Postmodern Community Standards

This is a Jotwell-style review of Kendra Albert, Imagine a Community: Obscenity’s History and Moderating Speech Online_, 25 Yale Journal of Law and Technology Special Issue 59 (2023). I’m a Jotwell reviewer, but I am conflicted out of writing about Albert’s essay there because I co-authored a short piece with them last year. Nonetheless, I enjoyed Imagine a Community so much that I decided to write a review anyway, and post it here.

One of the great non-barking dogs in Internet law is obscenity. The first truly major case in the field was an obscenity case. 1997’s Reno v. ACLU, 521 U.S. 844 (1997), held that the harmful-to-minors provisions of the federal Communications Decency Act were unconstitutional because they prevented adults from receiving non-obscene speech online. Several additional Supreme Court cases followed over the next few years, as well as numerous lower-court cases, mostly rejecting various attempts to redraft definitions and prohibitions in a way that would survive constitutional scrutiny.

But then … silence. From roughly the mid-2000s on, very few obscenity cases have generated new law. As a casebook editor, I even started deleting material – this never happens – simply because there was nothing new to teach. This absence was a nagging question in the back of my mind. But now, thanks to Kendra Albert’s Imagine a Community, I have the answer, perfectly obvious now that they have laid it out so clearly. The courts did not give up on obscenity, but they gave up on obscenity law.

Imagine a Community is a cogent exploration of the strange career of community standards in obscenity law. Albert shows that the although the “contemporary community standards” test was invented to provide doctrinal clarity, it has instead been used for doctrinal evasion and obfuscation. Half history and half analysis, their essay is an outstanding example of a recent wave of cogent scholarship on sex, law, and the Internet, from scholars like Albert themself, Andrew Gilden, I. India Thusi, and others.

The historical story proceeds as a five-act tragedy, in which the Supreme Court is brought low by its hubris. In the first act, until the middle of the twentieth century, obscenity law varied widely from state to state and case to case. Then, in the second act, the Warren Court constitutionalized the law of obscenity, holding that whether a work is protected by the First Amendment depends on whether it “appeals to prurient interest” as measured by “contemporary community standards.” Roth v. United States, 354 U.S. 476, 489 (1957).

This test created two interrelated problems for the Supreme Court. First, it was profoundly ambiguous. Were community standards geographical or temporal, local or national? And second, it required the courts to decide a never-ending stream of obscenity cases. It proved immensely difficult to articulate how works did – or did not – comport with community standards, leading to embarrassments of reasoned explication like Potter Stewart’s “I know it when I see it” in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).

The Supreme Court was increasingly uncomfortable with these cases, but it was also unwilling to deconstitutionalize obscenity or to abandon the community-standards test. Instead, in Miller v. California, 413 U.S. 15 (1973), it threw up its hands and turned community standards into a factual question for the jury. As Albert explains, “The local community standard won because it was not possible to imagine what a national standard would be.”

The historian S.F.C. Milsom blamed “the miserable history of crime in England” on the “blankness of the general verdict” (Historical Foundations of the Common Law pp. 403, 413). There could be no substantive legal development unless judges engaged with the facts of individual cases, but the jury in effect hid all of the relevant facts behind a simple “guilty” or “not guilty.”

Albert shows that something similar happened in obscenity law’s third act. The jury’s verdict established that the defendant’s material did or did not appeal to the prurient interest according to contemporary standards. But it did so without ever saying out loud what those standards were. There were still obscenity prosecutions, and there were still obscenity convictions, but in a crucial sense there was much less obscenity law.

In the fourth act, the Internet unsettled a key assumption underpinning the theory that obscenity was a question of local community standards: that every communication had a unique location. The Internet created new kinds of online communities, but it also dissolved the informational boundaries of physical ones. Is a website published everywhere, and thus subject to every township, village, and borough’s standards? Or was a national rule now required? In the 2000s, courts wrestled inconclusively with the question of “Who gets to decide what is too risqué for the Internet?”

And then, Albert demonstrates, in the tragedy’s fifth and deeply ironic act, prosecutors gave up the fight. They have largely avoided bringing adult Internet obscenity cases, focusing instead on child sexual abuse material cases and on cases involving “local businesses where the question of what the appropriate community was much less fraught.” The community-standards timbers have rotted, but no one has paid it much attention because they are not bearing any weight.

This history is a springboard for two perceptive closing sections. First, Albert shows that the community-standards-based obscenity test is extremely hard to justify on its own terms, when measured against contemporary First Amendment standards. It has endured not because it is correct but because it is useful. “The ‘community’ allows courts to avoid the reality that obscenity is a First Amendment doctrine designed to do exactly what justices have decried in other contexts – have the state decide ‘good speech’ from ‘bad speech’ based on preference for certain speakers and messages.” Once you see the point put this way, it is obvious – and it is also obvious that this is the only way this story could have ever ended.

Second – and this is the part that makes this essay truly next-level – Albert describes the tragedy’s farcical coda. The void created by this judicial retreat has been filled by private actors. Social-media platforms, payment providers, and other online intermediaries have developed content-moderation rules on sexually explicit material. These rules sometimes mirror the vestigial conceptual architecture of obscenity law, but often they are simply made up. Doctrine abhors a vacuum:

Pornography producers and porn platforms received lists of allowed and disallowed words and content – from “twink” to “golden showers,” to how many fingers a performer might use in a penetration scene. Rules against bodily fluids other than semen, even the appearance of intoxication, or certain kinds of suggestions of non-consent (such as hypnosis) are common.

One irony of this shift from public to private is that it has done what the courts have been unwilling to: create a genuinely national (sometimes even international) set of rules. Another is that these new “community standards” – a term used by social-media platforms apparently without irony – are applied without any real sensitivity to the actual standards of actual community members. They are simply the diktats of powerful platforms.

Perhaps none of this will matter. Albert suggests that the Supreme Court should perhaps “reconsider[] whether obscenity should be outside the reach of the First Amendment altogether.” Maybe it will, and maybe the legal system will catch up to the Avenue Q slogan: “The Internet is for porn.”

But there is another and darker possibility. The law of public sexuality in the United States has taken a turn over the last few years. Conservative legislators and prosecutors have claimed with a straight face that drag shows, queer romances, and trans bodies are inherently obscene. A new wave of age-verification laws sharply restrict what children are allowed to read on the Internet, and force adults to undergo new levels of surveillance when they go online. It is unsettlingly possible that the Supreme Court may be about to speedrun its obscenity jurisprudence, only backwards and in heels.

But sufficient unto the day is the evil thereof. For now, Imagine a Community is a model for what a law-review essay should be: concise, elegant, and illuminating.