Course No.: 9200 710 801
Course ID:  17261
Tu 6:30-9:30 p.m.
Room W-215
Professor Jay Dratler, Jr.
Room 231D (IP Alcove)
(330) 972-7972
Copyright © 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2008   Jay Dratler, Jr.  
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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 community standards."

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 is "obscene."

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 test?

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?

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 Court?

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 and versatility.

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 Court's decision?

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?

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