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?

Of course this is far too radically obvious and simple for the aged non-internet-savvy judges to think of.

Reality: 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.

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.

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.

(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.)

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.

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.

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.

“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.

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.

My sense is that the case which directly controls here is Miller v. California…

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.

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?

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.

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.

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.

While this has been more common in the context of federal habeas corpus litigation, I expect it will also happen in this case.

loki13: 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?

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.

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.

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:

“With respect to the equal protection question, we find a violation of the Equal Protection Clause.”

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,

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.

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…

Orin Kerr: 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?

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?

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.

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.

But here the Ninth Circuit is counting the number of Justices who had “concerns.” Concerns are not positions.

This is sooooo pre-2000. See, e.g., the per curiam opinion in Dubya v. Gore:

“Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.”

It’s the “new math”, and despite the claims of the per curiam, this “new math” has precedential imperative.

Cheers,

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?

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.

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.

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.