First published on Urban Desires, 03/96.
So much has been said on the net and off, about Philip Elmer-DeWitt’s Time magazine cover story, “Cyberporn” (July 3, 1995), that I have little to add except this: as bad as the decision to use Marty Rimm’s methodologically worthless study was, the subsequent damage control was worse. Compare these two passages, both written by Elmer-DeWitt after it became clear that an inadequately fact-checked story had come to grace Time’s cover:
Some [network users] clearly believe that Time, by publicizing the Rimm study, was contributing to a mood of popular hysteria, sparked by the Christian Coalition and other radical-right groups, that might lead to a crackdown. It would be a shame, however, if the damaging flaws in Rimm’s study obscured the larger and more important debate about hard-core porn on the Internet.
and
I don’t know how else to say it, so I’ll just repeat what I’ve said before. I screwed up. The cover story was my idea, I pushed for it, and it ran pretty much the way I wrote it. It was my mistake, and my mistake alone. I do hope other reporters will learn from it. I know I have.
The first quote is from a Time followup three weeks after the original story (“Fire Storm on the Computer Nets”), the second is from the Usenet newsgroup alt.culture.internet. This was the worst aspect of the cyberporn debacle – Elmer-DeWitt, living in two worlds, exploited that difference in the two cultures rather than bridging them. For those of us on the net, he was willing to write simply and directly – “It was my mistake, and my mistake alone.” Off the net, however, his contempt for his readers leads to equivocation, “It would be a shame, however, if the damaging flaws…” In other words, his offline readers are not to know the truth about the decisions which went into making an unreviewed undergraduate study into a Time cover story.
This split between “us” and “them,” the people on the net and off, and what each group sees and thinks about online pornography, is at the heart of the debate about porn on the net. We are often not even speaking the same language, so the discussion devolves into one of those great American dichotomies where each side characterizes the other as not merely wrong but evil. I will have to confine my remarks here to the US, because that is where the Elmer-DeWitt article has gotten the most play – it was even entered into the US Congressional Record – and because his article frames the debate in terms of the First Amendment to the US Constitution, which guarantees the freedom of speech and of the press. This makes the debate especially thorny, because the gap between what most US citizens know about the First Amendment and what they think they know is often extreme.
Who’s On First?
The two sides of this debate are not what they seem. At first glance, the basic split appears to be between net-savvy libertarians who are opposed to government regulation of pornography on the net in any form, and anti-smut crusaders of all political stripes who want to use Federal regulations to reduce the net’s contents to the equivalent of a prime time TV broadcast. This is a false opposition – both of these groups are merely squabbling over details. The libertarians want no new laws ever, and the crusaders want strong ones now, but they share the same central conviction, namely that without new laws, the US has no legal right to control obscene material on the net which lies within its boundaries.
Both groups are wrong.
Obscene material on the net which is within the jurisdiction of the U.S. does not now and has not ever enjoyed the protection of the First Amendment. The Supreme Court was unambiguously clear on the right to regulate obscene material in Miller v. California (413 U.S. 15 1973), the landmark case which sets the current U.S. standard for obscene material. The ambiguity in that decision is in defining what precisely is obscene (about which more later), but once something is so declared, states may regulate it however they like, no matter what medium it is in.
Many people who have been sold on the net as a kind of anarchist paradise react badly to this news, arguing that since the U.S. has not bothered enforcing these laws on the net so far, it is unfair to do so now. Indeed, it probably is unfair, but the law concerning obscenity has little concerned itself with fairness. Prosecution for obscenity is almost never directed at an elite – as long as sexually explicit materials are not readily available to the general populace, the law has usually ignored them. Once they become widespread, however, both regulations and enforcement generally become much more stringent.
The Current Regulations
The most memorable thing ever said about “hard-core” pornography in the Supreme Court was the late Justice Stewart’s quote “I know it when I see it.” The force of this sentiment is so strong that although it no longer has anything to do with case law, more people know it than know the current Miller standard, which comes much less trippingly off the tougue. Miller does not define pornography per se, but rather “obscenity,” which is roughly the same as hard-core pornography. Material is obscene if it matches all three of these criteria:
1. The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; and
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.
Every phrase in that tri-partate test has been gone over with a fine-toothed legal comb, but it is the first part which is the oddest, because it introduces as a test for obscenity the legal entity “contemporary community standards.”
Which Community? What Standards?
“Contemporary community standards,” is a way of recognizing that there are different standards in Manhattan, New York and Manhattan, Kansas. Both “prurient interest” and “patently offensive” are considered local constraints. (The third test, for “serious literary, artistic, political or scientific value,” is taken to be a national standard, and most recent and notable obscenity trials recently have hinged on this clause.) The effect of these locally determined qualities is to grant First Amendment protection to materials which a community does not consider offensive. Put another way, with the “contemporary community standards” benchmark, pornography which is popular cannot be obscene, and pornography which is obscene cannot be popular.Obscene material on the net which is within the jurisdiction of the U.S. does not now and has not ever enjoyed the protection of the First Amendment. The Supreme Court was unambiguously clear on the right to regulate obscene material in Miller v. California (413 U.S. 15 1973), the landmark case which sets the current U.S. standard for obscene material. The ambiguity in that decision is in defining what precisely is obscene (about which more later), but once something is so declared, states may regulate it however they like, no matter what medium it is in.
Many people who have been sold on the net as a kind of anarchist paradise react badly to this news, arguing that since the U.S. has not bothered enforcing these laws on the net so far, it is unfair to do so now. Indeed, it probably is unfair, but the law concerning obscenity has little concerned itself with fairness. Prosecution for obscenity is almost never directed at an elite – as long as sexually explicit materials are not readily available to the general populace, the law has usually ignored them. Once they become widespread, however, both regulations and enforcement generally become much more stringent.
The Current Regulations
The most memorable thing ever said about “hard-core” pornography in the Supreme Court was the late Justice Stewart’s quote “I know it when I see it.” The force of this sentiment is so strong that although it no longer has anything to do with case law, more people know it than know the current Miller standard, which comes much less trippingly off the tougue. Miller does not define pornography per se, but rather “obscenity,” which is roughly the same as hard-core pornography. Material is obscene if it matches all three of these criteria:
1. The average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; and
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.
Every phrase in that tri-partate test has been gone over with a fine-toothed legal comb, but it is the first part which is the oddest, because it introduces as a test for obscenity the legal entity “contemporary community standards.”
Which Community? What Standards?
“Contemporary community standards,” is a way of recognizing that there are different standards in Manhattan, New York and Manhattan, Kansas. Both “prurient interest” and “patently offensive” are considered local constraints. (The third test, for “serious literary, artistic, political or scientific value,” is taken to be a national standard, and most recent and notable obscenity trials recently have hinged on this clause.) The effect of these locally determined qualities is to grant First Amendment protection to materials which a community does not consider offensive. Put another way, with the “contemporary community standards” benchmark, pornography which is popular cannot be obscene, and pornography which is obscene cannot be popular.
Back to the Marty Rimm study. The study, and Elmer-DeWitt’s treatment of it, were designed to play on the hypocrisy which surrounds most of the debates on pornography, where people profess to be shocked – SHOCKED – that such filth is being peddled in our fair etc., etc. The tenor of this debate is designed to obscure what everyone knows about pornography: many people like it. Furthermore, the more anonymously they can get to it, the more they will consume. (Increased anonymity also seems to be a factor in increasing use of pornography by women.) This is a pattern we have seen with the growth of video tapes, CD-ROMs and 1-900 numbers as well as on the net.
That many people like pornography seems self-evident, but the debate is usually couched in terms of production, not consumption. The ubiquity of pornography is laid at the feet of the people who make and distribute sexually explicit material: they are accused of pandering, of trafficking in porn, even of being pushers, as if the general populace has some natural inclination not to be interested in erotic stimulation, which inclination is being deviously eroded by amoral profiteers.
The net is the death knell for this fiction, and the anti-smut crusaders are in terror lest the law take note of this fact.
We are so comfortable with the world of magazines and books and video tapes that we often fail to notice the differences between data in a physical package, which has to exist in advance of a person wanting it, and data on the net, which does not. Physical packages of data have to be created and edited and shipped and stored and displayed, all in the hopes that they will catch someone’s eye. Data on the net, in contrast, only gets moved or copied when someone implicitly or explicitly requests it.
This means that anyone measuring net pornography in terms of data – bandwidth, disk space, web hits, whatever – is not measuring production, they are measuring desire.
Pornography on the net is not pushed out, it is pulled in. For a million people to have a picture of Miss September, Playboy does not have to put a million copies of it on its Web site; it only has to place one copy there and wait for a million people to request it. This means that if there are more copies of “Blacks with Blondes!!!” than “Othello” floating around cyberspace, it is because more people have requested the former than the latter. Bandwidth measures popularity.
You Can See Where This Is Going
The legal effects of demonstrating porn’s popularity on the net may well be precisely the opposite of what the anti-smut crusaders believe they will be. If they can truly demonstrate that pornography is ubiquitous on the net, it will be much harder to regulate under current case law, not easier. In particular, if the net itself can be legally established as a “community,” whose contemporary standards must be consulted in determining obscenity, all the hype will likely mean that it will become difficult to have much net porn declared obscene under Miller.
This notion of the net as a community is not as far-fetched as it sounds. There is a case winding its way through the courts right now where a California man, Robert Thomas, running the “Amateur Action BBS” out of his home, was convicted for violating the community standards of Memphis, Tennessee, where his images were downloaded by a postal inspector trying to shut his BBS down. Part of the defense is the question of which community’s standards should be used. If the verdict is ultimately upheld, every community in the country will have the same standards for net porn as Memphis, because any BBS in any other U.S. jurisdiction can be reached from Tennessee by phone. If the verdict is overturned, no community anywhere in the U.S. will be able to regulate obscenity any more stringently than the most permissive community that has a porn-distributing BBS. If the net itself is found to be a non-geographic community, then there will be two sets of laws, one for people with modems!
and one for people without.
The Likeliest Casualty
In any case, the likeliest casualty of this case and others like it will be Miller itself. The very notion of contemporary community standards resonates with echoes of Grovers Corners, of a tightly knit community with identifiable and cohesive values. Communities like that, already mostly a memory in 1973, are little more than a dream now. The original Miller descision, which was 5-4, has held together mostly because the challenges raised to individual materials have usually focussed on the idea that the works in question had some serious value (e.g. the Mapplethorpe photos trial in Cinncinnatti.) Sometime in the next couple of years however, Miller is going to run directly into a challenge to the idea of local control of a non-localized entity like the net. The result will likely be the first obscenity law geared to 21st century America. Watch this space.