Recent Convictions Challenge Miller Test Definitions

Christopher Karwowski
TAMPA, Fla. — Two recent obscenity convictions have furthered the confusion of the legal definition of obscenity in the U.S. courts. At the core of the recent judgments is the definition of a "community" — specifically when that community is based online.

The Paul Little (Max Hardcore) and Karen Fletcher (RedRose.com) convictions, well known within the adult industry, have also caught the attention of mainstream media. An article posted on PC World addresses the complexity of the issue and its influence on webmasters and viewers.

Max Hardcore's recent 46-month jail term and fine, as well as Karen Fletcher's probation were achieved by the DOJ by using a traditional interpretation of the 1973 Miller v. California precedent. That ruling, which states that obscenity charges must pass a three-point test, has made previous, successful obscenity convictions difficult for the courts.

One point of that test requires that the material in question must be "the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest."

The definition of "community" in that point is now under question when the creator of material and the consumer of the product are linked only by electronic means.

Community standards would, by definition, include anyone who would have access to the questionable material. In reality, the Internet community would be defined as global.

"With a website, you can't block traffic from another location," said Jeffrey Douglas, Little's defense lawyer.

Douglas is filing an appeal of both the conviction and sentence in the Hardcore case next week.

"This appeal will be of central importance to every adult website in the world," he said.

Hardcore's sentence has troubled many in the adult industry. The implications of Karen Fletcher's conviction, however, have been cited as having the potential to be far more chilling. Her erotic writing, posted at RedRose.com has led the 56-year old to five years of probation, including six months of being stripped of her computer. Her violation of the obscenity law was stated as "using an interactive computer service to distribute obscene materials." Although there were no pictures, the text was deemed to depict sexual molestation and violence that included children.

As previously reported in XBIZ, prosecution of literary obscenity has proven to be much more difficult than explicit images. The defense of allegedly obscene literary content, however, is often more successful when considering another Miller Test requirements: that "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Writing has a — or attempts to create — linear, concise thought. Eric Goldman, director of the High Tech Law Institute at Santa Clara University School of Law told PC World "it's almost impossible for text to be judged obscene."

"The idea of a contemporary community standard of obscenity is an unfounded fantasy by the judges," Douglas told XBIZ. "Either we establish an Internet community standard, or we start over from scratch and sit down and try to define obscenity properly."

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