Just the other day, I complained about the fact that New York Federal district court overseeing the Google Books settlement apparently doesn’t plan to webcast the final public hearing that will take place on February 18 in this hugely important case about the future of digital books and copyright. Now I discover that the 11th Circuit Court of Appeals (which covers Florida, Georgia & Alabama) has issued a decision with even more far-reaching applications—allowing prosecutions for online obscenity distribution according to local “community standards” wherever a user might have downloaded the material—without even publishing the landmark decision!
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.
If left to stand, this decision could essentially amount to a ban on hardcore pornography in the U.S.—with the definition of “obscenity” being left to local puritanical politicians in the country’s most socially traditionalist backwaters, subject only to some general restraint by the courts as to just how far the definition of “obscenity” can be pushed. Volokh continues:
[The 11th Circuit's decision] 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that circuit, and which expressly rejected the reasoning of the one precedent on the subject from another circuit — was unpublished.
In case you non-lawyers are wondering how the heck this travesty of transparency happened, the short explanation is that the Supreme Court regulates much of the practice of the federal courts through the Federal Rules of Civil Procedure, Appellate Procedure and Evidence. But beyond those basic rules, every Circuit makes its own rules on many other issues—including under what circumstances a district or appellate court may decide not to publish a particular decision. Why not publish all decisions? Because courts issue lots of opinions and other less significant orders and memoranda and it’s just easier for them not to have to give each one the attention it would deserve if it were going to be published officially.
This is a pretty arcane debate involving multiple questions (you can read more here if you’re interested). The Supreme Court finally barred the Circuits from prohibiting the citation of unpublished opinions in 2006. So at least now, if a decision’s out there and you manage to find it, you can cite it as support for your argument before any federal court. That was a major step to ensuring that the rule of law wasn’t undermined by allowing courts to issue decisions that were both hard to find and ostensibly disclaimed any precedential effect on other cases.
The next big challenge facing the judiciary is publishing more, if not all, decisions. I’m no expert in this area and I have very limited appellate experience (having clerked for a lowly district judge). But In an era of information abundance and perfect searchability, it’s really hard to see why any court decision shouldn’t be published and made as easily accessible as possible.
At the very least, there’s simply no excuse for not publishing decisions as important as this one. Was the court perhaps hoping to minimize criticism of its decision by “hiding the ball?” I’d like to think we could expect better from those to whom we give life-time appointments and trust to be above the pressures of politics and public opinion.
On the issue of accessibility, I point you to the excellent RECAP project led by my former TLF colleague Tim Lee, which aims to break down the silly barriers the Judiciary has erected around published court documents with their pathetically antiquated and user-unfriendly PACER database. It’s also worth noting that Google Scholar late last year began allowing users to search some published legal opinions. This kind of innovation will certainly make the workings of the judiciary more accessible to citizens, but until the judiciary starts publishing more of the decisions, we’ll all be left in the dark about important decisions like this one by the 11th Circuit (which is available neither on PACER nor on the 11th’s Circuit’s webpage for recently released decisions).