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.
Barry Goldman, who operates Torture Portal, Masters of Pain and Bacchus Studios, has been charged by a federal grand jury in Newark, N.J. with distributing obscene DVDs through the mail.
Goldman was charged with eight counts of sending DVDs
containing allegedly obscene films from Jersey City to addresses in Montana and Virginia.
The indictments for 18 U.S.C. § 1461 and § 1467 include the films Torture of a Porn Store Girl , Defiant Crista Submits and Pregnant and Willing
. The videos all were mailed in 2006 and 2007.
The Justice Department is seeking forfeitures of all copies of the movies, as well as proceeds from the sale of the movies.
Regulators also are seeking the forfeitures of domain names
MastersOfPain.com and TorturePortal.com, as well as an email address, SirBNY@aol.com.
Bonnie Hannon, the Justice Department's lead attorney in the case works for the agency's Criminal Division's Obscenity Prosecution Task Force. Investigation of
the case was conducted by the FBI's Adult Obscenity Squad based at the Washington field office.
The obscenity case, originally filed in Montana, was changed to New Jersey, according to an XBIZ source. But in the midst of the appeal, the
government dismissed the case, claiming it is not their policy to file obscenity charges in the place of receipt in the absence of other contacts by the defendant with the place of prosecution.
If convicted, Goldman faces a maximum penalty of
five years in prison and a fine of $250,000 on each of the eight counts charged in the indictment.
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!
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.
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.
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.
Following his conviction in federal court on obscenity charges, Max Hardcore's legal battle moves on to the 11th U.S. Circuit Court of Appeals.
Hardcore, whose legal name is Paul F. Little, is free pending appeal, which his attorney Jeffrey Douglas told XBIZ would be filed sometime before the end of the business day Thursday. Douglas represented Hardcore in the obscenity case that resulted in a conviction carrying a sentence of 46 months in prison and fines of more than $1.4 million.
Attorney H. Louis Sirkin will represent Hardcore through the appeal, during which Sirkin will have to prove that Hardcore's First Amendment-given right to free speech was violated, Douglas said.
Update:
Judge Rules Max Hardcore Must Begin Prison Sentence
U.S. District Judge Susan Bucklew denied Max Hardcore's attorneys' request to delay the sentence while they appeal the conviction to the 11th U.S. Circuit Court of Appeal.
Bucklew ruled that Hardcore's attorneys did not present a compelling enough reason that his sentence would be likely overturned on appeal.
A federal judge has sentenced Paul
Little, aka Max Hardcore, to 46 months in prison and fines of more than $1.4 million.
US District Judge Susan C. Bucklew allowed Hardcore to remain free pending appeal, w(ile sternly advising him against speaking to the press, Hardcore's attorney
Jeffrey Douglas told XBIZ.
An appeal will follow and we're optimistic about [it], Douglas said: The appeal will be filed in the 11th US Circuit Court of Appeals.
Bucklew's recommended prison sentence and fines were at the
minimum levels suggested by the federal prosecutors for Hardcore's 10 counts. Bucklew fined Hardcore $7,500 and Max World Entertainment Inc. for $75,000. The fines on all charges add up to about $1.4 million.
The federal government was asking for
more stringent sentencing than what the judge ordered. In a memo filed Oct. 1, the Justice Department attorneys suggested the judge compare Hardcore's obscenity charge to child pornography, narcotics and fraud. The memo also included several
quotes in the media given by Hardcore. The Justice Department argued that these were not indicative of an individual who possesses any level of acceptance of the crimes he committed.
Hardcore must file an appeal within six weeks or have to
turn himself in to begin serving the sentence.
Paul Little, more publicly known as Max Hardcore was hauled into court in Florida earlier this year and charged with twenty counts of criminal conduct
stemming from the distribution of adult films that some may find unpopular. Half of the counts were for distributing the content through the mail and the other half were for selling memberships to view the content online. After less than one day of
deliberations Mr. Little and his company were found guilty on all charges.
The mailing charges were particularly interesting because all of the DVD mailings were done by another company, Jaded Video. Jaded Video agreed to testify against Mr.
Little in exchange for immunity from prosecution as the company that actually did in fact mail the content to consumers. The logical inconsistency of a guilty verdict for mailing materials when in fact they were mailed by another company will no doubt be
the subject of an appeal.
A federal judge has denied a new trial for Max Hardcore,
convicted last month of distributing obscene materials.
Hardcore requested a new trial on several grounds, but U.S. District Judge Susan Bucklew said that the issues relating to the firing of the juror and other instances of alleged
irregularities involving jurors did not affect the outcome of the case and did not detract from Hardcore's constitutional rights.
With Monday's order, Hardcore is scheduled to be sentenced Sept. 5.
Update:
Extreme Delay
5th September 2008
The sentencing of Paul Little a.k.a. Max Hardcore, originally scheduled for tomorrow before U.S. District Judge Susan C. Bucklew, has been postponed until October
3.
Attorneys for "Max Hardcore" (Paul Little) and Max World Entertainment yesterday filed a Motion for New Trial And/Or Judgment of Acquittal on
behalf of both defendants in the U.S. District Court for the Middle District of Florida.
The motion, largely written by Max World attorney Jennifer Kinsley, cites six reasons for overturning the jury's verdict of guilty on all counts, including:
That the federal obscenity statutes are invalid under the Fifth and Fourteenth Amendment substantive due process rights, as well as being unworkable when applied to Internet speech under the current COPA holding that the "community" for the
'Net is the entire world
That the judge erred in allowing prosecutors to present only excerpts from the charged videos - the "Euro" versions of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 -
thereby prohibiting the jury from considering the material "as a whole," as well as prohibiting the defense from playing some "extras" on four of the DVDs
That the Court should have recused herself from presiding over the
trial after she made comments indicating that she had already formed an opinion as to the guilt of the defendants without having heard all the evidence
That the Court should have dismissed the counts involving mailing of the five DVDs to Tampa
on the basis that the government presented insufficient evidence that defendants knew the mails would be used to send the videos, and also that the defendants did not in fact mail the videos at all
That the Court failed to properly handle
several jury irregularities, including a note sent from one juror during the trial asking that only excerpts of the charged videos be played rather than the videos in their entirety, and the fact that on the evening of the first day of deliberations, one
juror was informed that she had been fired from her job that day, and such firing was not brought to the attention of either the prosecution or the defense
That the government failed to show that the charged material met the federal standards
for obscenity in relation to the material's target audience: the "dominant and submissive sexually deviant group."
The prosecution has 30 days to respond to the defense motion, and Judge Bucklew will rule shortly thereafter.
Producer Max Hardcore was found guilty
today of 10 federal counts of distributing obscene materials over the Internet and through the mail. His company Max World Entertainment was also found guilty on 10 related charges.
It's a sad day for all Americans when they smash any kind of
free speech and that's what happened in Tampa today, Max Hardcore told AVN. They trampled on free speech, and I intend to appeal.
The government had separately sought the forfeiture of Hardcore's home in Altadena, California, but the
jury ruled against that sanction.
I'm full of good spirits and they didn't get my house, Hardcore said. We're talking to a couple of jurors and they felt very strongly for me, but the way the laws are formulated, they were boxed in to a
corner. I should have got off for this nonsense; obscenity is an archaic term, it's not defined well. I received no warning and they attempted to put me behind bars; they've got a conviction, but we intend to fight on.
The jury returned its
verdict after deliberating for a total of 14 hours in the past two days. After the jury returned its verdict, the judge dismissed the defense's motion to dismiss the case which had been held in reserve.
It was a travesty but we had no choice
because of the way the law is written, one juror told AVN. Several jurors approached Max Hardcore and his attorneys to express their sympathy at having been forced to convict him on the counts due to the "poorly written" law regarding the
transportation of obscene material via the internet and the mailing of the DVDs to the middle district of Florida. Another juror reportedly said that if two words in the law had been different, he would have held out for acquittal.
Max Hardcore
will be sentenced September 5. He is free on bail until that date.
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.
One of the issues we've talked about repeatedly over the years is the question of what is the internet jurisdiction . 
Barry Goldman, who operates Torture Portal, Masters of Pain and Bacchus Studios, has been charged by a federal grand jury in Newark, N.J. with distributing obscene DVDs through the mail. 
