The Justice Department made that argument in a motion late last week as trial nears for Isaacs at U.S. District Court in Los Angeles. His obscenity prosecution is slated to begin Feb. 8.
But Isaacs attorney Roger Jon Diamond told XBIZ that he thinks the brief written by the government was a waste of time because he will not oppose their motion.
"This was a non-issue as far as I'm concerned," he said. "But the government felt it was necessary to request a pretrial determination over the standard to be applied in light of the Kilbride decision [that advocates a national obscenity standard for Internet obscenity cases] ."
Diamond said a local community standards applied in the case would be more beneficial because the pool of jurors would be from Los Angeles, Orange and Ventura counties, where jurors are typically more liberal-minded.
Isaacs' obscenity case was put on hold nearly two years ago after U.S. District Judge Alex Kozinski recused himself after it was revealed that he used a website to distribute sexually explicit photos and videos. Later, the 9th Circuit decided that Kozinski exercised “sound discretion” in declaring a mistrial because of “extraordinary circumstances.”
Since the case was put on hold, the 9th U.S. Circuit Court of Appeals, ruling in U.S. vs. Kilbride, 584 F. 3d 1240(9th Cir. 2009), changed the prosecutorial landscape.
In the Kilbride CAN-SPAM case, the 9th Circuit held that it is more logical for Internet obscenity prosecutions to face national community standards.
The pretrial motion made by federal prosecutors last week said that Isaacs "cannot claim that by sending his material to a different community he is subjected to different community standards because he is being prosecuted in the jurisdiction from which he sent the material. He should at least be familiar with the standards in his own community.
"Kilbride has no application to this case," Justice Department attorney Bonnie Hannon said. "Existing [U.S.] Supreme Court precedent calls for the application of local community standards in this case and rejects the notion of creating a national community standard."
Isaacs, who owns Stolen Cars Films and LA Media, was targeted by federal prosecutors more than three years ago over the distribution of “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7” and “BAE 20.”
