Section: Comments

1. The "patently offensive display" provision of the CDA defined "offensive" in a way that was limited to matters "sexual or excretory."

   Consequently, it does not apply to other forms of offensive speech, such as hate messages directed against racial, ethnic, or religious groups; recruitment for exploitative religious cults; or advice for terrorists, such as how to make bombs.

   Such messages, are, obviously, morally repulsive, whether posted on the Internet or elsewhere. Equally obviously, they cannot be prohibited by the government under our constitutional system which guarantees freedom of speech. The best way to combat bad ideas is with better ideas.

   Incidentally, it is arguable that pornography---some or all of it---is itself a form of hate speech against women. (See, e.g., Fedler 1995)

2. Judge No's statement that the government can vigorously enforce existing laws against obscenity echoes Judge Sloviter's opinion in the District Court decision about the CDA.

   In fact, while Congress was considering the CDA, the Justice Department itself expressed to Congress its view that the CDA was not necessary because existing laws against obscenity and child pornography gave it ample weapons for prosection.

   Nevertheless, the three-pronged test of obscenity defined in Miller v. California has made it very difficult to prosecute cases for obscenity, so that prosecutions are rare, and convictions are even rarer. (Schauer 1995)

3. The global presence of the Internet raises another problem in connection with the "community standards" referred to in the Miller definition: what is the relevant community? In U. S. v. Thomas and Thomas, a United States Court of Appeals held that obscene materials sent from Milpitas, California to Memphis, Tennessee may be prosecuted "in any district from, through, or into which" the materials are sent, and that relevant community standards are those of "the community where the trial takes place" (in this case, Memphis).

   The Thomases, operating a computer bulletin board in California, could have decided not to send materials to Tennessee, and so not be subject to Tennessee's more stringent standards. However, the decision not to send material to a certain geographic region, any more than to a certain age group, is typically not within the power of content providers on the World-Wide Web and most other Internet services, so it is doubtful whether this decision would apply to the Internet.

   On the other hand, perhaps commercial pornographers on the Internet, using credit card verification and adult ID, would be able to limit their distribution geographically as well as by age.