Capital Obscenity!

Back in February I wrote about the circuit split between the Ninth and Eleventh Circuits over the application of federal obscenity laws in the Internet age.  This is a major issue of law that a majority of the Court, in concurring and dissenting opinions of 2002’s Ashcroft v. ACLU,  first telegraphed its interest in updating, revisiting, or outright abandoning.

This week, another obscenity trial begins in Judge Leon’s federal district courtroom here in DC.  Via Mike Scarcella of the National Law Journal:

Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

Jury selection is under way and opening arguments are expected to begin this week in the first adult porn obscenity case in the U.S. District Court for the District of Columbia in more than 20 years. “There won’t be any falling asleep in this courtroom,” Judge Richard Leon said at a hearing in the case June 14. “I can assure you of that.” […]

[Stagliano’s lawyers are] arguing that Stagliano has a right to possess and to distribute sexually explicit material. The lawyers contend federal obscenity standards are too vague to govern Internet speech. The sexual acts in the movies were lawful, the lawyers said, and the participants were consenting adults. “The right of sexual privacy has evolved as society’s attitudes about sexuality have evolved,” Corn-Revere said in court papers in July 2008. “Liberty now gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. This protection is broad enough to encompass a right to buy and sell obscene materials.”

In declining to dismiss the indictment earlier this year, Leon said the federal obscenity statutes are not unconstitutionally vague as applied to Internet speech. “Although public morality may be an insufficient justification for regulating private conduct in some cases, it is certainly a sufficient justification for regulating the sort of public conduct at issue here,” Leon wrote.

Beyond the racy subject matter and evidence to be presented to the district court this week, we will also witness some scintillating constitutional law discussions.  The above passage points to Stagliano’s use of Lawrence to argue invalidation of federal obscenity laws under the Due Process Clause of the Fifth Amendment’s right to privacy.*  This argument worked in the Western District of Pennsylvania in 2005, but ever since the Third Circuit rebuked and reversed the district court and the Supreme Court denied certiorari, appeals to Lawrence have gone unheeded.

So to further push the issue of federal obscenity laws before the Supreme Court, expect also to see attacks on the “community standards” prong of the Miller test, which courts use to determine whether material is obscene:

Lawrence Walters, a First Amendment lawyer who specializes in representing clients in adult entertainment, said obscenity cases have historically been filed in districts that are generally viewed as conservative. “It may result in one of the first cases where a more cosmopolitan jury has made a determination of obscenity with regard to adult material,” said Walters of Walters Law Group in Altamonte Springs, Fla.

Although the Supreme Court and lower courts ultimately came to implicitly interpret “community standards” to be those of the location in which the material was sent, the Ninth Circuit in late 2009 stated that national community standards should apply in a jury’s determining Internet obscenity.

Depending on how this jury rules, the inevitable appeal will likely feature an attack on local community standards – either as too permissive in a big city should Stagliano get acquitted or too arbitrary should he get convicted.  Either way, however, the recent circuit split over the community standards prong will be made more ripe for Supreme Court review.

The question, then, becomes whether the Court will conform to its opinions in Ashcroft I or not.  Thomas, Scalia, and Rehnquist were perfectly satisfied with local standards.  Might Roberts, given his First Amendment protectiveness this term, deviate from his predecessor’s vote?  In refusing to extend the Court’s obscenity jurisprudence to dogfighting in United States v. Stevens, Roberts said nothing of material that actually does fall within the Court’s sex-tethered definition of obscenity.  But in siding with the government in Holder v. Humanitarian Law Project for national security concerns, the Chief showed himself willing to favor traditionally conservative concerns–of which the protection of morals-based laws have long figured–over First Amendment absolutism.

Meanwhile, O’Connor wrote in favor of a national standard, but her successor, Alito, will likely go with local standards, given his lone Stevens dissent this term.

Kennedy wrote for Ginsburg and Souter suggesting that the local standards should be reconsidered, but didn’t tip his hand on what side upon which he’d come down until he had more evidence to make such a determination.  Adding uncertainty upon that concurrence’s uncertainty, we don’t know how Sotomayor would have voted then or now, and Ginsburg may not even be on the Court by the time this case may make it up there.

And finally, Justice Stevens, the lone dissenter in Ashcroft arguing to toss community standards altogether as applied to the Internet, may not have as zealous of a successor in Elena Kagan.

This trial, and its aftermath, will surely be something worth watching.

*Lawrence concerned state laws, so the Fourteenth Amendment’s Due Process Clause governed; this case tests federal obscenity laws, which implicate the Fifth Amendment’s analogous language securing against deprivation of liberty without due process of law.

UPDATE: 7/13 – Scarcella provides a report from today’s introduction of evidence to the jurors.