The Constitution’s Geography Clause – DOJ Files Obscenity Suit in D.C. Will the Court Apply Local or National Community Standards?

July 13th, 2010

The DOJ just indicted several pornographers on charges of obscenity, choosing to file the suit in the District Court for the District of Columbia. Under Miller, what type of community standards will the court apply?

From The National Law Journal:

Stagliano and two of his companies were indicted in federal district court in Washington in April 2008 on seven counts of distributing obscene, sexually graphic videos that U.S. Justice Department prosecutors allege have no artistic or scientific value and cut against the community standard of what is acceptable. He faces up to 32 years behind bars if convicted.

The evidence against Stagliano is two DVDs — “Jay Sin’s Milk Nymphos” and “Joey Silvera’s Storm Squirters 2” — as well as a movie trailer downloaded from the Evil Angel site. An FBI agent bought the movies for $57.48 in December 2007.

In court papers, investigators describe the movies as having “numerous scenes of urination, use of enemas and violent bondage. In a number of scenes, participants ingested urine and excretion from the enemas.

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court announced a three-part test to determine whether a work counts as “obscenity” for purposes of constitutional law:

(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the 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.

The Supreme Court and most lower courts have interpreted the “community standards” prong of the test to refer to the location where the material was sent. However, in October 2009, the Ninth Circuit in United States v. Kilbride held that national community standards should apply in a jury’s determination of Internet obscenity.

At the time Orin Kerr expressed some doubt about the 9th Circuit’s test:

“As a matter of law, I don’t find this particularly persuasive . . . Whether the Ninth Circuit was right or wrong, the likely effect is to put a case on the Supreme Court’s docket in the next year or two on whether Internet obscenity requires a different standard than traditional obscenity. That should be a fascinating case.”

Yet neither Kilbride, nor United States v. Little in the 11th Circuit–which took a contrary position to the 9th Circuit–sought cert..

How will the DC District Court, and eventuallythe DC Circuit handle this case? Apply local community standards or national community standards? This case may provide a vehicle for the Supreme Court to review this doctrine, and perhaps clear up this muddled mess.

Mike Sacks has an excellent analysis at F1@1F breaking down the possible votes in this case.

I continue to question the validity of the Miller “community standards” test, and am cautious about reading a geography clause into the Constitution.