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newsday column by quittner concerning the Memphis BBS prosecution
From: David Farber <farber () central cis upenn edu>
Date: Wed, 17 Aug 1994 11:29:56 -0400
PUBLICATION DATE Tuesday. August 16, 1994 EDITION ALL EDITIONS HEADLINE COMPUTERS IN THE 90s LIFE IN CYBERSPACE The Issue of Porn on Computers BYLINE Joshua Quittner Newsday Staff Writer (c) Newsday LENGTH 83 Lines BRUCE KRAMER, an attorney in Memphis, Tenn., read the local headlines one day last month, and winced. It was the day a federal jury there found an out-of-state couple guilty on 11 counts related to distributing pornography from their home-based computer bulletin board in Milpitas, Calif. Robert Thomas, 38, and his wife Carleen, 39, face a maximum penalty of 5 years in jail and $250,000 fine for each count. Kramer took one look at the story and thought the clock had been rolled back to 1976. That was the year that the U.S. attorney's office, again in Memphis, charged 60 people and companies for conspiring to transport "an obscene, lewd, lascivious and filthy motion picture" across state lines. The motion picture was "Deep Throat," and Kramer, an American Civil Liberties Union attorney, represented the porn star, Harry Reems, whose work in that film has always been overlooked, I think. You should know that "Deep Throat" wasn't even being shown in Memphis at the time (that is, until federal prosecutors screened it for the jury). The case was brought on the theory that a copy of the movie was flown over that prudish city in an airplane, en route elsewhere. Memphis, with its conservative juries, was selected by federal authorities as a fine place to crack down on the newly burgeoning dirty-movies business. And now, here we are again. Same charges, only this time, our government is using Memphis to combat porn on computers. The July 28 verdict sets a dangerous precedent. It means that if you have questionable material on your computer system, and your system is open to the public - whether over direct phone lines, like the Thomases, or the Internet - the U.S. attorney's office in Memphis wants you. "The message going out there is, do this at your peril," Kramer said. "This is censorship any way you look at it." The standard for obscenity prosecution is a 1973 U.S. Supreme Court decision that held that obscenity is a matter best left for the local community to decide. "The idea is that they didn't want to have New York and Times Square setting standards for places like Memphis," explained Mike Godwin, an attorney with the Electronic Frontier Foundation, a nonprofit organization concerned with civil liberties in cyberspace. But that test - community standards - has been rendered meaningless by the very notion of cyberspace, a "community" without geographic boundaries. What is the community standard of the world, after all? The Thomas verdict perverts the intent of the Supreme Court holding because it would effectively "allow Memphis to set standards for places like Milpitas," Godwin said. The relevant facts of the case are pretty straightforward: The Thomases operated a BBS, or bulletin board service, called Amateur Action BBS, which had 3,500 users nationwide. Subscribers paid $99 a year to access the board, where they could choose from more than 20,000 digital images of people engaged in all flavors of sex. Some of the images involved animals; others purported to involve incest and other taboos. Most of them were in a directory with one-line descriptions that used words that cannot be printed here. Which is to say, it was a bulletin board just like scores of others around the United States. I could find you a dozen just like it on Long Island and in New York City; I could, if I had as much free time on my hands as federal investigators in Memphis, that is. In any event, a U.S. Postal Service inspector, who was working undercover, logged into the AA BBS and downloaded a whole mess of sweaty pictures, which became Exhibits A, and B, and so on, right down the alphabet, and which clearly moved the jury. Defending the First Amendment, after all, takes a pretty strong stomach sometimes, and may even require you to defend someone's right to publish something that you find grotesque. The postal inspector also sent the Thomases pictures of child porn, which they did not solicit, and which caused local federal agents to raid the Thomas residence 10 to 15 minutes after the mail carrier delivered the pics. The Memphis jury did not find the couple guilty of receiving and trafficking in child porn. So what will happen in the Thomas case? Kramer's prognosis is this: The case will doubtless be appealed to the Sixth Circuit Court of Appeals, which Kramer said has a reputation for conservative jurisprudence. Assuming it upholds the trial court, the case could then be appealed to the Supreme Court, which could be asked to revisit its 1973 holding, and redefine the very notion of community standards, where the community is held together by modems and wire. In the meantime, though, Memphis appears to be setting the community standards for all of us. "During the `Deep Throat^ trial, my brother, a fairly intelligent individual, came into town and was amazed that there was not more [media] coverage because of the significance of the prosecution," Kramer said. "I have the same feeling now, twenty years later, with respect to the prosecution of this case. People should be up in arms that the government is trying to impose censorship." To contact Joshua Quittner via e-mail on the Internet: quit () newsday com
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- newsday column by quittner concerning the Memphis BBS prosecution David Farber (Aug 17)