The traditional method of authoring, publishing, and disseminating facts and ideas to society has a new companion in the Internet. The Internet has all the essential capabilities of the traditional modes of publication – the text of print media, the audio capability of radio, the visuals of television, the global reach of satellite – plus it is relatively inexpensive, directly personal, virtually instantaneous in distribution, and substantially unregulated. Each day, the number of Internet publications grows immensely and dissemination can, through websites, Internet addresses, e-mails and search engines, reach great numbers of people with an almost infinite variety of communications and a massive quantity of data and information. And, most importantly, information placed on the web is available to almost every user regardless of city, state, or nation because the Internet has no borders. Aside from the limits arising from intellectual property rights, material distributed by Internet sites flows unrestricted. The Supreme Court has extended full First Amendment protection of free speech to Internet publications. As with other forms of speech, Internet content can be regulated with regard to child pornography, obscenity, and "indecent" speech, but applying these concepts to the Internet has proven difficult. This is due in part to the way they depend on "community standards."

The Supreme Court defined obscenity in Miller v. California, 413 U.S. 15 (1973) using a three pronged test. The obscenity test asks (1) whether "the average person, applying contemporary community standards," would find that the work - taken as a whole - appeals to the prurient interest; and (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Miller, 413 U.S. at 25. The first two prongs are judged under a community standard, which requires the court to determine how the material in question is viewed in the community in which it is presented; the third prong, however, is judged under a national standard, which requires the court to assess the common views of the country as a whole.

Indecent speech is also measured by a community standard test. The Supreme Court has defined indecent speech, in part, as "offensive as measured by community standards." Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115 (1989). The government can regulate and prohibit indecent speech provided that there is sufficient governmental interest, or where there are adequate alternative forms of communication. For example, the Supreme Court recognized that the government's compelling interest in protecting minors is a valid ground for restricting certain speech.

While it is feasible to apply the community standard test to measure obscenity and indecency of speech in the traditional media - where the audience is easily ascertainable - it is much more difficult to apply it on the borderless Internet. Materials available over the Internet are accessible from virtually anywhere in the world where there is a phone line or a wireless connection; therefore a person sending information via the Internet must be theoretically aware of each and every community's standard of obscenity and indecent speech.

Over the next few years, case law and legislation will determine where the Internet falls on the spectrum of First Amendment protection with regard to content regulation. At the moment courts seem reluctant to accept content regulation on the Internet to the extent they have permitted restriction of television and radio - which the federal government regulates through licensing. On the other hand, courts seem willing to accept greater control over the Internet than over newspapers, speeches, or conversations in a city park. Simultaneously, the courts and legislatures are beginning to address the unique issues relevant to Internet distribution and access. The first step may be deciding who is liable for sending and therefore controlling the sending of illegal content and the feasibility of restricting content in the context of evolving technology.