YNOT – Now that two federal district courts on opposite coasts have rendered diametrically opposed obscenity opinions, the U.S. may see the Supreme Court weigh in on whether a national standard for obscenity is appropriate where electronic communications are concerned.Then again, it may not.
In October, the U.S. Court of Appeals for the Ninth Circuit, located in northern California, indicated “local community standards” are meaningless in cyberspace.
“…[A] national community standard must be applied in regulating obscene speech on the internet, including obscenity disseminated via email…,” Judge Betty B. Fletcher wrote when the court declined to overturn the convictions of porn-spammers Jeffery A. Kilbride and James Robert Schaffer. “…[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….”
Earlier this month, the 11th Circuit in Tampa, Fla., took exactly the opposite stance. In its opinion, the three-judge panel specifically noted it “declined to follow the reasoning” of the California court.
Federal obscenity law “does not recognize a national community standard for internet-based material,” the panel wrote in upholding the obscenity conviction of adult producer-director Paul Little (aka Max Hardcore).
What that means, at least in the 11th Circuit’s jurisdiction (Florida, Alabama and Georgia), is the most socially conservative “local areas” can be allowed to determine what types of adult content may be published online. In other words, produce adult content in liberal Los Angeles, for example, and if someone in Podunk, Fla., is offended, you may as well dig in your heels for a protracted legal battle thousands of miles away — and worlds distant philosophically.
“From what I hear, there is a good chance that either or both cases will go up to the U.S. Supreme Court,” Florida-based First Amendment attorney Lawrence Walters told YNOT on Friday. “The real question is whether the [Supreme] Court will take either case if a petition is filed. It wrestled with the internet community standards issue in the COPA cases for a while and never came to a decision, despite three separate opportunities to weigh in. That is irresponsible, in my view.
“This issue needs to be clarified so that internet publishers understand the risks they’re facing when distributing sexually explicit material online,” he continued. “From a First Amendment perspective, and given the inability to effectively block certain communities, the Ninth Circuit decision is the correct one. It allows more ‘breathing space’ for free speech. Given the current makeup of the [Supreme] Court, however, I would not expect a great decision on this issue.”
Chicago Loop attorney J.D. Obenberger agreed the case should go to the supremes, but that possibility certainly isn’t guaranteed.
“The split can sit there forever, because the Supreme Court has no obligation to take cases where there’s a split in the circuits, and in some cases, splits have gone on for many years — if not generations — without final resolution,” he told YNOT. “So, the law [forevermore] depends on where you are.”
Obenberger noted the dichotomous opinions may increase the likelihood SCOTUS will agree to hear a petition in the Little case — although the possibility exists the court will consider the Ninth Circuit’s “national standard” opinion dicta: mere language that does not control. In the Kilbride-Schaffer case, although the opinion indicated the judicial panel believed a nationwide standard was mandated by the Supreme Court in the COPA cases, that belief had no effect on the Ninth Circuit’s ultimate decision vis-à-vis the appellants.
That did not prevent the adult entertainment industry from reacting to the Ninth Circuit’s opinion with a great deal of excitement. The industry has hoped for a national standard ever since the web was a pup.
“It’s obvious, for what it’s worth, that the authors of the [COPA] concurrences at the Supreme Court described their opinions as being personal to themselves and did not couch any of this as a ruling of the court,” Obenberger told YNOT. “That’s what the 11th Circuit pointed out in its [Little] opinion, though what the Supreme Court justices thought about what they were doing does not entirely dispose of the issue. It matters what they actually do, not the way they describe it.”
However, Obenberger continued, “the Nixon-New-Federalism Miller Decision articulating local standards, as a reaction to the perception that New York and L.A. and San Francisco were shoving their perversions down the throat of Little Rock and Cedar Rapids, may have had some sense in dealing with local bookstores, but it just can’t make sense regarding what’s transmitted on the internet.”
Walters and Obenberger also agreed it’s unlikely the “national obscenity standard” issue will be dropped by either side of the argument. Both conservatives and liberals have something to gain if the Supreme Court decides to weigh in on the matter.
And, as Walters pointed out, “in this field, you have to be eternally optimistic.”
