On December 8, 2005 the United States Court of Appeals for the Third Circuit (case number 05-1555, on Appeal from the United States District Court, Number 03-cr-00203) ruled that Extreme Associates, Inc. and its proprietors could be prosecuted under 18 U.S.C. 1461 and 1465 for the commercial distribution of obscene materials. The facts of the case are simple enough: Extreme Associates maintains a website through which it engages in the business of producing, selling and distributing obscene video tapes (please note that for the purposes of the motion only, Extreme Associates stipulated that the material available on its website is legally obscene).As a part of an undercover investigation, U.S Postal Inspectors purchased tapes by mail through the general public portion of the site. Inspectors also joined the members section of the website and downloaded and viewed video clips off of the site. Based upon this investigation, Extreme Associates was indicted in a ten charge count with, among other crimes, distributing obscene material through the mail and over the Internet.

Originally, the District Court, in an opinion authored by Judge Gary L. Lancaster, dismissed the indictments against Extreme Associates because the statues regulating the distribution of obscene material violated the constitution. In sum, the District Court ruled that the statutes regulating the distribution of obscenity were not narrowly tailored by the complete ban of distribution of obscene materials.

The Third Circuit did not analyze this matter on the basis of the First Amendment, but rather, through privacy grounds under the Substantive Due Process Clause. The court noted that the United States Supreme Court has consistently upheld the constitutionality of statues regulating obscenity. In a bit of logic difficult for most to understand, the court has upheld the right to possess obscene material but not the right to distribute the material. In essence, one can own obscene material but have no legal way of obtaining it. In sum, the Court found that there is no constitutional right to distribute obscene material and an individual could be prosecuted for distributing obscene material.

This court (as have other courts) refused to consider the Internet any differently than it has ordinary mail. The Court refuses to see the Internet as the unique community that it deserves to be recognized as. Although they rely on prior precedent (previous Supreme Court cases) to come to that conclusion, it does not take a Supreme Court Justice to see that the Internet has created a global community unlike any the world has seen. Never before have so many people had the ability to communicate in a way not even imagined only twenty years ago. With the ability to communicate comes the ability to share ideas and thoughts. Justice Oliver Wendall Holmes brilliantly espoused the theory of the “marketplace of ideas.” This theory should be the cornerstone for all free expression in this country. It is the theory that all ideas should be freely expressed and explored so that a person can make the best decision possible.

The Internet gives us the ultimate market place of ideas. In the past, only the most powerful and wealthy could truly give their opinion to the public through newspaper, radio and television. Today, the Internet allows virtually anyone with access to a computer the ability to reach a worldwide audience. Individuals’ webpages and Blogs give all of us the chance to voice an opinion to the masses for a relatively small amount of money. It is time that the Internet was treated differently than other forms of media because of its unique nature. The Internet itself transforms our concepts of sexually explicit and obscene material. It gives us the ability to experience life through the eyes of many difference people with many different outlooks. Our concepts of obscenity are altered by the Internet’s ability to present us with a vast array of ideas and concepts that people may never have considered before. Since the Internet known no boundaries, neither do the authorities who prosecute obscenity-based crimes. It is time that a standard of obscenity was created that encompasses the vastness of the Internet.

Take note for the purposes of the motion in the Third Circuit decision of Extreme Associates, Extreme Associates stipulated that the material available on its website was legally obscene. In order to be prosecuted under the statute for distributing material that is obscene, the material actually must be obscene. This decision by the Court did not even address the issue of obscenity but merely brushed it under the rug. Ironically, what is legally obscene is still a source of great debate. The United States Supreme Court in 1973 concocted a convoluted test wherein obscenity was measured by:

1. Whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest,
2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and


3. Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973).

This “test” (for lack of a better word) for identifying obscene materials has confused scholars and mystics alike. It creates a patchwork formula in which one must consider local community standards and whether the work has any redeeming social value under national standards. Furthermore, the test asks us to evaluate whether the work would appeal to prurient interests (prurient interests defined as: a morbid, degrading and unhealthy interest in sex, as distinguished from a mere candid interest in sex.) Therefore, courts have to consider what the difference is between a morbid interest in sex and a candid interest in sex. In reality, there are no clear guidelines for what is and is not obscene. One man’s fetish is another man’s delight. Truly, beauty is in the eye of the beholder and the courts have not found a way to distinguish in a meaningful way how to define what is obscene. Reliance on shifting community standards creates a chameleon like definition which changes depending on where you live. Unfortunately, the most apt description of obscenity comes from Justice Potter Stewart when he candidly states:

“Criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in Intelligibly doing so. But I know it when I see it…” Jacobellis v. Ohio, 378 U.S. 184 (1964).

The Supreme Court should provide the public with a bright line definition of obscenity. Possibly, the United States of America v. Extreme Assocaites decision by the Thrid Circuit will give the Supreme Court a chance to rework the definition of obscenity to something more measured and ascertainable. They ask us to rely on community standartds when the Internet itself defies the concept of local community. This decision highlights the failure of the “communuty standards” definition as applied to the Internet. As stated above, it is time that the courts come up to date with the times. With our ability to see and hear virtually anything we can imagine, a thirty year old concept of obscenity has no relevance for today. Technology has made many of the old concepts of obscenity obsolete. Since the Internet stretches across the globe it is impossible to identify a community standard that would be relevant to every community that the Internet reaches. Just because technology has outpaced the court it does not mean that people should be prosecuted for that reason. In United States of America v. Extreme Assocaites, the Third Circuit ignores the unique nature of the Internet. It is time that obscenity is defined in such a manner as to meet contemporary standards and recognize the impact that the Internet has had on our society. It is clear that when anaylzing internet cases, community standards should not be relelvant, rather an Internet standard should be created for the global community that it serves.