January 21, 2006
Free Speech Department
Community Standards
The Volokh Conspiracy has a post about the Google subpoena, and a comment by someone using the name DEGOP has this to say about the definition of pornography:
"Prevailing community standards" is the only test worth a darn. We abandon it at our peril. The problem is that community standards in San Francisco are a lot worse than they are in, say, Kansas. Therefore, on the Internet, serious protections have to be in place. Otherwise, the children in Kansas might end up as corrupted as the children in San Francisco, even though their parents try to protect them.
This is wrong on so many levels.
First of all, "prevailing community standards" is no test at all, since no person seeking to produce, distribute, or consume sex-themed materials could possibly know what that standard means. It's a travesty of justice for our courts use such a vague and unpredictable "test" to decide people's liberty.
Second, if DEGOP is correct about the relative standards of San Francisco and Kansas, then a lot of people would say that San Francisco's standards are a lot better than in Kansas, because they permit more pornography. According to the 60 Minutes story "Porn in the U.S.A.", Americans spend $10 billion a year on porn. Wherever you make pornography available to people, they buy it, rent it, and use it. To millions of people, porn is not a problem on the internet but one of its many enjoyable features.
Third, DEGOP may be wrong about the relative standards in San Francisco and Kansas. Using U.S. census figures, Wikipedia, and an internet strip club guide, we can construct a crude proxy for community standards. San Francisco has 21 strip clubs for a population of 744000, or one per 35000 residents, whereas Kansas has 36 clubs for 2.7 million residents, or one per 76000. A significant difference, but not exactly night and day.
But wait, DEGOP is comparing the entire state of Kansas to a densely populated California city. If we look at California as a whole, we find 212 strip clubs serving a population of 36 million, giving it one strip club per 170000 people. Put another way, Kansas has five times as many strip clubs per person as California.
So, this DEGOP person can't even judge the "community standards" correctly in his own argument, picking regions of his choice. It's absurd to make "community standards" into a legal test.
It seems to me that the internet itself is a community, and the prevailing standard here is broader and more permissive than anywhere else in the world. A lot of us like it that way.
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