Well, I want to start this post out with a blatent plug for one of my favorite political/technology websites: The Technology Liberation Front (warning: major libertarian bent and I don’t necessarily endorse all of the opinions expressed by the website). They just had a really interesting post recently on some recent legal developments affecting the government’s interpretation of obcenity law. For those of you who do not know, the government has previously ruled that the First Amendment doesn’t uphold certain forms of obscenity like pornography. For a while, the government wrestled with these legal questions (with one Supreme Court justice jocularly remarking that they may not be able to define pornography but they “know it when they see it.”) Eventually, however, they realized that the Federal court would not be able to come up with comprehensive federal rules regulating obscenity, so they basically said that “community standards” would determine what was obscene and what had artistic or cultural merit.
How are these rules applied to the Internet? After all, Internet communities have their own standards, so shouldn’t we therefore judge obscenity using the standards that Internet communitites use? However, the legal system basically relies on definitions of jurisdiction that are still overwhelmingly based on physical location, with a recent court saying that you can be prosecuted for obscenity if the content you produce online is judged obscene in ANY COMMUNITY that downloads it.
What does this mean for you? Well, the MOST restrictive communities in terms of tolerance for certain types of content can now essentially dictate what content is illegal in the country as a whole. Now, I personally think that the current obscenity rules are silly, because the government is essentially claiming that certain content is illegal while making almost no effort to curb the most egregious abuses in modern media. The original court case involving obscenity was concerned a movie that would not be prosecuted under the laws today. But what is the source of this contradiction? Are governments simply responding to changing social standards under which most forms of violence and sex in the media are allowed? Have governments simply given up the fight against obscenity because technical and legal challenges make it basically impossible for them to stop the distribution of obscene content? Or would more willpower allow the government to challenge the degrading and debasing information, pictures, and video that seem omnipresent on the Internet? What do you think?
4 responses so far ↓
hzty // 9 February 2010 at 12.36 pm
Thanks for linking to this site; they have a lot of strong/interesting opinions.
The legality of the internet is one of the biggest issues that I think we’ll face. I think what complicates the issue even more is that the internet isn’t even just within the USA. Can you judge someone as obscene if they’re in another country?
I think some of the laws are in place not to be exercised but just so that the government has the option of exercising them (like rules about downloading music; can you imagine if the RIAA sued every person who had ever downloaded music?). When it comes to obscenity I feel like the government is just trying to cover all of its bases since it’s not sure what the future of the internet will look like. Of course, that’s also completely overlooking how this may infringe on our personal freedom.
Annie // 9 February 2010 at 1.33 pm
I think this is a really compelling issue we’re facing today in our world. Is the internet really a realm of free speech? Or is speech regulated and controlled in forums and communities all over the web? Is this a natural way of trying to curb awful conversations from occurring (rape, racism, sexism, etc., etc…)? Or is it limiting our freedom of speech?
starki09 // 9 February 2010 at 2.58 pm
I’m not sure how on topic this is, but since I started working at KSPC (the 5C radio station) I’ve been thinking a lot about obscenity and FCC regulations in particular. The radio is already VERY strictly restricted to what it can broadcast and as a non-commercial station, KSPC is regulated even more strictly (i.e. We can’t play songs mentioning excretory or sexual organs or functions or any other foul language before 10 pm (and even then it can’t be “obscene”), we can’t express our political opinions, we can’t tell people to check out a CD or Concert unless it is legally not-for-profit, etc…). In addition to this the fines for violations are EXTREMELY steep (Minimum $7,000 fine for obscenities PER UTTERANCE). Imagine if the internet were regulated in the same fashion? How much would that suck?
JNakatomo // 9 February 2010 at 3.55 pm
@hzty: Great post! I’m afraid I don’t have much substantive to add to what you wrote, but I will say there is one difference between obscenity and copyright infringement: the government’s focus has been on attacking providers and not consumers. Thus, the government’s job is slightly easier in that it can focus on the sites providing this material and not the (many?) users accessing this obscene content.
@annie: Just to clarify, the government’s attention in obscenity trials has always been directed at extremely violent or sexually explicit pictures/videos. However, they apparently did prosecute one women who simply posted textual stories on her website, so it will be interesting to see if Obama’s administration continues to hold that text can be obscene.
@starki09: It’s interesting to compare the FCC’s more draconian approach with the more laid back approach that the government has taken with the Internet. I can think of several reasons for the differences that you describe: 1) the radio waves and television spectrum are seen as “commonly owned,” while the backbone of the Internet and even some of the major regulatory agencies (ICANN) are not government-owned, 2) media concentration and the fixed nature of the spectrum made it MUCH easier for the FCC to process complaints, and 3) it is much easier to hear obscene content on the radio accidentally than to accidentally see Internet content. While the third point is somewhat controversial, I think the availability of computer filters and tools limiting computer access have dampened the drive for content regulation on the Internet.