Monday, June 09, 2008

Don't we have better things to do?

More outrage, which seems to be all I have these days. Osama bin Laden is still at large; the economy is in a handbasket on its way to hell; our energy "policy" is to consume as much as possible; and the Air Force haphazardly mishandles the US nuclear arsenal, by flying warheads across the country in an unguarded C-5.

Your government is hard at work protecting you, my fellow Americans. Max Hardcore has been convicted.

For those who don't know, Max Hardcore is nom de pr0n of Paul Little, and his work is generally upsetting to me. His videos are generally male-dominant, and strike me as angry to outright misogynistic. Not my cup of tea, but legal.

Apparently, it is not Justice's cup of tea either. Even though Max Hardcore never actually set foot in Florida (professionally, at least), DoJ chose to prosecute him there because the servers for his website were located in Florida, and because he sold some of his videos were sold there via the mail.

Or perhaps because no jury in Southern California would ever possibly convict him?

As a lawyer, I think the jurisdiction is weak at best. As society becomes increasingly decentralized, territorial jurisdiction becomes simultaneously more important and more susceptible of abuse. By choosing to indict in Tampa, the government did nothing more than forum shop for a favorable jury pool. This is as old as American justice itself, both criminal and civil.

However, by prosecuting a businessman (because that is what Max Hardcore is, a businessman) because some of his were sold via a server farm PHYSICALLY located in a district that he didn't choose, although legal in the jurisdiction where the actual production occurs shows an immense disregard for the people of California. To put it another way, the "crime" occurs wherever the government thinks they can convict someone. Tampa is well known in legal circles for being antagonistic to sexually oriented businesses. So they found a way to get the case down there.

On the other hand, the internet is also undermining the single greatest justification for territorial jurisdiction. Territorial jurisdiction gives the affronted people a chance to pass judgment on the offender. But theoretically, the whole world could be affronted by material transmitted via the 'nets. It makes little sense for a small, prudish sliver of the American people (and remember, this was a Federal case, prosecuted on behalf of every American)
be able to pass judgment on someone. Max Hardcore is a felon now, in California and New York, as much as in Florida, simply because he made a legal product in which all the participants consented, but which is not everybody's taste.

Like I said, not my cup of tea- but not a crime either.