Federalizing or Eliminating Online Obscenity Law As an Alternative to Contemporary Community Standards

Abstract

Regulating online obscenity by geographically determined local community standards imposes high burdens on content providers serving wide audiences to know multiple, vague local standards. In addition, because controlling geographic distribution of explicit content online is not practical, standards of the least tolerant community would likely prevail, limiting content available nationally. A national standard, though preferable to multiple local standards, raises definitional and constitutional questions; if it is a national average standard, it would restrict material acceptable in communities with above average tolerance, resulting in some overbreadth. Alternatively, a minimal national standard would eliminate overbreadth by embracing only what would be considered obscene throughout the nation. However, established First Amendment principles favoring individual autonomy and self-realization, and the conception of community morality as unenforceable that the Supreme Court of the United States recently endorsed in Lawrence v. Texas, point toward elimination of obscenity law entirely.

Keywords: obscenity, law, internet, sexually explicit content, federalism