"I Know It When I See It." The View from Where?

Jeffrey A. Kilbride and James Robert Schaffer are spammers.  They sent millions of unsolicited e-mails advertising pornographic web sites, and were paid a fee whenever a recipient of their e-mails purchased a subscription to one of the sites, earning a total of $1.1 million.

In 2007, Kilbride and Schaffer were convicted of violating the Controlling the Assault of Non-solicited Pornography and Marketing Act (CAN-SPAM Act) by using falsified headers and domain names in their e-mails, conspiracy, fraud, money laundering, and various obscenity charges, and sentenced to 72 and 63 months in prison, respectively.  They were also fined $100,000 and ordered to pay $77,500 in restitution to AOL and to forfeit the proceeds from their spamming operation.

Kilbride and Schaffer appealed, leading to an important decision on how the Supreme Court's standards for obscenity apply on the Internet.  U.S. v. Kilbride, No. 07-10528 (9th Cir. Oct. 28, 2009).

Miller's "Community Standards" Test

In the 1950s and '60s, film was a primary medium for distribution of pornography. And in a series of cases, the U.S. Supreme Court and lower courts struggled to draw the line at which pornography, which is protected under the First Amendment, becomes obscenity, which is not.

This led to Justice Potter Stewart's complaint that the Court was "trying to define what may be indefinable," and his famous conclusion that "I know it when I see it."  Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

In their book on the inner workings of the Supreme Court in the late 1960s and early '70s, Bob Woodward and Scott Armstrong describe the Court's screenings of films alleged to be obscene:

Movie day was the humorous highpoint of most terms. Year after year, several of the justices and most of the clerks went into either a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.

Bob Woodward and Scott Armstrong, The Brethren: Inside the Supreme Court 239 (1979).

Finally, in 1973, the Supreme Court established a three-part test for determining whether material is obscene:

The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct [or excretory functions] specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (citations omitted; "excretory functions" is used elsewhere in the opinion as an example of material that could be regulated under prong (b) of the test).

Backing away from its earlier decisions applying a single, national standard (see Jacobellis, supra, at 194), in Miller the Court ruled that the applicable "community" in the first and second prongs of the test is the local community where the case is adjudicated, Miller at 30-34. But the evaluation of a work's "literary, artistic, political, or scientific value" is determined using a national standard.  Pope v. Illinois, 481 U.S. 497, 500-01 (1987).

This creates a major issue: what is the scope of the relevant "community" for the first two prongs of the Miller test? If the "community" is a physical domain, is it a single community, a state, the region of the country, or the nation as a whole?  Or, can a "community" be a group of individuals that, although geographically dispersed, share a common set of values?

In subsequent cases, the Court has discussed "community" as a physical place:

The result of the Miller cases, therefore, as a matter of constitutional law and federal statutory construction, is to permit a juror sitting in obscenity cases to draw on knowledge of the community or vicinage from which he comes in deciding what conclusion "the average person, applying contemporary community standards" would reach in a given case. Since this case was tried in the Southern District of California, and presumably jurors from throughout that judicial district were available to serve on the panel which tried petitioners, it would be the standards of that "community" upon which the jurors would draw. But this is not to say that a district court would not be at liberty to admit evidence of standards existing in some place outside of this particular district if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.

Hamling v. United States, 418 U.S. 87, 105-06 (1974) (holding that jury in prosecution under federal obscenity statute could use a national standard, where defendants were convicted prior to the decision in the Miller case and their convictions were on direct appeal at the time Miller was decided).

"Community Standards" on the Internet

But the definition of "community standards" in Miller presents a dilemma when dealing with material on the Internet, which is not bound by geographical or jurisdictional divisions. 

The Supreme Court struggled with this in Ashcroft v. ACLU, 535 U.S. 564 (2002).  While a majority of the court agreed that the Child Online Privacy Act's "reliance on community standards [to define obscenity on the Internet] . . . does not by itself render the statute substantially overbroad for purposes of the First Amendment," Ashcroft at 585, the Court splintered on the rationale for this ruling.

Justice Thomas' majority opinion found that the possibility of different standards in courts across the country was not a constitutional problem because of the limited scope of the Act, Ashcroft at 577; but only two other Justices — Chief Justice Rehnquist and Justice Scalia — concurred with this reasoning. Justices O'Connor and Breyer, in separate concurrences, wrote that the statute should be interpreted using a single, national standard.  Ashcroft at 587 (O'Connor) and 590 (Breyer).  Justice Kennedy, joined in his concurrence by Justices Souter and Ginsburg, recognized the problem, but supported remanding for a full examination of the specific application of a local standard under the statute.  And Justice Stevens, in dissent, argued that it was impossible to impose any particular community or national standard to the Internet.

(The court's 2002 ruling in Ashcroft, was just one round in a long litigation challenging the Child Online Privacy Act, which was eventually struck down as unconstitutionalSee ACLU v. Mukasey, 534 F.3d 181 (3d Cir. July 22, 2008), cert. denied, 129 S. Ct. 1032, 173 L. Ed. 2d 293 (Jan. 21, 2009).)

The Ninth Circuit's New "Community Standard"

In the appeal of their convictions, Kilbride and Schaffer argued to the Ninth Circuit Court of Appeals that the trial court's instructions to the jury regarding "community standards" for obscenity were erroneous. 

The jury instructions defined community standards as "what is in fact accepted in the community as a whole; that is to say by society at large, or people in general," and told jurors that "[t]he 'community' you should consider in deciding these questions is not defined by a precise geographic area. You should consider evidence of standards existing in places outside this particular district."  In fact, the prosecution's case included testimony from eight witnesses from Massachusetts, Texas, Iowa, California and Arizona who received the pornographic e-mails.

The Ninth Circuit found no problem with these instructions:

The portion of the instruction stating that the relevant community lacks a precise geographic definition follows directly from Hamling’s holding that the relevant community is not to be geographically defined in federal obscenity prosecutions, permitting the jury to apply their own sense of what contemporary community standards are, based on their own community. . . . Similarly, the challenged portion of the instruction explicitly and implicitly allowing jurors to consider evidence of standards existing in places outside of the district is clearly permitted under Hamling.

U.S. v. Kilbride, No. 07-10528, slip op., at 14481, 14483 (9th Cir. Oct. 28, 2009).

The court then went further, agreeing with the defendants' contention that a national standard, rather than a local standard, should apply to e-mail. After parsing the various opinions in the 2002 Ashcroft decision, supra, the Ninth Circuit in Kilbride held that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email."

[F]ive Justices concurring in the judgment [in Ashcroft], as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. Accordingly, following Marks, we must view the distinction Justices O’Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling. Accepting this distinction, in turn, persuades us to join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.

Id. at 14491-92.

This ruling led the Ninth Circuit to conclude that, while the jury instructions at Kilbride and Schaffer's trial were erroneous, the error did not warrant reversal of their convictions because it was not "plain error" in light of the muddled state of the law. Id. at 14494.

What a National Standard Means

The government appears to be preparing a motion asking the Ninth Circuit to rehear the case, so the October 28 decision may not be the last word on this issue.

But, if the decision holds (David Johnson of Digital Media Lawyer Blog thinks it may be overturned by the Supreme Court), and is adopted by other courts, what will be the impact of a national community standard for obscenity prosecutions involving the Internet?  Professor Eric Goldman says not much, arguing that national and local views about whether a work "appeals to the prurient interests" are similar in all but marginal cases. Pat Trueman, special counsel for the Alliance Defense Fund, fears that the decision will make convictions more difficult because the national standard will be harder for juries to pinpoint. 

At the very least, the Ninth Circuit opinion likely will make prosecutors think twice before proceeding with obscenity charges in the Internet content.  And, with the Internet forming new social norms of sex and privacy, they also are probably less likely to succeed.


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