Is Internet Obscenity Based On National or Community Standards? 9th Circuit Thinks National, and Constitution Does Not Have Geography Clause.

I have previously queried whether the Constitution has a geography clause. That is, do Rights Mean Different Things in Different Places?  Orin Kerr writes about a new 9th Circuit case, United States v. Kilbride that holds that national standards, and not community standards should govern Internet obscenity.

The Courts have imposed a geography clause in several areas, including fourth amendment protections, second amendment gun control laws (an oxymoron if I ever heard one), and most famously in first amendment obscenity laws.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and ( c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In explaining the choice of community standards instead of national standards, the Court wrote:

Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.

Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”

But the 9th Circuit found different standards should apply on the Internet,  and rather look to a community standard, the courts should look to a national standard. In Kilbride, Judge Fletcher writes:

The divergent reasoning of the justices in and out of the majority in Ashcroft v. ACLU, 535 U.S. 564 (2002) leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .

Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.

At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.

Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.

Kerr aint buying it:

“As a matter of law, I don’t find this particularly persuasive . . . Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.”

But aside from a potential misreading of 30 years of Supreme Court precedent (this is the 9th Circuit after all), does Judge Fletcher have the concept right? Especially in the context of the Internet, where information freely flows from around the world, why should a person who sends an e-mail from San Francisco to a Georgian be judged according to Macon’s community standards? While I am not sure about the validity of community standard in general, as announced in Miller, it makes even less sense to apply community standards on the Internet.

If this creates a circuit split that ultimately does go up to SCOTUS, as Kerr suggests, this may make for an interesting article. In the works, on the list.

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Do Rights Mean Different Things in Different Places? My Friend’s Harv.L.Rev. Note Says Yes, and Persuades Me

This morning I blogged, and asked whether the Constitution has a geography clause, and whether  it was correct that constitutional liberties should mean different things in different places. I argued that the Fourth Amendment means the same thing in Bismarck, North Dakota, as it does in Chicago. So why should First and Second Amendment rights mean different things in different places.

But am I right about the Fourth Amendment?

A good friend pointed me to a Harvard Law Review note he published.

Check out the unsigned note THE FOURTH AMENDMENT’S THIRD WAY. The author notes:

This Note confronts a “fundamental question about the fourth
amendment” that lies beneath all of its doctrinal puzzles, namely, “what method should be used to identify the range of law enforcement practices that it governs and the abuses of those practices that it restrains.” 4 It does so, in particular, by examining the relationship between the Fourth Amendment and state law. This Note argues that the Amendment should be interpreted as dynamically incorporating state law, and it explains how this interpretive method injects substantive
legal content into the vague constitutional text and reconciles the tension between the Amendment’s two clauses.5 It contends that the dynamic incorporation method is pragmatically and normatively superior to the major alternatives while remaining justified by constitutional theory.

Among the numerous potential sources of legal content for the
Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.

From a textual perspective, dynamic incorporation offers clarity and common sense. The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional. Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests. Rather, what is reasonable is that which is lawful under state law; inversely, what is unreasonable is that which is unlawful under state law. This interpretation is sensible, given that the “English common-law tradition to which the [American] revolutionaries appealed often tied legality to ‘reasonableness.’”40

How would this work in practice?

First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.42 If the answer is yes — for example, if the search would have been actionable trespass — then the search would violate the Fourth Amendment. If the answer is no — for example, if common law decisions of
the state’s judiciary had established an exception or defense to the trespass — then the actions would be constitutional.

Second, searches or seizures conducted pursuant to a warrant
would be constitutional provided that the warrant had been validly issued. Ancillary questions concerning the procedures for actions taken under a warrant, such as the applicability of the knock-and-announce requirement,43 obviously cannot be tested under state law because private actors do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.44 Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach. This constitutes a gap in the method, and answers would have to be sought elsewhere.45

I like the idea, but I do not think the dynamic incorporation approach would apply to the First and Second amendment, from a textualist perspective, in the way the note argues it applies to the Fourth Amendment.

The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

As the note discusses, the magic word of reasonableness lends itself well to a reference to state law and dynamic incorporation. I agree thus far.

But I do not see the First and Second amendments, from a textualist perspective, being susceptible to a dynamic incorporation method referring to state law.

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Second Amendment (got this one memorized by now):

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

These rights do not seem to allow a referent to state law to understand the boundary of the right, whereas the Fourth Amendment speaks of reasonableness.

So I will modify my original thesis. A right can mean different things in different places if the text of the amendment lends itself to such an analysis.

On further reflection, the “contemporary community standards” makes no sense under the First Amendment as written. The text of the amendment would foreclose any referent to state or local law. Same for the Second Amendment. These tests seem largely untenable.

I definitely plan on writing about this in the future. Stay tuned.

Does the Constitution have a Geography Clause? How can rights mean different things in different places?

If the Constitution is in fact the Supreme Law of the land, why should it mean different things in different places.

This concept is most prevalent in First Amendment jurisprudence where obscenity law considers “contemporary community standards.”  Something may be obscene in Bismarck, North Dakota, but not obscence in San Francisco, California based on some nebulous concept of local standards.

This is clearly correct under modern First Amendment Supreme Court jurisprudence, but is it correct constitutionally? Does the Constitution permit the rights of a citizen of North Dakota to free speech to differ from the rights of a Californian? Does this seem right.

The Government takes full advantage of these different standards, and frequently prosecute obscenity trials in more socially conservative areas. See this Volokh post on the Obama Administration shifting away from this tactic.

Another common application of this doctrine pervades gun control laws. Pundits frequently argue that Chicago needs different gun laws than Cheyenne. Candidate Obama frequently made this point on the campaign trail. Heller seems to adopt this notion. But why? Where in the Second Amendment is there a carve-out for local concerns.

Does the Fourth, Fifth, or Sixth Amendment mean something different in New York or Los Angeles? All other rights seem to be universal, except the First and Second Amendments. These are two of my favorite liberties, so this is troubling.

As an aside, it strikes me that one could make a plausible argument that the “contemporary community standards” test for obscenity violates the Equal Protection Clause to the extent that it necessarily results in different determinations of what is obscene, depending upon locale. Yes, I know that geographic location is not a suspect class, but I see no reason why it couldn’t be, especially when it results in rather arbitrary distinctions as to what is or is not criminal under Federal Law.

This is a topic I would like to develop further. Stay tuned.