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?