The concern over child access to online porn has produced recent efforts to regulate the content of the Internet. Two recent congressional efforts were the Communications Decency Act (CDA) and the Child Online Protection Act (COPA). Both of these efforts have been held unconstitutional by the courts, but that does not mean that the Internet is free for you to post pictures of any sexual act that floats your boat. Certain types of pictures are illegal by statute, like child pornography. That is a pretty easy standard to follow: don’t post pictures of naked children, and you don’t go to jail. A more amorphous standard is the one that governs obscenity.

An obscenity, according to the U.S. Supreme Court in Miller v. California, is "any depiction, description, portrayal, etc.  of a sexual nature that a member of the community where the prosecution arises, when applying the contemporary standards of the community, would find that it appeals solely to the prurient interest, depicts or describes in a patently offensive way sexual conduct defined by state law as obscene, and that the work lacks serious artistic, political, or scientific merit."  This multi-faceted mouthful is complemented by the real kicker of obscenity: Obscene speech, as opposed to regular ol’ pornographic speech, is not protected by the First Amendment. The U.S. Supreme Court has recognized this exclusion since the 1950s. Thus, when you "speak," (broadly to include looking at nudie pics as well as political commentary) online or on the corner, you had better not be "speaking" in obscene terms.

The problem created by this legal scheme is that obscenity has a subjective definition that varies from community to community. Thus what might be tolerated in Austin, Texas, might not be tolerated in Muleshoe, Texas, even though they both use the same state statutory definition of obscenity. This result stems from the fact that the statute defines obscenity vaguely as being basically lewd and tasteless depictions of sex. It does not expressly prohibit certain types of pictures. For example, it does not say, "Pictures of humans copulating with sheep are obscene." Though that statement seems like a forgone conclusion, and it is probably always the case that someone with bestiality pictures would be convicted of peddling obscene material, the problem with specific prohibitions is that they could create equal protection problems.

Imagine a statute that said,  "No pictures of two guys engaging in oral sex." This would mean that gay folks could not look at pictures of homosexual activity, whereas straight folks could look at pictures of a man and a woman getting it on orally. Hence, there would be a double standard: pictures of oral sex are legal if they show a man and a woman, but illegal when they show two guys. The lack of specificity under the state statutes thus allows an offended community the flexibility to find something obscene on an ad hoc basis, without equal protection concerns coming into play, because there is no legal right to possess obscenity.

If you ever find yourself in a place like Muleshoe on trial for obscenity, your nudie pics will be judged by the jury drawn from that community. This is how trials work: the judge is the "finder of law," which means she lays down the applicable legal standard (the one from Miller mentioned earlier), and the jury is the "finder of fact;" they determine if what happened rises to the applicable legal standard. Thus, the jury in an obscenity case holds your nudie pics up and applies the community’s obscenity yardstick. If it is not quite lewd, lascivious, and tasteless enough, it is non-obscene and thus protected under the First Amendment and Texas Constitution’s guarantee of free speech. If it does measure up, however, you are peddling an obscenity in derogation of the law, and you can wind up in jail.

The administration of obscenity law made perfect sense in the era before the information age. If you had a collection of nudie books you were selling in Muleshoe, you had to be in Muleshoe to sell them. This meant that you could be expected to know what the good people of Muleshoe would find obscene because you were there in Muleshoe interacting with the community in some fashion. But with the Internet, you do not even have to know where Muleshoe is on a map to distribute potentially obscene material to its residents. So, could you still get in trouble?

One couple in California did get into such trouble. In 1991, the Thomases began an adult entertainment BBS based out of their northern California home. All was well and good for their little cottage industry until 1993, when a U.S. postal inspector in Memphis, Tenn. got wind of the fact that people in Tennessee could look at the Thomases’ California nudie pics via the Internet. This discovery ultimately led to the prosecution of the Thomases in Tennessee for peddling "smut." Just as an aside, the smut in question involved images depicting beastiality, incest, and oral sex. Again, the first two are obvious candidates for the obscenity label in any community; the last one, however, might be thought of by some as crude, but not obscene. One would assume this to be the prevailing view in northern California and, likely, in Memphis.

The Sixth Circuit Federal Appeals Court reviewed the case of U.S. v. Thomas in 1995 and upheld their conviction for peddling obscenity. Basically, the Court treated the pictures' distribution over the Internet as distribution through the mail. It did not matter that the material seemed to be okay in California, and the Thomases were not also prosecuted there since the community that had been violated was in Tennessee. The Thomases knew that they were sending graphic sexual material to Tennessee because they required the address of each subscriber. As such, they knew they were sending "smut" to Tennessee and were at risk of violating that community’s obscenity standard.

In all fairness, the Thomases' case does look a lot like the traditional "go-to-the-pokey-for- mailing-smut-to-someone" case. This, of course, then raises the question of whether it is appropriate to punish people for engaging in expression that is to others objectionable. Clearly, the Thomases would not have been punished for providing their BBS subscribers with Miller’s Tropic of Cancer (which features explicit descriptions of sex), Nabokov’s Ada, or Ardor (dealing with incest) or Lolita (which deals with pedophilia, and was however, the subject of recent controversy surrounding the release of a new film adaptation). Clearly, those works of literature cater to more than the prurient interest. But there is no way you can hold a yardstick to a book or a picture and say it is art and another is smut. Artistic sensibilities do not lend themselves to such easy objective standards.

The same is also true for much of life. You can’t just sort things based on a list of criteria that you check off as something passes or fails each test. Another example of this is organizations that provide services related to sex, like Planned Parenthood or Women-oriented publications, many of which where the ACLU’s plaintiffs in the CDA case.

It should be noted that there has not been a court case yet that addresses whether a community’s obscenity standard applies to a web site which is accessed anonymously by a member of that community. If a notice that someone from the community is viewing your page proves to be the litmus test for applicability, then such Webmistresses or Webmasters should be okay. But, if awareness of the fact that someone from a more gentile community could view your page is enough, things could get hairy for all the porn sites out there.