The End of Forum Shopping in Internet Obscenity Cases? the Ramifications of the Ninth Circuit's Groundbreaking Understanding of Community Standards in Cyberspace

• Publication year: 2021

89 Nebraska L. Rev.47. The End of Forum Shopping in Internet Obscenity Cases? The Ramifications of the Ninth Circuit's Groundbreaking Understanding of Community Standards in Cyberspace

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Clay Calvert(fn*)

The End of Forum Shopping in Internet Obscenity Cases? The Ramifications of the Ninth Circuit's Groundbreaking Understanding of Community Standards in Cyberspace

TABLE OF CONTENTS

I. Introduction.......................................... 48

II. Forum Shopping, Local Community Standards, and Self-Censorship: Picking the Best Venue to Prosecute Obscenity Cases ...................................... 55
A.Obscenity Forum Shopping: A Brief History of the Practice and the Abuse of Multiple-Venue Forum Shopping in Project PostPorn...................... 56
B.Community Standards, Continuing Offenses, and the Facilitation of Obscenity Forum Shopping...... 61
C.Current Instances of Forum Shopping in the Age of the Internet .......................................64
1.United States v. Extreme Associates, Inc........64
2.United States v. Little .........................65
3.United States v. Stagliano .....................66
4.United States v. Harb..........................67
D.Coping with Local Community Standards Through Self-Censorship and Creative Business Models .....68
1.Refusing to Ship Content into Conservative Venues........................................ 69
2.Tailoring Content for Particular Communities: From X to XXX and Everything In Between........................71

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3. Softening Content to Satisfy the Least Tolerant Community.................................... 72

III.The Ramifications of Kilbride and the Questions it Raises for Prosecutors and Courts ..................... 73
A.Will a National Community Standard Slow Obscenity Prosecutions? ........................... 73
B.How Will a National Standard be Determined?..... 76
C.How Will National Standards Impact the Adult Entertainment Industry?.......................... 79

IV.Conclusion: A Potential Split of Authority Between the Ninth and Eleventh Circuits Will Open the Door for High Court Resolution................................ 80

I. INTRODUCTION

Nine years ago, I explored(fn1) the First Amendment-based(fn2) problems posed by employing local community standards in Internet-based ob-scenity(fn3) cases. Under the test for obscenity articulated thirty-seven years ago by the United States Supreme Court in Miller v. California(fn4) -a test fashioned in a pre-Internet era when people typically had

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to venture out in public to visit adult bookstores or movie theatres, either to purchase or to view sexually explicit content(fn5)-local community standards are applied in determining whether content is ob-scene.(fn6) Conversely, the High Court in Miller, as Professor Debra

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Burke writes, "rejected the requirement of a national community standard."(fn7)

The result of the Court's aging Miller decision is an uneven, confusing situation where the scope of protection for any item of sexually explicit expressiona DVD, magazine, or book, for example-varies from community to community. Why, after all, should the exact same adult movie or issue of a "girlie"(fn8) magazine be protected by a supposedly national constitutional guarantee of speech in one part of the country but not in another?(fn9) Alan Isaacman, the former attorney for adult periodical publisher Larry Flynt,(fn10) who successfully argued Hustler Magazine, Inc. v. Falwell(fn11) to the Supreme Court, once stated:

Something may be protected in Des Moines or in New York City and not in Salt Lake City or Mobile, Alabama. It doesn't make sense to me that we're all citizens of the same United States and that a citizen in one place is able to say something and have the protection of the national constitution while a citizen in another place in the country can be thrown in jail for saying the same thing.(fn12)

Obscenity pursuant to the Miller test thus operates under what constitutional scholar Mark D. Rosen dubs "a regime of multiple authoritative interpreters,"(fn13) with each local community interpreting for itself what is and is not obscene.(fn14) 51

what is wrong with applying local community standards to Internet-based obscenity cases? Adult entertainment attorney Lawrence Walters(fn15) asserts that the Miller test is "based on some incoherent concept of local community standards that simply don't exist anymore given the advent of the Internet"(fn16) and the fact that "all Internet communications are immediately accessible in all places in the United States, as soon as they are posted on the web. They cannot be blocked from certain communities. That technology doesn't exist."(fn17) Other problems with applying local community standards to the Internet were summed up well by Brigham Young University Professor John Fee in a 2007 article:

whereas the Supreme Court has held that obscenity is defined by reference to "contemporary community standards," it is not clear whose community standard applies for purposes of Internet communication. Is it fair or necessary to hold a publisher on the world wide web to the most restrictive community standard in the nation? Or is it necessary for every community connected to the web to lower its standards to those of the most tolerant locations? Does the Constitution require any particular geographic definition at all?(fn18)

The issue becomes how to resolve these queries in a manner that is not unduly restrictive of First Amendment speech rights. One solution is to dramatically reduce and shrink the local community in Internet cases to a "community of one."(fn19) Attorney Frederick Lane, for

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instance, writes in Obscene Profits that "increasingly, the 'local community' that should be deciding whether a particular image or sexual conversation is unacceptable is the individual who is actually purchasing it."(fn20) This option makes sense because "the purchase and consumption of pornography from the Internet dramatically reduces the visible effects of pornography on a community."(fn21) The logic here is that because adult content today typically is received in the privacy of one's own home via means such as the Internet, cable television, or Video on Demand services, no one else in the outside or surrounding "community" either sees it or is affected by it. Adopting a community-of-one standard, however, essentially reads the notion of community standards out of Miller such that it becomes "roadkill on the Information Superhighway."(fn22)

An alternative approach I discussed in my 2001 article noted earlier involves:

scrapping the state-by-state notion of community standards and substituting a national community standard that strikes a middle ground somewhere between the values of West Hollywood, California where [Larry] Flynt's(fn23) Hustler Hollywood emporium is situated and Provo, Utah where the wholesome-image osmond family resides. Determining such a standard, however, would prove incredibly difficult, if not impossible.(fn24)

Adoption of such a national standard, of course, has both positive and negative points. Professor Mark Cenite, for example, writes that "a single national obscenity standard would limit burdens on content providers to know multiple local standards and limit the influence of the least tolerant community, but would raise objections that it would remove some police power traditionally granted to the states, which would be barred from imposing different standards."(fn25) He adds that "a national average standard has the virtue of preventing the least tolerant community from controlling the entire medium, and giving

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the least tolerant community the same influence on the national average as the most tolerant community."(fn26)

At long last, the scholarly debate that has filled reams of law journal pages about community standards in cyberspace(fn27) has been transformed into a real-world legal experiment. In its October 2009 opinion in United States v. Kilbride,(fn28) centering on an appeal filed by two men convicted of fraud and conspiracy to commit fraud in connection with a spamming business, the United States Court of Appeals for the Ninth Circuit squarely turned its back on the notion of local community standards on the Internet and held "that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email."(fn29) The unanimous three-judge panel, in an opinion authored by Judge Betty Fletcher, determined that this holding "follows directly from a distillation of the various opinions"(fn30) by the United States Supreme Court in Ashcroft v. ACLU.(fn31)

In that 2002 decision involving the constitutionality of the ill-fated Child Online Protection Act,(fn32) Justice Sandra Day O'Connor wrote a concurring opinion to express her "views on the constitutionality and desirability of adopting a national standard for obscenity for regulation

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of the Internet."(fn33) She contended that "a national standard is not only constitutionally permissible, but also reasonable,"(fn34) pointing out that "the existence of the Internet, and its facilitation of national dialogue, has itself made jurors more aware of the views of adults in other parts of the United States."(fn35) Similarly, Justice Anthony Kennedy authored a concurrence in Ashcroft, joined by Justices David Souter and Ruth Bader Ginsburg, observing that the variation...