One Flag, One Standard: The Ninth Circuit's Kilbride Appeal

The good guys won a Pyrrhic victory of late when the United States Court of Appeals for the Ninth Circuit held that where the internet is concerned, the “community” standards that apply in an obscenity case are national rather than the traditional local ones. But this all resurrects the question of whether obscenity laws are really workable at all, going back to the 1973 Miller quintet. That was the spate of Supreme Court decisions that created the abominable Miller test, under the industry has labored ever since.

Why is this so important? Whenever the federal government has been in obscenity-prosecution mode, its habit has been to bring cases in places that are very conservative—including the likes of Oxford, Miss.; Tallahassee, Fla.; and Oklahoma City, Okla. Then the jury is instructed that the local community standards apply, as required by Miller, so a very conservative jury is instructed to apply its own standards. Guilty!

However, as we all know, distribution of adult content soon will be entirely online and not necessarily aimed at any particular market—if something is on the internet, it can be accessed anywhere. This shift has not changed the government’s habits. Prosecutors continue to select ultraconservative venues, counting on the judges to instruct the juries to apply their own local—and ultraconservative—standards. Thus, internet broadcasters are confined to broadcasting materials that are acceptable in the most conservative of jurisdictions, restricting the entire country to Bible Belt values. Now, this is exactly what the religious right wants: to impose its ultraconservative views on the entire country.

The recent decision that brings this all to light is the Kilbride case, which was an appeal from a federal obscenity conviction in Phoenix. (United States v. Kilbride, ___ F.3d ___, 2009 WL 3448360 [9th Cir., October 28, 2009].) Before going off into legal gyrations, we should consider the impact of all of this on the defendants. They were sentenced to between 6 and 7-1/2 years in the hoosegow! This is serious stuff. As this column has said before, obscenity prosecutions are acts of terrorism against the First Amendment.

In modern obscenity law, starting with the Roth case in 1957, the Supreme Court initially was not too clear about the identity of the “community.” The decisions, none of which commanded a majority of five justices, suggested that the standard was a national one.

What did not make sense was that, between the 1957 Roth case and the Miller cases in 1973, the country’s media became increasingly homogenized, as did the country generally, with people increasingly moving from one locale to another. The television networks grew, and the amount of local programming decreased. Yet the Miller cases changed the “community” from a national one to a local one, the court saying that people in Maine or Mississippi should not be required to tolerate what might be acceptable in New York City or Las Vegas.

The internet changed that because it is the same internet in all 50 states. Historically, distribution of media was done face to face. A customer would go to a bookstore or a theater and consume the media item. The internet created a new medium whereby distribution was either to the entire planet or not at all. So, something erotic on the internet becomes subject to a “heckler’s veto” if local community standards are to apply. The Supreme Court talked about that issue enough in one of the COPA cases from which, in the Kilbride case, the court was able to cobble together enough to decide that the majority of the Supreme Court was in favor of national standards in obscenity cases where the internet is the medium of distribution. Kilbride is an outstanding decision.

Even more significantly, this was a “spam” case. That is, the materials found to be obscene were sent by email, not posted on the World Wide Web. With an email, the government contends, you are directing the content to a particular person. So, the argument goes, it is just like the postal service. If you mail something allegedly obscene from Los Angeles to Mississippi, you can be indicted in Mississippi and be required to face trial there.

But the court acknowledged the fact that email is different because it is delivered to an email address, which typically can be accessed anywhere.

Thus, Messrs. Kilbride and Shaffer prevailed on the constitutionally complex argument over which “community” applies to internet obscenity cases, and congratulations are in order to the litigators (including a former partner and a former associate of the author) for a job well done.

Having won the battle, however, the two defendants lost the war. Sadly, the lawyers who represented them at trial—different from their appellate counsel—apparently were not substantially experienced in obscenity law. So, at trial, they did not advance the nationwide community argument; it was raised for the first time on appeal, which proved a problem.

The rules that apply to appeals of a criminal case generally say that you cannot complain on appeal about something if you did not complain about it at trial. And that is what doomed the appellants in this case. Because the defendants failed to preserve the national-standards issue in the trial court, the Court of Appeals held, their complaint about it on appeal would not be honored.

This is a blockbuster case, and it is a lesson. It is a blockbuster case because the Justice Department’s Obscenity Prosecution Task Force (to be discussed next month in this column) will not be able to assign Mississippi standards to the whole country in internet obscenity cases. It is a lesson because of the failure of the trial counsel to press the winning argument in the first instance. There is a stable of adult-entertainment attorneys—in which the author would like to be counted, along with the majority of the membership in the First Amendment Lawyers Association (FALA)—who know this stuff. At some point in roughly the mid-1990s, this column wrote about the precise issue in this case. And it has been discussed at FALA meetings for a decade. Those FALA attorneys who participated in those discussions are familiar with this very important, cutting-edge issue.

Perspective is relevant here. This case binds only the federal courts of the states west of the Rockies, but it is precedent that likely will be followed. There is little chance that the Supreme Court will review the case because of the failure of the defendants to raise the community issue at the trial. But this issue certainly will reach the court eventually, given the DOJ’s apparent full-speed-ahead on obscenity prosecutions.

And what happened is unfortunate. A couple of entrepreneurs made the mistake of shoving porn in front of a bunch of pissed-off spam recipients—and then they compounded that mistake by not having an attorney evaluate their business mode when CAN-SPAM was enacted. They could have saved themselves their life savings and a half-dozen years in the can by retaining an attorney at the outset who knows this stuff.

Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com.

This article originally appeared in the December 2009 issue of AVN.