Notes and Questions on Ashcroft v. ACLU
1. With the possible exception of "indecent" material of the type
addressed in Pacifica, the First Amendment prevents banning erotica
or other sexually-oriented material unless it is obscene. Under
Miller, however, courts must judge what is obscene in part by "contemporary
You can think of defining "obscenity" as drawing a line between what government
can regulate and what it cannot. Government cannot regulate non-obscene
material "above the line" because the First Amendment protects it, but
government can regulate or even prohibit material "below the line," which
The difficulty is that, under Miller's "contemporary community
standards" test, where the line is drawn depends upon the community. Consider,
for example, the Amish in Ohio and Pennsylvania, the Hasidic Jews in upstate
New York, and the Muslims in Dearborn, Michigan. Although these
mini-cultures vary widely in many respects, all have strict requirements
for female modesty. Then consider such minicultures as the Times
Square area of Manhattan or the Castro District (a hedonistic gay culture)
in San Francisco. Surely "contemporary community standards" for
what is obscene will vary tremendously among these different communities.
Won't the same be true of judgments as to what is "patently offensive"
or lacks "serious . . . value"—the other two components of the Miller
2. Obscenity cases generally involve conflicts among three fundamental
values: (1) a community's right to protect its members against material
they find morally, religiously, or emotionally offensive; (2) parents'
right to protect their children from such material and to control their
children's education and upbringing; and (3) the right of citizens to
have access to material that is not offensive in their own communities,
or that, although offensive to some, may have significant artistic, aesthetic,
historical, literary, or scientific merit. Are these values all
co-equal, or are some more important than others? How would you
prioritize them? Under the Miller standard, won't these values
conflict when people who draw the "obscenity line" at different places
live in the same community?
3. With Miller, the Supreme Court thought it had arrived
at a workable solution to the conflict among these values: let each community
determine what is "obscene." Each "community" could draw the line
for itself, so its members could have access to all non-obscene material
under their own standards.
But doesn't this "solution" itself involve an untested assumption? If
a "community" is defined geographically, do all members of it necessarily
draw the "obscenity line" in the same place? Don't Hasidic Jews
live in Manhattan, cheek by jowl with the prostitutes and lowlifes that
populate Times Square? How realistic is Justice Stevens' "sorting"
assumption that people who want greater protection for their children
will move, for example, from Manhattan to upstate New York? to Utah?
Or is it enough to say that their "freedom" in theory to escape
offensive material by relocating themselves and their families adequately
protects their right to avoid material offensive to them, but to which
others want access?
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4. Is reliance on "community standards" for policing obscenity a
principled logical or legal solution to the problem of conflicting values,
or is it a political one? Is it based on rational principles of
balancing rights? Or is it based upon the hope that, if a majority
in a given community can adopt valid laws to protect its own moral values,
then fewer cases involving these troubling issues will reach the Supreme
Is that hope realistic? Won't members of the minority, who draw
the "obscenity line" at a different place from the majority, inevitably
turn to the courts when local laws restrict access to material they want
to have? Isn't the Constitution designed precisely to protect the
rights of minorities—even grossly unpopular minorities—under such circumstances?
5. As an interim solution, the "community standards" approach may
have worked well with respect to older methods of disseminating erotica.
A community's control over "adult" bookstores located in it, material
mailed to it, or even phone calls made to it, does not necessarily preclude
other communities from having access to material that rises above their
own, differently placed, "obscenity lines." Ashcroft presents
the problem of a new medium, the Internet, in which it is technologically
and economically impossible to separate communities in this manner.
The World Wide Web is "geography independent." The Internet as
a whole was purposely designed to transmit messages without regard to
geography, in order to provide a multiply redundant system that could
survive destruction of transmission nodes. "Packet switching" technology,
which drives the Internet, even allows different parts of a single message
to pass through different geographic areas. For example, parts of
a single message could pass through both Amish Country and New York City.
Moreover, apart from country-code designations for foreign countries,
the World Wide Web's domain-name system contains nothing that can be used
to monitor, let alone control, messages based on their geographic points
of origin or receipt.
Thus, technology of the World Wide Web does not now permit control over
messages by their geographic point of origin or receipt. Any attempt
to modify the technology to permit that control would require tremendous
effort—modification of the domain-name and/or Internet transmission protocols
operating in every node—and might reduce the Net's efficiency, flexibility
Under these circumstances, control of content on the World Wide Web is
an all-or-nothing proposition. A particular message may be available
to all, in all areas, throughout the nation, or it may be available to
none. At the moment, there is no technological middle ground. One
either makes materials available to the whole world, or to no one. The
district court in Ashcroft found as much as a matter of fact, and
none of the Justices claims that finding is clearly erroneous. The
Internet thus obviates the interim "solution" of Miller under which
each "community," in theory, can draw the "obscenity line" where it wants,
without impinging on the rights of other communities, which draw the line
elsewhere, to have access to material that they want.
6. Doesn't this factual problem highlight a serious and fundamental
logical flaw in the use of "community" standards? Don't community
standards of decency and morality, especially with regard to sexual matters,
vary widely throughout our diverse nation? For example, is the standard
for sexual propriety in Amish Country likely to resemble the standard
in big cities such as Cleveland, Dallas, Los Angeles or New York, let
alone in places like the Castro District in San Francisco, where most
residents are openly and actively gay?
How do the plurality and other opinions in Ashcroft deal with the
problem of differing community standards and a medium that cannot be geographically
limited? Are their solutions satisfactory? To what extent
are their solutions robust and generally valid, and to what extent are
they temporizing? In the final analysis, what did the plurality/majority
actually do? Is COPA valid and enforceable after the Supreme
7. All but Justice Stevens, dissenting, appeared reluctant to strike
down COPA on broad, general principles, as the Third Circuit had done.
Among their reasons was deference to Congress, which twice had tried
to pass laws to protect parents and children without undermining First-Amendment
values. All but Justice Stevens appeared reluctant to invalidate
the law on its face, and eager to wait for a set of facts that would put
the law in a more precise context, as applied.
This "wait and see" approach is a common by-product of judicial discretion
and restraint. But doesn't it have potential social and economic
consequences involving First-Amendment values? If you ran a Web
publisher of "high-class" erotica (for example, images of ancient Greek,
Roman and Japanese erotic art), wouldn't you want to know—with some degree
of certainty—whether the mores of American Amish, Hasids, and Muslims
would govern your Website? Would you invest in acquiring rights
in images and designing a Website without knowing the answer to that question?
If not, doesn't the Supreme Court's decision itself "chill" expression
that may have First-Amendment value? Is a refusal to decide in itself
an implicit decision to prefer some of the conflicting values discussed
above over others?