Jan 21, 2009 1:00 PM PST    Text size: 

In documents obtained by XBIZ, Hardcore attorneys point 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 want 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 claim that the Miller test requirement that material be taken as a “whole” is impossible in the context of the Internet.

“Defendants’ federal obscenity convictions, the first of their kind in decades, are riddled with constitutional difficulties that mandate reversal on appeal,” the attorneys said in a brief filed yesterday. “Given these errors, defendants’ convictions and sentences should be overturned on appeal.”

Jurors in June 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. Both Hardcore, whose real name is Paul F. Little, and his company were fined $1.4 million, as well.

Hardcore has been ordered to report to federal prison on Jan. 29.

Attorney Jeffrey Douglas, who represented Hardcore at U.S. District Court in Tampa, said at the time that it was a “sad day for America” when he was convicted.

But on Wednesday, Douglas told XBIZ he was optimistic the 11th Circuit would take the case, giving kudos to the attorneys who wrote the 57-page, 13,085-word brief and will handle the appeal.

“All congratulations for this effort belong to H. Louis Sirkin, Jennifer Kinsley and that firm,” he said, referring to Cincinnati-based Sirkin, Pinales & Schwartz.