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