A long-standing court test using community standards to determine whether adult content is criminally obscene has been a potential problem area for the U.S. pornography industry. But a debate that's been largely abstract for years has recently changed as the U.S. Department of Justice successfully prosecuted two Web site operators for obscenity.
Last Friday, Paul F. Little -- also known as Max Hardcore -- was sentenced to 46 months in prison, as well as a $7,500 fine for distributing adult videos online and through the mail. The Florida judge also fined Little's company, MaxWorld Entertainment, $75,000 and shut down his Web site.
And in August, Karen Fletcher, a 56-year-old Pennsylvania woman, was sentenced to five years of probation, including six months of home detention, and forfeiture of her computer after pleading guilty to six counts of using an interactive computer service to distribute obscene materials. Fletcher owned and operated the Web site, Red Rose Stories, which featured stories, but no pictures, describing sexual molestation and violence against children.
Those cases and other charges filed in recent years have raised questions among First Amendment lawyers and civil liberties advocates, in part because one major test for determining obscenity relies on local community standards for pornography on the Internet. The DOJ established an Obscenity Prosecution Task Force in 2005, but critics have said the agency should redirect those resources toward violent crime or terrorism investigations.
The recent convictions highlight the problems with relying on community standards for Web content, Jonathan Turley, a law professor at George Washington University, wrote on his blog.
The DOJ "could have chosen any state in the Union, but engineered an indictment in Tampa -- an open case of forum shopping for the most conservative jury pool that it could find," wrote Turley, who also has defended several high-profile clients. "The [U.S. Supreme] Court refused to create a bright-line of the right of consenting adults to have such material so long as it does not involve abuse of individuals. Instead, it went through a ludicrous period of actually watching porn and following the most fluid and biased rules."
The Supreme Court avoided spelling out what is obscene in a landmark case, Miller v. California, decided in 1973. The court laid out a three-part test for determining whether material was obscene, with the first part of the test asking whether "the average person, applying contemporary community standards" would find that the work appeals to the prurient interest.
A second test in the Miller decision relies on state standards, asking whether the material in question "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law."
The DOJ defended the multiple obscenity charges brought across the country since 2003. "We prosecute cases based on the U.S. Supreme Court's definition of obscenity," said Laura Sweeney, a DOJ spokeswoman.
Sweeney noted that local juries have the final decision in obscenity cases. "We bring the cases where the evidence suggests there is obscenity, and we bring it to a jury," she said.
Sweeney said she wasn't comfortable discussing the potential issues with using community standards to determine whether Internet materials are obscene. The DOJ still has cases pending, she said.
The community standards issue has caused some "big headaches" for Web sites, said Michael Songer, a partner in the Crowell & Moring law firm in Washington, D.C. "Generally, the courts have held that the 'old' rules apply in that you can be liable for any community along the 'chain' of your pornography," he said. "So, if I'm in Utah and look at the porn site, my community is Utah, even though their view of obscenity might be different than California."
In 1996, a California couple operating an online bulletin board was found guilty in Tennessee of obscenity charges. But since then, obscenity charges against Web site operators and porn distributors have been infrequent until the recent efforts of the DOJ, said Jeffrey Douglas, a California lawyer who served on Little's defense team.
Little's conviction appears to be the first time a well-known commercial pornography maker has been successfully prosecuted for obscenity, said Douglas, who specializes in defending the adult industry and has served on the boards of directors for the Free Speech Coalition and the American Civil Liberties Union Foundation of Southern California.
The community standard causes problems, even without the added issues with online distribution because it's difficult to define who makes up the community, Douglas said. "The community could be anything -- from a township to a city to a county to statewide," he said.
And it's nearly impossible to determine what the community standard is until it's tested in court, Douglas said. "No one in the universe talks to friends, never mind complete, strangers about what they fantasize about," he said.
Then there's the additional problems with Internet distribution. There's no practical way of walling off a Web site based on customers' locations, Douglas said.
With mail order distribution, an adult business could choose not to ship products to locations that may be unfriendly to pornography, he said. "It's difficult, it's impractical, but at least it's not impossible," he said. "With a Web site, you can't block traffic from another location."
Several bloggers and free speech lawyers have questioned Little's conviction, but it's not easy to find defenders of his style of pornography. Little's videos depict hardcore and rough sex, often with actresses dressed to look like juveniles.
Douglas acknowledges that a handful of recent obscenity indictments filed by the DOJ seem to target vendors of extreme types of pornography. In addition to the Little conviction, the DOJ in mid-2007 brought charges against the operators of the business Movies by Mail, which distributed films by Little, and against Ira Isaacs, distributor of several kinds of hardcore pornography.
In June, a trial in the Isaacs case ended in mistrial because a Web site maintained by the judge displayed sexually explicit material. The charges against Isaacs have not been dismissed, however.
In 2003, the DOJ brought obscenity charges against the owners of pornography filmmaker Extreme Associates, which makes similar films. In 2005, a U.S. district court judge threw out the 10-count indictment against Extreme Associates, but the DOJ has appealed that decision.
But Douglas and other defenders of Little say his videos portrayed consensual sex between adults. Douglas is planning an appeal of Little's conviction. "This appeal will be of central importance every adult Web site in the world," Douglas said.
If the women in Little's videos were mistreated, as has been alleged, he should be charged with assault or rape, said Ann Bartow, operator of the Feminist Law Professors blog and a law professor at the University of South Carolina.
"Obscenity as a concept is very abstract," Bartow said. "If the production of porn causes harm, the harm should be addressed directly. If the consumption of porn causes harm, those harms should be addressed directly. Obscenity is all about the reaction of the hypothetical offended viewer. It doesn't address or redress real harms or injury."
Some legal scholars expressed less sympathy for Little, however. Some types of pornography have long been viewed as obscene, and Little's films sound like they come "pretty close to the line," said Eric Goldman, director of the High Tech Law Institute at the Santa Clara University School of Law.
The more troubling charges were against Fletcher, the Pennsylvania woman who operated the Red Rose Stories Web site, Goldman said. "I've always told my students that it's almost impossible for something that is text to be judged obscene," he said. The six-month home detention and other penalties in her plea deal are "still a heavy penalty for thinking out loud."