Community Standards, Free Speech and Privacy

In the section on Trial by Jury it was noted that the Jury was to be chosen from the community in which the crime was committed.

Other articles in the Constitution and the Bill of Rights also imply a Constitutional protection for Community Standards. Churches were the foundation of many communities in Colonial America. Free Practice of Religion guaranteed in the first Amendment implies the right of communities founded on religious principles to set standards within their communities. Common law and legal traditions include numerous legal precedents for Community Standards. At certain points these laws conflict with the rights to free speech and privacy.

The Supreme Court has quite properly maintained that a Constitutional protection of Community standards exists. The classic legal case advancing this position is Miller v. California, 413 U.S. 15, 23 (1973). In Miller, the Supreme Court announced what remains to this day the three-part test for identifying obscene speech:

(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 another case, Sable Communications v. FCC, 492 U.S. 115 (1989), the Supreme Court rejected the argument that a federal "dial-a-porn" regulation that criminalized the interstate transmission of "obscene" telephone messages was unconstitutional because it unduly burdened speech by forcing multi-state speakers to restrict their communications to what would be acceptable in the most conservative jurisdiction. The Court held that "[i]f Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages."⁹ The weight of that burden was immaterial: "While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages."

In these two decisions the Supreme Court has guaranteed Community Standards and then allowed the Community to invade the privacy of a persons home to determine what that person can or cannot listen to on the phone.

There are a number of things wrong with the reasoning and decisions of the Supreme Court in these issues. One of these is that Communities can be forced to allow the public display of obscene matter if Federal standards say that it has serious literary, artistic, political or scientific value. A second is that once the Community establishes standards it can invade the homes of Citizens to enforce these standards.

On the one hand these decisions do not allow Communities sufficient authority to outlaw the public display of obscene materials and on the other hand they allow Communities too much authority to invade the privacy of Citizens. These weaknesses, failures, or faults with this area of law reflect an improperly arrogant attitude on the part of the courts with respect to the role of government and Citizen.

The government is merely the servant of the Citizen. It is a tool, like a hammer, or a chisel, or a rake. It is designed and built by the Citizens, for the Citizens. It’s only purpose is to enable Citizens to live a life more perfect in their judgment.

In allowing the Federal Government to force local Communities to tolerate public display of obscene materials if deemed of value, the Courts show a prejudice against the choice of local Citizens in favor of the power of the State. In then allowing the Communities to determine what private Citizens can do in their own homes, the Courts show a prejudice against the rights of private Citizens in favor of the local State or government. There is a consistent prejudice towards the power of the State and towards denying the rights of Citizens in this body of law.

The problem relates to some obscurity in what constitutes a Community. There is a fundamental necessity for the Courts to guarantee Freedom of Speech and Freedom to Assemble at appropriate places to engage in and hear such speech. Without these freedoms, there can be no government of the people, by the people and for the people. It is quite possible that a clumsy implementation of the right of Communities to set their own standards would violate these fundamental and necessary rights.

Constitutional Law is designed primarily to deal with interaction between the Federal Government and the States. If an entire State were allowed to ban material it deemed obscene without regard for the usefulness and importance of the matters the material addressed, it would be geographically impossible for Citizens to exercise their rights to Free Speech and Assembly. On the other hand, if a small town of a few thousand people bans such material, it’s Citizens can then travel 20 miles to the next town to see the material, or the ban can be voided in specific areas like Federal Offices with auditoriums and speaking areas where Citizens forced to do business with the Federal or other government facilities are not forcibly exposed to the material involved and deemed offensive. The Citizen must have a reasonable freedom of choice about whether or not he or she is exposed to material he or she deems offensive.

The difference between the day to day reality of Communities much smaller than States being the most important Communities in Citizens lives and the fact that Federal Law is really designed for much larger Communities like States makes Constitutional Law an awkward tool for dealing with these issues.

In terms of Natural Law, a Community may be described as a group of people small enough for everyone to know everyone else in a meaningful sense if not personally at least reliably by reputation. This is essentially the definition of the maximum size of a Polis proposed by Aristotle and discussed in the section on the Social Contract. This also reflects what would have been the reality in a hunter-gatherer community. The Positive Law of our Constitution is not designed to address the reality of Communities under Natural Law.

It is the effective preservation of the right of Citizens to form Communities which substitute for the kind of Communities they would have lived in in a State of Nature which must be addressed in terms of Natural Law, Natural Rights, and the obligation of the Social Contract to protect these Natural Rights. The Federal Government was never meant to have any power or influence on small communities internal to various States. This is an area in which Federal interference was not conceived by the Framers.

Communities protected by Natural Law are roughly the size in population of a Church Congregation. Free practice of Religion protects the right of population groups this size to set their own moral standards of behavior and live in a community which maintains those standards voluntarily. If these people are forced to walk down the streets of a larger community in which these standards are violated, they are assaulted with obscenity and immorality. On the other hand, if one person in the privacy of his home or of a public telephone booth dials up a porn service, people walking down the street are not assaulted with obscenity.

In the one instance the Supreme Courts decisions on this issue allow the assault of Citizens with obscenity in their local neighborhoods where they must walk and cannot avoid it, on the other hand they allow these Citizens to violate the privacy of other Citizens when no such assault is taking place. This is completely the opposite of what the situation should be.

Neighborhoods should be allowed to set Community Standards concerning what is acceptable for public display in their area. This allows Parents and Communities to protect themselves and their children from what their moral convictions, whether formally theistically religious or not, lead them to consider obscene.

These Neighborhoods should not be allowed to invade the privacy of a Citizens home and dictate to that Citizen what he can or cannot view, say or discuss over phone lines, modems, or other means of modern free speech and assembly.

Neighborhoods have a right to object to a Citizen being drunk and disorderly in his front lawn where he presents a bad example to the children of the neighborhood. This is a public assault on the moral standards of the Community because it occurs in an area where the public cannot reasonably avoid it.

On the other hand, if some busybody in the Neighborhood builds a ladder to look over a privacy fence to see what a Citizen is doing where the Citizen could reasonably expect the public to not be watching him, that busybody is violating the Citizens right to privacy and free speech.

There are Court decisions following these lines in many cases. Unfortunately, the Courts tend to Arrogate to themselves a Godlike power to dictate to Citizens on the basis of various principles like Public Good, etc. These principles are frequently abused in advancing the power of the State and the Courts to regulate the lives of Citizens.

The Social Contract is a Contract between Citizens to make rules or a peace treaty between Citizens. The State is the tool which maintains this Contract. Nothing in these definitions gives the State any license to tell a Citizen how to live for his own good. It does impose on the State a duty to prevent Citizens from assaulting other Citizens. Such assaults can include obscene visual matter, obscene or loud auditory matter, but they do not include material which it takes a significant effort on the part of a Citizen to expose himself to. The entire issue here is whether or not a Citizen must make an effort to expose himself to the obscene material. If he must make such an effort then it is not public obscenity and cannot be regulated by Community Standards. If he is exposed to it without any effort on his part, against his will and without his consent, it is an assault on him and he has a right to be protected from it under the Social Contract.

Community Standards and Democracy

The section of this book on freedom of speech and assembly presents the positions of Mill and De Tocqueville on the role of local political assemblies as schools for democracy. It is pointed out that unless these assemblies have real power to exercise some real influence over their lives, no one will bother to participate and the role of the local political assembly as a school for democracy will be destroyed.

Most people will realize that local political assemblies should not be dictating treaty negotiations with foreign powers, levying national income taxes, or composing the federal budget. These functions are properly vested in the National or Federal government.

The area of legitimate exercise of their power is over the conditions which they find acceptable to live their own lives. This means setting community standards on issues of public obscenity and decency. It is right that they should have the power to do this, even if they set standards that some other community down the road 20 miles disagrees with. It is their community, their lives, and their standards.

Unless they have such real power, such assemblies will wither and die. When they die, the grassroots school of Democracy dies with them. Federal mandates on issues of public obscenity laws and community standards choke out and kill the grassroots practice of Democratic principles and procedures among the common people. The school of democracy is destroyed. The growing tendency of the Federal government to dictate local community standards is a threat to the existence of Democracy itself.