The First Amendment and the Internet:
United States v. Thomas, 74 F.3d 701 6th Cir. 1996
In this case, the obscenity-based convictions in Tennessee of a California couple, who operated a "for fee" Bulletin Board Service that allowed members to download pornographic materials, were upheld after the court rejected the defendants claim that under the First Amendment, the "community standards" by which the "obscene" nature of the materials should have been measured was that of the "cyberspace community" and not that of Memphis, Tennessee.
Some commentators have opined that the specter of as many different standards as there are communities in America has been raised by Thomas. A close reading of the case indicates that those concerns may be somewhat, but only somewhat, exaggerated. In the criminal defendants in Thomas were a husband and wife who ran an Internet pornographic bulletin board system ("BBS") out of their California home. The scanned onto their BBS sexually explicit photos which they purchased in magazines from local adult book stores. To view and download these photos, users had to pay a $55 membership fee and fill out and sign an application which included their name and geographic address.
Upon receiving a complaint about the BBS from a resident of the Western District of Tennessee, a United States Postal Inspector became a member by submitting the appropriate fee and application revealing his Memphis address and downloaded various files containing photos depicting images of bestiality, oral sex, incest and sado-masochism. The Thomases were indicted by a grand jury in the Western District of Tennessee and were convicted under, among other federal statutes, 18 U.S.C. § 1465 for knowingly using a facility and means of interstate commerce -- in this case, the combined computer/telephone system -- for the purpose of transporting obscene, computer-generated materials in interstate commerce.
The United States District Court for the Western District of Tennessee rejected the argument that the defendants merely transmitted an intangible object (i.e., binary code) which is not prohibited by the statute, noting that what was important was that the transmission began and ended with tangible objects: the pornographic photos. The Court also rejected the defendants’ First Amendment arguments. One prong of First Amendment analysis is whether the average person, applying contemporary community standards, would find that the work in question, taken as a whole, appeals to the prurient interest. It was argued on behalf of the defendants that the relevant community standards were not those of Memphis, Tennessee where the defendants had been prosecuted, but rather a new definition of community was needed, i.e., one that was based on cyberspatial, rather than the geographical, connections among people.
The court rejected this argument, first holding that "obscenity is determined by the standards of the community where the trial takes place" and that "it is not unconstitutional to subject interstate distributors of obscenity to varying community standards." The court acknowledged the concern expressed by the defendants and amici curiae (friends of the court) that such a ruling might lead to an impermissible chill on protected speech because BBS operators cannot select who gets the materials they make available on their bulletin boards and would be forced to censor their materials so as not to run afoul of the standards of the community in America with the most restrictive standards.
However, the court
believed that the First Amendment was not implicated by this prosecution
because, unlike the hypothetical bulletin board operator who has no knowledge
or control over the jurisdictions where materials are being distributed
for downloading or printing, access to the defendants’ BBS could only
be obtained by revealing one’s geographic location. Because on the facts
of this case the defendants "had in place methods to limit user access
in jurisdictions where the risk of a finding of obscenity was greater
than in California" and could avoid liability in jurisdictions with less
tolerant obscenity standards by refusing membership to persons in those
communities, the Court held that it did not need to adopt a new definition
of "community" for use in obscenity prosecutions involving BBS’s and left
for another day the First Amendment questions implied, but not directly
presented, by this case. Thus, the case is not necessarily inconsistent
with Reno v. ACLU and Shea
because, unlike those cases, no technological barrier existed that prevented
the defendants from limiting the communities into which their communications
were being sent. Moreover, although BBS’s with membership restrictions
will have to contend with varying community standards, this burden is
no different from that which purveyors of traditional forms of pornography
seems directly at odds with Pataki’s [cases/pataki/] concern about the
danger of inconsistent state or local standards hampering the development
of the Internet as an important instrument of national commerce and the
need for single national standards governing that development. No defense
based on the Commerce Clause appears to have been raised in Thomas, but,
without question, entrepreneurs of pornography face exactly the sort of
inconsistent standards about which Pataki was
concerned, not only on a state-by-state, but on a community-by-community
basis. The courts may be comfortable with this inconsistency given that,
so far, only pornographers appear to be dealing with the economic consequences
of it. Should purveyors of more generally acceptable literature or art
run afoul of such laws, for example Robert Mapplethorpe, a Commerce Clause
defense to a criminal obscenity prosecution may prove to have force.