The case of the Thomases
EFF 8.01:
* AABBS Update: Keith Henson, who has been tracking the AABBS case,
in which Calif. BBS sysops were tried in Memphis for alleged violations of
Tennessee community standards, noted in a _Computer_underground_Digest_
article that as of Jan. 21, 1995, the AABBS co-sysops were denied bail, and
that co-sysop Robert Thomas must report to a (possibly intentionally
distant) federal prison in Springfield, MO on Feb. 8. Co-sysop Carleen
Thomas, Robert's wife, was sentenced to two years and two months in a
federal pennitentiary, and must report for incarceration on July 12 in
Dublin, CA. The AABBS system continues to operate, and is their sole
source of income and legal defense funding aside from donations from the
online community.
It it probable that the AABBS operators' appeal will be hampered by this
unreasonable incarceration, as it will be difficult if not impossible to
prepare all the evidence, much of which requires access to the Thomases'
computer equipment.
Carleen and Robert Thomas were found guilty in 1994 of several charges,
including obscenity counts, despite the fact that the prosecution
clearly perverted the purpose of the community standards processes of
obscenity cases, which were intended to ensure that defendants are tried
under the standards of their own communities, rather than those the
government thinks are most conservative and will most easily generate a
conviction; despite the fact that it is highly questionable whether the
standards of a terrestrial community are at all logically applicable to a
virtual community which is not tied to any particular physical political
jursidiction; despite the fact that most legal commentators seem to
agree that the case would not only have not resulted in a convinction in
the Thomases' native Calif., but would not have even resulted in a trial;
and despite fact that the technology in question requires that the
recipient of the downloaded material search for and specifically request
the material - the Thomases did not send obscene files to Tennessee;
rather Tennessee law enforcement purposefully selected and imported
allegedly obscene material into Tennessee of their own free will and in full
cognizance of their actions and the nature of the material.
EFF provided information for the Thomases' defense in the original case,
and hopes to assist in their appeal.
Date: Wed, 19 Apr 1995 21:06:40 -0400 (EDT)
From: Stanton McCandlish <mech@eff.org>
Subject: EFF AABBS Amicus Brief in Support of the Thomases (Appellants)
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
California, or indeed anywhere else in the world, to access materials the
physical sale of which might be prohibited in Tennessee, is neither news
nor reason for concern. As noted, a citizen of Tennessee might get on a
plane and go anywhere in the world in short order and be exposed to or
obtain and bring home similar material. Accessing materials through a
computer screen is most often, and was in this case, an entirely private
matter with no risk of accidental or incidental exposure. Even if
conducted in groups in a private setting, it is akin to reading books or
other materials that might be physically obtained and imported into the
local jurisdiction with impunity. It does not involve posting signs,
entering into sales transactions, establishing a building, or taking other
steps of any kind that might even become known to, much less adversely
impact upon, the members of the local geographic community.
Acknowledging the lack of impact of the actions involved in this
case on the local community, and finding that the federal government had no
legitimate basis on which to prohibit such activity, does not amount to a
concession that the local geographic community might not regulate actions
that had such an impact. If a local system operator or user were to sell
admission to view the screens in question, for example, or if the local
user were to have displayed the screens in question in a store window, then
perhaps the local community could impose some sort of regulation. But no
such local commercial activity nor any such public exhibition occurred in
this case.
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.
Communities, it seems, no longer depend on physical location, and
old legal definitions that look to physical location no longer work in a
world where individuals regularly "visit" places that have no physical
location. Howard Rheingold, who has authored a book describing his
interactions on the WELL, a virtual community he considers home, described
the relationship:
A virtual community is a group of people who may
or may not meet one another face-to-face, and who
exchange words and ideas through the mediation of
computer bulletin boards and networks. In
cyberspace, we chat and argue, engage in
intellectual discourse, perform acts of commerce,
exchange knowledge, share emotional support, make
plans, brainstorm, gossip, feud, fall in love,
find friends and lose them, play games and
metagames, flirt, create a little high art and a
lot of idle talk. We do everything people do
when people get together, but we do it with words
on computer screens, leaving our bodies behind.
Millions of us have already built communities
where our identities commingle and interact
electronically, independent of local time or
location.
Howard Rheingold, "A Slice of Life in my Virtual Community," Global
Networks: Computers and International Communication 57 (1993). See also,
Howard Rheingold, The Virtual Community: Homesteading on the Electronic
Frontier (1994).
Each participant in this form of communication chooses not only
whether, when and where to participate, but also whether to send or receive
information at any specific time; at what rate writing and reading (sending
and receiving) will occur; and what topic this communication will concern.
Hiltz and Turoff, The Network Nation 29 (1993). Participants also have the
option of "filtering" out messages and files in many ways, ranging from
simply choosing not to download files to sophisticated text analysis
programs that can effectively block receipt of all messages containing
non-text files such as graphics or containing certain words, phrases or
names.
If application of local, geographically-based community standards
to determine whether material is "obscene" is inappropriate in this new
context, how, then, can that determination be made with due regard to the
rights of members of various communities to establish their own divergent
standards? EFF respectfully submits that the very best source of a
definition regarding what constitutes "obscenity," for purposes of
determining when U.S. (or other) law should intervene to prohibit
electronic distribution of materials, is the standard set by the community
of users that, collectively, set the rules applicable to any particular
online forum in question. Where, as here, the nature of the materials is
clearly disclosed on warning screens encountered as the users access the
system, or is otherwise made plain, those who sign on -- who voluntarily
join the community -- have already determined that the materials in
question do not violate their own sensibilities, or have accepted
responsibility for their own sensibilities should the material offend them
after all. If the operators of a system were to post materials that
violated the collective standards of that user community, the community in
question could quickly correct things by voting with their modems to go
elsewhere.
Like any other community, online communities use censure and other
peer group actions to enforce their own rules. Violators of these rules
will find themselves ejected, ignored, lambasted, or gently guided as
apropos to the transgression. This process is directly and
incontrovertibly analogous to its physical-world counterpart. When
violators of the standards of geographical communities become unbearable,
people either remove themselves from the violator's presence, eject the
violator, or attempt to correct the violator's behavior. When legal action
is sometimes required, the standards of the local community are applied,
not those of a distant town in another state, nor those of any hypothetical
national censorship body.
As one might expect, online communities have in practically all
cases developed their own arbitration and dispute-resolution systems --
applying their own community standards to their own issues and problems
spontaneously in the absence of directives compelling them to do so. These
compromise and arbitration systems vary with the scale and sophistication
of the online community, and range from a single arbitrator or moderator,
through "town hall" committee-like structures (often informal, but still
effective), to complex systems of community-approved (and enforced)
regulations complete with fines and even "incarceration" (temporary removal
from the online community, with no ability to send or receive messages or
files to and from the group in question). In fact, some communities have
even invoked the "death penalty," completely deleting a recalcitrant's user
i.d. from the system. See, e.g., Julian Dibbell, "A Rape in Cyberspace,"
The Village Voice, December 21, 1993, 38(51): pp. 36-42.
We reaffirm the right of communities to regulate the contents of
the materials to which their members are exposed. Part of this right is
the right of a community not to have its standards dictated by another
community. Miller v. California, supra. Those who wish to associate for
religious purposes, for example, should have a right to establish places
where materials inconsistent with those purposes are excluded. Those who
wish to exchange speech offensive to others should have an ability, indeed
have a right, to establish spaces where such speech can be exchanged. The
First Amendment exists to protect potentially offensive speech, as no one
tries to ban the inoffensive kinds. Communities and places should not be
defined exclusively in terms of physical geography, particularly when
community standards and self-regulation are already evolving rapidly in the
online world. The trial court's decision, if allowed to stand, will tear
apart these years of online community self-moderation and internal
arbitration development, all without any notable benefit or protection to
any community, geographically defined or otherwise.
This is an age when computer networks allow the formation of
virtual communities, globally, without any significant impact on local,
territorial communities. Any decent regard for preservation of freedom of
expression and the free flow of information (at least other than
information posing more direct physical threats to local communities than
those presented in this case) requires protection of the right of each
individual to associate with others, to communicate freely with others and,
in effect, to "travel" throughout the online spaces made available by the
global networks.
The boundaries between online places and communities are the tools
used for ensuring voluntary association, such as the passwords and warning
screens used in this case. These passwords and screens provided ample
opportunities for anyone in Tennessee to avoid coming into contact with the
materials in question. They also provided the opportunity for people who
share the standards of the community to establish and implement that
community standard.
In most online contexts, receipt of materials must be actively and
willfully initiated by the receiver, not the sender. In addition, password
schemes permit parents to readily supervise (and, if the parents choose, to
easily prevent) their own children's access to online materials.
Determining what is appropriate for their children are parents' rights and
responsibilities (Wisconsin v. Yoder, 406 U.S. 205 (1972)), and this
screening capability is not available in telephony or postal mail and
package shipping, nor in broadcast television or radio.
Today's technology provides "space" in which system operators like
the Thomases can form communities with others of similar interests.
Communication in this space happens quietly and does not interrupt, offend,
or otherwise intrude upon people of differing interests. The materials
that travel in this space should be judged by the standards of the local
"residents" therein. The community of Memphis citizens has few or no
members in common with the community of Amateur Action bulletin board
system users and maybe even the larger community of adult-oriented bulletin
board system users. The standards of the bulletin board system users are
the correct community standards to apply.
The Thomases may reasonably have believed that California
standards, like the standards of the Amateur Action bulletin board system
community, permit the materials in question. This is clearly not a case in
which the electronic community's standards are beyond the pale. To punish
this speech, the government must establish a more compelling interest which
would prohibit using an online community's standards to judge speech and
publication in that community. The standards of the group that voluntarily
joined together to establish and use the bulletin board system in question
should govern.
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.
Electronic communications are different than other forms of
communications, and this difference must be legally recognized in order to
avoid a severe chilling effect on speech on the networks. The Supreme
Court has "long recognized that each medium of expression presents special
First Amendment problems." FCC v. Pacifica Found., 438 U.S. 726, 748
(1978). Broadcast radio and television are treated differently under the
law than cable television, which, in turn, is treated differently than
magazines and books. Factors such as risk of exposure to children and
uninterested adults, level of intrusion, and spectrum or bandwidth scarcity
have all been taken into account in determining appropriate limitations of
speech by government. The requirements placed on the Thomases and other
system operators by the trial court's ruling will have a chilling effect on
the provision of online services.
Given that it was lawful for the system operators convicted in this
case to maintain their bulletin board system system physically in the
geographical community where it was located, the only way in which they
might have avoided violation of the distribution law, as interpreted by the
trial court, would have been to establish elaborate technical means to
screen incoming calls. This may not even be physically possible, in light
of the growing ability to route networked communications through numerous
locations, and the failure of technology like calling line identification
("caller i.d.") to be deployed globally and interoperably. Even if some
steps might provide some such screening of calls originating from
territories that disapprove of the content in question, however, no
obligation to take such steps should be established. Any such doctrine
would seriously burden the entire communications infrastructure. It would
impossibly require system operators, who may not have the resources to
retain regular legal counsel, to stay informed regarding the rules of
countless local jurisdictions. In effect, only the wealthy would afford to
operate. And it would interfere with the interoperability of computer
based communications systems.
Additionally, the invasiveness of some forms of the technology that
might in the future be able to provide enough identifying information to be
used for such screening is controversial and may pose very serious privacy
problems. Given this, the lack of clear standards, and other reliability
and authentication issues, no court should mandate the use of this unproven
and possibly easily-exploitable technology.
Cases upholding convictions of those who send physical objects
through the U.S. mail are distinguishable. In such cases, it is easy for
the distributor of material obscene under Tennessee standards to decline to
send physical objects to that jurisdiction. In contrast, the system
operators in this case had no way to check in advance where any particular
person might be calling from. They did not themselves take the steps
required to send the copy to the local jurisdiction. And the installation
of mechanisms designed to protect against such an occurrence would be both
expensive and unfeasible, and, in fact, probably physically impossible.
The question presented by this case is, in essence, how best to
protect Tennessee citizens from what they consider the adverse effects of
"obscene" materials while preserving, as fully as possible, the right of
groups with differing sensibilities to associate and to form communities
that establish and enforce different standards. Ultimately, that question
reduces to one involving who should bear the burden of preventing undesired
exposure to offensive material -- combined with the question of how,
generally, to preserve the free flow of lawful information and the right of
all groups lawfully to associate. EFF submits that the appropriate answer
is to be found in exactly the kinds of labeling and password protection
schemes found in this case. Requiring system operators like the Thomases
to accurately label and appropriately fence off potentially offensive
materials is appropriate. Thereafter, any local territorial community that
wants to enforce its own obscenity standards has a duty to use tools to
help it stay away from the offending materials.
CONCLUSION
Applying Tennessee community standards to the Amateur Action
bulletin board system would have the perverse effect of imposing unworkable
burdens on system operators and all providers of electronic communications
and computer based information services, or of imposing a single national
(or perhaps even global) standard regarding what constitutes obscenity, or
of prohibiting an otherwise constitutionally protected free exchange of
speech under circumstances in which no significant detrimental impact on
local territorial communities could be shown.
For the foregoing reasons, Amicus Curiae Electronic Frontier
Foundation respectfully asks this Court to reverse the District Court's
convictions regarding files downloaded from the Amateur Action bulletin
board system.
Respectfully submitted,
Shari Steele
Michael Godwin
ELECTRONIC FRONTIER FOUNDATION
1667 K Street, N.W.
Suite 801
Washington, DC 20006
(202) 861-7700
Internet: ssteele@eff.org
By:
Shari Steele
By:
Michael Godwin
ATTORNEYS FOR AMICUS CURIAE
ELECTRONIC FRONTIER FOUNDATION
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing
BRIEF FOR AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION has been mailed,
certified mail, return receipt requested, to the following:
Matthew Paul
Thomas J. Nolan
NOLAN & ARMSTRONG
600 University Avenue
Palo Alto, CA 94301-2976
James D. Causey
CAUSEY, CAYWOOD, TAYLOR & MCMANUS
230 Adams Avenue
Suite 2400, 100 North Main Building
Memphis, TN 38103
Dan Newsom
Office of the U.S. Attorney
167 North Main Street
Suite 1026, Federal Office Building
Memphis, TN 38103
on this the 19th Day of April, 1995.
By:
Shari Steele
H. Keith Henson
(408) 972-1132 (408) 867-0438
799 Coffey Ct. Kubik Enterprises (CDROM Jukeboxes)
San Jose, CA 95123 18873 Allendale Ave.
Saratoga, CA 95070
Lenny Foner
Last modified: Thu May 18 04:31:20 1995