The Internet, Obscenity, and Community Standards: The Emerging Kilbride and Little Circuit Split - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Internet, Obscenity, and Community Standards: The Emerging Kilbride and Little Circuit Split

The Internet, Obscenity, and Community Standards: The Emerging Kilbride and Little Circuit Split

Recent 2009 and 2010 decisions in the 9th and 11th Circuits have recalibrated a debate about the standard for prosecuting pornographers and whether the age of the Internet requires a national community standard to define obscenity.  This disagreement may be headed to the Supreme Court for a possible change in precedent that reaches back to the 1970s.

In Miller v. California, the Supreme Court set the standard to determine obscenity. The trier of fact must determine “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest” and whether the work (b) “depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c)… taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 39 (1973) The community standards in question are local, not national, as “our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation.” Id. at 30. “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.” Id. at 32.

The concept of the local standard has been tested by the rise of obscenity on the Internet, where materials placed online immediately reach all parts of the nation and the world.  In Ashcroft v. ACLU, the Court considered some of these problems in evaluating the Child Online Protection Act and ultimately did not change the test in a fractured opinion without five justices supporting any one opinion. Justice Thomas, writing for himself, Justice Rehnquist and Justice Scalia, found that the “publisher’s burden does not change… because the publisher may wish to speak only to those in a community where avant garde culture is the norm… but nonetheless utilizes a medium that transmits its speech from coast to coast.” Ashcroft v. ACLU, 535 U.S. 564, 583 (2002). The burden lies with the content provider: “if a publisher wishes for its material to be judged only by the standards of particular communities, then it need only take the simple step of utilizing a medium that enables it to target the release of its material into those communities.” Id.

The recent U.S. v. Kilbride decision involved defendants who were convicted for distributing obscenity via email. Without overturning the conviction, the 9th Circuit opinion noted that that court joins  “Justices O’Connor and Breyer [in separate concurrences in Ashcroft v. ACLU] in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.”  U.S. v. Kilbride, 584 F.3d 1240, 1254 (9th Circuit, 2009). However, the 11th Circuit, on February 2nd, 2010, upheld a conviction against Max Little, a Los Angeles based pornographer, in Federal Court in Florida on obscenity charges stemming from internet distribution, holding that “we decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard [in Ashcroft v. ACLU] were dicta, not the ruling of the Court.” US v. Little, 365 Fed.Appx. 159, 164 (11th Circuit, 2010). On February 19, 2010 the D.C. District Court reached a similar conclusion on the community standards issue. U.S. v. Stagliano, 693 F.Supp.2d 25, 31 (D.D.C., 2010).

Based on this emerging split between the circuits, the issue of whether a local community standard is appropriate in the Internet era may be heading again to the Supreme Court. Obscenity used to be distributed primarily by postal mail, which could be selectively directed at different communities around the country. However, the Internet, which reaches the entire country by default, poses new challenges. Nonetheless, many questions have yet to be resolved:

  • How does one formulate a national standard, and can juries meaningfully consider anything beyond their own local experience?
  • Should federal prosecutors be able to try obscenity cases in any venue in the nation, and should defense counsel be able to introduce national, or only local, practices, that show the material is not, in fact, below the relevant community standards?
  • How will changes to the obscenity standard affect obscenity law regarding minors, which is much more frequently prosecuted than adult obscenity violations?
  • How will a change in the law affect state prosecutions for obscenity, especially in large and diverse states like California that could have multiple state community standards?
  • Finally, is the Internet really different than previous distribution mediums, calling for such a substantial change in First Amendment doctrine?

Noah Hertz-Bunzl