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11th Circuit Obscenity Case Tests Community Standards on the Internet
Prosecutors have described the films at issue in the case as 'sadistic, masochistic and violent'
Fulton County Daily Report
October 30, 2009
Accounts of a trial last year indicate that the jurors in a Tampa, Fla., courthouse had a hard time dealing with a case requiring they decide whether the producer of sexually explicit movies should be convicted of violating federal obscenity statutes.
The case was unusual because federal authorities seldom prosecute makers of films that do not include child pornography.
At one point, according to briefs, an alternate juror sent a note to the judge requesting that the jury be asked to view only excerpts of the movies. The jury engaged in what's been termed by press accounts and a defense appellate brief as emotional deliberations, with the jurors reporting at one point that they were deadlocked on several of the counts -- before ultimately convicting on all of them.
The federal judges who on Thursday heard the appeal of the movie producer, known as Max Hardcore, aren't being asked to make the same judgments the jury did. The U.S. Supreme Court infamously has spent time viewing explicit films to decide whether they could be considered obscene and therefore unprotected by the First Amendment -- prompting Justice Potter Stewart in 1964 to opine on hard-core pornography, "I know it when I see it."
There was essentially no discussion during the argument at the 11th U.S. Circuit Court of Appeals about the actual content of the films at issue in the case, which prosecutors have described in a brief as portraying sexual acts that are "sadistic, masochistic and violent."
Nonetheless, the judges are being asked to decide some of the heaviest issues in the area of obscenity law, such as whether the government should criminalize adult films purchased over the Internet and viewed in the privacy of the home, and whether a Tampa jury should apply its own mores to materials available all over the country.
The three judges who heard the case seemed interested less in hot-button issues than in sentencing matters and a personal problem experienced by a juror during the trial.
The defendants convicted in Tampa last year are Hardcore, whose real name is Paul Little, and his company, Max World Entertainment Inc. Little produces, directs and stars in the movies made by his company, according to prosecutors. Little is based in the Los Angeles area, but the Justice Department says its prosecution of Little was based in Tampa because the www.maxhardcore.com Web site was hosted by a third-party company on computer servers in Tampa.
Prosecutors charged Little and Max World with 10 counts of obscenity -- five counts for the distribution of short video clips available from a "members only" section of the www.maxhardcore.com Web site, and five counts for five corresponding full-length DVDs advertised on the same Web site. The DVDs were ordered by a postal inspector and shipped to a post office box by a third-party distributor, Jaded Video.
U.S. District Judge Susan C. Bucklew, who has since taken senior status, declined to dismiss the indictment on constitutional grounds, and the case went to trial in May 2008 before a jury in Tampa. The jury returned guilty verdicts on all counts.
Bucklew sentenced Little to just under four years in prison, plus a fine and supervised release, while his company received probation and a $75,000 fine. He began serving his prison sentence in January.
On appeal, the defendants have argued that the 2003 U.S. Supreme Court ruling striking down criminal sodomy laws as unconstitutional when applied to consenting adults recognized a right of sexual privacy that courts should read to include a right to buy and sell obscene materials.
In 2004, a split 11th Circuit panel hearing a challenge to an Alabama ban on the sale of sex toys appeared to reject the idea that the Supreme Court had recognized a sweeping right to privacy. But last year the neighboring 5th Circuit ruled that a similar Texas statute was an unconstitutional burden on sexual privacy.
