U.S. v. Little

Citation: United States v. Little, 2010 WL 357933 (11th Cir. Feb. 8, 2010).

Factual Background
Appellants Little and Max World Entertainment produced pornographic videos, which they sold online through a network of explicit websites. They were convicted of ten counts of violating federal obscenity statutes and Little was sentenced to concurrent terms of 46 months, 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. Defendants appealed their conviction and sentences arguing that the federal obscenity statutes (18 U.S.C. §§1461 and 1465) are unconstitutional, and that the Miller v. California obscenity standard could not be applied to materials published on the internet.

Appellate Court Proceedings
The 11th Circuit affirmed the convictions and sentences holding that the contemporary community standard outlined in Miller remains the standard by which the U.S. Supreme Court has directed lower courts to judge obscenity on the internet. The Court also rejected defendants’ constitutional challenge on the grounds that the First Amendment does not protect obscenity.

The appellants based their argument challenging the application of the Miller standard on their belief that the transmission of materials over the Internet is inherently different from the “traditional, concrete, real world conveyance of materials.” Appellants also argued that their transmission was different than that in Miller because they did not direct their Internet publication at any one area. Therefore, according to the appellants, the court should have applied a national or “Internet community” standard rather than the local community standard, which was used by the lower court. This Internet community standard was recently applied by the Ninth Circuit in United States v. Kilbride, however the 11th Circuit in this case declined to follow the same reasoning. In deciding Kilbride, the 9th Circuit relied heavily on the concurrences and dissent in Ashcroft v. ACLU, which the 11th Circuit considered to be dicta.

The 11th Circuit rejected appellants’ arguments based on the misapplication of the "Miller" standard and affirmed their sentences and convictions. The emergence of a split between the circuits on the proper standard to apply to internet obscenity (community vs. national) could very well lead to a Supreme Court review of the issue in the near future.