READER DISCRETION ADVISED:
THIS POST IS RATED “M” FOR MATURE.
FOR GRAPHIC DESCRIPTIONS OF VIOLENCE AND VISCERA.
First-time lawyers before the Supreme Court invariably comment about the close distance between their lectern and the justices’ bench. How close? For Zackery Morazzini, California’s Supervising Deputy Attorney General and the state’s advocate in this morning’s oral argument in Schwarzenegger v. Electronic Merchants Association, this close:
For half an hour, at least six justices appeared to be engaging in their own first-person shooter games, each directing his or her barrel down at Morazzini’s argument that ultra-violent videogames are not protected by the First Amendment. And Morazzini was asking the Court to adopt an unprecedented expansion of its obscenity doctrine beyond its sex-based bounds, putting him so snugly within the justices’ sights that they didn’t even have to take aim to score their fatal shots.
Justice Antonin Scalia pursued Morazzini as if the lawyer had kidnapped the justice’s brother. Like any game that can trace its roots back to Wolfenstein 3D–the father of first-person shooters–Scalia’s pursuit featured increased firepower with every deadly blow. His first line of questions merely exposed the difficulty in cabining the principle behind California’s laws just to video games, setting up Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan each to empty their revolvers: are Grimm’s fairy tales too violent? Comic books? Movies? Rap Music? Bugs Bunny?
From sight unseen leapt Justice Stephen G. Breyer with a flak jacket for Morazzini. If the shooters wanted a line drawn, he’d draw them a line: if the virtual gore is too violent for an 18-year-old, then it’s too violent for all minors, period.
But Breyer’s suggestion came just as Scalia and company were upgrading their weaponry. Kagan stalked Morazzini into a corner, forcing him to admit that juries are responsible for determining what is and isn’t too violent for minors. At this suggestion, Scalia brings out the shotgun: Cold Steel Originalism. With almost caricatured irascibility, Scalia said, “You are asking us to create a — a whole new prohibition which the American people never – never ratified when they ratified the First Amendment.”
At that point, Justice Samuel A. Alito attempted a diversion. “Well,” he said, “I think what Justice Scalia wants to know is what James Madison thought about about video games.” But the two conservative justices will have to save their internecine peppershot over the limits of originalism for the footnotes of this case’s ultimate opinions: pushing through the audience’s laughter–and we all know laughter heals lawyers’ bleeding, bullet-riddled craniums–Scalia insisted, “No, I want to know what James Madison thought about violence.”
Morazzini wasn’t destined to survive this onslaught. Not with Sotomayor pointing a double-barrel point-blank at him, tersely demanding specific dates for specific statutes banning speech. When he had no answer, he might as well have slumped down, lifeless, his skull fragments piercing the wooden bench before him. Instead, Justices Scalia, Sotomayor, Kagan, and Ginsburg spent the remains of Morazzini’s time gleefully smearing themselves in his splattered bits of brain.
Chief Justice John G. Roberts stayed out of the game for nearly all of Morazzini’s argument. But when Paul Smith of Jenner & Block stepped forward to argue against the California statute, the Chief pressed play. Roberts wrote last term’s 8-1 opinion in United States v. Stevens, in which the Court refused to create a First Amendment carve-out for depictions of animal cruelty. The Chief made clear today, however, that a child’s interactive destruction of virtual human life is far more nefarious than videos of real pit bulls mauling the jaws off of real wild hogs.
To make his point, the Chief lodged an entire clip of heavy metal deep into Smith’s argument that there is no American tradition of legally shielding children from violent expression.
Graphic violence. There is a difference. We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down. I’m reading from the district court description: Pour gasoline over them, set them on fire and urinate on them. We do not have a tradition in this country. We protect children from that. We don’t actively expose them to that.
With Scalia, Ginsburg, Sotomayor, and Kagan sitting in gore-phoriac stupors from the first half-hour, Alito and Breyer grabbed the weapons and ran at Smith. Alito first took another shot at Scalia’s originalism, then moved on, his voice thick with sarcasm, to “clarify” Smith’s position:
And you say there is no problem because 16-year-olds in California never have $50 available to go buy a video game, and because they never have TVs in their room and their parents are always home watching what they — they do with their video games, and the parents — and the video games have features that allow parents to block access to — to block the playing of violent video games, which can’t be overcome by a computer-savvy California 16-year-old, that’s why there is no problem, right?
Breyer then charged ahead, framing the issue not as one of creating a new category of expression unprotected by the First Amendment, but rather as one of traditional First Amendment analysis, in which the restriction on speech must be narrowly tailored to meet a compelling state interest. Breyer’s bayonet caught Smith off-guard and soon Alito and Roberts were stabbing away. Even Sotomayor, now roused, poked at Smith a bit, but her pokes largely served to startle Smith into a tactical concession so that he could return to his stronger defenses.
Ultimately, however, it was Justice Anthony M. Kennedy who lit the match that may, one day, burn this whole damn grindhouse to the ground. The Court’s obscenity jurisprudence, upon which California’s chances live or die, has no place in the First Amendment, however unprotected appeals to the prurient interest may have been in America’s more puritanical past. And Kennedy today took the Court’s first steps towards an outright rejection of its obscenity doctrine since Justices Hugo Black and William O. Douglas originally warred against its formulation fifty years ago.
The transcript, however, robs Kennedy of his intent so evident to those who watched him on the prowl this morning. For instance, a reader could believe that Kennedy meant to endorse California’s law by repeatedly asking questions such as, “Why shouldn’t violence be treated the same as obscenity?” But these questions were couched in his broader observations that “the Court struggled for many, many years and to some extent is still struggling with obscenity.” These are words of condemnation, not of endorsement. They recognize that Roth‘s edifice has rotted, if it wasn’t rotten from the very start. And if California succeeds in housing its law in a rotten hellhole, so be it: sooner or later, the Court will make ashes of it all.
But Kennedy’s overtures will be left for another year, if any obscenity case ever manages to climb high enough to reach the Court. Today, all that mattered was that more justices killed more of California’s law than they did its challengers.
Indeed, that Morazzini managed to reassemble his skull and its contents for his rebuttal only gave Sotomayor more ammo with which to re-splatter his brains all over the Chief Justice. Said Sotomayor:
So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.
Just temporarily is right. Until the Court brings obscenity within the First Amendment’s protections, these cases will continue, like zombies and vampires, to rise from the dead, hungry to devour our brains and suck our blood even as we empty them of theirs over and over and over again.
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.”
The Supreme Court today granted certiorari in Schwarzenegger v. Video Software Dealers Association, which asks whether a California regulation banning the sale to minors of violent video games must meet “strict scrutiny” to pass constitutional muster, if such a regulation is permitted at all under the First Amendment. The Court has been sitting on this petition since its first conference of the term back in September.
The Ninth Circuit struck down California’s law in February 2009:
Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled
speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion.
California justified its law with an appeal to the Court’s obscenity jurisprudence, but the Ninth Circuit slapped this reasoning down, pointing out that the Seventh, Eighth, Second, and Sixth Circuits have all refused to expand obscenity beyond sexual expression into violent expression.
The Supreme Court has never spoken on this issue, but came close last week in U.S. v. Stevens, when it struck down a federal statute banning depictions of animal cruelty by trying to sweep such depictions inside the Court’s obscenity carve-out under the First Amendment.
But Stevens did not concern the sale of violent content to minors. Nevertheless, the Court has also been quite stingy in recent years on restrictions on indecent or obscene speech for minors, twice striking down federal regulations aimed at protecting children from such content on the Internet.
Despite what the New York Times might have said about the Ninth Circuit and its reputation for getting reversed by the Supreme Court, expect the Court to affirm its decision in Schwarzenegger v. Video Software Dealers Association next term.
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?