Home > News > Ruling Likely to Upset Obscenity Prosecutions • Bookmark   • Newsletters   • Register Search Options

NEWS STORY

Ruling Likely to Upset Obscenity Prosecutions

Ruling Likely to Upset Obscenity Prosecutions
Get XBIZ News
Oct 29, 2009 11:00 AM PDT    Text size: 
SAN FRANCISCO — Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals, which decided that a national community standard to define Internet obscenity is more appropriate than a local one, is likely to upset government prosecutions.

Gary Jay Kaufman of The Kaufman Law Group, who argued the 9th Circuit case along with Greg Piccionelli of Piccionelli & Sarno, told XBIZ that the opinion makes the Miller test obsolete as to Internet and email obscenity prosecutions in the jurisdiction of the 9th Circuit, which is the second-highest court in the nation covering the Western states.

The Miller test, developed in the 1973 case Miller vs. California, looks at three points for obscenity prosecutions.

The test asks whether the work as a whole appeals to the prurient interest, whether the work is patently offensive and whether the work lacks serious literary, artistic, political or scientific value.

Kaufman said that with the ruling prosecutors will have to work much harder reaching a conviction.

“Now the most conservative jurisdictions will no longer be able to dictate what is acceptable for the rest of the country,” he said.

Kaufman said that the government now can’t cherry pick jurisdictions in which they think they can obtain a conviction based upon the standards of that local community.

“Now, even if a case is brought in a very conservative jurisdiction, the jury will be instructed that they must apply standards for obscenity, outside of their community – i.e. what is accepted generally on the Internet nationwide,” he said.

But the Los Angeles-based industry attorney said that with a national standard it still is feasible for a jury hearing an Internet obscenity case.

“I also believe that it would be next to impossible for a court to articulate exactly what that standard is,” he said. “Each jury will have to decide a case based on testimony and evidence as to what are the standards nationwide and on the Internet.

“This can be done by expert witnesses as well as simple demonstrations by counsel to the jury.”

On Thursday, it wasn’t clear whether the U.S. Attorney’s Office would appeal the ruling to the U.S. Supreme Court. XBIZ calls to the agency weren't returned by post time.

The case is U.S. vs. Jeffrey Kilbride and U.S. vs. James Schaffer, 07-10528.

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !

BUSINESS ANALYSIS

Sexperts Tout Men’s Wellness Benefits of Pleasure Products

Sex, more and more, is being discussed not only from an erotic standpoint, but also, from a health and wellness standpoint. MensHealth.com, MensJournal.com and many other mainstream websites have been... More »

Male Sex Toys Get Creative With Non-Anatomical Designs

Male toys are becoming more and more popular for both straight and gay men. While the emphasis has long been on women’s toys, today men’s products are a burgeoning market. Channel 1 Releasing... More »

Manufacturers Recreate Lifelike Sex for Male Masturbation

Sex is sex, even when you have it with yourself. Wherever that little love dance goes, sex toys are sure to help guide you on the journey. When it comes to men, the industry appears to have thrown its... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Subscribe to XBIZ Premiere magazine, the industry's leading adult retail trade publications, delivering the most timely and comprehensive business news and information to producers and retailers of adult products.

UPCOMING EVENTS

Latin America Adult Business Expo

Jul 10 - Jul 12
Cartagena, Colombia

ANME Founders Show

Jul 16 - Jul 18
Los Angeles Marriott Burbank Airport

QWEBEC Expo

Aug 03 - Aug 06
Montreal, Quebec

XBIZ Berlin 2017

Sep 11 - Sep 14
Berlin, Germany
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!