Julie Hilden

Should the Obscenity Standard for Internet Speech Be National, or Local?

By JULIE HILDEN
Tuesday, March 2, 2010

This February, the U.S. Court of Appeals for the Eleventh Circuit upheld a criminal conviction in an obscenity case. The case's formal caption was United States v. Little, but it is much better known as the "Max Hardcore" case – as that was defendant Paul Little's nickname. The trial court imposed upon Little a prison sentence of almost four years.

Though many found the sexual acts that Little's DVDs showed repellent, there has not, to my knowledge, been any allegation that they were anything but consensual, or that participants were not of age. (And cases that do involve coercion or child pornography are covered by other – and appropriately harsh – laws.)

The case has gained significant attention because it raises a key First Amendment question that the Supreme Court has yet to definitively address: Should Internet speech be governed by a local, or national, obscenity standard?

The Traditional Obscenity Standard – and the Problem with Applying It to Internet Speech

In the "Max Hardcore" case, the court invoked the traditional, local obscenity standard, known as the Miller test. The Miller test asks "(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." (Emphasis added.)

For our purposes, the important part of the test is the first prong, which references "contemporary community standards." The obvious question, when Internet speech is at issue, is "Which community?"

Prosecutors argued – and the trial court held – in the "Max Hardcore" case that the relevant community was that of the Middle District of Florida. But the connection of the case to that district, in particular, was tenuous at best: The Middle District was where the servers that hosted Little's company's websites were located; it was the destination where federal investigators opted to order that five of the company's DVDs be sent; and it was one of numerous places across America (and the world) where the Internet trailers for the DVDs could be accessed.

Of course, these facts hardly singled out the Middle District of Florida. In this context, claiming that a company is based where the servers that store its information happen to be based is absurd; it is far too thin a reed upon which to hang the imposition of grossly different First Amendment standards on different defendants. (In contrast, in other contexts where First Amendment rights are not implicated, using server location as a jurisdictional basis may be prosecutors' only option and thus – though somewhat unfair – may be unavoidable if the law is to be enforced.)

Moreover, the other factors here were prosecutor-chosen and far from unique to the Middle District: On their theory, prosecutors could have created jurisdiction and venue, and triggered a local obscenity test, literally anywhere where there was a mailbox to hold the ordered DVDs, or a computer on which the trailers could be viewed. (Again, the existence of multiple options for jurisdiction and venue may work in other contexts – such as, say, that of a multi-state money-laundering ring – but it is especially disturbing here, where the First Amendment is directly implicated.)

To make matters worse, hypocritically, prosecutors sought to sentence the defendant, Little, based on the DVDs' sales outside the Middle District, despite the fact that the materials at issue had not been proved obscene – and thus illegal – in any area except the Middle District.

Shockingly, too, the trial court accepted prosecutorsí arguments and allowed the profits from localities outside the Middle District to affect sentencing–even though those profits had not been proven to arise from anything but fully First-Amendment-protected materials! Fortunately, the Eleventh Circuit corrected this blatant error (and Little's sentence should accordingly be reduced somewhat).

The Eleventh Circuit Ignored Two Moderate Supreme Court Justices' View that There Should Be a National Obscenity Standard

The United States Court of Appeals for the Ninth Circuit had previously held, in United States v. Kilbride, that Internet communications, including email, must be governed by a national, not local, obscenity standard. It is unsurprising, though, that the conservative Eleventh Circuit would disagree with the very liberal Ninth Circuit on this point.

What is surprising, in contrast, is that the Eleventh Circuit also disagreed with the views of two moderate Supreme Court Justices – the moderate liberal Stephen Breyer and the moderate conservative Sandra Day O'Connor – on the same point.

Breyer and O'Connor both concluded – in their concurrences in Ashcroft v. ACLU – that a national obscenity standard should be applied. Breyer's comments on the matter indicated that he was simply reaching a conclusion as to the best interpretation of the statute that was then before the Court. In contrast, O'Connor suggested more broadly that a national standard, in this context, was the only one she would find "reasonable."

In my view, the fact that even a conservative Justice was troubled by using a local obscenity standard for the Internet should have led the Eleventh Circuit to think much longer and harder before okaying a local-community-based Miller test.

If There Is a National Obscenity Standard, Should It Track the Standards of the Most Permissive, Least Permissive, or Average Community – Or None of The Above?

Assuming that obscenity standards – which, after all, originate from religious, not civil-law concepts – are not junked altogether, should the Internet obscenity standard reference the national or local community?

Like Justice O'Connor, I think the answer is quite clear: A national Internet obscenity standard is necessary, if there is to be any Internet obscenity standard at all. Allowing a local standard, when prosecutors essentially can choose anyplace they like to make their cases, will mean that Internet speech could be governed by the views of the most closed-minded, benighted locality in the nation.

But the question of what, exactly, a national Internet obscenity standard should be based upon is much more difficult. Some will surely argue for a middle-ground standard that reflects the views of the average American, or of the majority of Americans. In the end, though, censorship by the masses is exactly what the First Amendment reviles. It sounds democratic, but in fact, it is the antithesis of democracy, because democracy cannot exist without truly free speech.

After all, why does the Constitution protect free speech, if not to protect unpopular – even despised – minority views? The majority does not urgently need a First Amendment; it has political power and can often protect and promulgate its own speech that way. And prosecutors rarely bite the hand that feeds them. It is political (and often, other kinds of) minorities who need the legal power to protect their speech from censorship.

All these considerations bring us back to the fundamental question of whether obscenity law is still needed in the Twenty-first Century. In my view, prosecutorial resources are better spent, for example, on policing the genuineness of consent in the porn industry (where drug use may be common and compulsion is a risk), or enforcing child pornography laws, than on putting speech on trial.

Should Local Courts and Jurors Be Trusted to Apply A National Obscenity Standard?

Finally, there is one more problem with using an average-American obscenity standard: Unless a new Obscenity Court is constituted, or jurisdiction and venue rules are tightened, the standard will still be applied wherever prosecutors want it to be. So we still may end up, over and over, with obscenity cases based in conservative federal districts. And jurors there – like jurors anywhere else – are likely to decide that the average American is probably much like themselves. In other words, a national average-American obscenity standard, applied locally, is likely to be almost indistinguishable from a local obscenity standard. Granted, the defense could put on evidence of views elsewhere in America, but jurors still are likely to believe, in the end, that it is their own views that are normal and typical.

Finally, it's hard to imagine that Congress would actually constitute a federal Obscenity Court to devote itself solely to these kind of cases – and if it did, that court would still have to get its jurors from some particular locality – unless it drew them, American Idol-style, from across the U.S. And even then, each juror would doubtless assume the views of his or her locality were average, normal views – though at least geographical diversity on the jury would lead to some debate. The Adam Lamberts would likely feel L.A.'s standards were normal; the Carrie Underwoods would likely bring Checotah, Oklahoma's standards to bear.

Obscenity law has always had weak underpinnings. Now, due to the advent of the Internet, it may be toppled entirely, if courts truly begin to take seriously the due process and First Amendment problems it raises. If it is not toppled, then significant injustices – like the injustice perpetrated in the Paul Little case – will only continue.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99 and has been writing about First Amendment issues for a decade. Hilden's article "A Contractarian View of Animal Rights: Insuring Against the Possibility of Being a Non-Human Animal" appeared in the journal Animal Law and can be found on her website.

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