Max Hardcore on Trial

The Max Hardcore Obscenity Trial has begun in Tampa, Florida.

Practically from the moment court convened this morning before Judge Susan C. Bucklew in the case of United States v. [Max Hardcore] and Maxworld Entertainment, issues that could determine the entire course of the obscenity trial were hard-fought between the prosecution and the defense.

At primary issue was the government's contention that it was not required to show all of the footage on the five DVDs which it had charged as being obscene.

The middle portion of the day was taken up in selecting the jury itself. A panel of 40 Middle District residents was assembled in the courtroom, and Judge Bucklew, who had earlier denied the defense's request to submit a detailed questionnaire to the jury pool, herself asked the majority of the questions in determining which of the panel would sit on the trial jury.

The judge's questions covered such areas as the potential jurors' employment, their backgrounds, their religiosity, their membership in any religious or secular pro-censorship groups; whether any of them regularly listened to Rush Limbaugh or Howard Stern; whether any of them owned personal computers and had ever seen sexual material on the Web; whether any owned a VCR or DVD player (all did); and whether any regularly read newspapers or watched the news on TV.

In deciding what questions to ask, the judge disclosed her dislike of questions that began with, "Do you believe" and "Do you feel," and specifically rejected the defense's request that she ask whether any potential juror had any "moral convictions" regarding adult material.

But although she didn't ask the question, at least three jurors made their religiously-based dislike of the material known during the questioning.

One also said that since he had four daughters, he wouldn't be able to look at the movies and be impartial about the performers vomiting and drinking piss within them.

Another potential juror also disclosed that she was unable to look at anyone vomiting without getting nauseous herself, and she was eventually excused for that reason, with the judge agreeing with Kinsley's contention that if the woman vomited while the movies were being played, that that might prejudice the rest of the jury against the material.

As Max Hardcore prepares to begin serving his 46-month sentence for supposed obscenity crimes, his attorneys have filed an appeal to the 11th US Circuit Court of Appeal.

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.

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.

Can I just start by saying I am on the whole in agreement with you and your anti-censorship stance.

The one thing I do take issue with is your articles defending Max Hardcore as much as I enjoy porn etc.. he crosses the line of what is acceptable and is a very sinister character. I am very broadminded and all for as long as consenting adults etc.

The reason I take exception to Max Hardcore is I saw a documentary on Channel 4 about an English girl who travelled to the US to try make it in porn films. She met various porn producers and had some trials with them which were quite run of the mill adult affairs but the exception was Max Harcore. At first he came across quite friendly but the difference with him was come his trial he had the girl dress very child like and forced his penis down her throat literally choking her and making her vomit and she naturally became very upset, crying and had to stop. His reaction was utter fury and threatening and he had a couple of menacing nasty bouncer types there as well and the Channel 4 crew had to intervene as they feared for the girl's safety.

As I have said I am all for consenting adult porn etc.. but to me Hardcore crosses the line even for me.. wanting the women in his videos to appear in children's clothes suggest to me paedophile inclinations which I would hope you would absolutely condemn and to me he crosses and pushes the consent barrier and really does exploit women for money. I was overjoyed to see he has gone to jail as after seeing him and his attitude in the Channel 4 documentary that is where he belongs and I vowed never to buy anything associated with him!

Update: Appeal arguments refuted

3rd April 2009. See article from business.avn.com

Attorneys for Paul Little, better known in the adult industry as "Max Hardcore," H. Louis Sirkin and Jennifer Kinsley, filed their appeal of Little's conviction last June on ten counts of interstate transportation of obscene material and posting obscene materials on the Web on January 21 - and now, just over two months later, the Justice Department has responded, attempting to refute the perceived factual and legal errors identified in the appellant's brief.

Update: Appeal lost

6th February 2010. See article from xbiz.com

A three-judge panel of the 11th U.S. Circuit Court of Appeals on Tuesday affirmed Max Hardcore's convictions but remanded sentencing over punitive fines, which it said the lower court assessed in error.

One of the issues we've talked about repeatedly over the years is the question of what is the internet jurisdiction .

If you think that just because it appears on the internet, anyone's laws apply, then you reach an untenable situation where all online content is controlled by the strictest, most draconian rules out there. That makes little sense.

And yet some courts still think this is the appropriate interpretation of the law.

In the US it's already troubling enough that the issue of indecency is measured on an amorphous community standards basis, but when it comes to the internet, what community applies?

A recent ruling in the 11th Circuit Court of appeals on a pornography case, the court seems to have made a ruling that effectively says all online content should be held to the standards of the strictest communities. Thus, an erotica website targeting a NY subculture should be held to the standards of a southern bible belt rural community? That seems ridiculous, but it's what the court said.

In this case, a guy who produced porn content in California was tried in Tampa, Florida, because investigators downloaded his content there:

The Atlanta-based court rejected arguments by Paul Little (Max Hardcore)'s attorneys that applying a local community standard to the Internet violates the First Amendment because doing so means material can be judged according to the standards of the strictest communities.

Other courts, including one in California, have found differently on similar questions, so it seems likely that, at some point, this issue will finally go back to the Supreme Court. Unfortunately, it seems likely that the Supreme Court will focus on what counts as community standards rather than whether or not laws against obscenity even make legal sense under the First Amendment.