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US judges leave definition of obscenity to Amish, Kansas

No 'national' standard in Max Hardcore case

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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. ®

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