U.S. v. Kilbride: 9th Circuit's Holding that Internet Obscenity Laws Should Be Governed by a National Standard Rests on Shaky Grounds
Digital media law: The 9th Circuit has done it again. In its ruling last week in U.S. v. Kilbride, the 9th Circuit announced that "a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated by email." (Case Nos. 07-10528, 07-10534, October 28, 2009). The 9th Circuit stated that its holding followed the view expressed by a majority of U.S. Supreme Court Justices in Ashcroft v ACLU, 535 U.S. 564 (2002) that application of a national community standard in Internet obscenity cases would not "generate serious constitutional concerns."
The Justices said no such thing. To the contrary, Justice Kennedy, whom the 9th Circuit includes in the majority supposedly agreeing with its holding, wrote that "it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York" through a national obscenity law. Ashcroft v. ACLU, 535 U.S. at 597. If the U.S. Supreme Court takes the appeal of Kilbride, the 9th Circuit's ruling here could well be reversed.
The Kilbride case involves the appeal of the criminal convictions of two spammers, Jeffrey Kilbride and James Schaffer, who distributed two sexually explicit images via email throughout the U.S. The Defendants' spam operation was enormous and generated some 662,000 complaints to the FTC from persons around the country.
The Defendants were ultimately charged with violations of two Federal obscenity laws -- 18 U.S.C. ยง 1462 and 1465, which prohibit the importation into the U.S., and the transportation in interstate commerce, of "obscene, lewd, lascivious, or filthy" books, pictures and other media. Both statutes apply to distribution of materials via the Internet, and specifically include distribution via an "interactive computer service," as defined by the Communications Decency Act. A conviction under Section 1465 has been upheld for images sent from a computer bulletin board in one state to a personal computer in another state. U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996).
Prior U.S. Supreme Court decisions have held that obscenity is to be determined by the standards of the local community in which the publication was made. However in Kilbride, the Defendants were prosecuted for their national distribution of obscene materials. As part of its case, the government called eight witnesses from various parts of the country who had filed complaints with the FTC about the Defendants' emails. These witnesses testified about the circumstances under which they had received the Defendants' emails, their reaction and attitudes towards these images and their views on pornography generally. The government also introduced evidence regarding the 662,000 other complaints they had received about the images. For its part, the defense introduced evidence regarding community attitudes towards pornography drawn solely from Arizona -- the judicial district where the case was prosecuted.
At the close of evidence, the jury was instructed that it should use the standards of the "community as a whole, that is to say by society at large, or people in general" in determining whether the images distributed by the Defendants were obscene. This community was "not defined by a precise geographic area", so the jury could consider evidence of standards existing outside Arizona. They were also told that they could consider their "own experience and judgment" as well as the evidence presented in making this determination. The jury ultimately returned a verdict finding the Defendants guilty under the two statutes.
On appeal to the 9th Circuit, the Defendants argued that these instructions were improper, because they asked the jury to apply a global or societal standard for obscenity. The Defendants claimed that because the distribution of the emails was made nationally, the District Court should have instructed the jury to apply a "national" obscenity standard.
The 9th Circuit agreed that the Defendants had a point. It cited a 2002 plurality U.S. Supreme Court decision regarding the Child Online Protection Act (COPA), in which two Justices, O'Connor and Breyer, had stated that a "national standard" should be used for laws involving distribution of obscene material over the Internet. Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700 (2002). Justice O'Connor stated that community standards for obscenity vary greatly throughout the country. However, persons using the Internet to publish materials are unable to control the geographic location of their audience. As a result, requiring Internet publishers to hold to a "local community" standard for obscenity, would require them to adopt the most restrictive view of obscenity taken by any community in the country. In Justice O'Connor's view, this would "potentially suppress an inordinate amount of expression." Id. at 587.
Counting noses, the 9th Circuit found that Justice O'Connor's view that a national community standard should be applied in cases of Internet obscenity had been concurred with by five Justices: O'Connor and Breyer, as well as Kennedy, who wrote a concurrence that was joined by Souter and Ginsberg. The 9th Circuit stated that these five Justices "viewed the application of a national community standard as not or likely not possessing" the concerns posed by using local community standards as the standard in Internet obscenity cases.
Based on this conclusion, the 9th Circuit stated that it was persuaded 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 distributed via email." The 9th Circuit further stated that the District Court had committed error in its jury instructions. The District Court had instructed the jury that "community" was "not defined by a precise geographic area" but represented the views of "society at large, or people in general." Instead, the jury should have been told to use a "national community standard." However, the 9th Circuit then held that this error was harmless and did not constitute plain error, because prior to the 9th Circuit's holding here the "national community standard "was only ascertainable from the fractured Ashcroft opinion. So despite the Court's agreement with the Defendants' position, their convictions stood.
This opinion will also certainly be appealed, and stands a better chance than many others of being taken by the Supreme Court. However, the U.S. Supreme Court is unlikely to take a sanguine view of the 9th Circuit's adoption of the "national community standard" for Internet obscenity cases.
This is because the 9th Circuit has simply gotten the Supreme Court's sentiment on the viability of a national standard for Internet obscenity cases wrong. Justice Kennedy's concurrence nowhere states that a national community standard makes sense or doesn't pose serious constitutional concerns. To the contrary, Kennedy's concurrence says the opposite.
Kennedy's concurrence addressed whether the national variation in community standards for obscenity meant that COPA was facially invalid as overbroad. Regarding this issue he wrote:
"We have observed that is it 'neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas or New York.' Miller v. California, 413 U.S. 15, 32, 93 S.Ct. 2607 (1973). On the other hand it is neither realistic nor beyond constitutional doubt for Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York. 'People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity.'" (Ashcroft, 535 U.S. at 597).
Strangling diversity of tastes and attitudes is exactly what the national standard for obscenity announced by the 9th Circuit would certainly do. The median obscenity standard it would call for juries to create would wind up restricting speech deemed acceptable by many communities, while forcing other communities to accept speech that they deem highly objectionable. Both are violations of the First Amendment guarantees on the protection of speech.
Kennedy left no doubt that national community standards are likely to create a constitutional problem. Indeed, he specifically stated that "[t]he national variation in community standards constitutes a particular burden on Internet speech." Ashcroft, 535 U.S. at 597. While Kennedy was unwilling to hold that COPA was facially overbroad, this was only because he believed that the record was insufficient to permit him to draw this conclusion. As a result, he concurred in the remand of the case to the Court of Appeal so that a record could be created that would permit an appropriate determination of this issue. Ashcroft, 535 U.S. at 602.
If the 9th Circuit's opinion here is reversed, this does not mean that the government will be unable to prosecute cases of Internet obscenity. It just means that it may need to prosecute these on a more particularized basis -- using evidence that relates to the particular communities that received the content. For example, the jury could be asked whether a photographs received by an Internet user in Arizona depicted acts that would be considered obscene by people in Arizona.
David D. Johnson is a business lawyer whose practice focuses on litigation and other issues relating to digital media and consumer electronics companies. David can be contacted at (310) 785-5371 or DJohnson@jmbm.com.
