Ninth Circuit Adopts National Standard for Internet Obscenity

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.

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