If a company is under indictment for the sale of obscenity in one state and the purchaser (an undercover agent) is in another state,"what community standards should be used to determine if a crime was committed?" The situation exemplifies a major shortcoming in obscenity prosecutions in the Internet age. The case of Extreme Associates is set for trial on March 16, 2009 and it will be interesting to see the jury instructions in that case. From the Pittsburgh Post-Gazette:
That was a question faced recently by a federal court judge in the ongoing case of United States vs. Extreme Associates, a company based in North Hollywood that makes graphic pornography featuring scenes of rape, torture, murder and defecation.
The trial of Extreme Associates begins March 16 before U.S. District Judge Gary L. Lancaster -- more than five years after the original indictment was brought on charges that the owners of the company, Robert Zicari, and his wife, Janet Romano, transported obscene materials across state lines.
Jurors will be forced to answer three questions in their deliberations: Are the materials patently offensive? Do they appeal only to prurient interests? Do they have any serious artistic, literary, social or political value?
The first two questions must be answered through the lens of "contemporary community standards."
When the U.S. Supreme Court established current obscenity law in its 1973 decision in Miller vs. California, it did not go about defining those standards. Since then, with the pervasiveness of cable television and the advent of the Internet, some experts argue that contemporary community standards have very likely changed, and the law should reflect that.
The Extreme Associates trial could be the catalyst.
H. Louis Sirkin, a well-known obscenity lawyer who represents the defendants, argued to Judge Lancaster that the standards of cyberspace rather than community standards of Western Pennsylvania should be used to gauge his clients' conduct.
"We just think it's an outdated concept with the Internet," Mr. Sirkin said. "In 1973, there was a difference between New York and Jackson, Miss.
"The country is not as isolated as it once was."
Indeed, Jeffrey Rosen, a constitutional law professor at George Washington University in Washington, D.C., has written about studies that show the same levels of consumption for pornography in places as wide-ranging as Salt Lake City and Las Vegas.
When I think of what the community standards would be if we used cyberspace as the community, I can't help but think of an old Chappelle's Show skit which imaged the Internet in the real world. The skit is here (and it isn't pretty):
H/T: How Appealing.