Subject: Amicus Brief Supporting Thomases (Appellants) Obscenity Case (fwd) From: xerxes@clark.net Date: Sat, 22 Apr 1995 13:40:25 -0400

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An interesting tidbit.......


>IN THE UNITED STATES COURT OF APPEALS
>FOR THE SIXTH CIRCUIT
>
>
>
>No. 94-6648
>No. 94-6649
>
>
>
>ROBERT ALAN THOMAS
>AND CARLEEN THOMAS
>
>                Appellants,
>
>v.
>
>UNITED STATES OF AMERICA,
>
>                Appellees.
>
>
>ON APPEAL FROM THE UNITED STATES DISTRICT COURT
>FOR THE WESTERN DISTRICT OF TENNESSEE
>WESTERN DIVISION
>
>
>
>BRIEF FOR AMICUS CURIAE
>ELECTRONIC FRONTIER FOUNDATION
>
>
>
>
>
>                                        Shari Steele
>                                        Michael Godwin
>                                        ELECTRONIC FRONTIER FOUNDATION
>                                        Suite 801
>                                        1667 K Street, N.W.
>                                        Washington, DC  20006
>                                        (202) 861-7700
>                                        Internet:  ssteele@eff.org
>APRIL 19, 1995
>
>INTEREST OF THE AMICUS CURIAE
>
>        The Electronic Frontier Foundation (EFF) is a privately funded
>nonprofit organization concerned with the civil liberties, technical and
>social issues raised by the application of new computing and
>telecommunications technology.  EFF was founded by Mitchell Kapor, a
>leading pioneer in software development who was the first CEO of the Lotus
>Development Corporation and developed the Lotus 1-2-3 spreadsheet software,
>and John Perry Barlow, an author and lecturer interested in digital
>technology and society.
>
>        The Electronic Frontier Foundation is concerned with the chilling
>effect the District Court's decision will have on the freedom of speech of
>users of electronic communications and on the growth of online
>communications technology and communities.  EFF respectfully asks this
>court to overturn the lower court's decision regarding the files downloaded
>from the Amateur Action bulletin board system.
>
>TABLE OF CONTENTS
>
>INTEREST OF THE AMICUS CURIAE   1
>STATEMENT OF THE ISSUE  4
>SUMMARY OF THE ARGUMENT 5
>ARGUMENT        6
>
>I.  THE DISTRICT COURT'S APPLICATION OF THE MEMPHIS, TENNESSEE, COMMUNITY
>STANDARDS TO THE AMATEUR ACTION BULLETIN BOARD SYSTEM IS UNCONSTITUTIONAL
>IN THAT IT RESTRICTS EVERYONE IN THE WORLD TO ONLY MATERIALS THAT ARE
>DEEMED FIT FOR CITIZENS OF MEMPHIS, TENNESSEE 6
>
>II.  THE DISTRICT COURT ERRED IN APPLYING THE COMMUNITY STANDARDS OF
>MEMPHIS, TENNESSEE, WHEN THE MATERIALS WERE DOWNLOADED TO A COMPUTER DISK
>IN MEMPHIS BUT NEVER ACTUALLY ENTERED THE "MEMPHIS COMMUNITY"    7
>
>III.  THE DISTRICT COURT ERRED IN APPLYING THE COMMUNITY STANDARDS OF
>MEMPHIS, TENNESSEE, BECAUSE ELECTRONIC COMMUNICATIONS GIVE INDIVIDUALS THE
>AUTONOMY TO SELECT THE ELECTRONIC COMMUNITIES THEY WISH TO JOIN AND PROVIDE
>SCREENING MECHANISMS TO RESTRICT ACCESS TO CHILDREN        11
>
>IV.  THIS IS A CASE OF FIRST IMPRESSION AND SHOULD BE CONSIDERED IN LIGHT
>OF THE SERIOUS CHILLING EFFECT ON FREEDOM OF EXPRESSION THAT WOULD RESULT
>FROM THE LIMITING OF SPEECH ON ALL COMPUTER COMMUNICATIONS TO THE STANDARDS
>OF THE MOST RESTRICTIVE COMMUNITY       16
>CONCLUSION      19
>CERTIFICATE OF SERVICE  20
>
>
>TABLE OF CASES, STATUTES AND OTHER AUTHORITY
>
>CASES
>
>City of Belleville v. Morgan, 60 Ill. App. 3d 434, 376 N.E.2d 704 (1974)
>    8
>Commonwealth v. 707 Main Corp., 371 Mass. 374, 357 N.E.2d 753 (1976)    8
>FCC v. Pacifica Found.,, 438 U.S. 726, 748 (1978)       16
>LaRue v. State, 611 S.W.2d 63 (Tex. Crim. App. 1980)    8
>Miller v. California, 413 U.S. 15 (1974)        6,9,14
>People v. Better, 33 Ill. App. 3d 58, 337 N.E.2d 272 (1975)     8
>People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140
>(1980) 8
>People v. Ridens, 59 Ill. 2d 362, 321 N.E.2d 264 (1974), cert. denied, 421
>U.S. 993 (1975)      8
>Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974), cert. denied, 419 U.S.
>1130 (1975) 8
>Price v. Commonwealth, 214 Va. 490, 201 S.E.2d 798, cert. denied, 419 U.S.
>902 (1974)   8
>Sable Communications of California, Inc. v. Federal Communications
>Commission, 492 U.S. 115 (1989)      9
>Sedelbauer v. Indiana, 428 N.E.2d 206 (Ind. 1981), cert. denied, 455 U.S.
>1035 (1982)   8
>Stanley v. Georgia, 394 U.S. 557 (1972) 8
>State v. DePiano, 150 N.J. Super. 309, 375 A.2d 1169 (1977)     8
>United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973)  8
>United States v. Bagnell, 679 F.2d 826, 836 (11th Cir. 1982), cert. denied,
>460 U.S. 1047 (1983)        8
>United States v. Dachsteiner, 518 F.2d 20, 21-22 (9th Cir.), cert. denied,
>421 U.S. 954 (1975)  8
>United States v. Danley, 523 F.2d 369, 370 (9th Cir. 1975)      8
>United States v. Orito, 413 U.S. 139 (1973)     8
>United States v. Reidel, 402 U.S. 354   8
>Wisconsin v. Yoder, 406 U.S. 205 (1972) 15
>
>OTHER AUTHORITY
>
>Julian Dibbell, "A Rape in Cyberspace," The Village Voice, December 21,
>1993, 38(51):  pp. 36-42.       13
>Hiltz and Turoff, The Network Nation 29 (1993). 12
>Karo and McBrian, Note: The Lessons of Miller and Hudunt: On Proposing a
>Pornography Ordinance that Passes Constitutional Muster , 23 U. Mich. J.L.
>Rev. 179 (1989).    7
>Howard Rheingold, "A Slice of Life in my Virtual Community," Global
>Networks:  Computers and International Communication 57 (1993).     11
>Howard Rheingold, The Virtual Community:  Homesteading on the Electronic
>Frontier (1994).       11
>
>STATEMENT OF THE ISSUE
>
>SHOULD MEMPHIS, TENNESSEE, BE PERMITTED TO DICTATE THE APPROPRIATE
>COMMUNITY STANDARDS FOR ALL ONLINE COMMUNITIES THAT CAN BE ACCESSED FROM
>MEMPHIS, EVEN WHERE WARNINGS AS TO THE NATURE OF THE MATERIALS ARE CLEARLY
>POSTED, CHILDREN ARE DENIED ACCESS TO ADULT MATERIALS, AND USERS
>SELF-SELECT WHICH ONLINE COMMUNITIES TO JOIN?
>
>SUMMARY OF THE ARGUMENT
>
>        This is a case of first impression regarding jurisdiction over
>computer networks.  Online communications are physically nonterritorial,
>and individuals have a heightened ability to self-select which electronic
>"communities" to join, and are empowered to willingly and knowledgeably
>accept or block access to materials available electronically.  Any
>obscenity definition that relies on the boundaries of the physical world is
>dangerous to the growth of online communications, in that such a definition
>would require all electronic communities to limit acceptable speech to only
>what is acceptable in the most restrictive of physical-world communities.
>In a realm where adults can easily avoid unwanted materials and prevent
>their children from accessing these materials, the state's interest in
>protecting the unwanting or underage from exposure to materials is
>substantially weakened, and First Amendment protections of speech and
>association must prevail.
>
>        Computer communications are still in their infancy, but we already
>know that they implicate long-standing speech and privacy issues under the
>Constitution.  The precedents we set today may radically affect the course
>of the computer networks of the future, and with it the fate of an
>important tool for the exchange of ideas in a democratic society.  When the
>law limits or inhibits the use of new technologies, or when it fails to
>provide the same degree of protection for a new communications technology
>that it provides for older methods of communicating, it creates a grave
>risk of compromising speech and privacy interests protected by the Bill of
>Rights.  In this brief, Amicus Curiae Electronic Frontier Foundation
>respectfully asks this Court to make the determination that utilizing
>geographical community standards to satisfy the test for obscenity is
>inappropriate when dealing with networked communications that never
>actually enter any physical community.
>
>ARGUMENT
>
>
>I.  THE DISTRICT COURT'S APPLICATION OF THE MEMPHIS, TENNESSEE, COMMUNITY
>STANDARDS TO THE AMATEUR ACTION BULLETIN BOARD SYSTEM IS UNCONSTITUTIONAL
>IN THAT IT RESTRICTS EVERYONE IN THE WORLD TO ONLY MATERIALS THAT ARE
>DEEMED FIT FOR CITIZENS OF MEMPHIS, TENNESSEE.
>
>        Under the current obscenity test, first articulated by the Supreme
>Court in 1974 in Miller v. California, 413 U.S. 15 (1974), materials are
>considered obscene if 1) the average person, applying contemporary
>community standards, would find the materials, taken as a whole, appeal 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.
>
>        The community standards criteria was included in this three-prong
>obscenity test because "our nation is simply too big and diverse for [the
>Supreme] Court to reasonably expect that such standards could be
>articulated for all 50 States in a single formulation, even assuming the
>prerequisite consensus exists. . . . It is 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 City.  [People] in different States
>vary in their tastes and attitudes, and this diversity is not to be
>strangled by the absolutism of imposed [uniformity]."  Id.
>
>        Tennessee is but a single locality that can access the
>international telecommunications network generally and the Amateur Action
>bulletin board system specifically.  Robert and Carleen Thomas had no
>physical contacts with the State of Tennessee, they had not advertised in
>any medium directed primarily at Tennessee, they had not physically visited
>Tennessee, nor had they any assets or other contacts there.  The law
>enforcement official in Tennessee, not the Thomases, took the actions
>required to gain access to the materials, and it was his action, not the
>Thomases, that caused them to be "transported" into Tennessee (i.e., copied
>to his local hard disk).  The Thomases may indeed have been entirely
>unaware that they had somehow entered the Tennessee market and had
>subjected themselves to the standards applicable in that community.
>
>        This case is operationally indistinguishable from one in which a
>Tennessee resident travels to California and purchases a computer file
>containing adult-oriented material that he brings back to his home.
>Whatever sanctions the local community in Tennessee might impose on the
>purchaser -- and we note here that the Supreme Court has consistently held
>that private possession of obscene materials cannot be outlawed -- the
>seller, who had not "knowingly transported" material into Tennessee, would
>not have violated federal law.
>
>        Application of geographically-based community standards to
>transmissions over the global network, if interpreted to allow conviction
>on the basis of any access of a bulletin board system by a member of any
>community with standards that would disapprove of the materials in
>question, will have the perverse effect of prohibiting, worldwide, anything
>disapproved in any single territorial location -- precisely the kind of
>uniform national (or global) standard that the community standards test was
>designed to avoid.
>
>
>II.  THE DISTRICT COURT ERRED IN APPLYING THE COMMUNITY STANDARDS OF
>MEMPHIS, TENNESSEE, WHEN THE MATERIALS WERE DOWNLOADED TO A COMPUTER DISK
>IN MEMPHIS BUT NEVER ACTUALLY ENTERED THE "MEMPHIS COMMUNITY."
>
>        Courts have struggled with the concept of "community standards" and
>have upheld a wide variety of geographic definitions of community.  See,
>Karo and McBrian, Note: The Lessons of Miller and Hudunt: On Proposing a
>Pornography Ordinance that Passes Constitutional Muster, 23 U. Mich. J.L.
>Rev. 179 (1989).  State courts have approved units ranging from state
>(People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140
>(1980); LaRue v. State, 611 S.W.2d 63 (Tex. Crim. App. 1980); Commonwealth
>v. 707 Main Corp., 371 Mass. 374, 357 N.E.2d 753 (1976); People v. Better,
>33 Ill. App. 3d 58, 337 N.E.2d 272 (1975); and Pierce v. State, 292 Ala.
>473, 296 So. 2d 218 (1974), cert. denied, 419 U.S. 1130 (1975)) to county
>(Sedelbauer v. Indiana, 428 N.E.2d 206 (Ind. 1981), cert. denied, 455 U.S.
>1035 (1982); and State v. DePiano, 150 N.J. Super. 309, 375 A.2d 1169
>(1977)) to city (People v. Ridens, 59 Ill. 2d 362, 321 N.E.2d 264 (1974),
>cert. denied, 421 U.S. 993 (1975); and City of Belleville v. Morgan, 60
>Ill. App. 3d 434, 376 N.E.2d 704 (1974)) to local community.  (Price v.
>Commonwealth, 214 Va. 490, 201 S.E.2d 798, cert. denied, 419 U.S. 902
>(1974)).  Federal courts have held community to mean state (United States
>v. Danley, 523 F.2d 369, 370 (9th Cir. 1975)), county (United States v.
>Bagnell, 679 F.2d 826, 836 (11th Cir. 1982), cert. denied, 460 U.S. 1047
>(1983)), and federal judicial district (United States v. Dachsteiner, 518
>F.2d 20, 21-22 (9th Cir.), cert. denied, 421 U.S. 954 (1975)).
>
>        In addition, courts have recognized a distinction between what is
>distributed to the community and what is simply possessed in the home.  In
>Stanley v. Georgia, 394 U.S. 557 (1972), the Supreme Court first made the
>legal distinction between the distribution and the possession of obscene
>materials.  In Stanley, the Court held that an individual had the right to
>possess obscene materials, based on the privacy of the home.  While that
>case has been challenged throughout the years, the Court has continued to
>hold that possession of obscenity cannot be outlawed.  While the Court has
>refused to hold that Stanley requires states to permit obscene materials to
>be imported (United States v. 12 200-ft. Reels of Film, 413 U.S. 123
>(1973)), transported through interstate commerce (United States v. Orito,
>413 U.S. 139 (1973).  See also, United States v. Reidel, 402 U.S. 354) or
>sent over telephone wires (Sable Communications of California, Inc. v.
>Federal Communications Commission, 492 U.S. 115 (1989)), the Court's
>reasoning has been "that the States have a legitimate interest in
>prohibiting dissemination or exhibition of obscene material _when the mode
>of dissemination carries with it a significant danger_ of offending the
>sensibilities of unwilling recipients or of exposure to juveniles."  Miller
>v. California, 413 U.S. 15, 18-9 (1973) (emphasis added).
>
>        The "mode of dissemination" of electronic communications actually
>minimizes the stated dangers.  Unlike any other form of communication,
>networks and online services require passwords.  This is an important
>point, because the password provides the disseminator of the information
>with the opportunity to refuse access to children.  It also permits
>disseminators to prescreen and warn potential users of the system of the
>nature of the materials to be found online.  There is advance notice of the
>nature of the communications, which provides an uninterested consumer with
>the knowledge to avoid access.
>
>        In preparing the case against Robert and Carleen Thomas, Federal
>Postal Inspector David Dirmeyer applied for and was granted a password to
>the Amateur Action bulletin board system.  Before Inspector Dirmeyer was
>granted the password, he was screened to ensure that he was not a minor and
>was warned about the explicit nature of the materials.  In spite of the
>warnings, he chose to access the Amateur Action bulletin board system
>database and to download files -- a process that does not happen
>automatically or accidentally, but rather requires the knowledgeable and
>active participation and decision-making of the recipient to select
>specific items to retrieve and to run the program necessary for the
>retrieval and viewing of those items.  This was clearly not an undesired
>exposure to these materials.
>
>        In applying the federal law against interstate distribution of
>obscene material, the U.S. government is seeking to prevent adverse impacts
>on local communities that stem from causes that have a range and source too
>great to be handled by the local territorial community.  Absent some real
>or threatened adverse impact on the local community, the rationale for
>federal intervention fails.  Here, there was simply no such impact.
>
>        The fact that someone in Tennessee could call a computer in



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