By Justin Silverman

Last spring I wrote about Dwight Whorley and his conviction under the federal obscenity statute. The materials in question were Japanese anime-style cartoon depictions of children having sex with adults and emails Whorley wrote describing his fantasies of having sex with minors. Before the obscenity conviction could occur, the materials needed to first be found obscene. The jury determined this by answering a three-part test developed in Miller v. California, 413 US 15 (1973):

  1. Would “the average person, applying contemporary community standards” find that the work, taken as a whole, appeals to the prurient interest?
  2. Does the work depict or describe, in a patently offensive way, sexual conduct specifically defined by an applicable state law?
  3. Does the work, taken as a whole, lacks serious literary, artistic, political, or scientific value?

The first prong of this 36-year-old test focuses on “contemporary community standards.” The community to consider is that from which the juror comes; it’s a local one. Depending on the jurisdiction, that community could be very conservative and what it would consider obscenity may not be considered as such elsewhere. Across the country, under this test, the definition of obscenity could vary greatly. This didn’t pose a significant problem at the time of Miller because publishers knew where they were distributing the material. They were the ones handing out pamphlets or addressing envelopes.

Publishing online or through email poses its own difficulties. Because a website can be accessed in every jurisdiction, its material would be subject to every community’s standard. Justice Stephen Breyer wrote in Ashcroft v. ACLU, 535 US 564 (2002): “Adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the nation.” Similarly, when an email is sent, there’s no way to know where it will be opened. Will the recipient be in a conservative jurisdiction or a more liberal one? How will that particular area judge what is or isn’t obscenity? When Whorley sent his emails describing fantasy sex with children, there was no way for him to know just where those emails would be read or by what definition of obscenity they would be judged. In cases like this, prosecutors could forum shop for the most conservative jurisdiction and ask the jurors there: “Does your community find the material here to appeal to a prurient interest”?

Now, according to the 9th Circuit, that community just got a lot bigger — and consequently, more friendly for defendants.

In United States v. Kilbride, the court last week found that in federal obscenity cases involving emails, a national standard should apply. The defendants conducted a spamming business, in which they emailed at least two sexually explicit images. They argued that before determining whether these images were obscene under Miller, the jury should have been instructed to apply a national community standard. To do otherwise, they said, would subject their emails to the standards of the least tolerant community in the country. This would unacceptably burden First Amendment protected speech. Relying on the concerns of five justices in ACLU, the court found that a “national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.”

That means jurors should no longer ask, what does my community consider obscenity, but instead, what does the country as a whole consider obscenity? That’s a dramatic change in obscenity law — and a welcome one. Publishers can better anticipate the legal consequences of their actions. There is consistency. Though the Volokh Conspiracy questions whether the opinion is on firm constitutional ground, as it currently stands, it will make obscenity convictions much more difficult. Just consider how different pedophilia-themed anime could be perceived: Distasteful. Offensive. Disgusting. This is all protected speech. Obscene? This makes it unprotected and represents the difference between jail time and walking free.

How obscenity is defined still comes down to the average community member’s sensibilities. But with the 9th Circuit’s ruling, that community just grew exponentially.

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