In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (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.
In explaining the choice of community standards instead of national standards, the Court wrote:
Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the “prurient interest” or is “patently offensive.” These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether “the average person, applying contemporary community standards” would consider certain materials “prurient,” it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national “community standard” would be an exercise in futility.
Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: “It is my belief that when the Court said in Roth that obscenity is to be defined by reference to ‘community standards,’ it meant community standards — not a national standard, as is sometimes argued. I believe that there is no provable ‘national standard’ . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one.”
In the last decade, some have wondered whether this concept still makes sense with materials distributed and obtained over the Internet. The basic idea is that the experience of an Internet user does not depend on the local community, so it no longer makes sense to apply a local community standard to obscenity.
The question of how the Internet impacts national versus community standards came up indirectly at the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case on the constitutionality of the Child Online Protection Act (COPA). In Ashcroft, a bunch of people who wanted to post content on the Web argued that COPA violated the First Amendment rights of adults barring the posting of “material that is harmful to minors.” The statutory definition of “material that is harmful to minors” harnessed the “contemporary community standards” standards from obscenity law, and the Third Circuit had ruled that the community standards could not apply to the Internet because “Web publishers are currently without the ability to control the geographic scope of the recipients of their communications.” The Supreme Court reversed in a splintered opinion, with various Justices chiming in on on how much of a problem they thought it was to use community standards in light of the First Amendment challenge to COPA.
So where does that leave Internet obscenity law: Do we still have community standards, or do we have new national standards?
The Ninth Circuit’s answer in yesterday’s decision, United States v. Kilbride: National standards. In an opinion by Judge Betty Fletcher, joined by Judges Hug and Hawkins, the Ninth Circuit concluded that if you looked at each of the concurring and dissenting opinions in Ashcroft v. ACLU, there were five votes for a new approach to Internet obscenity law that embraced national standards, not community standards:
The divergent reasoning of the justices in and out of the majority in Ashcroft leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. . . .
Justices O’Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. . . . Justices O’Connor and Breyer were joined by Justice Kennedy’s opinion, as well as Justice Stevens’s dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns.
At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling.
Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. The constitutional problems identified by the five justices with applying local community standards to regulate Internet obscenity certainly generate grave constitutional doubts as to the use of such standards in applying §§ 1462 and 1465 to Defendants’ activities. Furthermore, the Court has never held that a jury may in no case be instructed to apply a national community standard in finding obscenity. To “avoid[ ] the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet.
As a matter of law, I don’t find this particularly persuasive. In Marks v. United States,430 U.S. 188 (1977), the Court identified the rule for identifying the holding of a fragmented court:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.
But here the Ninth Circuit is counting the number of Justices who had “concerns.” Concerns are not positions. You can’t count the number of Justices who had a particular thought and then say that the thought is somehow binding on the lower courts.
Rather, I would think this case should have been answered by the Supreme Court’s directive that “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson /American Express, Inc., 490 U.S. 477, 484 (1989). My sense is that the case which directly controls here is Miller v. California, and I read Miller’s statement of the “basic approach” to obscenity as being a holding, not just one of many possible ways to define obscenity. In light of that, I think courts are bound to the Miller community standard until the Supreme Court says otherwise, whether that standard makes sense for Internet obscenity or not. See United States v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005) (relying on the traditional Miller test on the ground that “if the Supreme Court wishes to treat all Internet obscenity cases as sui generis for purposes of federal obscenity law analysis, it has not yet said so, “tacitly” or otherwise.”).
Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.
Bruce Hayden says:
I like the idea of a national standard when we are talking the Internet. So, good.
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October 30, 2009, 12:03 amOrin Kerr says:
Bruce, with such analytical skills, there may be a Ninth Circuit judgeship in your future yet.
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October 30, 2009, 12:14 amloki13 says:
As for substantive issues:
1. I think the 9th Cir. has the correct view on the matter; subjecting the internet to local community standards is patently ridiculous; while it was somewhat odd for national publications (cf. Hustler) to have to bend to every local community, they could at least choose where they were distributed. Not so much with the internet.
2. As a secondary issue, what is a “national standard”, and how lenient would that be? Or, put another way, would it, perhaps, be less lenient than what we currently have in many jurisdictions?
3. I think your interpretation, as a matter of law, is correct. It is not the job of the lower courts to count the tea leaves (or do amateur Kremlinology) and try to discern what the court might’ve done; rather, to look at what the court explicitly did.
4. However, without some movement in the lower courts, there is less ability for the law to move forward. That’s why we have circuit splits, after all.
I think there is a natural tension between 3 & 4. The question becomes– did the 9th Cir. get the correct result in an impermissible way?
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October 30, 2009, 12:26 amOrin Kerr says:
Are you suggesting that a panel of the United States Court of Appeals for the Ninth Circuit might have not followed the law correctly because they had a good result they wanted to reach?
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October 30, 2009, 12:33 amProsecutorial Indiscretion says:
This seems like the right outcome in terms of how the law should be given modern conditions. But if the Supreme Court agrees, all sorts of mischief-makers will see that agreement as vindicating the tortured jurisprudence used to get there and I expect a number of more results-oriented judges will find justification for ignoring Supreme Court precedent to achieve their desired outcome. If the Supreme Court does go along with this outcome, I hope there is strong language in the opinion leaving no questions as to the illegitimacy of the Ninth Circuit’s methodology. Absent that, I foresee a necessary increase in the Supreme Court docket to reassert its precedents against the whims of the lower courts.
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October 30, 2009, 12:39 amJim Tyre says:
Hi Orin,
To most, the national standards portion of the decision certainly is the most relevant. However, I’m interested in your take on the language at 14500, that:
Private DN registration for precisely that purpose is, and for a long time has been, common practice. Now, however, the Court at least suggests that it’s criminal.
So, what do you think?
–Jim
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October 30, 2009, 1:21 amOrin Kerr says:
Jim,
I had skimmed past that — let me read it and get back to you.
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October 30, 2009, 1:38 amDave N says:
The Ninth Circuit? Never!!
/sarcasm off
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October 30, 2009, 1:39 amJim Tyre says:
Sorry, I should have added that I was speaking of private DN registration for perfectly lawful activity, not for the purpose of engaging in unlawful activity.
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October 30, 2009, 1:40 amhazemyth says:
I realize this is outside the specific thrust of this post but, if anyone should care to explain, has SCOTUS ever justified why content serving a purely ‘prurient interest’ is less protected than other content? Or has this just been a given since the Mayflower?
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October 30, 2009, 1:42 amreadery says:
Commmunity standards are a legislative matter. The question of which standards to use ought be legislative one; there really isn’t any basis for the courts to have imposed their own views on the subject. Community standards in every other matter are what the legislature says they are, and they should be here as well. The idea that a court can tell a legislature that its standards don’t represent the community not only has no basis in the written constitution, it violates the Republican Form of Government clause.
it’s understandable historically that the court would compromise between opposing views on obscenity by adapting its own in-between standard, but its effort to impose its own standard was simply an arrogation of legislative power. It ought to have simply picked whether or not obscenity can be criminalized without any involvement in defining its boundaries.
Roth v. United States was based on a concept that obscenity has an exemption from ordinary first amendment considerations because the First Congress passed an obscenity law while debating the First Amendment and did not intend the First Amendment to cover it. If so, it’s pretty clear that the First Congress’ concept of what could be prohibited was pretty broad — essentially any sexually explicit material. If originalism is the basis, why not the original standard? why not simply say sexually explicit material is or is not covered by the First Amendment and let legislatures decide where to draw specific boundaries?
i would also remove any moral imprimatur from the description of the subject. call the subject “sexually explicit material” or similar. It’s frankly not the Supreme Court’s business to opine on what material is or is not offensive. The whole question of whether the stuff or any of it is or should be offensive is a legislative matter. There’s no objective answer. The court’s justices essentially reified their own subjective moral beliefs. But their opinion of what is or is not moral has no more weight than any ordinary voters’. Legislatures ought to be the folks who make calls about standards and what is and is not detrimental to society,
Certainly Congress ought to decide a question like whether or not to use a national standard The 9th Circuit seems to be proposing to change the text of the law for no reason other than they don’t happen to like it. They’re simply constitutionalizing their personal policy preferences, nothing more.
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October 30, 2009, 1:52 amyankee says:
Without expressing an opinion on the merits of the case, I have serious doubts about the “national community standard” test. Is the concept of “community standards” even coherent when applied to a highly diverse nation of 300 million people spanning a continent and then some? If it’s some kind of aggregate of local standards, how would the jury know what it is? A jury in Charlotte may be familiar with Charlotte’s community standards, but what does it know about the community standards of Detroit or New Orleans or rural Wyoming? The same problem arises if it refers to standards that are common across the entire country. Are the parties to be required to present expert testimony about American community standards?
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October 30, 2009, 2:01 amMike McDougal says:
*high five* Works for me.
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October 30, 2009, 2:01 amMike McDougal says:
Justice Marshall said, “Sex is gross!”
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October 30, 2009, 2:05 amBruce Hayden says:
You are right. I didn’t add anything to the debate. I have been troubled for years by the prospect of applying local standards to what is essentially an international distribution. The result has been selective prosecution, where one community’s standards are applied to chill material that inevitably has negligible distribution in that venue and is acceptable to the community throughout much of the rest of its distribution.
I liked the Court’s analysis of community standards, but in the end, they found the error to be harmless. So, asking those of you who are much better versed here, but doesn’t that make the whole exercise dicta?
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October 30, 2009, 2:13 amSoronel Haetir says:
Except the text of the statute was drafted based on court output. The rest of your argument basically boils down to “This material has no 1st amendment protection. Why not? Because.” which as can be seen from questions in the thread is not a very satisfactory answer.
I find it amazing how tenaciously the Puritanical beliefs about sexuality have survived amongst those who desire power.
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October 30, 2009, 2:35 amhazemyth says:
@Readery
Thanks much for the explanation re: Roth v. US.
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October 30, 2009, 3:25 amLarryA says:
What are we supposed to do with a national standard, given that it’s a World wide web?
I agree with the basic point that judges shouldn’t set “community” standards, but OTOH why should the legislature? If many members of a community want to privately download porn, doesn’t that indicate that the material doesn’t offend the community?
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October 30, 2009, 3:34 amKJJ says:
Orin, isn’t that how SCOTUS concocted this obscenity doctrine in the first place?
Please cite the compelling government interest served by criminalizing sexual speech between adults.
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October 30, 2009, 4:56 amTruePath says:
Orin, it seems your conclusion is based on the supposition that this holding is in conflict with Miller. However, I’m unconvinced this is so.
Now Miller held that it wasn’t an error in that case to charge the jury to consider state community standards nor to fail to consider national community standards. But it seems one can reasonable understand the 9th circuit to be saying that in cases like the one before it, and unlike Miller, the constitution requires a certain kind of national community (or perhaps community of internet users) to be used for the community standards. Sure, the court in Miller held that a national community wasn’t required in that situation but I’m not convinced it forecloses the notion that some kind of national/non-geographic community could ever be constitutionally necessary.
In other words can’t this be viewed simply as an extension of Miller regarding when certain kinds of communities must be used.
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October 30, 2009, 5:49 amstrech says:
National standards are the reasonable thing here, but then: What the hell is a national standard, and how is a jury going to apply it? A jury can always apply a community standard, because they are (theoretically) a group of people from across the community. They’re not going to be able to connect with a national standard in the same way.
Certainly, I don’t see any national standard that’s going to be interpreted the same way in (say) Seattle and San Francisco, as for rural Louisiana or South Carolina. Any attempt at a national standard here is just going to splinter into a mix of community ones, and I’m not sure what could be done to avoid this.
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October 30, 2009, 9:19 amReality says:
The real problem is the decision long ago that “obscenity” is not protected “speech.”
Speech is speech. All truthful speech should be protected, even yelling “fire” in a crowded theater. If there is no fire, then the speech is false and unprotected. If there is a fire, then you are right to proclaim it.
At best, obscenity should be subject to TPM restrictions, not unprotected ab initio.
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October 30, 2009, 9:47 amJoe says:
It would do the law some good if the SC in these split decisions would clearly in the opinion summarize what five justices agree upon.
It also is useful to add that the Ninth Circuit is not alone (though so is the stereotype) in stretching what the SC decides. The SC plays around with what precedent says as well, but they get to do it given their “because we say so” defense.
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October 30, 2009, 10:11 amAnderson says:
Along TruePath’s lines, it seems to me that a holding is binding only on a comparable fact pattern, and the 9th Circuit could argue (haven’t time to read now what they *did* argue) that internet distribution is a materially different fact pattern that makes Miller instructive but not binding.
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October 30, 2009, 10:20 amDjDiverDan says:
While I think that the Ninth Circuit got it wrong on the procedural matter of the proper application of Supreme Court Precedent, in aggregating the votes of dissenting and concurring Justices to effectively overrule Miller v. California and its requirement that local community standards be applied to the determination of obsenity, I have always (well, since taking Con Law in Law School) been really bothered by the equal protection implications of having differing standards for the scope of First Amendment rights in different states or communities — there is something really troubling about the possibility that selling something in Tennessee could subject the Seller to harsh criminal penalties, while selling exactly the same thing in San Francisco or Los Angeles or New York City would be perfectly acceptable. This affects not only the Sellers, but also prospective purchasers in the more conservative locales — Why should my own tastes in literature (OK, call it porn) be subject to a veto of my neighbors? These concerns may be more vivid when dealing with material distributed over the internet, but only because the power of a conservative majority to censor what their neighbors read has been increased to nationwide scope. But even outside of the internet issue, just why should the First Amendment grant greater protection to publishers (and purchasers) in San Francisco than in Tupelo Mississippi? I’d like to think that the constitutional concerns expressed by O’Connor, Breyer, Kennedy and Stevens echo my own concerns. While the Ninth Circuit is bound by Supreme Court Precedent, and was required to follow Miller, I am happy that at least it has put to the fore the constitutional concerns inherent with applying “community standards” to the scope of First Amendment protection.
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October 30, 2009, 10:24 amMichael Wagner says:
I wonder even about “national community standards” when dealing with an international medium like the Internet.
For example, there are countries where it would be perfectly legal — and not violate that community standards in that country — for a 13 year old girl to marry a 40 year old man. If that were to happen, and they were to post a detailed description of their wedding night, would that content be “obscene”?
Suppose that someone from that country live in small community in the US that functions more or less an ethnic enclave.
For purposes of argument, let’s assume that Dearborn Heights, MI is a strong Yemeni enclave (I don’t know if this is true — I was a Peace Corps Volunteer in Yemen, and heard the Dearborn Heights is a Yemeni enclave). Suppose a 40 year old Yemen-American in this hypothetical enclave is married to a 14 year old who resides in Yemen, and she mail suggestive pictures of herself to him. Are they obscene?
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October 30, 2009, 12:16 pmzuch says:
Prof. Kerr:
This is sooooo pre-2000. See, e.g., the per curiam opinion in Dubya v. Gore:
It’s the “new math”, and despite the claims of the per curiam, this “new math” has precedential imperative.
Cheers,
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October 30, 2009, 12:41 pmOrin Kerr says:
Zuch,
I don’t understand what you are arguing; that passage in Bush v. Gore was not trying to identify the holding of the Court, as there was a majority opinion in that case.
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October 30, 2009, 12:52 pmJoe says:
It is unclear how Breyer/Souter “agreed” here given they dissented in full, Breyer actually joining Stevens’ dissent in full as well.
The per curiam translates “concerns” of each (Souter more so than Breyer) into “agreement” contra (the apparent standard here) their actual votes.
The comparison made between this and the 9th Circuit is somewhat off given the 9th was determining SC precedent while the per curiam was making it. But, symbolically at least the fictional “7–2 agreement” that some remedy was mandated is notable.
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October 30, 2009, 1:20 pmloki13 says:
OK,
My thoughts were hastily put down, primarily because it was fairly late when I wrote them. However, I was trying to get to a more subtle point than “the ends justify the means.” It’s a point that a few other commenters have picked up on, but allow me to develop it more fully:
1. I am strong believer in vertical stare decisis; when the SCOTUS holding is “jump”, the job of the appellate courts is only to determine “how high.” When there is a clear and unambiguous ruling from SCOTUS, that is binding.
2. I think that the lower courts are ill-served by attempting to predict what SCOTUS will do, or, as I put it, by amateur Kremlinology. That is the job of law professors publishing in law reviews.
3. I think your analysis of Marks is correct; in addition there are several other cases (unfortunately I do not have them collected right now) where SCOTUS has said “if you think we’ve overruled a case or changed direction, don’t– we’ll tell you when we’re good and ready.”
4. However, it is also true that the lower appellate courts have some discretion in applying SCOTUS doctrine. That allows for a gradual evolution of the law. There is a difference between an appellate court refusing to apply a SCOTUS holding and modifying it to new facts.
5. Given that, I think the Ninth Circuit is reasonable in modifying Miller in the context of the internet to adopt to use a national standard. The internet was not around at the time of Miller, there was less of a “national community”, and the means of distribution are dramatically different. We could also talk about the burdens associated on the production of speech…. but you get the idea. So the Ninth Circuit is applying the SCOTUS Miller test in a modified manner for a new fact pattern– you could say that the relevant “community” for the internet must be a national one (why not international for the WWW? because this is the American 1st Am…. that’s all I’ve got right now….and I don’t even want to think about that).
6. There is always a tension between lower courts rote applying the SCOTUS standard and slightly modifying it to new circumstances. Too much rote application and you end up with stultified law that only SCOTUS can correct (and given their case load, that doesn’t happen very often) not to mention you don’t get the chance of many jurists getting a crack at the problem for SCOTUS to look at later. OTOH, too much free reign and vertical stare decisis is meaningless. It’s a good, and necessary, tension.
7. Given the above, I wonder if your criticism is not so much in their decision, but in the way they reasoned toward their decision. If, instead of looking at the tea leaves of SCOTUS, they simply reasoned from Miller and based on a new factual scenario, would you have as much of a problem with it?
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October 30, 2009, 1:40 pmptt says:
No kidding! Given recent studies that found much, much higher porn consumption rates in states like Louisiana (top ten!) than in places like California (bottom 15!), you’d at least expect those folks to render more informed opinions. (Interestingly, Wash. and S.C. were just about the same — S.C. on top, of course.)
In the interests of full disclosure, as an SFer, I must concede that one of the reasons porn consumption might be lower here is that all we have to do for titillation is look out the window...
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October 30, 2009, 1:43 pmzuch says:
Prof. Kerr:
A little tongue-in-cheek tweak to the brave, anonymous Supes who thought they’d get more political cover by insisting that seven justices (effectively) signed on to Part I of the per curiam, despite the plain fact from the dissents that the two in question did no such thing. Part I was a critical ‘holding’ (actually, a “find[ing]”) in that case:
And they claimed that seven justices signed on (“Seven Justices [...] agree that there are constitutional problems [...] that demand a remedy.”). If they can do it, why can’t the Ninth Circuit?
But, yes, it’s a bit OT. ;-)
Cheers,
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October 30, 2009, 1:55 pmDennis N says:
I think it would be more useful, from a legal POV, to have found that the facts in Miller are obsolete, and then reasoned out hoow the new facts apply.
For example, a standard argument by Internet vendors is that they are not going into your state and home to sell to you, you are coming into their shop in their state, where it is presumably legal. (If their activities are not legal in their home jurisdiction, they have other problems.) But in the case of porn, the files are on the seller’s server in his place of business in his state. The buyer has to go there and download the files.
I don’t think that argument has been adequately examined.
As the ruling stands, by attempting to read Washington tea leaves, the Ninth seems to be overreaching. This will probably force a SCOTUS review, and that may have been their ulterior motive.
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October 30, 2009, 2:15 pmDave N says:
The Supreme Court has, on more than one occassion, slapped down the Ninth Circuit for misapplying its precedent — stating that it was the EXCLUSIVE province of the Supreme Court to state what its holdings were and has rebuked the Ninth Circuit for forgetting its place.
While this has been more common in the context of federal habeas corpus litigation, I expect it will also happen in this case.
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October 30, 2009, 2:35 pmOrin Kerr says:
Loki13,
I was joking, actually: I take it we would all agree that Ninth Circuit panels do that on occassion. Of course, we can’t hop into the minds of the judges and know exactly when it it happens. But based on the opinions, and the statements of more former Ninth Circuit clerks than I can count, I think we can agree that it happens.
As for whether you can take Miller and reason from it, I don’t know how you could do that: If the Supreme Court says “the rule is X not Y,” I think lower courts are pretty bound by X rather than Y.
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October 30, 2009, 3:07 pmMark Field says:
Miller never applied to TV broadcasts, did it? AFAIK, the FCC gets to decide that on a national basis (with Congressional legislation). Of course, that’s a different situation as well, but it does suggest that Miller isn’t necessarily the end of the discussion.
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October 30, 2009, 3:25 pmloki13 says:
OK,
I’m not positive on this. Let me see if I can make the difference clear (as it appears to me):
1. You have a case, let’s say Texas v. Johnson. There, SCOTUS held that Flag Burning is inherently expressive conduct protected by the First Amendment. In the future, in cases where there is a statute prohibiting flag burning, lower circuits must strike it down. Let us assume that a horrible accident befalls the most outspoken members of SCOTUS on the 1st Am., and the are all replaced with five jurists that wrote articles when they were law professors (keep dreaming *smile*) that Flag Burning is not protected by the First Amendment. Lower courts should still apply Texas v. Johnson until SCOTUS rules again– no fair peeking or assuming.
2. So you have this case, where SCOTUS explicitly said they were adopting a community standard. However, is that necessary to the holding, or is that a part of the test dictated by the time and the facts? Dunno. I think it is a closer call than you think. IOW, must community standards be applied as part of the obscenity test always, or was it necessary given the facts of the case and the time that community standards were applied as part of the relevant “judging standards” for obscenity. I think a strong argument could me made either way.
3. Therefore, if the Ninth Circuit had reasoned as follows:
a. The Supreme Court in 1973 rejected using a national standard for a community standard for reasons…. (list reasons).
b. While most recently addressing the issue, the Supreme Court did not explicitly adopt a national standard, and while Marks prohibits us from following it as precedent, it is clear that there is strong support for re-evaluating what the relevant community is when dealing with internet communications.
c. In other mediums, there is certainly the idea that the relevant community is a national one (see FCC). While those cases are certainly distinguishable in First Amendment jurisprudence given their reliance on the nature of scarce resources and the intrusive nature of government regulation in the area, they are also persuasive given the similar nationwide reach of the mediums.
d. While SCOTUS rejected the idea of using a national community for a community standard in 1973 for the obscenity at issue in that case, it is clear that the i) the nation has become more connected and ii) this medium is substantially diffierent than the one at issue in Miller in terms of distribution and iii) there is more knowledge about the nature of our national community and relevant national standards that can be brought before a jury.
e. Therefore, while we continue to use the Miller “local community standard” we find that the relevant local community for internet communications is a national one.
I think that while this might be criticized, it is certainly not beyond the pale, and doesn’t go against the exact SCOTUS holding (since they said to use a local community, and just rejected the national community because the facts did not allow it at that time).
Make sense?
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October 30, 2009, 4:35 pmMichael Drake says:
Orin, I don’t understand how a case dealing with a state statute and involving the publication of obscene materials via traditional media channels “directly controls” in a case dealing with the application of a federal statute and involving the publication of such materials via the Internet.
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October 30, 2009, 5:16 pmOrder of the Coif says:
National standards are the only realistic rule for the internet.
The standard should, naturally, be set by Chatsworth, California.
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October 30, 2009, 5:42 pmOrin Kerr says:
Michael,
I think it controls because I think Miller lays down a constitutional rule for the definition of obscenity. By its terms, it didn’t lay down a constitutional rule just in the case of state statutes involving magazines, or just state statutes generally, or just magazines, or just black and white magazines. The decision is phrased in intentionally broad terms.
Of course, that doesn’t mean that as a lawyer you couldn’t argue a different position. But I think it would be the much weaker position.
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loki13 says:
OK
“We conclude that neither the State’s alleged failure to offer evidence of “national standards,” nor the trial court’s charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable “national standards” when attempting to determine whether certain materials are obscene as a matter of fact. . . . We hold that the requirement that the jury evaluate the materials with reference to “contemporary standards of the State of California” serves this protective purpose and is constitutionally adequate.”
OK– I was hoping you would respond with some more thoughts. Again, I think your analysis of Marks is correct. But I don’t see Miller as absolutely *requiring* local community standards (the State, in this case) as a matter of ConLaw be imposed; I read it as saying, instead, that as a matter of law, national stadards were not to be imposed in this case (there was no error in the jury instructions). Procedurally, appellants were arguing that it was error to use California instead of national standards; the Supreme Court said it wasn’t. I don’t see that as prohibiting the use of a national standard as the relevant local community for all cases, however.
So.... I see it as distinguishable. Not necessarily under the reasoning used by the Ninth, but still distinguishable. Perhaps you’d explain more fully why you think it isn’t.
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October 30, 2009, 6:31 pmMichael Drake says:
Orin, I guess I’d agree with you if you wanted to say that the Ninth Circuit should have addressed more directly why Harris/Roth aren’t controlling. But it seems to me that if the rationale for the original rule doesn’t apply to the Internet context (and you’d agree, I think, that at least arguably it doesn’t), then it can’t be “directly controlling” — it can’t be relied upon to settle the dispute. But anyway.
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October 30, 2009, 6:59 pmaf says:
Orin,
I don’t think Rodriguez is exactly on point. That case says lower courts can’t overtly overrule Supreme Court precedent — ie they can’t admit that a Supreme Court case controls but refuse to follow it on the ground that it is no longer good law.
That’s not what happened here. The Ninth Circuit didn’t purport to overrule Miller. It carved out an exception to Miller’s general rule. I don’t think there’s anything wrong with that as a general matter.
You may be right that Miller’s general rule controls this case and the 9th Circuit should have followed it. But that’s a disagreement about the best application of the law. It’s not really a Rodriguez situation.
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October 30, 2009, 7:25 pmDNJ says:
Orin,
I agree with af. Rodriguez is about the situation where a Supreme Court decision seems to be inconsistent with the rationale or approach (but not the direct holding) of later cases. United States v. Cruikshank (holding that the 2nd Amendment does not apply to the states) is an example: the later incorporation jurisprudence clearly takes a different approach and undermines it, but it has never been expliticly or implicitly overruled, and lower courts must therefore follow it. (The Ninth Circuit held that it didn’t prevent them from holding the 2nd Amendment incorporated against the states through the Due Process Clause, but this was based on a misreaing of Cruikshank.)
In contrast, this case involves restrictive distinguishing: concluding that some fact not present in the earlier case is materal and should lead to a different result. In this case, the 9th Circuit thought (rightly, in my opinion) that the fact that this case involved online obscenity was a material fact that should lead to a different result from the facts in Miller. Of course, the Court in Miller did not refer to any such limitation on their holding, but the whole point of restrictive distinguishing is that you they don’t have to have. The previous court is not expected to anticipate all possible fact variations that should make a difference. Restrictive distinguishing is a traditional tool of common law reasoning, and I see no reason to suppose that the Supreme Court meant to prohibit it in Rodriguez. Indeed, the words the Court used do not seems apt to cover it.
Regarding the Marks rule, the Supreme Court has recognised that it is difficult to apply and said that it is not an inflexible rule. It has always seemed to me to be an unhelpful and unjustified rule. It would be preferable to leave courts to apply the traditional common law method of extracting those principles on which a majority of the court agrees. This means that in many cases without an Opinion of the Court the holding will be relatively closely limited to the facts.
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October 30, 2009, 8:01 pmOrder of the Coif says:
DNJ posted:
Not so. Cruikshank (1876) didn’t expressly mention either the privileges or immunities or due process clause of the fourteenth amendment in support of it’s holding that “The second amendment ... means no more than that it shall not be infringed by Congress.” Citing Barron v. Baltimore (1832) for this point (earlier in the opinion when the Court said the same thing about the First Amendment’s right of assembly). The opinion, however, appears to follow the rationale of the Slaughterhouse Cases (1873 — dealing with the privileges or immunities clause) although it doesn’t cite that case in regard to the second amendment. The opinion states: “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. *** This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to [state law].”
It is not surprising that the opinion is unclear concerning the incorporation issue. The United States in its appeal did not mention the second amendment and, specifically, did not argue for its incorporation through the fourteenth amendment. The defendants also did not mention incorporation. All the briefs focused on the state action requirement because only a private conspiracy had been proven. The Court did adopt the position that the fourteenth amendment didn’t apply to these private individuals.
Furthermore, the Court would not use the due process clause to incorporate anything until more than two decades in the future. The due process theory did not exist until 1897 so it is not surprising that it isn’t mentioned in Cruikshank.
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October 30, 2009, 9:35 pmloki13 says:
Order–
I think you’re missing DNJ’s point.
1. Court ruled 2d Am. did not apply against the states (Cruikshank).
2. Cruikshank never explicitly overruled. (Although note subsequent SDP Cases)
3. After Heller, should lower courts continue to look to the explicit, never-overruled holding of Cruikshank (2d Am. does not apply against the states) or consider it fresh, despite SCOTUS not explicitly saying “Cuikshank is dead– you need to start incorporating via SDP/PI”?
I would argue that Heller invited the lower courts to look at incorporating it, *despite* the Court’s adminishments to never go farther than the Court itself has.
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October 30, 2009, 9:53 pmToby says:
Almost right. THe problem is the decision long ago that non-speech is speech. Talking Dirty is speech. Writing dirty is argualbly speech. Why are pictures speech. The founders obviusly knew what pictures were, even if they did not take photographs. The confounding of speech and pictures is the heart off the problem.
Today, as has been said before, pole dancing is protected speech and talking about actual candidates in the 6 weeks before an election is not. However much I mak like pictures of naked women, I cannot imagine why they are protected speech and hate speech is not.
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October 31, 2009, 3:21 pmNathanael says:
The correct rule, obviously, is to judge internet obscenity by the standards of the *appropriate community on the internet*. Geographic communities are irrelevant. Obscenity on volokh would be decided by volokh community standards, et cetera.
Of course this is far too radically obvious and simple for the aged non-internet-savvy judges to think of.
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November 1, 2009, 2:24 pmOrin Kerr says:
Nathanael,
I assume you mean “obvious” to mean “that which I think best”? If not, why is it obvious as a matter of First Amendment precedent? Also, how can lower court judges adopt the Nathanael rule in light of stare decisis concerns?
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November 1, 2009, 4:22 pmJOLT Digest » United States v. Kilbride | Harvard Journal of Law & Technology says:
[...] Goldman provides an overview of the case. Orin Kerr, of The Volokh Conspiracy, criticizes the Ninth Circuit’s reasoning in the case. Kerr argues that the Ninth Circuit should [...]
9th Circuit Adopts a National Standard for Internet Obscenity « Media and Communications Law Society says:
[...] can better anticipate the legal consequences of their actions. There is consistency. Though the Volokh Conspiracy questions whether the opinion is on firm constitutional ground, as it currently stands, it will [...]
INTERNET OBSCENITY! « FIRST ONE @ ONE FIRST says:
[...] 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 [...]
Major Decision on Community Standards for Internet Governance & More on Judicial Transparency says:
[...] the Court’s decision in Ashcroft v. ACLU (I); and the Ninth Circuit’s contrary decision in United States v. Kilbride might well be mistaken. Still, it seems odd that the Eleventh Circuit’s opinion — which [...]