Friday, August 24, 2007

Community Standards: Redux

One of the key concepts in all the COPA litigation (particularly with respect to the 2004 Supreme Court Opinion before the district court trial in Philadelphia in 2006) was “community standards.” Remember that Justice Breyer at one point suggested that there could even exist a “national standard.”

The concept of “community standards” usually applies to sexually explicit content, with respect to its acceptability and whether a community can find some reasonable purpose for it, as well as whether it is patently offensive in some way. In recent months, there have been a variety of situations around the country, most of them somehow involving “implicit content” where the public has objected in some way to Internet content that objectively seems “legal” but that may have been posted with nefarious intentions or in “bad faith.” This also mixes in with reports in the last two years of employer concerns about public postings of employees and job applicants.

One thing to remember that acceptable “community standards” as a whole have become much broader during the past few decades, as technology has caused media exposure of the average citizen to expand and as society has taken a much more individualistic approach to “morality.” Justice Breyer may have been suggesting that during the 2004 oral arguments when he remarked about a national standard from the bench.

A few decades ago, for example, Hollywood production standards were very strict, with twin beds being shown even for married couples. It’s interesting to think about that observation in conjunction with public lewdness laws. What’s the point of them? It seems to be to protect intimate sensibilities for more private moments and circumstances when otherwise consenting adults are free to carry them out. But it’s also to protect intimacy in marriage, and protect the incentive to raise and maintain families. That, in sum, is what used to be understood about “public morality,” as easily it is to object to it intellectually.

It’s that last part that gets pretty hard. As I recall, the first version of the 1996 Communications Decency Act (CDA), struck down by the Supreme Court in 1997 (and what COPA tried to replace or “fix”) tried to make it illegal to discuss abortion, even as subject matter, online as if it were “indecent.” Some people look at subject matter itself as inherently objectionable, and a concern about the subject a negative reflection on the speaker and others associated with him (family). Others will object when the speaker connects himself with the issue, to make a point, in some way as to mock guilt ("dreamcatching"). Some of this level of public sensitivity (at least at the subject matter level) seems excessive by today’s standards and may not have much legal weight, particularly when weighed against First Amendment concerns.

The Internet, to be sure, has presented, in a practical sense, the possibility (because of “free entry” and global dissemination) the problem that individuals can tease or disturb each other in various ways online (as is the case with immature kids on social networking sites) that would not be acceptable in the workplace, school, or campus in person-to-person situations. This sounds related to the “community standards” concept, although there may be torts (invasion of privacy, intrusion into seclusion) that might cover these. A comment that could not be made in person in a real world scenario about an identifiable (or searchable) person probably should not be made online, even in a chat room or on a message board, let alone blog or profile.

(This para added 9/14/2007). While community standards usually tend to become more acceptable over time, with the Internet and search engines, and the sudden attention that the media gives to certain serious problems (like security), sometimes individual Internet conduct that many people perceive as acceptable is quickly seen as unacceptable. It can be dangerous to engage in "dreamcatching" (see other postings) or to put others or even oneself in certain hypothetical scenarios. ("If I did it....".) That could be understand as extending the airport rule, "no jokes." Recently, some electronic privacy think tanks (like EPIC) have suggested that the "means of dissemination" can matter as to the ultimate legal consequences of content, or that maybe the legal system needs to be changed so that it does (see my main blog posting Sept. 10, 2007).

We migrate from concerns about speech and the law all the way back to social values and “family values.” When President Bush (in responding to gay marriage) speaks about protecting the “sanctity of marriage” with a constitutional amendment, he is really talking about the protection of average people to experience intimacy within the context of the traditional, child-rearing and caregiving family, where in practice marital partners may be far less than "perfect". One can ponder with more explicit language what that really means, and it does mean that. Many people with average means and heavily family responsibilities are easily distracted in an “anything goes” world.

Still, as a culture we have migrated toward individual sovereignty and personal autonomy. This seems to be very hard on some people, whose efforts we depended on. Bad karma? I wonder.

Saturday, August 04, 2007

Civil restraining order in CA against web author seems unprecedented

A recent story in the Los Angeles Times about a civil restraining order issued against a former website operator raises new serious concerns about capricious legal intervention in speech found objectionable by others. The restraining order, it is said, essentially places the person under civil “house arrest” if he remains in California. Here is my more detailed account of the story.

The situation concerns Jack McClellan, who reportedly ran websites which he described his heterosexual fantasies regarding under age persons. I have never seen the site, nor do I particularly want to, but multiple credible media reports do indicate that they were explicit. Since they were not commercial, they could not have been pursued under COPA even if COPA had been upheld. What is more legally objectionable is that the person photographed underage girls without their consent and posted the pictures on the web. The persons were clothed, but is certainly legally wrong to post a picture of an identifiable minor without parental consent. (Or is it? Some stories report that any photo of a person taken in a public place may be posted; but this, intuitively, seems to beg questions about stalking, causing someone to be targeted, false light, intrusion into seclusion, and the like; but these are probably civil torts, not crimes.)

But this does again raise the question of “implicit content.” Since minors congregate in so many public places, his listing of them would not seem to convey meaningful new information; his online conduct simply seems emotionally provocative. People refer to their “tastes” all of the time online. Many times one can infer a lot about someone by what they say even if their comments are not sexually explicit. For example, most adults mentally find younger members (of the same or opposite sex, depending on sexual orientation) much more attractive than old members. That is just common knowledge and a statement to that effect doesn’t convey any specific information. "Age of consent" laws are necessary but there is nothing wrong with saying that they should be changed through normal legislative processes. These laws do draw an arbitrary line in the sand; people look physically grown before they are socially and mentally (according to brain research, it seems) ready for full adult responsibilities that go with full consent. General or specific statements about people may become more provocative, for example, if they deal with secondary sexual characteristics, body build, part-objects, body image issues, etc. Parents are worried when they find statements like this made by adults who may be around their children (teachers, for example), that this is predictive of what may happen.

All of this happens in a free-wheeling culture where people express themselves, sometimes in ways that others find self-effacing or even self-defaming, in order to rebel against older social standards and norms of social propriety (for example, the idea of what makes a good competitive male "role model"). As noted, this has recently become a concern to employers since the explosion of social networking sites.

I hope that this situation in LA is just an aberration, as indeed the individual in question dared others to stop him, as he was determined to test the limits of the First Amendment just to toy with others in feline fashion. From all accounts, his behavior was outrageous by most standards of civility or "community standards" and his postings would have violated the AUP’s or TOS’s of most reputable ISP’s. Still, for a judge to issue a restraining order like this sets a dangerous example inviting excessive concerns over nebulous interpretations of "implicit content" by others ("what will the neighbors think?"), which has been considered in other states, like the “civil” s.o. registry in Ohio. Perhaps prosecutors can find more objective grounds to go after him in terms of laws dealing with obscenity, stalking, or making threats or solicitations (with many examples of enforcement during the past ten years in many states), for which there is more reliable judicial experience in respecting freedom of speech. In the world of instant self-publishing and discovery by others, the "meaning" of content is sometimes as much in the eye of the beholder as in the words of the speaker.