The End of Forum Shopping in Internet Obscenity Cases? The Ramifications of the Ninth Circuit’s Groundbreaking Understanding of Community Standards in Cyberspace

This timely Article examines the ramifications of the Ninth Circuit’s groundbreaking adoption of a national community standard for Internet-based obscenity cases. Part II initially provides an overview of the use of local community standards as adopted by the United States Supreme Court in Miller, and, in particular, it explores how the federal government historically and strategically has used those local standards advantageously over the years, including in Project PostPorn, to selectively pick venues for obscenity cases that increase the likelihood of convictions. Indeed, this Article contextualizes modern-day obscenity forum shopping on the Internet by providing the most extensive and comprehensive law journal analysis yet published of the Project PostPorn operation that took place in the late 1980s and early 1990s. Part II also explores how the use of local community standards leads to self-censorship, affecting the business models of companies in the adult-content industry. Part III explores the ramifications of the Ninth Circuit’s Kilbride decision, including its likely impact on the future of Internet-based obscenity cases and the multitude of questions it raises and that courts must now address. Part IV then concludes that the Ninth Circuit’s experiment with a national community standard may provide the impetus for the Supreme Court to squarely address, in the context of an obscenity case, the viability of the Miller test in the age of the Internet