This note concurs with the decision reached by the Third Circuit. The federal obscenity law, which incorporated the contemporary community standards test is unconstitutional as applied to expression on the internet because it has chilling effect on the exercise of freedom of speech as guaranteed by the First Amendment to the Constitution of the United States. Because freedom of speech would be restrained by any incorporation of community standards in federal regulation of the internet, the legislature should refrain from adopting a standard that would apply in all internet situations. Rather, with respect to obscenity, the internet should be left to self-regulation. In reaching this conclusion, Part II provides a brief historical timeline in the development of obscenity law. Part IV of this comment examines the nature of the ever-changing medium of the internet and governmental actions directed at regulating speech expressed through this medium. After that, Part V of the article looks into the soundness of the contemporary community standards aspect of the current obscenity test as it applied to the internet, and also examines alternatives to the test. Finally, the comment concludes that the Miller v. California test for obscenity is not workable as applied to the internet and for lack of another constitutionally protective test, this medium should be left free from federal regulation.
Note, Are Contemporary Community Standards No Longer Contemporary, 49 Clev. St. L. Rev. 105 (2001)