Community Standards are facts on the ground, not ideals

[cthulu2016]

(This is not about mineraman's community standards post. It is a line of thought that did arise reading that post, so it is not purely coincidental, but it is not a response to it.)

Among the more legally reprehensible things the Supreme Court has done in my time was ruling, in the 1980s, that people in different American communities should have different expressive rights, by making "community standards" part of a definition of obscenity.

(In addition to all the other ways that was a vile decision, it was also super-stupid in being made right at the dawn of an information revolution! The idea that a national publisher is limited to the standards of the one most backward community in the nation looks even worse in the age of internet and satellite TV and such. And would anyone want their, say, voting rights tied to local attitudes?)

But the horribleness of that decision aside, it did lead to some adjudication of what "community standards" are.

Some would say that the laws of a community represent its standards. But really, they represent its aspirations.

The law says the speed limit on Washington's beltway is 55, but since anyone driving as slow as 55 is an outright menace during rush hour we cannot plausibly say that the speed limit is the community standard. It is a rule that the community doesn't much care about and the community has set its own standard, which is 65-70 in the left lanes during rush hour, and at least 60 in the right lanes.

That is our practice. The flow of traffic is the real community standard. People "voting" with their gas pedals.

In porn case after porn case, community standards were successfully defined as what the community did, not what it said, using local sales of porn, subscription to satellite porn channels, etc., as evidence that they were not some aberrational intrusion alien to local culture.

(As we all know, porn consumption happens to be above average in places like Utah that have the strictest laws.)

If people in Bupkiss County, Utah, order a boat-load of pay-per-view porn then porn is not outside the community standards of Bupkiss County, no matter what the Bupkiss board of supervisors, responding to pressure groups, votes to say the community standard should be.

It's like the phrase, "We're better than this." No, we are not. If we were actually better than working people being desperately poor then working people wouldn't be desperately poor. QED. The phrase is meant to shame... to remind people that we like to think that we are better than this in hopes the we will become better than this.

To recall Bill Parcels, when a reporter talked about the Giants being better than their record, we are what our record says we are.

If a behavior is ubiquitous in a community then it is not really outside community standards, though it may well be against the law.

Litter bugs and people who don't use turn signals are part of the community too.

Community standards are a thing in the world that is there to be discovered by observation. A sociological reality, not a standard to set.

A standard to set would be called "rules."

[Bluenorthwest]

1. Such an interesting post....

nt

[MineralMan]

2. Well-stated.

As you say, community standard are set by the community. On DU, that's done through our peer jury system. I think it works admirably, at least in most cases.

I also think it deserves more thought than it sometimes receives. Every time a DUer serves on a jury, the decision of that jury helps to define the community standards of DU. It's a real responsibility to do that. Occasionally, I think, the decisions are based on other things, though. I think that's rather rare, though.