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Max Hardcore’s Obscenity Trial Underway

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Bill of Rights 

Bill of Rights (From public domain.)

On June 4, 2007, I blogged about Paul Little’s (a.k.a. Max Hardcore) obscenity prosecution in Tampa federal court, and said, among other things:

“The feds’ latest effort to go after the more shocking variety of adult material is its May 17, 2007, indictment of Paul F. Little, who goes by the screen name Max Hardcore. I met Max Hardcore ever so briefly at the 2001 Free Speech Coalition annual awards event, too briefly to get any added understanding of him. However, I surmise that he produces the type of material that he produces to satisfy a market demand; otherwise, one would expect he would have shifted gears after all these years.”

Paul Little’s obscenity prosecution started last Monday, May 27, 2008; thanks to a fellow listserv member for alerting me of that. Little and co-defendant Max World Entertainment are defended by a lineup of fellow First Amendment Lawyers Association members, including Jeffrey Douglas and Lou Sirkin. Jeff and Lou are among FALA officers and past officers who made me feel all the more welcome when I joined the FALA over seven years ago, and for that I will always be grateful.

With prosecutions involving alleged visual obscenity can come very explicit images for the jury to view, and Little’s jury apparently is seeing such images. Howard Bashman at How Appealing links to some of the news stories of the trial’s play-by-play. Last Thursday and Friday, the defense orally moved for a mistrial, over such judicial actions as the judge’s refusal to question a juror who sent a note asking about the possibility of viewing fewer hours of sexually explicit material, which reduced viewing would fly in the face of the Miller doctrine’s requirement that, inter alia, the jury determine “whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15 (1973). The trial judge is Susan C. Bucklew; curiously, Judge Bucklew is a Bill Clinton appointee, which seems reduces the opportunity to claim that she is in bed with the Bush II administration and its resurrection of obscenity prosecutions after the Clinton administration brought few if any obscenity prosecutions, but prosecuted alleged child pornography with a vengeance, which child pornography prosecutorial zeal continues with the Bush II administration.

Here are some of the relevant court filings in the Little prosecution:

– The current case docket.

– Prosecution’s motion to limit defense expert testimony, attaching an exhibit that includes the expert’s resume, concerning sexual deviancy, apparently as part of a defense effort to establish a favorable community standard against which to judge the allegedly obscene material. Miller v. California, 413 U.S. 15. (At issue in the trial also will be how to define the applicable community standard, both geographically and otherwise. Id.)

– Defendants’ opposition to the prosecution’s motions concerning expert testimony and other evidence, attaching the defendant’s exhibit listing some comparable sexually explicit material apparently available to the purported applicable community for which the jury will be required to determine a community standard. Miller v. California, 413 U.S. 15.

I believe that obscenity prosecutions are impermissible under the First Amendment. For that reason alone, I wish the defendants a victory. Jon Katz