Tag: obscenity

April 20, 2010 First Amendment

Ohio internet obscenity statute constitutional

American Booksellers Foundation for Free Expression v. Strickland, — F.3d —, 2010 WL 1488123 (6th Cir. April 15, 2010)

Court holds that statute prohibiting distribution of material harmful to minors directly via the internet is not overly broad and therefore not unconstitutional.

Ohio has a statute that criminalizes sending juveniles material that is harmful to those juveniles (ORC 2907.31). Section D of that statute specifically addresses communications “by means of an electronic method of remotely transmitting information.”

A group of booksellers and publishers challenged this statute on First Amendmendment grounds, arguing that the provisions are overly broad. After a complex procedural journey that began in 2002, the Sixth Circuit Court of Appeals has held that the statute is not unconstitutional.

The court held that the statute was not overly broad because it only apllies to personally directed communications. For that reason, the plaintiffs were unable to demonstrate from the text of the statute that a “substantial number of instances exist in which the law cannot be applied constitutionally.”

Unlike a typical First Amendment case, the court did not apply the “strict scrutiny” test for constitutionality, because the statute does not affect protected speech among adults. But the court noted that even if that test applied, it would have survived strict scrutiny, given the compelling interests in protecting children from predators.

(Photo: Derived from an image licensed under a Creative Commons Attribution Share-Alike (2.0) from iboy’s photostream)

January 29, 2008 Computer Crime, First Amendment

Court rejects constitutional challenges to obscenity statutes in prosecution of adult website owner

U.S. v. Little, No. 07-170, 2008 WL 151875 (M.D. Fla. January 16, 2008)

The operator of the Max Hardcore website was indicted under 18 U.S.C. §§1462 and 1465 for distributing allegedly obscene video files which agents downloaded in Tampa, Florida. Max Hardcore moved to dismiss the indictment, raising a number of constitutional challenges to the prosecution. The court rejected each of the defendant’s arguments and denied the motion.

Statutes not facially unconstitutional

The court declined to accept the defendant’s argument that because of the evolving nature of substantive due process law, prior Supreme Court decisions upholding the federal obscenity statutes were no longer valid. It also refused the defendant’s argument that the constitutional right to privately posses obscene materials should translate into a corresponding right to distribute such material.

Statutes not unconstitutional as applied

The defendant also launched a couple of challenges to the application of the Miller test, set forth in the Supreme Court’s decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). Under the Miller test, the finder of fact determines whether material is obscene by applying the following test: (a) Whether “the average person, applying contemporary community standards’” would find that the work taken as a whole, appeals to 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.

Max Hardcore’s challenge to the Miller test dealt with the requirement that the works at issue be “taken as a whole.” The defendants argued that because of the interconnected nature of the Web, it would be impossible to know what the term “taken as a whole” means, and it would similarly be impossible to determine the community standards against which the works should be evaluated. At the very least, the defendant argued, the entire Max Hardcore site should be considered the work “taken as a whole,” and not just the individual video files.

With little analysis, the court sided with the government, holding that the individual files – and not the whole website – should be the works “taken as a whole.” And the court concluded that the absence of a universal community standard was okay. Citing to U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982), it held that “[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”

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