Obscenity prosecutions involving videotapes, DVDs, magazines, and other three-dimensional media items have enough vagaries, as readers of this column and, particularly, readers of “Legal Commentary” in AVN are well aware. Included are the difficulties in establishing community standards (and even defining the geographic boundaries of the “community”), battles of experts over issues of serious value, admissibility of evidence such as expert testimony, surveys of community attitudes and comparable materials, and many more; and, of course, the draconian federal sentencing guidelines (as explained in last month’s Legal Commentary in AVN) elevate the stakes into the stratosphere. The Internet adds more complexities, both technical and practical.
The convoluted Miller test came from a day in which materials alleged to be obscene were limited to films, magazines, and books. (Yes, one of the Miller cases, Kaplan v. California, involved a book with no pictures!) Websites were not even contemplated until nearly 20 years after Miller was decided. Plugging a Website into the Miller test is akin to putting a square peg into a round hole, for several reasons.
First, two of the “prongs” of the Miller test require that the material be evaluated “as a whole.” As Justice Kennedy noted in the first Ashcroft v. American Civil Liberties Union (COPA) case, “it is essential to answer the vexing question of what it means to evaluate Internet material ‘as a whole’ ... when everything on the Web is connected to everything else.” 535 U.S. 564, 600 (2002) (This question may have been answered in the second COPA case by the time this hits the streets). One of the currently pending federal obscenity indictments has charged a number of short film clips on a Web site each as obscene, which would seem like charging one picture in a magazine as obscene. That approach is hardly consistent with the concept of “taken as a whole” as envisioned by the Miller Court.
Another issue is the definition of the “community.” Both the issue of whether the material appeals to a prurient interest and the issue of whether the material contains patently offensive depictions of sexual activity involves “contemporary community standards”. The Supreme Court, in the context of books, magazines and films, has approved an instruction that does not define to the jury the geographical community, although it rejected a national standard (another concept that may change with the second COPA decision). Usually, the jury is given a geographic definition of “community.” Most often in federal cases, it is the area from which the jury pool is drawn, usually the particular division of the relevant federal district. That normally translates to a handful of counties surrounding the federal courthouse where the trial is held (including the one to which the materials were sent).
In some Internet cases, the issue may not be so much different than with books and magazines. The rules of venue allow the government to bring an obscenity prosecution in the place from which the material is sent or the place where it is received. If a streaming video is sent to a customer in a particular place, there is little difference between sending it that way and sending a VHS copy of it by UPS. Both the case law and the updates in the federal obscenity statutes recognize as much.
However, a different problem exists where something is not sent to anyone specific, but rather is available to any Web surfer anywhere. It really is not sent anywhere. Arguably, it is analogous to a customer coming to an adult video store in one city, purchasing a DVD, and taking it home with him across the country. Although the DVD could not have found its way to the far-flung jurisdiction to which the customer took it without the help of the store, the store owner had no control over its ultimate destination, although likely would be aware that a customer might be from afar with plans to take the DVD home.
The foregoing is important because, as you will recall, material is not obscene if, taken as a whole, it has serious value; it is not obscene if it does not contain what the community would find to be patently offensive depictions or descriptions of sexual activity; and it is not obscene if, taken as a whole, the community would find it does not appeal to prurient interest. Recognize that the foregoing is nothing more than a schematic of the Miller test, which took three Legal Commentaries in AVN to explain in relatively general terms.
The intangible that sets Internet obscenity prosecutions apart from others is the outrage of the public – which is, after all, the jury pool – over the overwhelming availability over the Internet of adult materials to children. To be sure, there are potential jurors at both extremes of the spectrum with respect to adult entertainment. At one extreme are those offended by any public discussion of sex; at the other are those who go ballistic over the notion that the government can tell adults what movies they can’t watch. It is that mass in the middle that will respond differently where the Internet is involved, the ones who believe that adults probably ought to be able to watch what they want but, right or wrong, that their children (especially younger ones) need to be protected – by the government, not parents – from the potential psychological damage that could arise being exposed to sexual depictions for which they are not emotionally prepared.
It is those “in the middle” jurors that could spell trouble for targets of Internet obscenity prosecutions. Compare FBI testimony:
“In connection with complaints that obscene materials were being sold at Joe’s Adults-only Video Emporium ....”
or,
“We received complaints that elementary school students were accessing obscene materials at www.com ....”
It certainly puts a different perspective on the trial right out of the gate, doesn’t it? All of that is to say that you should comply with COPA, no matter what the Supreme Court may say about its constitutionality!
Another profound difference is the impact of the Internet on the federal sentencing guidelines. If you still are reeling from recent articles about sentencing in federal obscenity cases, consider the following: Recall that the net offense level is generated by the base offense level (10 for obscenity offenses) plus or minus adjustments (e.g., 5 for commerciality, 4 for sadomasochistic activity, -2 if the defendant is a less significant participant), leaving one convicted of obscenity somewhere in the mid-teens to mid-20s, depending on a number of factors. Recall, also, that with each one-level increase in the offense level, the sentencing range is bumped up in the neighborhood of 15 percent.
Internet folks stand to be bumped up just because of the Internet. First, the prosecution likely will contend that a two-point upward adjustment is warranted for use of a special skill. Second, in obscenity cases, if the offense is committed after this coming November, add another two points for use of a computer – a new contrivance of the Sentencing Commission. So, merely for the use of the Internet, prosecutors will seek to add four points to the minimum of 15 (base offense level of 10 plus 5 for commercial), changing the low range from the 18-24 months for a level 15 to 30-37 months for a level 19. And if the defendant was not taking any measures to keep minors from viewing adult materials, don’t figure on any more sympathy from the George W. Bush-appointed Religious-Right judge than from the Bible-Belt jury that just found you guilty.
On the other hand, if the Webmaster takes care to follow COPA, the jury will not be so antagonized, and the judge will be confronted with the defendant’s unchallengeable answer to the question, “What did you do to keep minors from accessing this material?” Answer: “Exactly what the United States Congress enacted and the President approved in the Child Online Protection Act, Your Honor.”
Finally, there is the time-honored, law-enforcement principle of the discretion vested in the cops and the prosecutors. A cop might see you gliding through a stop sign but, nonetheless, let you go. When Mom calls the Department of Justice, complaining that her 8-year-old daughter was watching ATM scenes (which does not mean automatic teller machines) at www.com, don’t you think that will be an attention-getter?
Discretion is the better part of valor, you know. Can you stand up and defend your content in front of a Deep South jury and judge, in a stately, marble courtroom bearing an incredible resemblance to a church? In this new environment, you may be called upon to do so.
Clyde DeWitt is a partner in the Los Angeles, Calif.-based, national law firm of Weston, Garrou & DeWitt. He can be reached through AVN Online’s offices, at his office at 12121 Wilshire Boulevard, Suite 900, Los Angeles, CA 90025, or at [email protected]. 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.
