Hardcore, who is continuing his 46-month sentence at a federal prison in Anthony, Texas, for obscenity crimes, appealed to the 11th Circuit to get his case tossed.
Jurors in June 2008 returned a verdict of guilty against Hardcore on 10 federal counts of distributing obscene materials in central Florida over the Internet and through the mail. His company, MaxWorld Enterprises, also was found guilty on 10 related counts.
Hardcore, whose real name is Paul F. Little, was sentenced to concurrent terms of 46 months on all counts, a $7,500 fine, a $1,000 special assessment and supervised release for a period of three years. Max World was sentenced to 36 months probation and a $75,000 fine.
In the appeal, Hardcore attorneys pointed to a dozen issues of contention, including whether community standards should be applied to online material and whether a defendant’s sentence can be enhanced for sadomasochism when the evidence is that the acts were not painful.
The attorneys also wanted the 11th Circuit to weigh whether federal obscenity laws are unconstitutional when it comes to criminalizing the sale of adult material for private viewing, as well as whether the government can prosecute an online adult company when it didn’t have proof that defendants knew their site was hosted in the district of prosecution.
They also claimed that the Miller test requirement that material be taken as a “whole” is impossible in the context of the Internet. Attorneys said that the convictions were “riddled with constitutional difficulties that mandate reversal on appeal.
“Given these errors, defendants’ convictions and sentences should be overturned on appeal,” his attorneys said.
But on Tuesday, the court rejected those arguments, including that a local community standard is not the proper approach for judging Internet-based materials.
The 11th Circuit judges said they didn’t agree with the recent 9th U.S. Circuit Court of Appeals’ Kilbride ruling that decided that a national community standard to define Internet obscenity is more appropriate than a local one.
“The growing discord has arisen from the belief that the transmission of materials over the Internet is inherently different from the traditional, concrete, real world conveyance of materials,” the 11th Circuit wrote. “[W]e decline to follow the reasoning of Kilbride in this circuit.”
In its decision, the judges affirmed in part, reversed in part and remanded for Hardcore re-sentencing.
“We find no merit to the [Max Hardcore’s] issues with the exception of the sentencing enhancement for pecuniary gain over $30,000, which we find was assessed in error,” the 11th Circuit wrote in the decision.
The case is U.S. vs. Paul F. Little and Max World Entertainment, No. 08-15964.