11th Circuit reject’s 9th Circuit’s Kilbride decision and upholds application of local community standards to Internet obscenity prosecution
United States v. Little, No. 08-15964 (11th Cir. Feb. 2, 2010)
11th Circuit reject’s 9th Circuit’s Kilbride decision and upholds application of local community standards to Internet obscenity prosecution
The 11th Circuit held that 18 U.S.C. §§ 1461 and 1465, which regulate the mailing and transportation of obscene materials, do constitutionally apply to material transmitted via the internet.
Paul Little and Max World Entertainment, Inc. first argued on appeal that the statutes are unconstitutional because they “violate a substantive due process right of sexual privacy protected by the Fourteenth Amendment.” The 11th Circuit rejected this argument holding that obscenity is not protected by the 1st Amendment and that “neither the Supreme Court nor this Circuit has ever ruled that the government is precluded from regulating obscene materials passing in interstate commerce.”
Little also argued that the Miller v. California obscenity test could not be applied to materials published on the Internet because (1) “the contemporary community standards approach under Miller infringes upon First Amendment rights when applied to the Internet” and (2) “the requirement under the Miller test that the materials in question be taken as a whole is impossible to apply to materials found on the Internet.”
The Miller test states that to determine whether a work is obscene the trier of fact must ask: ‘(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes , in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’
(1) Little argued that since “they did not direct their Internet publication at any one area,” the application of the first prong of the Miller test would result in a judgment of published materials “according to the community standards of the strictest of communities.” Therefore, according to Little, a standard such as the “national community standard” recently articulated by the 9th Circuit in U.S. v. Kilbride, No. 07-10528, 584 F.3d 1240 (9th Cir., Oct 28, 2009) ought to be applied instead of a local standard. In Kilbride, the 9th Circuit held that the “fractured” decision of the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002) called for the “application of a national community standard” as least likely to pose constitutional concerns. Pointing out that “the portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court,” the 11th Circuit declined to follow the 9th Circuit’s reasoning and held that “the district court did not err when it instructed the jury to judge the materials on the basis of how ‘the average person of the community as a whole—the Middle District of Florida—would view the material.’”
(2) Little argued that the content at issue, video trailers posted on a website, “should be viewed in the context of the entire website in which they were published, according to the 3rd prong of the Miller test. The 11th Circuit held: “If the website in which material is found does not alter the determination of its prurient appeal or add some redeemable quality to the work, then the website is not necessary for the ‘taken as a whole’ analysis.”
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Eugene Volokh: Eleventh Circuit Rejects Ninth Circuit’s National-Standard-for-Internet-Obscenity Decision
Community Defense Counsel abstract of U.S. v. Kilbride
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