the job of legislating morality. I place the likelihood of that somewhere between me winning the lottery & my discovering cold fusion while farting the the bathtub. Where do we go? I'm not sure. What I do know is that where we are now is not a tenable position. The definition of what is & is not going to be obscene is changing all across the US every day based on the whims & fancies of people half a country a way whom we have never met or voted for. This is not a recipe for orderly society, it is the very definition of anarchy.