Legal Commentary

Eleventh Circuit Rejects Ninth Circuit?s National-Standard-for-Internet-Obscenity Decision

By Eugene Volokh

United States v. Little concludes that Internet obscenity distribution prosecutions may rely on the community standard of the place in which the material was distributed ? which means the government can try to download the material in the most restrictive community, and prosecute the distributor there.

This may well be correct, given the Court?s decision in Ashcroft v. ACLU (I); and the Ninth Circuit?s contrary decision in United States v. Kilbride might well be mistaken. Still, it seems odd that the Eleventh Circuit?s opinion ? which apparently considered this argument for the first time in that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit ? was unpublished.

Unpublished opinions deliberately lack binding precedential value, and are generally intended to limit their own value as persuasive precedent as well (though the ultimate estimation of such persuasive value is of course in the eyes of a future court). It seems to me that they should be reserved for areas where more precedent is unhelpful, chiefly because there already is plenty of precedent in the jurisdiction on the subject. So it?s hard for me to see why this opinion, which is certainly quite detailed should be unpublished.

Note that there won?t be a cert petition from the government challenging the Ninth Circuit?s national-standard holding in Kilbride, since the conviction there was affirmed on harmless error grounds. The government won on the bottom line, and thus can?t petition for certiorari, even if it dislikes the court?s reasoning. (It could have petitioned for rehearing en banc, but despite two requests for extension of time to file a petition for rehearing, the government ultimately decided not to petition.)

There might well be a cert petition in the Eleventh Circuit case, though. I wonder to what extent the Court will see this case as practically involving a circuit split, even though technically there is no disagreement between the precedent in the two cases. Supreme Court Rule 10(a), for what it?s worth, notes that one important factor in favor of granting certiorari is that ?a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.?

Full post as published by The Volokh Conspiracy on February 04, 2010 (boomark / email).