The 11th Circuit U.S. Court of Appeals released an unpublished opinion on Feb. 2, 2010, that rejected the 9th Circuit's national Internet obscenity standard and instead applied a localized, "contemporary community" standard to affirm the conviction of an online pornography producer.
In United States v. Little, 38 Media L. Rep. 1289 (11th Cir. 2010), a unanimous three-judge panel upheld the trial court's use of the pre-Internet "community standard" the Supreme Court of the United States adopted in Miller v. California, 413 U.S. 15 (1973), and affirmed the convictions of adult movie producer Paul F. Little, also known as Max Hardcore, and his company, Max World Entertainment Inc. The Miller court defined the standard for "obscene" as "whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest."
A jury in the U.S. District Court for the Middle District of Florida convicted Little and Max World in May 2008 for violating 18 U.S.C. §§ 1465 and 1461, which prohibit the publication of obscene content and using the U.S. mail to deliver such materials, respectively. Little, of Altadena, Calif., posted promotional trailers of sexually explicit videos on the Max Hardcore website, which is hosted on servers in Tampa, Fla.
Agents with the U.S. Postal Inspection Service in Tampa downloaded the videos, then ordered five DVDs and arranged to have them delivered to a local post office box. The government used the online trailers and the mailing of the DVDs as the basis for the charges against Little and Max World. Neither the 11th Circuit nor the lower court opinions described the contents of the DVDs.
Little and Max World were each convicted on 10 counts of violating the federal obscenity statutes. Little was sentenced to 46 months in prison, ordered to pay a $7,500 fine, and to forfeit the obscene films and all gross profits from the distribution of the films. Max World was fined $75,000.
In an earlier decision, United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009), the 9th Circuit U.S. Court of Appeals interpreted the Supreme Court decision in Ashcroft v. ACLU, 535 U.S. 564 (2002), as mandating that "a national community standard must be applied in regulating obscene speech on the Internet." In Ashcroft, Justices Sandra Day O'Connor and Stephen Breyer argued in separate concurring opinions that a national standard should be adopted in Internet obscenity regulation cases.
"[G]iven Internet speakers' inability to control the geographic location of their audience," O'Connor wrote in Ashcroft, "expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask, and would potentially suppress an inordinate amount of expression."
In Little, the 11th Circuit declined to follow the 9th Circuit's interpretation by reasoning that the portions of Ashcroft that advocated a national Internet obscenity standard constituted dicta, and not a binding ruling of the Supreme Court.
"As a result," the 11th Circuit panel wrote, "the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere." By applying the community standard, the 11th Circuit held that the district court properly instructed the jury to judge the materials on the basis of how "the average person of the community as a whole - the Middle District of Florida - would view the material."
An attorney for Little told the Silha Center that Little had not reached a final decision on whether to appeal to the Supreme Court of the United States.
In a February 4 post on The Volokh Conspiracy blog, UCLA law professor Eugene Volokh questioned the 11th Circuit's decision not to publish the Little opinion because the ruling rejected the 9th Circuit precedent and apparently constituted the first time the 11th Circuit considered the national Internet obscenity standard. Volokh noted that unpublished opinions lack binding precedential value and are typically used when ample precedent on a subject exists in a jurisdiction. "So it's hard for me to see why this opinion, which is certainly quite detailed[,] should be unpublished," Volokh wrote.
In a February 11 post on his Digital Media Lawyer Blog, California attorney David Johnson argued that use of a local community standard is problematic for online publishers, because unlike publishers of print materials, they cannot limit distribution to markets where they would not be violating local obscenity standards.
Johnson also wrote that he thought the Supreme Court may want to reconcile the divergent rulings. "The standard for obscenity in Internet cases is clearly an issue that several U.S. Supreme Court Justices have already indicated interests them. I would not be surprised for the Court to take one of these cases soon in order to resolve this issue," Johnson wrote.
Although the 11th Circuit affirmed the convictions, it vacated both sentences and remanded the case to the district court for re-sentencing. The panel ruled that the district court improperly enhanced the sentences of Little and Max World because the DVDs generated aggregate retail sales of $40,340. Federal sentencing guidelines at U.S.S.G. § 2G3.1(b)(1) permit enhanced sentences when the financial gain from the sale of obscene materials exceeds $30,000. The panel concluded that the local community standard must also be applied to sentencing and that there was no evidence any sales, other than the purchase by the postal service agents, occurred in the Middle of District of Florida.
"Appellants' sentences are being increased for sales in areas that could have community standards that deem the DVDs not to be obscene," the panel wrote. "Thus, when dealing with the DVDs in areas outside the Middle District of Florida, we must treat them as speech protected by the First Amendment until otherwise determined. Increasing Appellants' sentences for pecuniary gain in areas where the DVDs have not yet been proven to be obscene comes dangerously close to a violation of Appellants' First Amendment rights."
- CARY SNYDER
SILHA RESEARCH ASSISTANT