By Eriq Gardner
A little-noticed Court of Appeal decision
last week may not be as shocking as some of the acts of degradation it discusses, but it deserves some edge-of-your-seat attention.
The 11th Circuit has ruled that hard-core materials published on the Internet can be judged "obscene" by a jury in small-town America even if the images were posted by someone thousands of miles away.
The case involves film producer Paul Little, aka Max Hardcore, whose movies are so cringe-inducing and envelope-pushing in their depictions of humiliation and abuse, they had jurors in a criminal obscenity trial against the gonzo director begging the judge
to be shown only short clips. We're talking "fisting,
" urination and defecation, and porn actresses made-up to look like children. Max Hardcore was sentenced to four years in prison by a Florida District Court.
But Mr. Hardcore doesn't live in Florida, and his films weren't shot there, either. The Justice Department brought its case against the director on the premise that he used computer servers based in the state, as well as the fact that his films were available to customers in the district. The Bush Administration also likely tried the case in Florida because it's home to some of the toughest obscenity laws in the nation, which is helpful when jurors apply the "community standards" test to define what is "obscene."
Little argued on appeal that a local community standard is not the proper approach for judging Internet-based materials.
Now the 11th Circuit disagrees, ruling that materials published online are available to individuals in the "strictest corners of our nation," and that it's fair for them to be judged there.
In reaching its decision, the Court decided to shrug off a good deal of Ashcroft v. ACLU,
which ruled as unconstitutional the Child Online Protection Act, especially a concurrence
by Supreme Court Justice Anthony Kennedy that expressed grave concern about how national variations in community standards might serve as a potential infringement of First Amendment free speech protections in the digital age.
The U.S. Supreme Court has spent a lot of time over the years reviewing obscenity, including Justice Potter Stewart's famous 1964 statement, "I know it when I see it." Recently, the justices have been shy about reviewing porn
, but the Max Hardcore decision
could give them another opportunity to address the issue.
Will Justice Clarence Thomas be subjected to a man urinating on a woman?