by J. Mason Kjar*
I. The Conflict Between Free Speech and Obscenity Law
The First Amendment’s guarantee of free speech protects a lot of material from censorship and criminalization, including erotic material. Thus, it is completely legal to both possess and distribute pornography publicly, so long as certain basic guidelines of age, location, or time are met.[i] Laws against obscenity, however, have circumscribed the guarantee of free speech.[ii] Thus, when pornography is deemed legally obscene, any distribution to the public faces stiff criminal penalties, regardless of whether it is legal to own in the privacy of one’s own home. For the sake of clarity, the common forms of pornography showing nudity and fornication are not categorized as obscene. Instead, obscene pornography typically refers to pornography that uses violence, rape, murder, feces, vomit, or urine as part of the sexual narrative.[iii]
II. Who Gets to Define Obscenity on the Internet?
So, herein lies the rub: who gets to determine when pornography is “obscene” and is thus subject to criminal sanction? The most prudish of society might claim that mere nudity is legally obscene. On the other hand, the most desensitized or free-speech-loving might claim that every form of pornography should be protected, including material that shows acts that are themselves illegal (e.g. child pornography, or rape/murder pornography). So, on the spectrum of what is obscene, where do we draw the line?
In the past, and with regard to all traditional media (such as mail, radio, and television), the Supreme Court has ruled that each localized community gets to dictate its own standards for when erotic material is too obscene to be allowed in that community.[iv] Thus, each state or geographic locality is allowed to have either restrictive or liberal standards for what kind of extreme pornography is allowed in that geographic area. The rationale for this rule is that because each publisher of pornography can control where the pornography is distributed (e.g. the power to control into which states he or she mails DVDs), the publisher is responsible for knowing which states will tolerate the content as free speech, and which states will impose sanctions for criminal distribution of obscenity.[v]
But, the Supreme Court’s rule giving local communities the power to decide obscenity cases does not extend to the Internet. Instead, the Justices have conflicting opinions because they were troubled that publishers of online pornography did not have the same power they had in traditional media to limit the distribution of their content to one state or another.[vi] This lack of direction on how to determine obscenity online leaves a gaping hole in obscenity jurisprudence.
III. Two Circuit Courts of Appeals Have Split Over Who Gets to Define Obscenity on the Internet
With the advent of more extreme content on the Internet, and with more zealous attempts by law enforcement to stop the online distribution of content that is illegal in traditional media,[vii] the Circuit Courts of Appeals have faced more and more difficult obscenity cases. Recently, the Ninth and the Eleventh Circuits have split over how online obscenity is defined.[viii] Relying on the Supreme Court’s ruling in traditional media cases, the Eleventh Circuit held that local communities in the geographic area where the material was downloaded get to determine whether the material is criminally obscene.[ix] In contrast, the Ninth Circuit held that due to the lack of geographic control over online content, a national community should determine whether the material is criminally obscene, and not just local cities or states.[x]
These split rulings drive at the very heart of the Internet’s powers of global distribution. If the Eleventh Circuit’s ruling holds, then distributors of extreme online pornography might be haled into courts in far-removed jurisdictions into which they never intended to distribute obscene pornography.[xi] On the other hand, if the Ninth Circuit’s ruling holds, then each case of obscenity will require the factual determination of what a “national standard” is: including whether it is the average of the 50 states, whether it is the most tolerant of the 50 states, how many persons need to be included in that national pool, etc. This would be a logistical nightmare.[xii] Moreover, the Ninth Circuit’s ruling risks forcing the most extremely prudish or liberal communities into the uncomfortable compromise of either allowing or criminalizing online material that would be otherwise criminalized or allowed in traditional media.[xiii]
IV. Geotargeting Resolves the Underlying Issues Behind the Court Split
Reasonable people can debate about whether a local or national standard should apply to the Internet. The Ninth Circuit chose the national standard, as least in part, because publishers did not have the power to geographically target specific states and avoid others. Since the Court’s decision, technology has provided a tool that resolves the debate: geotargeting.
Simply put, geotargeting finds (within a few miles accuracy) where you are located in the real world. When you access the Internet, you do so by contacting a local Internet service provider (ISP). Your ISP then contacts servers that host online content. Geotargeting software located on the host servers then identifies the physical, real-world address of your ISP, and then transmits that information to the various parties interested in finding your geographic location. Using that information, and assuming you accessed a nearby ISP, the host servers can then display targeted ads, or even deny you access entirely.[xiv]
Geotargeting creates borders on the previously borderless Internet, allowing publishers of content to specifically target geographically localized communities.[xv] It is used regularly and pervasively in the industry. For example, search engines and online advertisers use geotargeting to provide search results and ad placements that are localized to where you live.[xvi]
Geotargeting software is increasingly available, including many free options that are easily deployed.[xvii] Many websites are now using geotargeting to limit users by geographic area, including such well-known resources as the BBC (which only allows certain content to be viewed by residents inside the U.K.).[xviii] Thus, providers of online content now have a tool by which they can wield the same geographic control they have in traditional media, and can specifically target (or block) certain states.
V. A Proposal to Extend Traditional Obscenity Law to Online Content
Now that online publishers have the power to control their audience based on real-world geographic location, the Court can now comfortably extend obscenity law from its traditional roots in mail, radio, and television into the new Internet medium. Only a few wrinkles remain to be ironed out, such as what to do with the portion of the Internet users that circumvent the geotargeting software, or what to do when the user’s real-world location is inaccurate. But exceptions to the law can be included, such as exempting an online publisher from liability if he actively blocked a given state using geotargeting software, or if the user actively circumvented the publisher’s geotargeting software.
Ultimately, uniformity in obscenity jurisprudence will leave publishers and users alike with the assurance of predictability in the law. Through geotargeting, the Court has the chance to treat online speech the same as it is treated in all other media.
* © 2010 J. Mason Kjar, J.D. candidate, May 2012, S.J. Quinney College of Law at the University of Utah. For a more detailed treatment of this topic please see J. Mason Kjar, 2 Standards 1 Cup: How Geotargeting Will End the Battle Between National and Local Obscenity Standards, Case W. Res. J.L. Tech. & Internet (forthcoming 2012).
[i] Erznozni v. City of Jacksonville, 422 U.S. 205, 206, 213–14 (1975) (allowing a nude film to be broadcast where the public may see it, even considering the risk to children, traffic, or offended persons); see Jenkins v. Georgia, 418 U.S. 153 (1974) (holding that mere nudity is not obscenity).
[ii] Roth v. United States, 354 U.S. 476, 485 (1957) (“We hold that obscenity is not within the area of constitutionally protected speech or press.”); 18 U.S.C. §§ 1460–70 (criminalizing the distribution of obscene material).
[iii] See, e.g., United States v. Extreme Assoc., 431 F.3d 150, 151 (3d Cir. 2005), cert. denied 547 U.S. 1143 (2006) (finding the publishers of extremely graphic pornography videos depicting the rape and murder of three women by a serial killer guilty of distributing obscenity); Criminal Complaint at 3–15, United States v. Croce, No. 6:06-mj-01337-DAB (M.D. Fla. Sep 5, 2006), ECF No. 1 (charging Danilo Simoes Croce, publisher of videos depicting actors who defecated, ingested, and vomited of feces while nude and engaging in sexual acts, with distributing obscenity).
[iv] Miller v. California, 413 U.S. 15, 30–34 (1973); see, e.g., Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 124–25 (1989) (involving obscenity charges against a “dial-a-porn” telephone operator, and stating “[t]here is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others.”)
[v] Miller, 413 U.S. at 34; see also Sable, 492 U.S. at 125–26 (“If Sable’s audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages.”).
[vi] Compare Ashcroft v. ACLU, 535 U.S. 564, 583 (2002) (Thomas, J., plurality opinion) (“While Justice Kennedy and Justice Stevens question the applicability of this Court’s community standards jurisprudence to the Internet, we do not believe that the medium’s ‘unique characteristics’ justify adopting a different approach than that set forth in Hamling and Sable [i.e. using local community standards].”), with id. at 594–96 (Kennedy, J., with whom Souter, J., & Ginsburg, J., join, concurring in the judgment) (noting that applying a local standard in prior media was tolerable because publishers were able to target their audience geographically, but stating that a local standard with inevitable variation among the nation’s communities presented a “particular burden on Internet speech”).
[vii] Clay Calvert, Judicial Erosion of Protection for Defendants in Obscenity Prosecutions?: When Courts Say, Literally, Enough is Enough and When Internet Availability Does Not Mean Acceptance, 1 Harv. J. of Sports & Ent. L. 7, 8–12 (2010)
[viii] See, e.g., United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009); United States v. Little, 365 F. App’x 159 (11th Cir. 2010).
[ix] Little, 365 F. App’x at 166.
[x] Kilbride, 584 F.3d at 1244–45.
[xi] Cf. Matthew Towns, Note, The Community Standards of Utah and the Amish Country Rule the World Wide Web, 68 Mo. L. Rev. 735, 740–43 (2003) (explaining how under a local standard online speech would be chilled by giving the least-tolerant community a heckler’s veto).
[xii] See Miller, 413 U.S. at 30 (“[Community standards] are essentially questions of fact, and our Nation is simply too big and diverse for this Court to reasonably expect that such standards could be articulated for all 50 States. . . . [T]o structure obscenity proceedings around evidence of a national ‘community standard’ would be an exercise in futility.”).
[xiii] See John V. Edwards, Note, Obscenity in the Age Of Direct Broadcast Satellite: A Final Burial for Stanley v. Georgia(?), a National Obscenity Standard, and Other Miscellany, 33 Wm. & Mary L. Rev. 949, 992 (1992) (explaining that a national standard “compromis[es] the interests of both the least tolerant and the most tolerant communities”).
[xiv] See Matthew Nelson, Utah’s Trademark Protection Act: Over-Reaching Unconstitutional Protectionism or Decisive Clarifying Legislation?, 2007 Utah L. Rev. 1199, 1214 (describing the basics of geotargeting).
[xv] Dan Jerker B. Svantesson, Geo-Location Technologies and Other Means of Placing Borders on the ‘Borderless’ Internet, 23 J. Marshall J. Computer & Info. L. 101, 101 (2004).
[xvi] See Bob Tedeschi, Borderless is Out, N.Y. Times, Apr. 2, 2001, at C.10; see e.g., Geotargeting, Google.com, http://www.google.com/support/webmasters/bin/answer.py?hl=en&answer=62399 (last visited Mar. 21, 2011) (describing how advertisers can use Google’s geotargeting tools to increase their exposure to users in a specific geographic area)
[xvii] See, e.g., IPInfoDB, http://ipinfodb.com (last visited Mar. 21, 2011); GeoPlugin, http://www.geoplugin.com (last visited Mar. 21, 2011); MaxMind’s IP Intelligence Solution, MaxMind.com, http://www.maxmind.com/app/ip-locate (last visited Mar. 21, 2011); cf. Randall Munroe, GeoIP, Xkcd.com, http://xkcd.com/713 (last Mar. 21, 2011) (providing a humorous spin on how the GeoIP database is used to assist Internet advertisers to target their audience).
[xviii] Maria L. Montagnani, A New Interface Between Copyright Law and Technology, 26 Cardozo Arts & Ent. L.J. 719, 762–63 (2009).