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.