A Tampa case may present an ideal context to review the long-criticized pornography test and the role of community standards in the Internet age. Paul F. Little, known as “Max Hardcore,” is facing an obscenity prosecution for selling porn on the Internet. The Bush Administration could have chosen any state in the Union, but engineered an indictment in Tampa — an open case of forum shopping for the most conservative jury pool that it could find. The Supreme Court has never produced a coherent and consistent approach to obscenity and this case is the result of this long-standing judicial failure.
Pornography cases have always shown the Supreme Court at its worse. The Court refused to create a bright-line of the right of consenting adults to have such material so long as it does not involve abuse of individuals. Instead, it went through a ludicrous period of actually watching porn and following the most fluid and biased rules. This poor record is summed up Justice Potter Stewart’s dim-witted and famous statement in his concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964). He wrote:
“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” (emphasis added)
Now there is a test. The Court’s use of community standards in Miller v. California (1973) as part of the three-part test guaranteed disaster. With the advent of the Internet, there is no practical way for a producer of such material to know every possible community standards — a rule that would force compliance with the most conservative standards. That seems to be what the Bush Administration wants by engineering a test case in Tampa. Now a jury is sitting in a room in Tampa watching hours of pornography to decide whether it insults their personal standards. They will then decide whether their neighbors can buy such material and whether Little can be sent to jail for supplying it. It is a libertarian and civil liberties nightmare.
A postal inspector arranged for five DVDs to be sent to her at a Tampa post office box and the Justice Department found a web host in Tampa that carried some of the material.
It is a case that could force the Court to reexamine the current test – though with the addition of Sam Alito on the Court, it could be a tough case for first amendment advocates. Nevertheless, the Little prosecution speaks loudly to both the inadequacy of the current rule and its vulnerability to prosecutorial manipulation.
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