minorsWhen the Republicans took back control of the White House from the Democrats, there was much speculation that the obscenity prosecutions that flourished under previous Republican administrations, yet were halted during former President Clinton’s two terms, would begin again swiftly to appease anxious conservatives angered by the proliferation of online pornography. Yet the emergence of the Internet had raised all sorts of new legal issues surrounding the constitutionality of prosecuting online material for obscenity. That has left many adult Webmasters wondering just what their risks really are, a question which might soon be answered. First Amendment attorney Larry Walters explains recent efforts by First Amendment proponents to get to the bottom of the Justice Department’s true intentions.

The Plaintiffs in the New York case argue that the current obscenity test, which relies on the concept of local community standards, cannot constitutionally be applied to Internet communications, particularly in light of the recent COPA decision by the United States Supreme Court. In that case, six Justices of the High Court expressed significant constitutional concerns about applying community standards to some online communications. Although eight of the nine Justices agreed that this concern, by itself, did not render COPA unconstitutional, the Third Circuit Court of Appeal will now decide whether that factor, along with numerous other arguments, render COPA unconstitutionally overbroad.

Meanwhile, the United States District Court for the Southern District of New York is being asked to decide whether a portion of the CDA, which likewise relies on the application of community standards to Internet communications, violates the First Amendment. The Plaintiffs chose to limit their constitutional challenge to the portion of the CDA which prevents transmission of obscene materials to known minors. Therefore the court is only being asked to enjoin obscenity prosecutions under that narrow section, leaving the government free to prosecute obscenity cases under two other statutes.

The FALA, in its Amicus Brief, took the position that if the court is required by government prosecution threats to address the adult obscenity issue, it should also address the two other sections of the CDA that authorize the initiation of obscenity charges against individuals who disseminate obscene communications online. An injunction, as sought by the Plaintiffs, only against the challenged section, would create the paradoxical result of stopping the government from enforcing a prohibition on sending obscene materials to minors, but allowing the government to enforce other sections of the CDA prohibiting the sending of obscene materials to anyone. FALA has requested that, if the government threatens prosecution, the court allow the parties to broaden the scope of the challenge to include the other sections of the CDA that were not challenged prior to ruling on the constitutional issues.

Of extreme relevance is the pending decision by the Third Circuit Court of Appeals in Ashcroft v. ACLU,3 which has been remanded by the United States Supreme Court. The Third Circuit Court of Appeals has now been handed the task of evaluating the constitutionality of applying community standards to the Internet, in light of the scope and breadth of the content regulated by COPA, and the other overbreadth issues. Any decision by the Third Circuit would be highly persuasive on the issues being considered by the District Court in New York. Therefore, FALA suggested enjoining the appropriate obscenity prohibitions pending a decision by the Third Circuit or, much more logically, deferring consideration of this case pending that decision if the government announces that it will not initiate obscenity prosecutions in the interim. The uncertainty created by the plurality decision in Ashcroft v. ACLU puts the government in an extremely awkward position should it decide to initiate obscenity prosecutions against online content. With six Justices expressing doubt as to whether community standards are an appropriate consideration for online communications, and with no clear standard as to what the geographic dimensions of the community would be in any such prosecution, the government may well avoid these issues until it obtains a clearer ruling from the Third Circuit or from the United States Supreme Court.

Looming here is the possibility that any favorable decision from the District Court in New York could be directly appealed by the government on an expedited basis to the United States Supreme Court, thus resulting in an end run around the Third Circuit’s upcoming COPA decision. Should the Southern District of New York declare all or part of the obscenity prohibitions contained in the CDA unconstitutional, that decision will be directly appealed, as a matter of right, to the United States Supreme Court. That calls into question the wisdom of bringing the New York case in the first place, since the Supreme Court is more likely to uphold a prohibition on providing obscene material to minors than to adults. Such a ruling would set bad precedent for future cases. FALA has suggested that all of the obscenity prohibitions be put at issue in the case before any such ruling is rendered and reviewed by the United States Supreme Court. The government will now have an opportunity to respond to the request for an injunction against Web obscenity prosecutions. Perhaps the response will provide some unprecedented insight into the government’s plans to prosecute adult Webmasters for obscenity violations.

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2 An Amicus Brief is a legal document filed in a case by an individual or organization which is not a party to the litigation, but who receives special permission for the court to submit legal arguments relating to the issues raised by the parties as a “friend of the court.”

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, based in Los Angeles. Mr. Walters runs the firm’s Florida office, and represents clients involved in all aspects of adult media. Weston, Garrou & DeWitt handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com or www.FreeSpeechLaw.com

minorsWhen the Republicans took back control of the White House from the Democrats, there was much speculation that the obscenity prosecutions that flourished under previous Republican administrations, yet were halted during former President Clinton’s two terms, would begin again swiftly to appease anxious conservatives angered by the proliferation of online pornography. Yet the emergence of the Internet had raised all sorts of new legal issues surrounding the constitutionality of prosecuting online material for obscenity. That has left many adult Webmasters wondering just what their risks really are, a question which might soon be answered. First Amendment attorney Larry Walters explains recent efforts by First Amendment proponents to get to the bottom of the Justice Department’s true intentions.

The Plaintiffs in the New York case argue that the current obscenity test, which relies on the concept of local community standards, cannot constitutionally be applied to Internet communications, particularly in light of the recent COPA decision by the United States Supreme Court. In that case, six Justices of the High Court expressed significant constitutional concerns about applying community standards to some online communications. Although eight of the nine Justices agreed that this concern, by itself, did not render COPA unconstitutional, the Third Circuit Court of Appeal will now decide whether that factor, along with numerous other arguments, render COPA unconstitutionally overbroad.

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