New obscenity charges raise questions in Internet Age

A long-standing court test using community standards to determine whether adult content is criminally obscene has been a potential problem area for the U.S. pornography industry. But a debate that's been largely abstract for years has recently changed as the U.S. Department of Justice successfully prosecuted two Web site operators for obscenity.

Last Friday, Paul F. Little -- also known as Max Hardcore -- was sentenced to 46 months in prison, as well as a US$7,500 fine for distributing adult videos online and through the mail. The Florida judge also fined Little's company, MaxWorld Entertainment, $75,000 and shut down his Web site.

And in August, Karen Fletcher, a 56-year-old Pennsylvania woman, was sentenced to five years of probation, including six months of home detention, and forfeiture of her computer after pleading guilty to six counts of using an interactive computer service to distribute obscene materials. Fletcher owned and operated the Web site, Red Rose Stories, which featured stories, but no pictures, describing sexual molestation and violence against children.

Those cases and other charges filed in recent years have raised questions among First Amendment lawyers and civil liberties advocates, in part because one major test for determining obscenity relies on local community standards for pornography on the Internet. The DOJ established an Obscenity Prosecution Task Force in 2005, but critics have said the agency should redirect those resources toward violent crime or terrorism investigations.

The recent convictions highlight the problems with relying on community standards for Web content, Jonathan Turley, a law professor at George Washington University, wrote on his blog.

The DOJ "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," wrote Turley, who also has defended several high-profile clients. "The [U.S. Supreme] 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."

The Supreme Court avoided spelling out what is obscene in a landmark case, Miller v. California, decided in 1973. The court laid out a three-part test for determining whether material was obscene, with the first part of the test asking whether "the average person, applying contemporary community standards" would find that the work appeals to the prurient interest.

A second test in the Miller decision relies on state standards, asking whether the material in question "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law."

The DOJ defended the multiple obscenity charges brought across the country since 2003. "We prosecute cases based on the U.S. Supreme Court's definition of obscenity," said Laura Sweeney, a DOJ spokeswoman.

The IDG News Service is a Network World affiliate.