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Gelbard plans to make a pretrial motion to have the court define what the appropriate community is when relating to alleged obscene works delivered via the Internet. 1st Amendment attorney Louis Sirkin filed a similar motion in the Extreme Associates obscenity case. The courts have not definitely ruled on the identity of who comprises the Internet community.
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?The interesting issue here is that they feel they can prosecute for an individual trailer on a website,? Gelbard said. ?The Miller test for obscenity requires that you take a work as a whole, so our position is probably going to be that the taking out of context of one trailer out of the entire website cant satisfy that constitutional standard.?
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Noted adult industry attorney Greg Piccionelli told XBIZ that what might be set up are differing circuit court opinions on the web?s community standard, which would potentially foment a Supreme Court battle. He hopes that the liberal 9th U.S. Circuit Court of Appeals rules for a possible national standard and that he thinks the government is playing for a ruling that would set a local community standard in Stagliano?s case, judging by the makeup of the highly conservative U.S. Court of Appeals for the Federal Circuit in Washington, D.C.