Copyright (c) Virginia Law Review Association 1996. Virginia Law Review

April, 1996

82 Va. L. Rev. 535

ESSAY: VIRTUAL REALITY AND "VIRTUAL WELTERS": A NOTE ON THE COMMERCE CLAUSE IMPLICATIONS OF REGULATING CYBERPORN

Glenn Harlan Reynolds

In recent months, there has been a great deal of publicity regarding the availability of pornography over the Internet and other computer networks, along with proposals for regulation. n1 Recent months have also seen the prosecution of one couple, located in California, by authorities in Memphis, Tennessee, for the contents of a computer bulletin board they operated. n2 According to media accounts, the Memphis location was chosen for its conservative juries, who were expected to be unsympathetic to Bay Area pornographers. n3 No doubt more such prosecutions, by both federal and state and local authorities, are on the horizon.

As the first of its kind, this prosecution raises interesting questions regarding the appropriateness and nature of "community standards" n4 developed to deal with local entities like bookstores n5 and movie theaters n6 as applied to almost locationless entities such as computer bulletin board systems. Indeed, the American Civil Liberties Union has argued in court that the appropriate community standard for such cases is that of the online community, rather than of any particular geographic area. n7

My point here, though, is a narrower one: that we need not even reach the First Amendment to discover serious difficulties with locality-based regulation of computer bulletin board systems. Instead, we may look to the Supreme Court's Commerce Clause jurisprudence for some useful guidance on the inappropriateness of such regulation. Only where regulations pass the Commerce Clause test is it even necessary to address First Amendment issues, and, as I will suggest, even there the test provides significant guidance.

[snip]

These cases, and the principles that lie behind them, raise two important points. Most obviously, it would appear that state or local regulation of communication over computer networks on obscenity grounds is very likely a violation of the dormant Commerce Clause because of the variations produced by the community standards doctrine. After all, if it is too much of a burden for interstate merchandisers to keep track of variations in state sales tax rates and classifications, it certainly must be too great a burden for interstate publishers to keep track of variations in the far less certain "community standards" of obscenity and indecency.

The second and perhaps more important point is that if we are willing to grant interstate sellers of office equipment and porcelain "collector" dolls such extensive protection from local interference in the name of protecting commerce, surely we should be even more willing to provide such protection in the name of free speech. For the protection provided by the dormant Commerce Clause is merely a matter of judicial inference; the value of a free press, on the other hand, is explicitly spelled out in the First Amendment.

Such an approach would, of course, limit the ability of communities to develop unique standards of obscenity, and move us closer toward a uniform national standard. n18 While that development is not without its drawbacks,neither are the many other movements toward uniformity mandated by the Constitution. But we have accepted them nonetheless. n19

Taking this approach seriously would mean barring prosecutions, under state or local law, of out-of-state individuals and entities for obscenity where the material in question came via computer connections. More interestingly, it would also mean that courts should regard even federal prosecutions that employ local community standards with a considerable degree of suspicion. For while Congress is generally regarded as having the power to override dormant Commerce Clause considerations through appropriate legislation, we should be reluctant to assume that it has done so by implication, simply because of the existence of federal criminal laws. n20 The idea of a national market, after all, is one that Congress may override through the passage of appropriate legislation, n21 but that is a far cry from saying that federal prosecutors should be able to do the same.

Whether my suggestion will be taken seriously, on the other hand, is an open question at best. For one thing, it must overcome the natural tendency of academics, journalists, and judges to rush to the First Amendment whenever an issue involving speech or publication appears. For another, it must overcome the equally natural tendency to forget that parts of the Constitution outside the Bill of Rights - even the Commerce Clause - may serve as important guarantors of liberty. And aside from these hurdles, it requires a recognition, that there is still a role for the nationalist parts of the Constitution, despite today's resurgence of interest in the powers of states and in dlimitations on the federal government. n22

Despite all of these trends and tendencies, I think that there is still room to ask whether it is appropriate, or even constitutional, to allow states to govern expression under circumstances in which they would not be permitted to collect sales taxes on sales of Elvis dolls or K-Tel merchandise. Where it has been necessary, we have managed to update our view of the Constitution to accommodate changes in technology. It is time that we do so again.

It seems these arguments raise yet a third point. It seems that one could quite easily extend the 'Commerce Clause' to beyond our own borders and infer that countries have no right to regulate Net commerce from servers which originate outside their borders. It seems a key question hinges on the 'source' of authority for the laws of countries, which most would claim is their NATURAL and INALIENABLE SOVERIGNTY insofar as matters of commerce and diplomacy are concerned. But should one country have the legal right to regulate the commerce of parties with no physical presence within their borders? After all, if it is reasonable to assume too much of a burden for interstate merchandisers to keep track of variations in state sales tax rates and classifications for interstate publishers to keep track of variations in the far less certain "community standards" of obscenity and indecency, on what NATURAL basis should the U.S. (or for that matter any country) attempt to impose such national burdens on international merchandisers and publishers? PGP Fingerprint: FE 90 1A 95 9D EA 8D 61 81 2E CC A9 A4 4A FB A9 --------------------------------------------------------------------- Snoop Daty Data | Internet: azur@netcom.com Grinder | Sacred Cow Meat Co. | --------------------------------------------------------------------- Counter-cultural technology development our specialty. Vote Libertarian. Just say NO to prescription DRUGS. "Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive." -- C.S. Lewis "Surveillence is ultimately just another form of media, and thus, potential entertainment." -- G. Beato