And just what are the US community standards for obscenity?

Image by Curtis Joe Walker for Deviant Nation.

So many questions, and I have much concern about how they might be answered…. Yet this is not a total surprise to me, and I was wondering when this was going to come down. It used to be that the definition of obscenity (in regard to pornography) was decided by community standards according to wherever in the US the obscenity trial was being held. And that definition is a very oversimplified description, but you get the jist. Of course, the Internet has changed the very definition of community, and our lawmakers, not known for their understanding of community, online or otherwise have now stepped into the ring and made a ruling.

On XBIZ: 9th Circuit: Obscenity Should Be Defined by U.S. Community Standards. Snip:

SAN FRANCISCO — In a ruling of particular interest to online adult businesses, a federal appeals court has decided that a national community standard to define Internet obscenity is more appropriate than a local one.

The ruling by the 9th U.S. Circuit Court of Appeals affirmed fraud, conspiracy, obscenity and money-laundering convictions and sentences for Jeffrey Kilbride and James Schaffer, but remanded to the lower court for correction three counts described as felonies as misdemeanors.

A three-judge panel weighed a joint appeal of the first convictions in the jurisdiction of the 9th Circuit for Internet obscenity not involving child pornography and the first convictions ever under the federal CAN-SPAM Act.

The appellants’ arguments focused on an unconstitutional jury instruction that allowed a jury in Arizona to convict Schaffer and Kilbride of obscenity based on lay witness testimony as to community standards existing in places all over the U.S.

On Wednesday, the court agreed with Kilbride and Schaffer’s contention that a national standard is more appropriate for Internet communications and that the lower court failed to instruct the jury to that standard.

“Our holding that application of a national community standard to define Internet obscenity does not raise grave constitutional doubts on its face is not to be interpreted as a holding that any constitutional challenge to such application will necessarily be meritless,” the court said in its ruling.

The opinion, written by Judge Betty Binns Fletcher, also said that the 9th Circuit panel’s decision joins U.S. Supreme Court Justices O¹Connor and Breyer’s holding that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” (…read more,

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  1. I definitely agree with Bacchus here. A ‘national obscenity standard’ is not inappropriate, I think, but … it’s just ripe for a take-over by minority groups with agendas. In either direction.

  2. If I’m reading this right, it’s part of a trend toward nationwide sanity in that it will make harder for prosecutors to shop for conservative forums in order to “get at” pornographers/artists who operate elsewhere in the country where community standards are more lax.

    However, the downside is, it could make things more dangerous for folks in permissive communities like San Francisco. If the prosecutor can introduce evidence of a national “community standard” that’s less permissive, then folks who restrict their artistic expression to places like San Francisco just saw their risk go up.

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