Feeds

US judges leave definition of obscenity to Amish, Kansas

No 'national' standard in Max Hardcore case

Providing a secure and efficient Helpdesk

United States judges are squaring up for an almighty battle over the proper standards to apply to internet published material.

The final verdict will determine whether the US eventually falls back into a new era of prohibition – this time for porn – or whether those living in more openly liberal states will be able to access material without being subject to the moral judgments of the most reactionary communities.

The stage was set with a ruling last week in the Tampa federal prosecution of Paul F Little, also known as Max Hardcore. According to the 11th US Circuit Court of Appeals the law "does not recognize a national community standard for Internet-based material".

What that means, in plain English, is that if you publish material on the internet anywhere in the US, you may be tried for obscenity in any other part of the States – and the standard that will be applied is the "local community standard". You might publish materials that are legal in the state where they are produced and almost everywhere else – but if they are deemed to violate the standards of one single community, they are illegal in that community, and a crime will have been committed.

In hearing the Appeal, the Tampa court rejected arguments by Little's attorneys that applying a local community standard and judging internet based material according to the standards of the strictest communities violated the First Amendment. It upheld the 2008 convictions of Little and his production company on 10 violations of federal obscenity laws.

However, it also ordered that Little be resentenced, on the grounds that the sentencing judge should not have taken into consideration the profits from sales of the obscene materials, whether or not they were sold in the Tampa court's jurisdiction.

The impending clash of the judges springs from the fact that this ruling applies only in Florida, Alabama and Georgia – and is in direct contradiction of a federal appeals court ruling in California just three months ago that a national community standard must be applied when regulating obscene materials over the Internet. The three-judge panel of the 11th Circuit wrote that they "decline to follow the reasoning" of the California court.

This opens up a gaping great hole in US laws on obscenity, as you may publish material on the internet in California, safe in the knowledge that Californian courts will hold you subject only to the community standards prevalent in California – which are likely to be a great deal more liberal than standards in the mid-West. However, that same material, if downloaded in Florida, will immediately become subject to local law that claims that the local Floridian standard on obscenity can be applied.

These conflicting rulings will satisfy no one – and as the law stands, it now places publishers of any material that might be deemed slightly "risqué" anywhere in the states in a position of extreme uncertainty. In the end, it seems likely that the US will come down on the side of California – since any other result will place enormous restrictions on the ability of artists (and pornographers) to express themselves.

In the meantime, the legal playing field now sports many more er, humps. ®

Beginner's guide to SSL certificates

More from The Register

next story
Doctor Who's Flatline: Cool monsters, yes, but utterly limp subplots
We know what the Doctor does, stop going on about it already
Facebook, Apple: LADIES! Why not FREEZE your EGGS? It's on the company!
No biological clockwatching when you work in Silicon Valley
'Cowardly, venomous trolls' threatened with TWO-YEAR sentences for menacing posts
UK government: 'Taking a stand against a baying cyber-mob'
Happiness economics is bollocks. Oh, UK.gov just adopted it? Er ...
Opportunity doesn't knock; it costs us instead
Ex-US Navy fighter pilot MIT prof: Drones beat humans - I should know
'Missy' Cummings on UAVs, smartcars and dying from boredom
Sysadmin with EBOLA? Gartner's issued advice to debug your biz
Start hoarding cleaning supplies, analyst firm says, and assume your team will scatter
Zippy one-liners, broken promises: Doctor Who on the Orient Express
Series finally hits stride, but Clara's U-turn is baffling
Don't bother telling people if you lose their data, say Euro bods
You read that right – with the proviso that it's encrypted
prev story

Whitepapers

Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
Why cloud backup?
Combining the latest advancements in disk-based backup with secure, integrated, cloud technologies offer organizations fast and assured recovery of their critical enterprise data.
Win a year’s supply of chocolate
There is no techie angle to this competition so we're not going to pretend there is, but everyone loves chocolate so who cares.
High Performance for All
While HPC is not new, it has traditionally been seen as a specialist area – is it now geared up to meet more mainstream requirements?
Intelligent flash storage arrays
Tegile Intelligent Storage Arrays with IntelliFlash helps IT boost storage utilization and effciency while delivering unmatched storage savings and performance.