A federal jury in Tampa, Florida convicted a pioneer of gross-out "gonzo" porn last week on obscenity charges stemming from the delivery of his movies over the Internet, despite the fact that he lives and works entirely in California.
Paul Little creates porn in Altadena under the names of "Max Hardcore" and "Max Steiner." Unfortunately for him, the company that hosts his websites has servers in Tampa. Federal prosecutors jumped on this fact to prosecute him in the Sunshine State.
The reason for this move has to do with the dynamic between obscenity law and the First Amendment in the US. Speech is generally protected in America, but not all speech gets full First Amendment benefits, and obscene speech can be outlawed entirely.
The US Supreme Court – the ultimate interpreter of federal constitutional law – has had notorious difficulty determining what exactly constitutes obscene speech, however. This is perhaps best exemplified by Supreme Court Justice Potter Stewart's famous declaration that he couldn't precisely define hardcore porn, but he knew it when he saw it.
In a famous case, Miller v. California, the Court dodged the issue entirely by establishing a test based on community standards. Basically, the court left the question of what was obscene to the judges and juries handling each individual case or prosecution.
In order to subject speech to state regulation, a court or jury must determine that an average person applying the standards of the community would find the speech offensive, lacking in any serious substantive value, and appealing solely to the prurient interest.
The prosecutors apparently felt that a jury applying the community standards of Tampa, Florida was more likely to convict Max Hardcore than a jury applying the community standards of Altadena, California. After watching roughly eight and a half hours of Max Hardcore's work, the jury proved the prosecutors right by returning twenty guilty verdicts against Little and his company and ordering the forfeiture of Little's web sites and domain names.
It's a gamble that worked for prosecutors this time, but it may have been a moot point. Max Hardcore's particular style of porn involves excretory functions, medical and dental instruments, and a strong undercurrent of pain and humiliation – things that the average person in most communities might find a little questionable.
Of course, Altadena is a mere 15 miles from Los Angeles, where the average person is a bit more tolerant of fringe behavior.
The real question this case raises, however, is just how much connection to a community is necessary in the Internet age before prosecutors can subject a purveyor of potentially obscene speech to the standards of that community. Some argue that, since the Internet is available everywhere, obscenity prosecutions can occur anywhere.
That's an extreme position, and not even the prosecutors in this case seem to agree with it. If they had, they could have made the prosecution even more of a sure thing by bringing the charges in Greenville, South Carolina, home of Bob Jones University.
What is fairly clear based on existing precedent is that hosting content on servers in a certain location will definitely subject an individual to prosecution under that community's standards, even if the individual didn't know exactly where his content resided.
Max Hardcore's lawyers tried to argue for dismissal based on the fact that Little had no idea his hosting company stored some of his content on servers in Tampa, but to no avail - despite the fact that prosecutors presented no evidence of Little's actual knowledge to rebut the argument.
So the lesson to porn mavens is obvious: Make damn sure you know where your hosting company has its servers and where they plan to put your content.
And if possible, make sure it's San Francisco, New York City or Los Angeles. People in those towns will tolerate just about any kind of weirdness imaginable.