[Also appeared in _SF_Examiner_]


VIRTUAL COMMUNITY STANDARDS
BBS Obscenity Case Raises New Legal Issues
By Mike Godwin

At first glance, the obscenity prosecution of Robert and Carleen Thomas of
Milpitas seem little different from the average obscenity prosecution.
Sure, this case involves a computer bulletin-board system (BBS), but
there's nothing new about prosecuting pornography distributors in
conservative states like Tennessee, is there?

Except that this BBS wasn't in Tennessee. It was in California. But that
didn't stop Tennessee prosecutors from going after it. Because of the way
BBSs normally operate, a conservative jurisdiction like Memphis may be in
a position to dictate what's allowable on BBSs all over the country, from
New York City to San Francisco. For this reason, the prosecution of the
Thomases and their "Amateur Action BBS"  calls into question the
continuing validity of the Supreme Court's obscenity decision in Miller v.
California, now more than 20 years old. That case, which was designed to
allow communities to set their own standards of what is acceptable and
what is obscene, has now been used for just the opposite purpose--it has
allowed a Memphis prosecutor to dictate the content of a computer system
in California.

MEMPHIS REACHES OUT TO TOUCH SOMEONE

The facts of the case are straightforward. The Thomases are the system
operators (sysops) of an adults-only sexually oriented BBS in Milpitas,
California. The operator of a BBS typically dedicates a computer and one
or more phone lines at his home or business for the use of a "virtual
community" of users. Each user calls up the BBS (using a modem connected
to his or her telephone) and leaves public messages that can be read by
all other users and/or private mail that can be read by a particular user.
BBSs become forums--digital nightclubs, salons, and Hyde Park corners--for
their users, and users with similar interests can associate with one
another without being hindered by the accidents of geography. A BBS also
can be used to trade in computer files, programs, and digital images,
including sexually graphic images.

A Tennessee postal inspector, working closely with an assistant U.S.
attorney in Memphis, became a member of the Thomases' BBS. Once he had
become a member, he did three things: he downloaded sexually oriented
images, ordered a videotape (which was delivered via UPS), and sent an
unsolicited child-porn video to the Thomases. This led to a federal
indictment with a dozen obscenity counts, most based on the downloading of
the computer images.

The indictment also included one child-pornography count, based on the
unsolicited video. At trial, the Memphis jury convicted the Thomases on
all the obscenity counts, but acquitted them on the child-porn count. (A
reporter at the scene who interviewed jurors said they believed the
child-porn count smacked of entrapment.) The Thomases now face sentencing
on the 11 obscenity convictions, each carrying a maximum sentence of five
years in prison and $250,000 in fines.

The Thomases' lawyer says they will appeal, based at least on part on a
claim that the jury instructions as to "community standards" were
incorrect. "This case would never have gone to trial in California," he
has said.

COMMUNITY STANDARDS AND BBSs

It has long been held that obscenity is not protected by the First
Amendment, but what qualifies as "obscenity" has not always been clear.
After Miller v. California, a 1973 Supreme Court case, there has been no
national standard as to what is obscene.  In that case, the Court stated
that material is "obscene" (and therefore not protected by the First
Amendment) if 1) the average person, applying contemporary community
standards, would find the materials, taken as a whole, arouse immoral
lustful desire (or, in the Court's language, appeals to the "prurient
interest"), 2) the materials depict or describe, in a patently offensive
way, sexual conduct specifically prohibited by applicable state law, and
3) the work, taken as a whole, lacks serious literary, artistic, political
or scientific value.

To put it in layman's terms, the trial court would ask something like
these four questions:
1) Is it designed to be sexually arousing?
2) Is it arousing in a way that one's local community would consider
unhealthy or immoral?
3) Does it depict acts whose depictions are specifically prohibited by
state law?
4) Does the work, when taken as a whole, lack significant literary,
artistic, scientific, or social value?

If the answer to all four questions is "yes," the material will be judged
obscene, and it will be Constitutional to prosecute someone for
distributing it. (It should be noted in passing that pictures of the
"hardness" of Playboy and Penthouse photography are never found to be
obscene--their appearance in digital form on Usenet sites may create
copyright problems, but they won't create obscenity problems. Remember
also that "pornography" and "obscenity" are not identical categories--much
pornography is not legally obscene.)

Normally, an appeal on the issue of obscenity will focus on one or more of
the answers to the four questions. If, for example, a Robert Mapplethorpe
photo is found obscene at a trial, defense on appeal might argue that,
even if the photo is sexually arousing in a way that violates community
standards and state law, the work's social value renders it protected by
the First Amendment. In hardcore porn cases, the defense might argue that,
in fact, the community is highly tolerant of such images (in adult
bookstores, films, and the like).

It has long been held to be Constitutional to prosecute any porn vendors
located in more liberal jurisdictions who have knowingly or intentionally
distributed obscenity into conservative jurisdictions. Many large-scale
commercial porn vendors have made deliberate decisions not to distribute
their materials into jurisdictions likely to prosecute--postal inspectors
frequently engage in "sting" operations in order to test whether a vendor
will send obscene material into their states.

This case is different, however. Consider: a seller of adult magazines
normally makes a conscious decision to send his product into the
jurisdiction in which he's prosecuted, thus establishing criminal intent
for the purpose of an obscenity-distribution prosecution. In contrast, a
BBS operator may be wholly unaware of the distribution--it may occur
overnight, for example--due to the automatic operation of his software.

What's more, even if the Thomases were to attempt to screen their users on
a state-by-state basis, there's no guarantee that this attempt would
protect them--a user could simply lie about which state he is calling
from, or he could obtain a membership while living in California yet
maintain it after he moved to Tennessee. Since a BBS operator cannot block
out calls from conservative jurisdictions, there is inherent vulnerability
for a BBS operator that exceeds that for traditional pornography
distributor.

While the Thomases' conviction with regard to the UPS-delivered video is
likely to stand on traditional grounds, their convictions with regard to
the downloaded images raise a number of critical issues. For example, does
it make sense for a court to infer a defendant's criminal intent to
distribute obscenity into Tennessee merely because neither he nor his BBS
can ensure that someone cannot download that material into the state?

More importantly, the case turns the whole community-standards doctrine on
its head. The Supreme Court was attempting, in Miller v. California, to
prevent the standards of acceptability in New York City or San Francisco
from dictating the standards of Kansas City or Norman, Oklahoma. Yet if
it's wrong for New York City to set the standards for Norman, it's surely
just as wrong for Memphis to set the standards for Milpitas.

Finally, the case raises the question of whether it makes sense to define
"community standards" solely in terms of geographic communities. Now that
an increasing number of Americans find themselves participating in
"virtual communities" on services such as America Online, CompuServe,
Prodigy, and the WELL, does it make make sense to have what those citizens
are allowed to bring into their own homes be dictated by the arbitrary
fact of where their physical homes happen to be.

It's time for the courts to revisit the Miller obscenity standard. In the
face of changes in communications media and the evolving nature of
"community," the courts should modify the application of the Miller
standard to prevent this kind of prosecutorial overreaching. Failing that,
the courts should abandon the "community standards" approach altogether.

Until these issues are addressed, this case will create a "chilling
effect" all over the country, as BBSs either censor themselves or cease
operations in order to avoid prosecution. The case sends a frightening
message to virtual communities: "It doesn't matter if you're abiding by
your own community's standards--you have to abide by Memphis's as well."


Mike Godwin (godwin@eff.org) is staff counsel of the Electronic Frontier
Foundation, a public-interest civil-liberties organization based in
Washington, DC.