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?