"In contrast to previous economic eras,
intellectual property will be the primary source
of new wealth in the 21st century."
- Gregory A Piccionelli, 1989
 
AREAS OF PRACTICE
• Internet Matters
• Music & Other Entertainment Matters
• Intellectual Property Rights Enforcement
• Crowdfunding Matters
• Freedom of Expression Matters

Big News: Online Adult Content Must Now Be Judged By National Community Standards In The Western U.S.

DECEMBER 2009

Every now and then an event occurs in the adult entertainment industry that is of critical interest to every participant in the business. On October 28, 2009, such an event occurred. On that day the United States Court of Appeals for the Ninth Circuit became the first to adopt the requirement that content distributed via the Internet that is alleged by the government to be obscene must be subject to a national standard and not a local community standard as has been the case since the inception of the commercial web.

 

The ruling is revolutionary for many reasons, but perhaps most importantly for the average online adult entertainment entrepreneur because the Ninth Circuit has taken a giant step in leveling the playing field for adult businesses under constant threat of obscenity prosecution by the government.

 

Obscenity prosecution, just the thought of it scares the hell out of just about every adult entertainment entrepreneur, and with good reason. Consider the following regarding the potential result of a conviction of violating the federal obscenity laws:

 

  1. Each distributed item found to be obscene potentially carries a penalty of five years in a federal prison, heavy fines and forfeiture of money obtained from the distribution of the items.

  2. Distribution of two or more obscene items is a specified predicate act that can trigger simultaneous prosecution under the federal law known as the “Racketeering Influenced and Corrupt Organizations Act”, a.k.a. RICO, a heavy hitter law enacted to destroy entire mob operations. Persons convicted of a RICO offense face an additional ten years in jail plus the forfeiture of all property associated with the enterprise associated with the distribution of the items. Thus, for example, a webmaster running an online business from his home who has been charged with distributing as few as two obscene video clips from one of his sites could face a RICO action that might result in the forfeiture of his home.

  3. Monies obtained from distribution of obscene materials are also subject to the federal money laundering statutes. These big boys can send you away for ten years for domestic money laundering, twenty years if the money is made or is moved offshore.

  4. If more than one person is involved in the distribution of allegedly obscene materials, all parties could face an additional charge of conspiracy, which can add up to another ten years to a convicted defendant’s sentence.

 

Thus, if you and a business partner, operate an adult membership site depicting two or more sexually explicit images or video clips, you could, in theory, face up to 50 years in prison! That’s right fifty years for publishing a couple of photographs! That my friends, is an obscenity much greater than any two photographs could ever be, regardless of what may be depicted in them.

 

The morality driven, arcane law of obscenity, which criminalizes content depicting consenting adults when transmitted to other consenting adults seeking the content is, in my opinion, nothing less than a monumental offense to a free people and a shameful attack on our cherished and sacred freedoms of expression. As we spend our nation’s blood and treasure in the fight for the freedom of Afghans from the tyranny of the Taliban it is a national embarrassment for the land that is supposed to be a beacon of freedom to the world to hold this 100 megaton Sword of Damocles over the heads of persons who dare to publish depictions of the natural act that got us all here in the first place.

 

But, unfortunately, that ghastly reality is what every adult entertainment entrepreneur and every adult entertainment business faces each day they operate to provide hundreds of millions of consumers globally with one of the most demanded products on the planet.

 

Unfair? Of course it’s unfair. But sadly, seemingly nobody outside of the adult industry, except for first amendment attorneys, civil rights groups and fair judges goes to bat for the free speech rights of adult content publishers. And that is fundamentally why politicians see such great political opportunities and benefits by piling on more and more possible punishments for pornographers each election cycle. After all, what politician, particularly in today’s sorry crop, is going to risk his or her career doing anything to help a group that is often portrayed as either greedy exploiters of women, subverters of the morality of our youth, or a satanic ally posing an apocalyptic threat to human civilization.

 

But despite how much hypocritical politicians and conservative interest groups have shamefully stacked the deck against the adult entertainment business, every now and then, something happens that confirms that our system of government, flawed as it is, still operates to protect our fundamental freedom of expression.

 

One of these “somethings” occurred when the Ninth Circuit Court of Appeals ruled in the case of United States v. Kilbride that allegedly obscene content transmitted via the Internet must be evaluated by a national community standard and not by the local community standards of a single community among the thousands into which the content was electronically transmitted.

 

The Kibride case involves the appeal of the criminal convictions of two spammers, Jeffrey Kilbride and James Schaffer, who distributed two sexually explicit images via email throughout the United States. The Defendants were convicted of violations of two federal obscenity laws (18 U.S.C. §§1462 and 1465), which prohibit the importation and the transportation in interstate commerce, of "obscene, lewd, lascivious, or filthy" books, pictures and other media. Both statutes have previously been interpreted to apply to distribution of content via the Internet, and specifically include distribution via an "interactive computer service," as defined by the Communications Decency Act.

 

Since 1973, Supreme Court decisions have held that the determination of whether content is obscene or not is a matter of evaluation of the materials through the application of the standards of a local community in which the publication was made (transmitted or received). However in Kilbride, the Defendants were prosecuted for their national distribution of obscene materials.

 

In that case at trial, the jury was instructed to use the community standards of " . . . society at large, or people in general" in determining whether the images at issue were obscene. The jury instruction stated that this “community” was "not defined by a precise geographic area". Applying the jury instruction, the jury found the Defendants guilty.

 

After their trial and conviction, Kilbride and Shaffer switched to new counsel and hired my firm and The Kaufman Law Group, respectively. We first entered the picture to prosecute their appeal to the Ninth Circuit Court of Appeals.

 

We quickly determined that the jury instructions were inherently unfair and probably constitutionally infirm, in part because they asked the jury to apply a vague global or “societal” standard for obscenity determination, detached from any geographic bounds. Further, we felt that it was time to frontally challenge the inherent unfairness, impracticality and constitutionality of an obscenity evaluation mechanism that subjects persons using a currently necessarily world-wide distribution medium, the Internet, to the community standards of a single small community, which might be unusually or even uniquely intolerant of adult content.

 

One of our first critical tasks was to file a motion to keep Kilbride and Schaffer out of prison on bail pending their appeal. These motions are very difficult to get granted in part because defendants making such requests are, after all, convicted federal felons. Consequently, virtually all defendants convicted of obscenity law violations spend their time on appeal in jail. This is the case, for example, regarding Paul Little, a.k.a., Max Hardcore, who is currently serving out his sentence while his case is appealed.

 

However, agreeing with our briefs’ assertion that significant constitutional questions were involved regarding the “community” the jury was instructed to use for its community standards evaluation to convict our clients, the Court granted Kilbride and Shaffer their freedom while we appealed their case.

 

In our appeal briefs and at oral argument before a three-judge panel of the Ninth Circuit in June Gary Kaufman and I argued that because the distribution of the emails at issue was a national distribution of content, the District Court should have instructed the jury to evaluate the materials in the context of a "national” community standard.

 

The 9th Circuit agreed with us. In its opinion, the Court adopted our view of Ashcroft v. ACLU, a United States Supreme Court decision regarding the Child Online Protection Act (COPA), in which Supreme Court Justices O'Connor and Breyer, had stated that a "national standard" should be used for laws involving distribution of obscene material over the Internet. In that Supreme Court opinion, Justice O'Connor, to her great credit, noted that community standards for obscenity vary greatly throughout the country and that, at least for now, persons using the Internet to publish materials are unable to precisely control the geographic location of their audience. As a result, subjecting Internet publishers of explicit sexual content to a "local community" standard for obscenity, would in effect require them to adopt the most restrictive view of obscenity taken by any community in the country. This, in turn, Justice O'Connor rightly concluded, would "potentially suppress an inordinate amount of expression." (535 U.S. 587).

 

The Ninth Circuit also agreed with our interpretation of the COPA case opinion, by citing the fact that a majority of Supreme Court Justices "viewed the application of a national community standard as not or likely not possessing" the serious constitutional concerns posed by using local community standards to judge explicit content distributed via the Internet in obscenity cases. Based on this interpretation of the COPA case, the Ninth Circuit stated that it was persuaded to join Justices O'Connor and Breyer in holding that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity distributed via email."

 

The Ninth Circuit also agreed with us that the District Court had committed error in allowing the subject jury instruction. Specifically, that the District Court had instructed the jury that "community" was "not defined by a precise geographic area" but represented the views of "society at large, or people in general." Agreeing with the argument we had made consistently from the moment we were hired to take on the defendants’ appeal, the Ninth Circuit ruled that the jury should have been told to use a "national community standard."

 

The impact of this ruling for the adult entertainment industry is simply huge. In the nine western states under the jurisdiction of the Ninth Circuit (AZ, AK, CA, HI, ID, MO, NV, OR, and WA), with a stroke of a pen, the Ninth Circuit has entirely reworked the legal landscape for online adult entertainment businesses. No longer could the government rely with impunity on its tried and true strategy of indicting adult content publishers in ultra conservative communities with reputations for intolerance for adult content. No longer could the government count on its ability to stack the deck against defendants charged with distributing adult content via the Web by presenting allegedly obscene materials to jurors who would be required to apply the often outright regressive and intolerant standards of such cherry-picked conservative communities.

 

But The Fat Lady Has Not Yet Sung. What You Can Do To Keep The National Standard And Prevent A Slide Back To Local Community Standards.

 

As of this writing the government has sought and obtained leave from the Court to postpone its decision as to whether it will seek a rehearing before all of the judges of the Ninth Circuit through what is called a petition for an “en banc rehearing”. Because my firm, Piccionelli & Sarno and The Kaufman Law Group represent the defendants at the time of writing in what is still an ongoing matter, I cannot comment what our response will be to the government’s action.

 

However, I believe it is safe to say, it ain’t over yet. In addition to petitioning for a rehearing, a request to have the United States Supreme Court hear the case is also possible.

 

Because of these avenues available to the government to potentially reverse the adoption of the national standard by the Ninth Circuit, it is clear that it is in the entire industry’s best interest that the national standard ruling be preserved. Consequently, I strongly encourage you to visit the Free Speech Coalition website, or contact either Piccionelli & Sarno or the offices of The Kaufman Law Group for information regarding how you can support this effort.

 

This article is not intended to be, nor should be considered to be, legal advice.

 

1Gregory A. Piccionelli is an intellectual property and adult entertainment attorney. He can be reached at Piccionelli & Sarno at (805) 497-5886 or greg@piccionellisarno.com.

 

 

 

 

 

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