Obscenity online: Do we need a national standard?

How do we — and our courts — define what’s obscene online and therefore not protected by the First Amendment?

Do we use a national standard in such cases, avoiding the confusion that results when the same online article, image or film is declared illegal in one state and legal in the next?

Or do we go with local or community standards, which recognize the differences among us in what’s acceptable, but which could end up leading authors, filmmakers and others to edit their material to survive the most-censorious local scrutiny possible, even if most Americans would accept it?

The upholding Feb. 2 of the obscenity conviction by the 11th U.S. Circuit Court of Appeals in United States v. Little — otherwise known as the “Max Hardcore” case — raises this pressing legal issue. It also leaves lower courts in disagreement over whether such cases should be gauged under a local community standard or a national one.

A federal district judge in Florida had instructed the jury in Little’s case to judge the sexually explicit materials on the basis of how “the average person of the community as a whole — the Middle District of Florida — would view the material.” After they were convicted of obscenity, adult-entertainment producer Paul Little and Max World Entertainment Inc. appealed to the 11th Circuit on numerous grounds. One of their contentions concerned this “standards” issue.

Under the U.S. Supreme Court’s decision in Miller v. California (1973), the prevailing test for obscenity asks:

  • Whether the average person, applying contemporary community standards, would find that the work appeals to the prurient interest in sex.
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct defined by state law.
  • Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

This “Miller test” applies to any medium of expression.

Little’s attorneys argued that a local community standard threatens First Amendment principles by subjecting individuals to prosecution and prison on the basis of standards in possibly the most puritanical and squeamish of communities.

The 11th Circuit rejected that argument, though it noted that the 9th Circuit had adopted a national standard for online obscenity cases in U.S. v. Kilbride, (2009). The 9th Circuit wrote that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via e-mail.”

The 11th Circuit also noted that some Supreme Court justices supported the notion of a nationwide standard in their separate opinions in Ashcroft v. ACLU (2002).

For example, Justice Sandra Day O’Connor wrote that “adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.” Justice Anthony Kennedy said, “The national variation in community standards constitutes a particular burden on Internet speech.”

However, the 11th Circuit characterized these justices’ language as mere “dicta,” not controlling legal authority. Given the “circuit split” between the 9th and 11th circuits, the issue will need to be settled in the U.S. Supreme Court.

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