SAN FRANCISCO – An appellate court’s Wednesday ruling that will send two convicted spammers to jail also may have set an important precedent in obscenity law. By opining “local community standards” are meaningless where electronic communication is concerned, the U.S. Court of Appeals for the Ninth Circuit has set the stage for defining a national standard of decency for application to the internet.Jeffery A. Kilbride’s and James Robert Schaffer’s battle to avoid six-and-a-half-year and five-and-a-half-year prison terms, respectively, for CAN-SPAM and obscenity violations may be relegated to the status of historical footnote by the broader implications of the appellate panel’s ruling. According to one attorney involved in the case, Judge Betty B. Fletcher’s opinion “sounds the death knell for the long-standing ‘Miller Test’ for determining whether [online] materials are obscene.”
Although the court declined to overturn the convictions of Schaffer and Kilbride based on their argument the trial judge erred in his jury instructions, attorneys for the pair took heart the appellate judges were persuaded by arguments that applying the Miller Test’s “local community standards” clause to electronic communications “unavoidably subjects those communications to the standards of the least tolerant community in the country.”
“…[A] national community standard must be applied in regulating obscene speech on the internet, including obscenity disseminated via email…,” Fletcher wrote. “…[A]pplication of local community standards raises grave constitutional doubts on its face and application of a national community standard does not, thereby persuading us to adopt a national community standard….”
While admitting the decision was bittersweet, Schaffer attorney Gary Jay Kaufman said he was pleased the case seems poised to change the way obscenity laws are adjudicated, at least in the Ninth Circuit.
“What the court is saying, in effect, is that the days of trying to fit ‘horse-and-buggy’ law to the digital age are over,” Kaufman said. “And it makes sense. How can you subject a person to criminal prosecution for having the bad luck to open their email or log onto a website in Boise, Idaho, rather than Los Angeles, California? But it was an ultimately pyrrhic victory for our clients.”
Noted First Amendment attorney Lawrence G. Walters said the Ninth Circuit’s outright support for a national obscenity standard where electronic materials are concerned is something many defense attorneys have anticipated for quite some time.
“As far as the substance of the ruling, itself, it is certainly helpful in the average internet obscenity case,” he told YNOT.com. “Being able to draw potential evidence of acceptable, comparable material from anywhere in the country makes the defense lawyer’s job easier, especially when the defendant is prosecuted in a location with no adult businesses.”
“We’ve been pushing for national standards in all of our online obscenity cases since 1998, and it is refreshing to see that one court finally ‘got it’ and imposed the appropriate standard where the material is distributed in cyberspace,” he continued. “Holding online publishers to the standards of the most restrictive local community provides a ‘heckler’s veto’ on all internet erotica, and that cannot be squared with basic First Amendment protections.”
Kilbride attorney Gregory A. Piccionelli agreed.
“It has been clear to those of us practicing in the internet-law area for the past 15 years that the old formulation of letting the most conservative communities in America dictate what is or is not obscene on the internet is deeply destructive to our fundamental freedoms,” he said. “I am glad that we persuaded the Ninth Circuit to make this long-overdue change in obscenity law.”
Free Speech Coalition Executive Director Diane Duke weighed in as well, saying the adult industry’s trade association will breathe easier knowing a national obscenity standard has been deemed appropriate by at least one powerful court.
“It is comforting to know that venues like Utah will not be setting community standards for the entire country,” Duke told YNOT.com. “While the decision may ease the burden for the adult entertainment industry, obscenity laws continue to cast an oppressive shadow of concern for content providers and distributors in our industry.”
Although the Ninth Circuit’s ruling answered one big Electronic Age question, it generated several others in Walters’ mind.
“Given the importance of the community standards issue in obscenity cases and the potential impact on protected speech, this ruling is hard to swallow,” he told YNOT.com. “So the question then becomes, what happens if other courts fail to properly instruct juries on national standards? Will it even matter if this is not a reversible error? Can courts continue to require local community standards, without any effective remedy on appeal? This part of the ruling seems ripe for potential reconsideration by the appellants.
“However, that comes with some risk, because either this panel or the entire en banc Ninth Circuit could change the ruling and go back to local standards, if anybody requests reconsideration,” Walters added. “Also, while this seems like a natural case to take up to the U.S. Supreme Court, the fact that it comes from the Ninth Circuit—the most reversed circuit in the nation—and involves a ruling in favor of the adult industry generates real concern about any potential ruling from the Supreme Court. The majority of the Justices currently on the court do not seem to be inclined to do the industry any favors. The Justices seem to accept, as a foregone conclusion, that obscenity and child pornography are well-established exceptions to First Amendment protection, and that does not present any constitutional problem.
“On the other hand, the appellants have the right to try and have their conviction reversed, regardless of the potential impact on First Amendment law in general, so this will be an interesting case to follow. The appellants are well-represented by their current legal team, and I hope that competent lawyers continue to guide these individuals on their various legal options and the potential consequences.”
Kilbride’s and Schaffer’s legal teams indicated they have made no decision yet about whether to appeal the Ninth Circuit’s declination to overturn their clients’ convictions.
“As it stands, they will be the last defendants convicted under an unjust law,” Kaufman said. “We are very disappointed that the court affirmed my client’s convictions, and we are reviewing our options as far as challenging the court’s rulings on several issues.”
Walters also said from a legal perspective, the Ninth Circuit’s support for a national obscenity standard for electronic communication is unlikely to affect the application of obscenity laws in the brick-and-mortar world — although a cogent argument can be made for a unified standard in both venues.
“Getting the courts to accept a national standard in brick-and-mortar cases is a more difficult challenge, because the courts have generally said that individual communities have the right to control their own standards and determine what kinds of adult material they choose to accept,” he told YNOT.com. “An adult DVD distributor can control whether to send material into Polk County, Florida, while an online publisher cannot effectively block access to certain communities. That’s the key difference, from a legal perspective.
“But from a social perspective, I’ve argued that local communities no longer have any unified ‘standard’ for adult material,” he continued. “Each person is an individual, and we all have our own network of contacts and friends throughout the world. Unlike earlier days, where community members gathered together in the public square to exchange ideas and come to a consensus on various social issues, people today communicate on a global basis — usually without setting foot outside their house. For example, I may have more in common with my European friends on Facebook.com than I do with my neighbor, whom I barely know. Moreover, current society is much more transient than in the past, so new people are constantly moving in and out of all communities.
“Trying to pretend that each geographic community has its own unique ‘local standard’ with regard to human sexuality is patently absurd,” Walters said. “We’re all individuals, and the geographic place where we choose to lay our head at night should not dictate our access to sexually explicit materials.”
