TAMPA – [Tampa Tribune] Pornographic materials sold over the Internet may be considered obscene in one community and perfectly acceptable in another.
A federal appeals court says communities that find the materials objectionable are within their rights to prosecute the pornography producers, even though the items were not specifically directed at those communities.
Ruling in the Tampa federal prosecution of Paul F. Little, also known as Max Hardcore, the 11th U.S. Circuit Court of Appeals says the law doesn’t recognize a national community standard for Internet-based material.
The Atlanta-based court rejected arguments by Little’s attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities.
In other words, the materials might be legal where they were produced and almost everywhere else. But if they violate the standards of one community, they are illegal in that community and the producers may be convicted of a crime.
The court upheld the 2008 convictions of Little and his production company on 10 violations of federal obscenity laws. But it ordered that Little be resentenced, ruling that the sentencing judge should not have considered the profits from sales of the obscene materials, whether or not they were sold in the Tampa court’s jurisdiction.
Little, 53, is in a minimum security prison in Texas serving a 46-month sentence handed down by U.S. District Court Judge Susan Bucklew in January 2009. He has a projected release date of May 29, 2012.
Little is from California but was tried in Tampa after investigators here ordered his videos through the mail and downloaded them over the Internet.
Jurors in Little’s trial were told to judge the materials on the basis of how “the average person of the community as a whole – the Middle District of Florida – would view the material.”
Little’s lawyers maintained that standard was unworkable when dealing with the Internet.
Federal courts are divided on the issue, which could mean it will ultimately be addressed by the U.S. Supreme Court.
The ruling in the Little case applies only in Florida, Alabama and Georgia.
A federal appeals court in California ruled in another case three months ago that a national community standard must be applied when regulating obscene materials over the Internet.
A three-judge panel of the 11th Circuit, however, wrote that they “decline to follow the reasoning” of the California court.
Because the materials in the Little case were ruled to be illegal only in the Middle District of Florida, the sentence had to be limited to the defendants’ activities in the district, the Atlanta-based appeals court ruled.
Therefore, Bucklew should not have increased Little’s sentencing level under federal guidelines, which penalize defendants for financial gain over $30,000. Little and his company made $40,000 selling the disputed materials.
But the appeals court said there was no evidence of how much of that money was generated in the Middle District of Florida. The panel ordered Little be resentenced at a lower level.
The court said Bucklew acted appropriately, however, when she increased Little’s guideline level because the videos were sadistic, masochistic or violent.
The videos featured scenes of vomiting and urination, depicting women being forced to ingest various bodily fluids.
Here’s the actual ruling: www.adultfyi.com/read.php?ID=39929