Judging Community Standards
William Saletan has a story in Slate about community standards.
It seems a defendant charged with purveying obscene materials on the internet is arguing that the state cannot meet its burden to show that he violated “contemporary community standards.” The relevant standard, he argues, is what people do on the internet. His defense lawyer explains that residents of
Saletan makes some good points, and shuns the cheap argument about hypocrisy.
We’re all hypocrites. We want our kids to avoid the mistakes we’ve made and to become better people than we are. We also want improvement from ourselves. Morality’s purpose is to prescribe, not describe. It aspires to something better than our current behavior.
Well said. There are distinctions – appropriate ones – between what we think, what we do in private, and how we behave in public.
The Internet has confused these distinctions. Now the private you can sneak around the semi-private you and become semi-public. Your fantasies are no longer confined to your head. They’re visible, in the aggregate, on Google Trends.
But a marketing consultant I know takes a different approach. He says comparing the Google statistics on “orgy” and “watermelon” proves something quite different.
The people are searching Google for “orgy” not because the community is obsessed with porn, but because porn is not readily available in public, while watermelons are, in fact, readily available, and do not need to be found online. In other words, the community standards are very much anti-porn, which is why a few folks not in step with community standards are looking in other places for things most of their local community shuns.
He has a point. The internet seems to be part of our private lives – a place where you can indulge certain urges that you might suppress in polite company. The defendant, however, was not distributing materials on the streets or at the Rotary Club. He was operating in the very un-polite world of cyberspace.
In fact, I think there is another community that needs to be acknowledged, and that is the community (or “sub-community”) you might find in the porn shops and strip clubs. Naturally I claim no particular expertise here, but the sex industry is multifaceted and brings with it other undesirable elements: crime, economic decline, personal degradation, and college professors. People who search for “orgy” on the internet may well be opting to consort with a cyber community that they find more palatable than the warm flesh congregated in the adult video store. The internet has removed one of the biggest deterrents to buying porn: standing in line at the cash register.
But I come back to Saletan’s point: “Morality’s purpose is to prescribe, not describe.” The law currently favors mere description, and this obscenity case will be decided on the basis of how the community is described. In the end, the community will get not what it wants, but only what it already has. The fact that the community may pass laws that aspire to a higher standard will be disregarded as the courts rush to the defense of any obscenity that gains a toehold.
