The Supreme Court has affirmed the opinion in Apollomedia Corp. v. Reno, 19 F.Supp.2d 1081(N.D. Cal.1998), aff'd. ___ U.S. ___, No. 98-933, 1998 WL 227391, 853216 (April 19, 1999) and so, here we go with obscenity again.
Recall that the Apollomedia case pitted the annoy.com Web site against the government, challenging that section of the 1996 Communications Decency Act which prohibited "obscene, lewd, lascivious, filthy, or indecent with intent to annoy, abuse, threaten, or harass another person." (Recall that another part of the statute was dismantled by the Supreme Court in the ACLU v. Reno case.) And since annoy.com has always been in the business of annoying people, this lawsuit was more than just courtroom calisthenics.
Long-time readers of this column in AVN will know that speech which is nothing more than "lewd, lascivious, filthy, or indecent" is protected by the First Amendment, while speech which is legally obscene under the test articulated in Miller v. California enjoys no such protection. The point of the Apollomedia challenge was to effect a judicial repeal of the statute because of its overbreadth. Because the statute outlawed constitutionally protected "lewd, lascivious, filthy, or indecent" speech, the complaint urged, it exceeded the bounds of the Bill of Rights.
The three-judge court that heard the case agreed that the statute offended the First Amendment. But, unlike the state statutes and municipal ordinances which are more frequently the object of federal challenges, federal statutes are subject to saving constructions by federal courts. That is to say, in responding to a challenge to a federal statute, federal courts can say that Congress didn't quite mean what it said when enacting it and, under such circumstances, can sometimes "rewrite" the statute to conform to the Constitution, thus rescuing it. That has happened on some regular basis, especially where obscenity is involved. And, in the Apollomedia case, that is exactly what the district court in San Francisco ordered, limiting the coverage of the statute to legally obscene speech, as defined in Miller.
Significantly, most times when a case comes knocking on the Supreme Court's door, the Court can refuse to hear it without giving a reason, and the Court's refusal to hear it is of no legal significance. The typical case, a petition for certiorari, gives the Court the option of refusing to hear the case simply because it just isn't important enough to justify the Court's time. But, because of a quirk injected into the Communications Decency Act by Senator Exon and his ilk, any challenge to any part of that law is assigned to a three-judge district court (usually, there is only one judge), and then straight to the Supreme Court. (Usually, it first is review by an intermediate Court of Appeals.) Significantly, when the Supreme Court affirms an appeal (as opposed to denying a petition for writ of certiorari), the decision is said to bind all courts of the nation.
Determined to control its docket, the Supreme Court has developed a mechanism in appeals (which once were much more prevalent, until the applicable statute was subject to a limiting amendment) to avoid full review of every case, tending to either summarily affirm these cases, or dismiss them "for want of a substantial federal question." In order to garner the Court's attention, knocking on the Court's door in these instances (i.e., appeals) requires a "jurisdictional statement," urging the Court to "note probable jurisdiction," an order which, if issued, results in full briefing, and argument in the Supreme Court Building.
The jurisdictional statement filed by Apollomedia (this author's long-time friend and once very worthy adversary, Bill Turner, Esq.) powerfully argued that Congress meant exactly what it said in the CDA: that any rewriting of this statute ought to be done by Congress, not the courts. Apollomedia mightily attempted to convince the Supreme Court to note probable jurisdiction, an effort that the Supreme Court, unfortunately, summarily rejected on April 19, 1999. We now are all stuck with this portion of the CDA, as refined in the district court's Apollomedia decision... which brings us to the tortured topic of the absurd line which the Supreme Court has drawn between constitutionally protected speech and criminal activity - the Miller case - and whether it still holds water in the age of the Internet.
Indeed, this case is another grim reminder of the existence of countless and overlapping state and federal obscenity laws. And because these laws have come into disuse of late, most of the Internet industry is either ignorant of them altogether, or is at least in serious denial. Obscenity laws are kind of like atomic bombs: there are plenty of them out there; they are capable of staggering destruction; we all hope that nobody ever uses one of them; and we try not to lose sleep worrying about them. But they cannot be ignored.
The statute involved in the Apollomedia case, as construed, prohibits the dissemination of obscene material, with intent to harass or annoy. This is somewhat superfluous, however, since another section of the Communications Decency Act had already amended 18 USC �1465 to prohibit sending obscene material over the Internet using an interstate commerce facility (obviously, it is difficult to imagine sending anything over the Internet which is not using an interstate commerce facility), regardless of intent to harass or annoy. A violation of any one of those statutes is a felony, which is but the tip of the iceberg. 18 USC �1467 provides for forfeitures of the instrumentalities used to carry out obscenity offenses. Worse yet, the government can string a few obscenity offenses together and parlay them into a "RICO," which provides for both increased punishment and profoundly farther-reaching forfeitures. As an aside, most states have obscenity laws, although the consequences are generally not quite so staggering.
The government has used this heavy artillery sparingly in recent years, although it has been used with devastating consequences. For example, in a case that went all the way to the Supreme Court, the courts approved Ferris Alexander's six-year prison sentence and forfeiture of most of the adult bookstores in the Twin Cities area, all based upon a jury's finding that a half dozen or so magazines and videotapes were obscene. And to put this in perspective, according to the federal sentencing guidelines, an individual convicted of one obscenity violation by the company he owns and controls, faces a presumptive sentence of between 18 and 24 months, with circumstances which could easily reach a level of 51-63 months (for you lawyers, that starts with a base level of 10, plus 5 for pecuniary gain; the higher range adds 4 for heading an organization and 5 for depictions of violence).
A few other points: First, courts have approved the relatively liberal application of conspiracy laws to obscenity offenses. That means, in practice, that someone who does nothing more than help out a little is technically as vulnerable to prosecution (although not such a high sentence) as those who are ultimately responsible. Second, lack of knowledge that the material is obscene is not a defense. Rather, simple knowledge that the materials involved were somehow erotic may be enough. Third, there is no way to find out in advance whether something is obscene or not. In fact, one federal appellate court squarely refused to entertain a declaratory judgment suit in which a distributor was attempting to determine whether a videotape (After Midnight, from Odyssey Group Video) was in violation of the obscenity standards of Memphis.
As an aside here, it should be noted that depictions of minors engaged in sexual activities are illegal per se. They are associated with a completely different set of rules, coupled with profoundly more severe punishment. Adults only here!
The problem with all of this is that the line which divides speech which is protected by the First Amendment from that which can land you in the hoosgow is, to say the least, ill-defined - a line which is "dim and uncertain," as the Supreme Court once put it. In examining that "dim and uncertain" line, an important starting point is that expressive activity is always presumed to be protected by the First Amendment; it is up to the government to prove otherwise. And the following is what the government must prove in order to reclassify expression from the "constitutionally protected" category to the legally "obscene" category, where speech can be punished as severely as noted above:
"(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."
This is the Miller v. California test for obscenity, articulated by the United States Supreme Court in 1973, with which we all have been stuck ever since. Perhaps you now will understand why everyone is so confused.
In the most general of terms, the three prongs (and, remember, the government is burdened with proving all three of them) mean this:
"Prong A": "Prurient interest" means that, according to the average standards of the community, the material must appeal to a shameful or morbid interest in sex - whatever a "shameful or morbid interest" is. The prosecution always takes the position that anything at all erotic is shameful, while those defending adult fare contend otherwise.
"Prong B": "Patent offensiveness" means that the material must contain depictions or descriptions of sex which are too explicit for the average person in the community. This is normally what obscenity prosecutions and trials are all about. At least, police officers routinely ignore the other two prongs of the test, attempting to quantify all of it into a "what you can show" test, fitting into a neat, bureaucratic package. More on this follows.
"Prong C": "Serious value" has nothing to do with community standards. It simply holds that, if a reasonable person would find that expressive material has serious literary, artistic, political or scientific value, then it is protected by the First Amendment regardless of how morbid it is or what it shows.
In practice, the "B prong" of the Miller test becomes the focus of obscenity prosecutions. For whatever reason, the "what you can show" approach to obscenity regulation has propelled the adult video industry into its own, unwritten "what you can't show" list of rules: (1) Excretory functions; (2) Sadomasochism associated with hard-core sexual activities; (3) "Fist insertion", with the number of knuckles which can be inserted somewhat varying from place to place, (4) menstruation, and (5) bestiality.
The problem with all of this is that "what you can show" is a function of local community standards. As the Supreme Court articulated in Miller, people in Maine or Mississippi should not be required to be subjected to that which is acceptable in Las Vegas or New York. Ironically, by the way, Maine now has no state obscenity law. The dilemma of a local retailer is daunting, trying to figure out what the average person in the community might think of a particular videotape or magazine, given both the Miller test and the "what you can show" approach which is generally taken by law enforcement and often taken by juries. But, by comparison, that is simple in comparison to the dilemma of the Internet provider.
A Web site goes everywhere. Granted, using zip-code screening in the credit-card approval process can ease the pain a little. But just because someone's credit card bill is sent to one place, doesn't mean that is where the person is actually situated when logging on. Under federal law, each of the 95 federal judicial districts is a different "community," and most have several divisions, and each division is usually a different "community." That's hundreds, right there. Under the various state obscenity laws, some define the "community" as the whole state (including such diverse places as Illinois, Texas and California); others define it on a county-by-county basis (such as Florida). Disconcerting thought, isn't it?
Part II of this article will talk about why cyberspace and other factors ought to trump the Miller community standards approach to all of this.
(Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at "[email protected]". Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
