In the 1970s, the late Supreme Court Justice Potter Stewart (1915-1985) famously observed that he could not define obscenity in precise terms, “but I know it when I see it.” Ever since, Stewart’s sentiment has served as a nutshell representation of U.S. obscenity law. The 1973 Supreme Court decision in Miller v. California, which introduced the three-prong obscenity “test” still in use today, relies heavily on real-world juries knowing what falls outside the boundaries of local psychosocial mores—in other words, knowing obscenity when they see it. As every community is slightly different in the level of “perversion” it is willing to allow before condemning adult behavior and speech as “obscene” (and therefore not protected by the First Amendment), the nearly 40 years since the seminal Miller decision have witnessed haunting dichotomies between geographical regions, states and sometimes even cities.
Federal prosecutors and morality crusaders, of course, took note of the areas in which people’s definitions of “obscenity” seemed to be either very conservative or very liberal. As part of a declared “war on pornography,” religious right factions masquerading as public-interest groups still seek to further their anti-porn (and consequently anti-personal-liberty) agendas by ferreting out “offensive” materials in some of the most conservative communities in the country, then insisting the government prosecute the producers and distributors. Concurrently, FBI agents and postal inspectors, apparently at Justice Department urgings, order adult DVDs to be sent to conservative areas, hoping to mount prosecutions there once the discs are received. Historically, prosecutions often resulted in the conviction and imprisonment of store clerks and others only tangentially involved with producing and distributing sexual material so heinous it jeopardizes the very fabric of society. (In case readers didn’t recognize it, that last was sarcasm.)
Though abhorrent from a First Amendment perspective, for the most part such actions legitimately can be characterized as the triumph of small minds in repressed areas. Adult entertainment producers and distributors learned from each case and marked certain regions of the country off their lists of markets to which they would ship product.
And then came the internet.
The advent of cyberspace in the mid-1990s not only opened up a wealth of untapped customers for innovative adult entrepreneurs, but also a Pandora’s box of headaches for obscenity watchdogs. Almost immediately, social conservatives began decrying the web as a vile cesspool of sexual depravity and demanding it be “cleaned up” so as to make the information superhighway safe for children, as well as for adults who did not want to risk their immortal souls by “accidentally” stumbling across God-knew-who doing God-knew-what God-knew-where with God-knew-whom. Equally as immediately, attorneys began to realize the Miller decision’s insistence on “local community standards of decency” became much more difficult to define.
The Day Everything Changed
An appellate court’s October ruling that sent two convicted spammers to jail also may have set an important precedent in obscenity law. By opining that “local community standards” are meaningless where electronic communication is concerned, the U.S. Court of Appeals for the Ninth Circuit set the stage for defining a national standard of decency, at least for the internet.
Jeffery A. Kilbride’s and James Robert Schaffer’s battle to avoid six-and-a-half- and five-and-a-half-year prison terms, respectively, for CAN-SPAM and obscenity violations may be relegated to the status of historical footnote by the broader implications of the appellate panel’s ruling.
Although the court declined to overturn the convictions of Schaffer and Kilbride based on their argument that the trial judge erred in his jury instructions, attorneys for the pair took heart the appellate judges were persuaded by arguments that applying the Miller Test’s “local community standards” clause to electronic communications “unavoidably subjects those communications to the standards of the least tolerant community in the country.”
“…[A] national community standard must be applied in regulating obscene speech on the internet, including obscenity disseminated via email…,” Judge Betty B. Fletcher wrote in the panel’s opinion. “…[A]pplication of local community standards raises grave constitutional doubts on its face and application of a national community standard does not, thereby persuading us to adopt a national community standard….”
While admitting the decision was bittersweet, Schaffer attorney Gary Jay Kaufman said he was pleased the case seems poised to change the way obscenity laws are adjudicated, at least in the Ninth Circuit.
“What the court is saying, in effect, is that the days of trying to fit ‘horse-and-buggy’ law to the digital age are over,” Kaufman said. “And it makes sense. How can you subject a person to criminal prosecution for having the bad luck to open their email or log onto a website in Boise, Idaho, rather than Los Angeles, California?”
A Cyberspace Slam-Dunk?
First Amendment attorney Lawrence G. Walters said the Ninth Circuit’s outright support for a national obscenity standard where electronic materials are concerned is something many defense attorneys have sought and anticipated for a long time.
“As far as the substance of the ruling, itself, it is certainly helpful in the average internet obscenity case,” he said. “Being able to draw potential evidence of acceptable, comparable material from anywhere in the country makes the defense lawyer’s job easier, especially when the defendant is prosecuted in a location with no adult businesses.
“We’ve been pushing for national standards in all of our online obscenity cases since 1998, and it is refreshing to see that one court finally ‘got it’ and imposed the appropriate standard where the material is distributed in cyberspace,” he continued. “Holding online publishers to the standards of the most restrictive local community provides a ‘heckler’s veto’ on all internet erotica, and that cannot be squared with basic First Amendment protections.”
Kilbride attorney Gregory A. Piccionelli agreed.
“It has been clear to those of us practicing in the internet-law area for the past 15 years that the old formulation of letting the most conservative communities in America dictate what is or is not obscene on the internet is deeply destructive to our fundamental freedoms,” he said. “I am glad that we persuaded the Ninth Circuit to make this long-overdue change in obscenity law.”
Free Speech Coalition Executive Director Diane Duke weighed in as well, saying the adult industry’s trade association will breathe easier knowing a national obscenity standard has been deemed appropriate by at least one powerful court.
“It is comforting to know that venues like Utah will not be setting community standards for the entire country,” Duke said. “While the decision may ease the burden for the adult entertainment industry, obscenity laws continue to cast an oppressive shadow of concern for content providers and distributors in our industry.”
But although the Ninth Circuit’s ruling answered one big Electronic Age question, it generated several others in Walters’ mind.
“Given the importance of the community standards issue in obscenity cases and the potential impact on protected speech, this ruling is hard to swallow,” he said. “The question becomes, what happens if other courts fail to properly instruct juries on national standards? Will it even matter if this is not a reversible error? Can courts continue to require local community standards, without any effective remedy on appeal? This part of the ruling seems ripe for potential reconsideration by the appellants.
“However, that comes with some risk, because either this panel or the entire en banc Ninth Circuit could change the ruling and go back to local standards, if anybody requests reconsideration,” Walters added. “Also, while this seems like a natural case to take up to the U.S. Supreme Court, the fact that it comes from the Ninth Circuit—the most reversed circuit in the nation—and involves a ruling in favor of the adult industry generates real concern about any potential ruling from the Supreme Court. The majority of the justices currently on the court do not seem to be inclined to do the industry any favors. The justices seem to accept, as a foregone conclusion, that obscenity and child pornography are well-established exceptions to First Amendment protection, and that does not present any constitutional problem.
“On the other hand, the appellants have the right to try and have their conviction reversed, regardless of the potential impact on First Amendment law in general, so this will be an interesting case to follow,” Walters opined. “The appellants are well-represented by their current legal team, and I hope that competent lawyers continue to guide these individuals on their various legal options and the potential consequences.”
Kilbride’s and Schaffer’s legal teams indicated they have made no decision yet about whether to appeal the Ninth Circuit’s declination to overturn their clients’ convictions. However, “as it stands, they will be the last defendants convicted under an unjust law,” Kaufman said.
Real-World Implications?
Should those whose businesses operate in the brick-and-mortar realm be encouraged by the ruling? Maybe, but the path to sweeping change in the real world is anything but set in stone.
There is “not a chance” a national community standard will generalize from the virtual world into the real one, attorney Marc J. Randazza said. Although “Miller is illogical and unworkable”—especially in a world the 1973 Supreme Court was ill-equipped to imagine—as long as the Miller Test provides a boost to legal careers, prosecutors will continue to bring cases based on the outcry of local conservative voter blocs.
“These peckerwood prosecutors in Biblewood, Miss., are petty little shits” who see obscenity cases as quick routes to public notoriety, Randazza said. Often, prosecutors view the pursuit of hell-spawned porn as a no-lose proposition. After all, even if the accused is acquitted, at least the prosecutor took a stand for decency, right?
Walters agreed the Ninth Circuit’s support for a national obscenity standard vis-à-vis electronic communication is unlikely to affect the application of obscenity laws in the brick-and-mortar world—although a cogent argument can be made for a unified standard in both venues.
“Getting the courts to accept a national standard in brick-and-mortar cases is a more difficult challenge, because the courts have generally said that individual communities have the right to control their own standards and determine what kinds of adult material they choose to accept,” he said. “An adult DVD distributor can control whether to send material into Polk County, Florida, while an online publisher cannot effectively block access to certain communities. That’s the key difference, from a legal perspective.
“But from a social perspective, I’ve argued that local communities no longer have any unified ‘standard’ for adult material,” he continued. “Each person is an individual, and we all have our own network of contacts and friends throughout the world. Unlike earlier days, where community members gathered together in the public square to exchange ideas and come to a consensus on various social issues, people today communicate on a global basis—usually without setting foot outside their house. For example, I may have more in common with my European friends on Facebook.com than I do with my neighbor, whom I barely know. Moreover, current society is much more transient than in the past, so new people are constantly moving in and out of all communities.
“Trying to pretend that each geographic community has its own unique ‘local standard’ with regard to human sexuality is patently absurd,” Walters said. “We’re all individuals, and the geographic place where we choose to lay our head at night should not dictate our access to sexually explicit materials.”
Industry attorney J.D. Obenberger likewise agreed homogeneity of standards is unlikely to result—even though the prosecution in the Kilbride-Schaffer case unintentionally made a powerful argument for just such a result. “In Kilbride, the government mounted an elaborate case for a national community standard by introducing [as evidence] eight complaints from eight different areas of the country,” Obenberger said. “The prosecution actually brought up the issue of a national standard. [What’s more,] the government’s jury instructions included ‘society as a whole’—not just the local community as a whole. They sought the advantage of going beyond the district.”
Still, Obenberger added, geographically disparate groups of people—whose religious and social mores often are ingrained by generation upon generation of tradition—hold dear the right to eschew outside interference when determining what is offensive in their little corner of the world. As Duke noted, the adult entertainment industry and some liberal regions of the U.S. chafe under the notion that socially conservative areas like Utah and Alabama might be allowed to set standards that are far too restrictive. The reverse also is true, Obenberger reminded: Conservative areas want liberal attitudes kept out of their pristine enclaves. Because preventing the incursion of all manner of perversions—from sexual to ethnic to religious and political—has become more difficult since the advent of the internet, “physical communities have a far more attenuated interest in what is sold across the counter in their jurisdictions,” Obenberger said. “But an interest still exists.”
That interest covers not only items sold over the counter, but also physical product shipped into the area—even if the merchandise is purchased from a business that exists solely in cyberspace. According to Obenberger—who said he is in favor of a national standard “across the board”—the courts are most likely to view physical product shipped by common carrier in an entirely different way than they view virtual product delivered on a computer screen. “Think of a website as a well,” he advised. “Anyone can dip in a bucket. The well’s owner doesn’t know where the buckets are going, so it’s unfair to hold him responsible for local laws. With web fulfillment by postal mail, though, it’s reasonable to assume the seller knows where a product is going” because he must obtain the buyer’s address in order to ship the purchase.
That may be true, attorney Robert Apgood said, but for the same reasons Walters indicated a national standard is the only reasonable approach to obscenity. Apgood believes sooner or later that’s exactly what will result.
The Kilbride decision “really puts Miller at risk,” he opined.
“I think it’s beyond time to re-evaluate Miller, which came out at a time when we didn’t have global instant communication. Miller made sense at the time. ‘Community standards’ had real meaning when communities were isolated and obscenity could be considered in a context of local action.” In the Digital Age, although there may seem to be differences between delivering physical and virtual product, “it’s a fictitious distinction,” Apgood said. “There should be one standard and only one.”
The courts eventually will come to realize that, he added, though several more cases—or one “normalizing” adjudication at the Supreme Court level—may need to highlight the paradox inherent in dueling standards. “You can’t have two divergent, coexisting standards,” Apgood averred. “Technology has broadened the scope of communication and made it inexpensive in ways few could conceive even 20 years ago. Things have changed monumentally since Miller, and the community standards portion of that ruling is obsolete now.”
Regardless where the standard ends up, one thing about obscenity law that is not likely to change is the requirement that 12 individuals—the notorious “jury of one’s peers”—decide whether any given snippet of content is truly obscene or merely distasteful. Any such committee effort to build a horse will continue to produce camels as often as equines, Obenberger indicated. No matter where the majority of their communities—local or global—may fall on the tolerance scale, every individual is a product of the collective influences of a lifetime of incorporated bias. “In the end, people can’t escape their own experiences and lives,” he said.
This article originally ran in the February 2010 issue of AVN.
