On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution. Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month. The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.
Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in. Prop8TrialTracker.com has compiled 24 of the briefs here.
I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief. I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap. If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.
In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:
Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.
Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically. But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:
The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”
Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination. ”In light of these repeated legislative and ballot-box defeats,” the brief states,
it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women. Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.
The brief goes on to tackle the Ninth Circuit precedent standing in its way. In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny. But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”
The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:
The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers. The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”
Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled. Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.
Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation. But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom? Here, there is some equivocation. As Walker wrote:
The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.
In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test. Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension. That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws. But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.
As I wrote on the night of Judge Walker’s decision:
[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny. Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional. Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.
But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant. If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational. Hypothetical justifications are now inadmissible opinions unworthy of deference. And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.
It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall. Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades. Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.
In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously. After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense. The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America. Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity. Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.
Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s. I have doubts that his liberal colleagues will once again join him in ducking the standard of review. If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws. At worst, he will be committing unprincipled, political cowardice.
My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved. However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself. If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force. Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.
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.
Leon today ruled that the prosecution, led by Criminal Division trial attorneys Pamela Satterfield and Bonnie Hannan, failed to give enough evidence to jurors to prove that any one defendant, including Stagliano, violated the law. On the original indictment, Stagliano faced up to 32 years in prison.
By granting the defendant’s motion to dismiss the case for lack of evidence, Leon likely short-circuited any future Supreme Court case resolving the circuit split over internet obscenity. The Stagliano case may be the last live Bush-era obscenity prosecution, and neither sets of counsel from the Ninth or Eleventh Circuit cases sought certiorari to hash out whether national or local community standards should apply in a jury’s assessment of obscenity sent over the internet.
Meanwhile, the grounds for appeal in the Stagliano case to the DC Circuit would appear to rest not on any First Amendment issue, but rather on Leon’s procedural and evidentiary judgment. However, I question whether there would even be an appeal in this case, given the Obama administration’s apparent return to more lax Clinton-era enforcement of federal obscenity law.
UPDATE: The Washington Post provides some stats:
“The government said, ‘We have been getting convictions on the most extreme stuff, so we can be a little more aggressive and put pressure on the entire industry,’ ” Richards said. “This case was the tail end of Bush administration obscenity prosecutions. Now it remains to be seen whether the Obama administration makes enforcement a priority.”
Justice Department statistics show prosecutors charged 361 defendants with obscenity violations during President George W. Bush’s years in office, nearly twice as many as under President Bill Clinton. In 2009, 20 defendants were charged, compared with 54 the previous year.
UPDATE II: Politico’s Josh Gerstein notes that “the judge’s ruling cannot be appealed.”
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.
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.
The Court’s obscenity jurisprudence has stood largely frozen and rigid since 1973, when, in Miller v. California, it resolved its previous fifteen years of doctrinal disarray into a three part test to determine whether material is obscene:
The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest [citation omitted]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The Miller test’s first prong has since been interpreted as requiring juries to apply local community standards. Although this test was more conservative than the Court’s pre-1973 obscenity jurisprudence–see, e.g., Justice Potter Stewart’s “I know it when I see it” test–it was tailored to the times: a pornographer would send a film reel or a magazine by the mails to a particular recipient in a particular district.
Problem is, in the Internet age, speakers post their thoughts on the Web and then relinquish control over where the material is delivered. Yet under Miller‘s extant local community standards prong, prosecutors may charge Internet pornographers in federal courts in districts where communities are more likely to rule indecent material criminally obscene.
The Bush Administration took full advantage of such forum selection when it chose to resurrect federal obscenity prosecutions after two terms of Clinton-era desuetude. There have been four big cases to rise out of the Bush-era prosecutions. One recently yielded a guilty plea after protracted litigation in the Third Circuit. Another may be coming to trial in the D.C. Circuit. The Ninth and Eleventh Circuits, however, have made their decisions, forcing a circuit split over community standards for the Internet–a topic to which the Supreme Court in 2002 signaled its receptivity.
In late October, the Ninth Circuit, in United States v. Kilbride, held that juries must apply national standards when assessing Internet obscenity, even for the sexually explicit spam emails sent by the defendants. To reach this determination, the panel relied on the separate opinions of six justices in the Supreme Court’s 2002 Ashcroft v. ACLU decision. In dicta, Justices O’Connor, Breyer, Kennedy (joined by Souter and Ginsburg), and Stevens all took turns expressing their doubts about the constitutionality of requiring juries to apply local community standards. O’Connor and Breyer went so far as to endorse the use of national standards. Here’s O’Connor:
To be sure, the Court in Miller also stated that a national standard might be “unascertainable,” 413 U.S., at 31, and “[un]realistic,” id., at 32. But where speech on the Internet is concerned, I do not share that skepticism. It is true that our Nation is diverse, but many local communities encompass a similar diversity. For instance, in Miller itself, the jury was instructed to consider the standards of the entire State of California, a large (today, it has a population of greater than 33 million people, see U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 23 (120th ed. 2000) (Table 20)) and diverse State that includes both Berkeley and Bakersfield. If the Miller Court believed generalizations about the standards of the people of California were possible, and that jurors would be capable of assessing them, it is difficult to believe that similar generalizations are not also possible for the Nation as a whole. Moreover, 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. Although jurors asked to evaluate the obscenity of speech based on a national standard will inevitably base their assessments to some extent on their experience of their local communities, I agree with Justice Breyer that the lesser degree of variation that would result is inherent in the jury system and does not necessarily pose a First Amendment problem. See post, at 2. In my view, a national standard is not only constitutionally permissible, but also reasonable.
The Ninth Circuit determined that Ashcroft‘s concurring and dissenting justices’ dicta on community standards were enough guidance to blaze new constitutional ground.
Today, however, in United States v. Little, the 11th Circuit disagreed:
Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida. In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft, 535 U.S. 564, 586-612, 122 S. Ct. 1700, 1714-1728 (2002). Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. United States v. Kilbride, 584 F.3d 1240, 1252-54 (9th Cir. 2009). We decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court.
As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere. The district court did not err when it instructed the jury to judge the materials on the basis of how “the average person of the community as a whole—the Middle District of Florida—would view the material.”
With the split now wide open, one could safely assume that at least four of the still-sitting, separately-writing Ashcroft justices would vote to grant certiorari so to align the Court’s obscenity doctrine with the times. Still, even if the Court would grant certiorari and resolve the split in favor of the Ninth Circuit’s national community standards for Internet obscenity, it is not at all fait accompli that the Court will endorse the Ninth Circuit’s reasoning. The panel employed what may be considered overzealous methodology in gleaning conclusive guidance out of concurring and dissenting dicta. Further, the panel lumped email, which is sent by specific distribution analogous to that of Miller‘s time, into Ashcroft‘s concern about the Web’s indiscriminate dissemination.
Nevertheless, I predict that these cases are ripe for Supreme Court review. Now which one of you Supreme Court advocates needs help with the cert petition?
UPDATE: Aw shucks. The Eleventh Circuit’s opinion possesses the header that “This case was not selected for publication in the Federal Reporter.” Boooo! If the Eleventh Circuit was trying to dodge the cert process, there still remains hope. The Ninth Circuit may still find itself sufficiently split with 2005′s Extreme Associates in the Third Circuit, 1996′s United States v. Thomas in the Sixth Circuit, or perhaps the pending case at the D.C. District Court if it makes its way up to the D.C. Circuit.
[I]t seems odd that the Eleventh Circuit’s opinion — which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.
Unpublished opinions deliberately lack binding precedential value, and are generally intended to limit their own value as persuasive precedent as well (though the ultimate estimation of such persuasive value is of course in the eyes of a future court). It seems to me that they should be reserved for areas where more precedent is unhelpful, chiefly because there already is plenty of precedent in the jurisdiction on the subject. So it’s hard for me to see why this opinion, which is certainly quite detailed should be unpublished.
Note that there won’t be a cert petition from the government challenging the Ninth Circuit’s national-standard holding in Kilbride, since the conviction there was affirmed on harmless error grounds. The government won on the bottom line, and thus can’t petition for certiorari, even if it dislikes the court’s reasoning. (It could have petitioned for rehearing en banc, but despite two requests for extension of time to file a petition for rehearing, the government ultimately decided not to petition.)
There might well be a cert petition in the Eleventh Circuit case, though. I wonder to what extent the Court will see this case as practically involving a circuit split, even though technically there is no disagreement between the precedent in the two cases. Supreme Court Rule 10(a), for what it’s worth, notes that one important factor in favor of granting certiorari is that “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”
UPDATE III: Scott Gant, partner at Boies Schiller and author of We’re All Journalists Now: The Transformation of the Press and Reshaping of the Law in the Internet Age, passed along a 2006 Boston College Law Review article he wrote on unpublished circuit court opinions. On page 729, he writes of Supreme Court review:
One might also expect unpublished opinions rarely, if ever, to be the subject of Supreme Court review. Yet the Court has elected to review dozens of unpublished appeals court opinions, in many cases reversing the court’s decision. Still other cases involve circuit splits, where at least one of the court of appeals decisions addressing the disputed issue was unpublished.
In his footnotes to the above text, he lists twelve cases, many of which from the past ten years, to support his assertion. So my offer is back on: any Supreme Court advocates want some help writing a killer cert petition?