Appeals Court Says Internet Content Should Be Held To Standards Of Strictest Jurisdiction

from the pandora's-box-just-opened... dept

One of the issues we’ve talked about repeatedly over the years is the question of what is the “internet jurisdiction.” Since content is available anywhere there’s an internet connection, under which laws should it apply. 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? As we discussed a few years ago, this raises all sorts of legal questions. Chris points us to a recent ruling in the 11th Circuit Court of appeals on a pornography case, where 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 Little’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.

In other words, the materials might be legal where they were produced and almost everywhere else. But if they violate the standards of one community, they are illegal in that community and the producers may be convicted of a crime.

Of course, the court did say that punishment had to be limited to just looking at how many people in that smaller community accessed the content — which could limit the punishment given by the court, but it still seems problematic. 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.

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Comments on “Appeals Court Says Internet Content Should Be Held To Standards Of Strictest Jurisdiction”

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67 Comments
Anonymous Coward says:

Re: Re:

Hell, I’m mormon and I don’t like this decision. It’s not limited to obscenity, but could easily be a crowbar to get one state to outlaw a particular brand of speech or content, destroying the ability for any state to decide it’s own rules.

Just because I don’t like obscenity doesn’t mean I won’t fight like hell for your ability to view smut that should be legal in your local!

Dark Helmet (profile) says:

Re: Re: Re:2 Re:

Really? You’re Mormon?

I have to either talk to some of you folks or else study your church the way I have plenty of other organized religion to find out if the stuff I hear about you guys is as fucked up as some would have me believe.

Please don’t infer any offense; I’ve got the same issues with just about every other religion out there, and like I said, I am admittedly rather ignorant when it comes to official LDS positions….

Dementia (profile) says:

Re: Re: Good

Perhaps you should re-evaluate your statement. Christianity is not against your standards, and even if it were, you have no rights, given by God, Allah, or anyone else, to make a judgement against what someone else chooses to view on the internet. Even in Islam there is still such a thing as free will. Deal with it, move one, and enjoy your life, but don’t try to control mine.

Trails (user link) says:

Re: Re: Re: Good

The gp was making a point, using a technique known as “reduction ad absurdum”.

Basically, the moral code which apparently drove this decision itself runs afoul of this case law.

Since Christianity is considered illegal speech in parts of the world that do have internet connection, it can therefore be inferred based on the ruling that discussing Christianity online is illegal. The point, however, is not that discussing Christianity should be illegal, rather that the ruling ahs implications which clearly have not been considered.

You probably missed all that, though, from up there on your soapbox.

PaulT (profile) says:

Re: Re:

At the risk of echoing everybody else, TAM, bravo. This is how you stop being labelled an industry shill and paid troll – actually disagree with decisions that are clearly wrong. Now, if you can bring yourself to publicly disagree with some of the more heinous actions of the content industry, then we might be more interested in your views on less cut-and-dried issues…

Anonymous Coward says:

Re: so does this mean ......

http://www.military.com/news/article/sued-firm-wants-sharia-law-as-defense.html

To defend itself against a lawsuit by the widows of three American Soldiers who died on one of its planes in Afghanistan, a sister company of the private military firm Blackwater has asked a federal court to decide the case using Islamic law, known as Shari’a.

The lawsuit “is governed by the law of Afghanistan,” Presidential Airways argued in a Florida federal court. “Afghan law is largely religion-based and evidences a strong concern for ensuring moral responsibility, and deterring violations of obligations within its borders.”

Henry Emrich says:

Re: Don't do that, TAM!

If you keep saying intelligent things every once in a while (even if it IS at intervals of weeks), I’ll want to stop treating you like the annoying Troll pain-in-the-ass you are (at least under the TAM sock-puppet.)

Now you have me wondering: I *figured* some of your posts read like “Sam I Am”. Or do you just post anonymously and battle with yourself? I know you *claim* not to do that, but considering the fact you just admitted to using sock-puppets, you never can tell.

(Whoa — he’s like Techdirt’s very own “Bond Villian” — “Doctor No(brain)” 🙂

But yeah, this decision makes me get a rather disturbing visual of Limbaugh, wallowing naked in a huge vat of spoiled mayonaise……

(gaaaaagh!) 🙁

Colg says:

Re: Ba�al Zebûb is indeed enjoying a Popsicle

“Is that one of the signs of the apocalypse?”

As a card carrying “bible nutter” I can definitively say no it isn’t. In fact Mike DH and Tam aren’t mentioned by name at all.

Still, It’s scary as hell.

It seems to me that if this standard were held world wide any site with a woman wearing anything but a burka would have trouble.

Colg

The Baker says:

Re: Re: Baâ��al Zeb�»b is indeed enjoying a Popsicle

“It seems to me that if this standard were held world wide any site with a woman wearing anything but a burka would have trouble.”

Ah …. in France a woman WITH a burka would be illegal. With conflicting laws, you’s have to just pull the plug on the internet and jail Al Gore.

fraggle850 says:

Re: Re: beelzebub etc...

If american standards were held worldwide and were reciprocal you’d really be screwed. The UK signed up to a one-way arrangement with the US (that I believe the US indicated it was going to reciprocate but then, er, didn’t) that allows the US to try UK nationals in the US more easily.

Can you imagine if you could actually be shipped from the US to stand in an iranian court for offending the nation’s morals?

US do as i say not as i do policy coupled with your economic muscle is a great tool to lord it over weak governments the world over (hi ACTA!).

NAMELESS.ONE says:

Canadian law and jurisdiction

we have an interesting law. TO sum up it goes like this.
WHAT ever you do where ever you do it canadian law applies

so if i put a website in iran while local laws might say i could do something canadian law would preclude it maybe.

also in a way and more rarely this may conflict with local law and actually protect the canadian form prosecution abroad and its why americans can’t sue me for any DMCA violations even if i hosted it in the USA.

Chargone (profile) says:

Re: Re: Canadian law and jurisdiction

to the best of my knowledge, New Zealand has something similar…

Something like, as a NZ citizen, no matter where you are, NZ law applies when it comes to things being forbidden.

Which is to say, if it’s forbidden under NZ law, but allowed where you are, it’s still forbidden for you to do it.

So far as I’m aware the ‘reverse’ is that NZ law applies to anyone in NZ regardless of citizenship, no that you can avoid getting in trouble for doing something that’s against the law where you did it but allowed under NZ law.

And yeah, the whole sexual tourism thing is one of the reasons for that.
It also makes it a lot easier to keep order in military units stationed outside the country, too.

probably helps with drug trafficking issues and other stuff as well.

of course, I’m not a lawyer or anything, and i may be miss remembering, but… *shrugs*

Chargone (profile) says:

Re: Re: Re: Canadian law and jurisdiction

whoops. Forgot to mention:

That still wouldn’t apply in the situation this article is about. The creator created the content and made it available in a jurisdiction where doing so is legal. he is presumably the equivalent of a ‘citizen’ of that jurisdiction also.

worst case scenario, logically speaking, he should be required not to take orders from customers in places where it is not legal, if such is possible, and it should be the Buyers, who are violating applicable law, who get in trouble.

so it seems to me, anyway.

If we were applying the same principle to the subject and pretended states in the USA were separate legal jurisdictions…

Hephaestus (profile) says:

This is weird we havebeen here before ....

Years back there was a court case where a 900 number (sex line) owner was indicted because the number was available in some southern US state. The ruling had something to do with the state the line came from and how it was legal there.

The internet should be as simple as … “You dont like it dont dial there”

Which is where we will eventually get after people start thinking of the internet as the new phone system.

Anonymous Coward says:

A BBS owner was convicted for content he hosted in 1993.

http://www.textfiles.com/news/sysopjl.txt

Another one, in 1995. Two California-based BBS owners were convicted in Memphis for the adult content on their website.

http://www.spectacle.org/795/amateur.html

A terrorist-related case:

http://cu-digest.org/CUDS5/cud569.txt

There were at least a few more convictions, and I know this because I was a co-sysop of a mainstream BBS during those years. I’m in the process of searching through my old emails and notes to see if I can pull up the names of the defendants as well as active links to any web pages with relevant information.

btr1701 (profile) says:

Jurisdictions

What’s really fun is when various countries adopt this same attitude– that the entire internet should be regulated based on the country with the strictest laws. That speech should only be as free as China or Iran allows it to be– and that their laws should apply worldwide in terms of the internet. Same with France and Germany when it comes to stuff like Nazi propaganda and symbolism: they’ve outlawed it so they think it should be illegal everywhere merely because the internet is accessible within their borders.

The Anti-Mike (profile) says:

There are a couple of things to add here that are very important, and really do change the story.

The charges have little (pun) to do with the website, but rather with DVDs purchased and shipped to the particular conservative southern county. The prosecution rests almost entirely on that one act, as it is interstate commerce in obscene materials, and with the materials being shipping into the area, it is the standards of that area that judged the level of obscenity.

So it wasn’t about the download, as much as it was about physical product shipped. Most obscenity cases are made in the same manner, because the physical product is easier to explain in court that attempting to set the standards for web traffic. This case is entirely about physical product delivered when ordered from the internet.

Anonymous Coward says:

Re: Re:

Legally correct or not, I still find this rather silly. It’s impractical for any one site to keep track of what every individual community finds obscene or not. Responsibility should be on the buyer. This is the kind of thing that is just way to easy to abuse. Don’t like someone producing something? Go to a community where it’s considered obscene, find a resident willing to order a physical copy and then take the producers to court. It’s fairly ridiculous and even if the focus is on the physical product, it still makes everyone else play by the most restrictive rules.

bob says:

Porno and SCOTUS

SCOTUS put it’s self in this bind with it’s own decisions.
It may come down to getting it to change what it has done in the past.

In the past content was of a physical nature, now it is not.

Personally I am of the opinion that where the content is uploaded that should be the foundation of jurisdiction for that content, what ever the content might be.

Anonymous Coward says:

Off shoring our legal system?

Well stretching this argument farther beyond the event horizon of reasonable thinking this could be an attempt to get internet prosecutions off shore.

Is the Strictest Jurisdiction for porn China or Iran? Oh and you can’t write about tank Man or democracy or Christianity, Judaism, Islam or much of anything else because it is illegal somewhere.

I guess that leave LOL Cats.

This should go down pretty quickly in the courts. I just hope it does.

The Anti-Mike (profile) says:

Re: Off shoring our legal system?

The biggest problem is that when it comes to obscenity, Little’s content is pretty much a slam dunk. We aren’t talking about straight porn here, his stuff includes choking, vomiting, urination, domination, and degradation. His stage name is Max Hardcore, http://en.wikipedia.org/wiki/Max_Hardcore

Let’s just say that the government picked content that is likely to be found obscene by a jury of little old ladies and bible thumpers in almost any part of the US. Putting the case into one of the most conservative counties in the US just sort of sealed the deal.

Anonymous Coward says:

Pornography

“…laws against obscenity even make legal sense under the First Amendment.”
Then would you say laws against child pornography may not make legal sense under the First Amendment?
That’s the question that gets to the heart of how fundamentally illogical it is to defend pornography!
If the pro-pornography person is consistent and says that child pornography should be legal, then he will vilify himself and make people think he’s a pedophile, so he wouldn’t dare say that. If on the other hand he says that child pornography should not be legal, then he is completely inconsistent within his own thinking and any argument he makes for the legality of pornography will be illogical and indefensible because of that.

The Anti-Mike (profile) says:

Re: Pornography

You sound like Rush Limbaugh.

By your logic, because minors are not allowed to drink, vote, or be in the army, those things should also be unconstitutional.

What you are doing is mixing a legal issue (age of consent) with an expression (pornography).

Just because you cannot drink at 20 but you can drink at 21 doesn’t make drinking or producing liquor illogical.

To quote the python: “all wood burns, thus all that burns is wood”. It’s a fail.

vivaelamor (profile) says:

Re: Pornography

“Then would you say laws against child pornography may not make legal sense under the First Amendment?”

If you’re going to bring up child pornography then it would make more sense to draw a comparison between the availability of child pornography and the availability of equivalent or more serious crimes such as that of non statutory rape, or murder. As TAM points out, the distinction you pick is one that allows pro pornography folk to be entirely consistent; they are not necessarily pro statutory rape.

Whether or not you believe the first amendment applies to distribution of criminal evidence, that has nothing to do with non child pornography.

strawman args says:

Re: Pornography

“If on the other hand he says that child pornography should not be legal, then he is completely inconsistent within his own thinking and any argument he makes for the legality of pornography will be illogical and indefensible because of that.”

the only difference being that it is illegal to produce child porn. Last time I checked it is not illegal to produce puke porn or whatever it was the the case involved.

Reasonable man says:

Re: Pornography

Wow, are you dumb. Like many people, you lack the ability to draw logical analogies. Child porn is entirely different because it depicts an illegal act. I am 100% pro adult porn, and 100% against child porn, and that is a completely logical position. Child porn depicts harm being done to children who cannot, by law, consent to what is being done. Adult porn depicts legal acts between consenting adults. That you would try to draw such an absurd analogy shows how limited your intellect is.

Geaux Saints says:

Strictest community standard

Content should be subject to the strictest standard of internet connected communities. Complaints of falling under laws that would not stand in your local jurisdiction are moot. This website is visible in Iran. Thankfully Iran is not subject to the US Constitution, so constitutional objection is moot as well. Irresponsible political discussions such as this one cannot be tolerated. You will all be extradited to Iran for torture, trial, and additional torture.

Paul Alan Levy (profile) says:

Eleventh Circuit on subjecting citizens of far-away places to suit

Sadly, this ruling is of a piece with other cases from the same court. The Eleventh Circuit has also evinced a willingness to extend court power over distant defendants in the civil context. Most of the courts of appeals around the country have accepted one variant or another of the “Zippo” sliding scale, under which web site hosts who put up web sites to communicate information “passively,” without engaging in business transactions through the web site with residents of far-away states, cannot be sued in any state in which the web site can be seen. Under this approach, courts recognize that a rule allowing pervasive jurisdiction over anyone with a web site would be a violation of constitutional due process.

The Eleventh Circuit, however, has not followed this approach, holding, for example, in Licciardello v. Lovelady, 544 F.3d 1280 (11th Cir. 2008), that anyone who commits a tort affecting someone they know to be a Florida resident to be sued in Florida without violating due process.

The Florida Supreme Court is currently considering this same issue in Internet Solutions Corp. v. Marshall; my colleagues at Public Citizen filed a friend of the court brief urging Florida not to follow the Eleventh Circuit’s lead.

sapos says:

re: ponography

As one get older one get wiser and begins to understand that a mind compusibly in need of sexual gratification thru pictures and movies signals a need. Ther is no restriction so heavy placed on internet porn that any yes any aldult as well as child can get their fix. Like any fix this is leads to thoughts of it being normal for even our female counterparts. Is tha going to be our behaviour in closed doors impulsiveness and desires. Much unneaded pain is brought on by being encouraged to follow theses standards os sexuality emulated through adult porn. enjoy..ja ja

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