The 11th Circuit ruled last week that the local standards rule for obscenity cases still applies to internet pornography
(Unpublished opinion found here: http://www.ca11.uscourts.gov/unpub/ops/200815964.pdf)
Basically, the standard for an obscenity charge has rested on whether the local community would find the material obscene. (Well, it’s slightly more complicated than that, but you can google “Miller Test” for more information) So, the Supreme Court has left it up to local communities to define for themselves what constitutes obscene material.
With the advent of the internet, and the easy accessibility of materials produced all over the world, it exposes pornographers (and possessors of pornography, presumably) located in California to criminal charges based on the standards of communities across the country. In the above case, the porn producer is from California, but was tried in Tampa Florida after investigators downloaded and ordered pornography from his website.
Accepting that obscene materials are not protected by the first amendment (on well established precedent) and therefore subject to regulation or prohibition, should we be still be using the community standards context for evaluating obscene material on the internet? Or should we adopt a national standard for evaluating material of this type, as the 9th Circuit has done? I imagine eventually the Supreme Court will take this up, but in the mean-time what do you think?
Personally, I’m of the opinion that we need to either apply a national standard to these materials, or at least judge them by the standards of the community in which they were produced, rather than subjecting them to the standards in which they were imported. Else, for the purposes of the internet, obscenity isn’t regulated by local community standards, but by the most restrictive community in the nation (so as to avoid potential criminal liability even if you’re based in California.)