FIRST ONE @ ONE FIRST

Obscenity: One More Shot in February

Posted in Clairvoyance by Mike Sacks on August 13, 2010

Thanks to a mistrial at the Ninth Circuit in 2008, there may be one more chance for a nationwide thawing of the Court’s nearly forty-year-old obscenity jurisprudence.

The government’s prosecution of Ira Isaacs in 2008 centered around Isaacs’s distribution of bestial and scatological pornography.  But in June of that year, as the trial was pending, the LA Times reported that Chief Judge Alex Kozinski of the Ninth Circuit, sitting by designation as the district court judge for Isaacs’s case, maintained a porn server of sorts on his computer.  Although the content on Kozinski’s server was a far cry from the extreme nature of Isaacs’s material on trial (NSFW), the public controversy compelled Kozinski to declare a mistrial.

The Isaacs case is now set for a February 2011 trial in the Central District of California.  But the legal landscape for obscenity has changed since 2008 in a way that makes Supreme Court review of this case far more likely than it would have been had no mistrial been declared in the first place.

As Rhett Pardon of XBIZ Newswire reported yesterday:

The introduction of national community standards were put in play after an appeals panel last year found it more logical for obscenity prosecutions.

The 9th U.S. Circuit Court of Appeals ruled in a CAN-SPAM case — U.S. vs. Kilbride, 584 F. 3d 1240(9th Cir. 2009) — that a national community standard to define Internet obscenity is more appropriate than a local one.

Attorney Roger Jon Diamond, Isaacs’ attorney, said that it’s to his advantage to be open to a national community standard using the Miller test, despite the fact that local community standards of the Central District of California would be beneficial.

U.S. prosecutors are advocating a local community standards instruction.

Isaacs was charged with two counts of using a common carrier and interactive computer service for interstate commerce in obscene films.

“Because the videos were from the Central District, you are looking at jurors from the Los Angeles, Orange and Ventura counties who typically are liberally minded,” Diamond told XBIZ.

But Diamond noted that using a national community standards could create a legal maneuver that could benefit Isaacs.

“If the government were to press for a national community standard, they might have a problem finding an expert witness on the matter, because there are none,” he said. “And we could move for a dismissal.”

Some months ago, I wrote about the circuit split created when the Eleventh Circuit refused to follow the Ninth Circuit away from local community standards, and suggested that this split made the issue ripe for Supreme Court review.  No party, however, petitioned the Court over either judgment.  Then, in a case in the D.C. District Court this summer, a deeper split looked possible–the judge had refused to follow Kilbride in a published denial of defendant’s motion to dismiss [693 F.Supp.2d 25]–but the judge ultimately threw the case out before it went to the jury.

Isaacs’s case, then, may be the last Bush-era obscenity prosecution that can lead to a relaxation of the Court’s 1973 Miller test to determine what speech may be classified criminally obscene and therefore left unprotected by the First Amendment.  Although it is not entirely clear whether Kilbride will govern the Isaacs case–Kilbride applied only to Internet obscenity, whereas Isaacs is being prosecuted for Internet and common carrier transmission of obscenity–if the district court decides Kilbride applies to the mails as well as the Internet, then that will be an even stronger blow against Miller than Kilbride itself was.

Still, it’s hard to believe that any jury will not find Isaacs’s movies to be plainly patently offensive and crystal-clear appeals to the prurient interest, whether the jury uses national or local community standards.  To get a sense of the content of the material on trial, just read their titles: “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7.”

In Kilbride, neither the defense nor the prosecution had incentive to appeal: the prosecutors got their conviction (albeit under the federal anti-spam statute rather than anti-obscenity statutes) and the defense successfully chipped away at the Miller test.  In the Isaacs case, however, I see no way Isaacs avoids conviction unless the judge declares obscenity laws altogether unconstitutional or, as in the D.C. trial, throws the case out.  With a conviction comes incentive to appeal.  With an appeal comes a Ninth Circuit judgment affirming, if not broadening, Kilbride‘s deviation from Miller, further reinforcing the circuit split, while upholding Isaacs’s conviction.  And with an affirmation comes a petition for certiorari to the Supreme Court asking for reversal by questioning the ability of any community standards, whether national or local, are sufficient First Amendment safeguards against the criminalization of protected speech.

I can’t imagine the current Court bringing all obscenity within First Amendment protection, let alone letting Isaacs walk.  But I can imagine the Court affirming the use of national standards as perfectly clear enough to gain a conviction in line with contemporary standards patently offended by bestiality or scatological porn.  That way, the Court can have it both ways: a more lenient standard of determining obscenity less susceptible to prosecutors’ unjust forum-shopping, but a standard not so lenient as to provoke headlines that the Court sympathizes with peddlers of uber-extreme pornography.

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