Obscenity Prosecutions as a Whole Endangered by 9th Circuit, Lawyer Predicts

But other lawyers we asked read the ruling much more narrowly, with one suggesting it may make it easier for prosecutors to bring Internet obscenity cases. The 9th Circuit ruling isn’t likely to be heard by the Supreme Court for a variety of reasons, not the least of which is the government technically won, with the defendants’ convictions upheld on a technicality, they said.

The 9th Circuit was “not just the first circuit -- it’s the first court in the country” to clearly state that Internet content requires a national standard, Piccionelli said. The Miller test on which obscenity has been judged since 1973 had a “backwards” result when applied to the Internet -- with defendants judged by the standards of far- flung communities, he said. But the Supreme Court’s complicated decision in the challenge to the Child Online Protection Act (COPA) showed that “inferentially” the entire court agreed, through their concurrences, that a national standard must be used to judge obscenity online, Piccionelli said. The 9th Circuit panel also cited the COPA ruling. By virtue of the upheld convictions for Kilbride and James Robert Schaffer, “the government has pretty much been handed a non-appealable decision,” Piccionelli said. But he’s still weighing whether to pursue a full-court rehearing of the conviction or file a cert petition at the Supreme Court.

“This entire prosecution was in and of itself unusual,” Piccionelli said: Porn lawyers have long predicted the government would be “somewhat shy” in pursuing an Internet- only obscenity case. Prosecutors often “mix in” Internet counts with traditional allegations of mailing obscene DVDs or magazines, as happened in 2005’s prosecution of Extreme Associates, so the relevant standard isn’t seriously questioned, he said. The porn-spam nature of the Kilbride case and resulting decision likely has confirmed to skeptical Justice Department officials that the government should have stayed away from the “Breyer patch,” Piccionelli said -- referring to Justice Stephen Breyer’s call for a national obscenity standard in the COPA decision.

Despite having gained something of an ally at Justice -- Deputy Attorney General David Ogden, a former porn lawyer -- the industry isn’t counting on shifting attitudes in the government to shield it from prosecution. If President Barack Obama loses re-election in 2012, “all of these [defendants] would be in deep jeopardy,” owing to the long statutes of limitation on obscenity and RICO charges that are often part of prosecutions, Piccionelli said. With the 9th Circuit decision, “they're now in a completely different posture,” with Internet porn entrepreneurs safe from prosecution in places such as Utah, he said. (A widely- publicized study this year said Utah had the most subscriptions to porn sites as a percentage of population of any state by population.) Porn sites can also breathe easier in California, where private parties can claim “unfair competition” from a site alleged to peddle obscene content, long the “Achilles’ heel” of porn, Piccionelli said. He’s involved in such a case now.

Piccionelli predicted the ruling would affect not only other courts but also law schools, who will come to view the coexistence of national and local community standards as legally indefensible. There’s no difference between downloading a video and ordering one through the mail, to be privately enjoyed in the home, he said. “Somebody has finally said ’the emperor has no clothes.'”

‘Guardedly Optimistic’ or Just ‘Nice Jurist Talk'?

Other obscenity cases making their way through courts in Florida and the District of Columbia could provide a stronger basis for Supreme Court review, if trial and appellate judges reject the national-standard argument. An 11th Circuit panel in St. Petersburg, Fla., heard oral argument in a case involving mailing and Internet counts a day after the 9th Circuit decision. Paul Little and his Max World Entertainment were found guilty of obscenity in 2008, with Little, a performer in his own films, sentenced to a 46-month term and his site MaxHardcore.com forfeited to the U.S. government. Louis Sirkin, another First Amendment veteran representing Max World, told us he had trouble reading the panel judges, who could decide favorably for Little and the company without reaching the community-standard issue because of claimed errors at the trial court.

But Sirkin said he filed a “supplemental authority” right away with the panel following the 9th Circuit ruling, which also added heft to a 5th Circuit ruling last year that overturned a Texas obscenity law banning the sale of sex toys, a victory for Sirkin’s client. Sirkin said he’s always advocated an international standard for Internet porn, but he “certainly could live with a national standard.” The fragmentation and nationalization of the print and cable media will serve Sirkin’s larger argument, that the notion of a “community” with its own standards is outdated, he said: “We are no longer pigeonholed like we were in ‘73” when the Miller test was devised. “You can keep an obscenity law if it’s up on a billboard in Times Square,” Sirkin said, but for venues where adults privately seek out porn -- a physical store or the Internet -- the Supreme Court-recognized right to privacy should hold.

The manner in which the 9th Circuit mandated a national Internet standard could mean that a “circuit split,” justifying Supreme Court review, is a ways off, though, Sirkin said. The upheld convictions raise the question of whether the holding on the standard was simply “nice jurist talk” and not binding precedent. The 11th Circuit panel probably won’t rule for several months, and if the full 9th Circuit does a rehearing, the standard issue may not be “ripe” for Supreme Court review until summer, Sirkin said.

The indictment of porn producer John Stagliano and his Evil Angel Productions in U.S. District Court in D.C. (WID April 22/08 p1) may have the strongest basis for an obscenity challenge. Stagliano lawyer Allan Gelbard told us the whole concept of community standards for judging obscenity is unconstitutional: “What does ’taken as a whole’ mean” in the context of the Internet, where prosecutions against Stagliano and others have targeted short online clips from full-length DVDs. With the 9th Circuit ruling, the single Internet charge in the Stagliano indictment “probably goes away now,” Gelbard said, calling himself “guardedly optimistic.” And if the government tries to appeal at the 9th Circuit, “they're probably going to get their butts handed to them.”

Copyright law may actually prove to be the undoing of the government’s case in D.C., said Gelbard, whose practice focuses mostly on entertainment and intellectual property. Previously he won a multimillion-dollar copyright infringement judgment for Evil Angel. Porn companies must provide a copy of their productions to the Copyright Office in D.C. to register their copyrights, setting up a situation where they either must forfeit their IP rights or risk obscenity prosecution -- a situation foreign to the Miller test. Big porn studios, to say nothing of mom-and-pop porn sites, have only recently pursued broad enforcement of their IP rights (WID June 12 p1). The judge overseeing the Stagliano case is “keenly aware” of the intersection of the two laws, Gelbard said: “I got a really good feeling that he at least understood where I was going with this.”

‘Still Lots of Questions as to What That Means’

Civil-liberties lawyers we consulted were less sanguine on the 9th Circuit ruling having a snowball effect with regard to obscenity as a whole. “What the 9th Circuit has done is really not all that surprising,” said John Morris, general counsel at the Center for Democracy and Technology, calling the decision a “tweaking of the Miller edifice.” The ruling neatly followed Justice O'Connor’s point in the COPA decision that it’s difficult to restrict Internet distribution to specific geographic locations, necessitating a national standard. The logic makes sense and will likely be persuasive to other courts, he said: The ruling isn’t indicative of the 9th Circuit’s reputation as having a “liberal agenda.”

But the 9th Circuit didn’t provide a “clean resolution of this issue,” so it’s unlikely the Supreme Court would hear an appeal, Morris said. And “there’s still lots of questions” on what shape a national standard could take, such as a “lowest-common denominator” approach. The government can still bring Internet obscenity cases but they may simply need a different kind of evidence, Morris said: Prosecutions tend to go after “very egregious or very explicit material” anyway. The Max World case, for example, involves vomiting, urination and women portraying underage girls. And it’s plausible that a national standard could actually make Internet prosecutions easier by simplifying the government’s work in determining what standards apply, Morris said: “It may well be the same evidence they could use in both places” for prosecutions in divergent locales.

The ruling “does increase the chances of [a future case] raising the national standard question directly [and] going to the Supreme Court in the next few years,” said Kevin Bankston, senior staff attorney at the Electronic Frontier Foundation. The 9th Circuit mostly gave its “best attempt to make sense of the severely fractured opinion” in COPA. But the “garden-variety obscenity case” probably isn’t affected, he said. The Supreme Court had only expressed discomfort with fitting Miller to the Internet, not obscenity as a whole. “It’s certainly a chink in the Miller test” but not a threat to the use of community standards in non-Internet prosecutions. With so many prosecutions around the country, though, the chances are “fairly high” that the standard issue would come up and the government would appeal a loss, Bankston said.