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. § 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 communityin 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.