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Will Max Case Be The One to Go to The US Supreme Court?

TAMPA – Over several hours last week and this, seven men and five women on a federal jury have watched some of the most extreme pornography commercially available today.

Some lawyers and academics wonder why.

Critics of obscenity cases question the federal government’s decision to file these charges, especially considering the defining case law is 35 years old and was on shaky legal ground to begin with.

Federal obscenity law requires jurors to determine whether the material is patently offensive to the average person based on community standards. In the age of the Internet, however, a community’s standards have become more difficult, if not impossible, to define.

Still, as vocally as some question the government’s role in deciding what is obscene, others are egging on federal prosecutors to stop the progression of the pornography industry as it becomes increasingly bizarre.

“There’s been no real prosecution regarding adult obscenity and it’s gotten totally out of hand,” said David Caton, executive director of the Tampa-based Florida Family Association. “Where in society do we say enough is enough?”

The videos that jurors watched in Tampa, produced by and starring California resident Paul Little, feature scenes of violence and humiliation, urination and vomiting. Little, who goes by the name Max Hardcore, was convicted Thursday on five charges of distributing obscene material over the Internet and five counts of distributing obscene material through the U.S. mail.

As the attorneys prepare an inevitable appeal, some experts wonder whether this will become the case that prompts the U.S. Supreme Court to revisit the country’s obscenity laws.

Miller V. California

In 1973, the U.S. Supreme Court issued a controversial opinion in the case Miller v. California.

The opinion developed a test to determine whether material is obscene. In part, it asks a jury to decide if the average person applying contemporary community standards would find that the material is intended to sexually arouse in a patently offensive way.

Eric M. Freedman, a constitutional law professor at Hofstra University in New York, said that concept is constitutionally flawed. The First Amendment, Freedman said, is intended to protect unpopular speech from those who would gather together to quash it.

The Miller decision, Freedman said, skirts the First Amendment. It allows a community to determine what can be expressed by minority groups within that community. The problem in modern times, Freedman said, is that there are no average people who can apply the standards of their community.

“The idea of local standards, which was deeply problematic when it originated, has now become thoroughly obsolete in the Internet age,” Freedman said.

The current Supreme Court has avoided making judgments on the Miller decision but, with cases such as Little’s, it might not be able to dodge the question much longer.

Assuming Little’s attorneys have laid the foundation for a constitutional appeal, this case could head to the Supreme Court someday and result in a new challenge to the validity of local community standards and obscenity, Freedman said.

Still, several factors could stand in the way.

“I wouldn’t overestimate the chances,” Freedman said. “Even if the issue is there, the Supreme Court may not take it. Those reasons could be tactical or political.”

Clearwater lawyer Luke Lirot, who acknowledges that he is as much an advocate of the First Amendment as an expert on its intricacies, said he does not like Little’s videos.

Lirot’s client base has included strippers, pornographers and prostitutes. Still, he said, his tastes are significantly more “vanilla” than the Max Hardcore titles.

He doesn’t think he’s alone.

Most of the people in America would not enjoy Little’s videos, Lirot said – but the material is not meant for them. Its intended audience is a small minority of people who enjoy watching consenting adults take sexual acts to an extreme. The concept is not unlike television reality shows where people eat worms and sit in vats of insects, Lirot said.

“It’s like ‘Fear Factor,’ people watching what extremes people will subject themselves to,” Lirot said.

The acts performed in Little’s videos are not illegal, Lirot said, but because they are sexual, the government says it is illegal to film and distribute them.

Acts Become More Extreme

Caton said some First Amendment advocates miss the point of the Miller decision.

The Miller case determined that obscenity is not protected speech. That is why the justices in 1973 developed the test. The Internet, Caton said, is just another pipeline.

“The only difference is that the images are coming from a telephone wire or cable, not the mailbox,” he said.

As in all obscenity cases, material is produced in one place and shipped to another. It doesn’t matter whether it’s a magazine, a video or a digital clip: If it’s obscene, it is not legal, Caton said.

When the government does not prosecute obscenity charges, pornography becomes more extreme, Caton said. During the Clinton administration, he said, over-the-counter magazines such as Penthouse and Hustler went from soft-core to hard-core.

Popular stores that cater to the public are selling magazines that include urination scenes, Caton said.

“There is a certain level of degradation that goes beyond erotic art and erotic entertainment,” he said. “I don’t think it’s any coincidence that we are seeing women abducted from universities. They have been degraded to the point of being toys.”

Caton said it is encouraging that a jury in an area such as Tampa, where adult businesses flourish, found that there is a point where sexual exploitation is not tolerated.

Over the past seven years, Caton said, the family association has lobbied the U.S. Department of Justice to take a more active role in the prosecution of obscenity.

In a 2007 Senate committee meeting, then-Attorney General Alberto Gonzales said his office asked for the resignation of a Nevada U.S. attorney in part because of the attorney’s lackluster desire to prosecute obscenity, according to a transcript of the meeting published in The Washington Post.

The choice to investigate and to prosecute obscenity cases lies with the presidential administration, said law professor Freedman. If President Bush wants federal prosecutors to focus on obscenity laws, that is his right as an elected leader.

In the case of obscenity, however, the endeavor is quixotic, Freedman said. When federal prosecutors push these cases, they might ultimately force the U.S. Supreme Court to revisit the Miller decision.

Freedman acknowledged, however, that the Internet obscenity issue recently came before the U.S. Supreme Court and the justices managed to sidestep the Miller issue. In 2002, the court was asked to review a lower court’s ruling on the proposed Childhood Online Protection Act.

The lower court had questioned the Miller test’s applications to the Internet. Under the Miller test, the judges determined, no one could post anything to the Internet unless it meets the standards of the most puritanical community in America.

The Supreme Court avoided the community standards question altogether.

“The Supreme Court is well aware that the idea of local standards is under severe pressure in the Internet age but has so far managed to avoid it squarely,” Freedman said.

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