IP: Civil libertarians decry 6th Circuit ruling in Internet

[Dave Farber <farber () central cis upenn edu>]

Date: Tue, 6 Feb 1996 17:11:03 -0600
From: shaynes () research westlaw com (Steve Haynes)
To: farber () central cis upenn edu


Dave -
 
Here is an article from West's Legal News analyzing the Milpitas 
conviction affirmation.  I'm granting you permission to 
redistribute via IP (WLN falls under my management.)
 
Steve Haynes
 
* Stephen L. Haynes            Internet:  shaynes () research westlaw com
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_________________________________________________________________ 
 
Top of the News 
 
Headlines from West's Legal News 
 
_________________________________________________________________ 
 
Tuesday, February 6, 1996 
 
Civil libertarians decry 6th Circuit ruling in Internet obscenity 
case 
 
by Jon Kerr, Staff Writer 
 
West's Legal News, 2/6/96 -- A Jan. 29 ruling by the 6th U.S. 
Circuit Court of Appeals upholding the conviction of a California 
couple accused of interstate transport of obscene material to 
Tennessee by computer bulletin board drew strong expressions of 
concern from civil libertarians across the nation. 
 
In particular, the Memphis, Tenn.-based federal court's decision 
to apply the community standards of the Western District of 
Tennessee in determining whether the material was obscene may 
have a real chilling effect in cyberspace, predicted two 
prominent legal scholars familiar with the case. 
 
"I fear that it will reduce the community standards rule to kind 
of a least common denominator. We'll now have a national 
community standard for computer transmissions that is based on 
Memphis, Tenn. In effect, that was the result of the conviction," 
said Washington, D.C.-based attorney Robert Corn-Revere, a former 
chief counsel to the Federal Communications 
Commission (FCC). 
 
The defendants, Robert and Carleen Thomas, had argued that the 
standard for judging allegedly obscene material distributed 
through computer technologies should not be geographically based, 
but rather should be based upon the "community" of people in 
cyberspace. The 6th Circuit's decision not to address that 
revolutionary argument was somewhat understandable given the 
facts of the case, and the history of caution that courts have 
applied to other new technologies such as radio and television, 
said Corn-Revere. But the damage could still be major. 
 
"For people who have pursued the Internet because of the large 
amount of wide-open information out there, this is going to be a 
real shadow over the technology," he said. "There are cities in 
Georgia where courts have said that R-rated movies are obscene. 
So you can imagine the implications here." 
 
Satellite broadcasts and some telephone communications might also 
be affected, suggested Corn-Revere. 
 
"And it's ironic that it comes at the same time that Congress is 
looking at the Telecommunications Act and the Exon bill and 
setting limits on expression in cyberspace. It's going to be a 
lot to sort out," he said.  
 
"All computer bulletin board operators will have to think much 
longer and harder about what they have available for access," 
agreed William Byassee, chair of the American Bar Association's 
Science and Technology section, referring to the Thomas ruling. 
 
"It's one of those cases where hard cases make bad law. And it 
will be cited," he said. "The real test will come when someone 
with a variety of information on their bulletin board and one 
small byte of 'obscene' information gets accessed by someone from 
a conservative jurisdiction. If an art gallery puts up a 
Maplethorpe, are they subject to prosecution in Cincinnati? That 
is certainly a reasonable extension of this opinion. And 
Cincinnati is also part of the 6th Circuit." 
 
Byassee's greatest complaint with the 6th Circuit ruling was its 
reliance on U.S. v. Gilboe, a 2nd Circuit decision that held a 
defendant's transmission of electronic impulses could be 
prosecuted under a criminal statute prohibiting the 
transportation of money obtained by fraud. 
 
"I think the reliance on that case was unfortunate because the 
analogy does not hold. The electronic transfer of these bits 
doesn't equate to the physical transfer [of funds] in the Gilboe 
case," he said. "And I don't think that anywhere does the court 
focus on the fact that the Thomases had no part in the transfer 
other than making the information available. It's hard to feel a 
lot of sympathy for [the Thomases], practically speaking.  But 
criminal law also ought to apply to the unsympathetic." 
 
Byassee was not surprised that the 6th Circuit chose to focus on 
the fact that the Thomases' operation of the largest adult-
oriented electronic bulletin board in the United States out of 
their Milpitas, Calif., home included a password system that 
could have limited access to materials that could be considered 
obscene in Tennessee. That fact was cited by the Court as reason 
for not dealing with a proposed new definition of community 
standards. 
 
"No one, other than the Supreme Court perhaps, is going to 
attempt to modify the local community standards rule," he said. 
"I'm just sorry that this opinion is out here to cause even more 
difficulty." 
 
CASES DISCUSSED 
 
-- United States v. Thomas, 1996 WL 30477 (6th Cir. (Tenn.) Jan. 
29, 1996). 
 
-- United States v. Gilboe, 684 F.2d 235 (2d Cir. (N.Y.) July 23, 
1982), reh'g denied (Aug. 24, 1982), cert. denied, 103 S.Ct. 1185 
(U.S.N.Y. Feb. 22, 1983) (Electronic debiting and crediting, the 
means by which funds in defendant's scheme moved from one bank to 
another, constituted transportation of funds within meaning of 
statute proscribing transportation of funds obtained by fraud.) 
 
STATUTE 
 
-- 18 U.S.C.A. ' 1465, Transportation of obscene matters for sale 
or distribution, WESTLAW find: 18 usca 1465 
 
RELATED WLN STORIES 
 
-- "New York: Sending porno via E-mail would be a crime, under 
legislative bill," State Legislative Affairs, Jan. 26, 1996. 
 
-- "Congress near agreement on cybersmut bill," Criminal Law and 
Procedure, Dec. 13, 1995. 
 
-- "Cyberporn battles continue," Criminal Law and Procedure, July 
6, 1995. 
 
-- "Bill limiting cyberspace porn passes Senate; software 
companies propose alternative," Criminal Law and Procedure, June 
15, 1995. 
 
RELATED ARTICLES 
 
-- The Cincinnati Post, "Court: laws apply to computer porn," 
Page 8A, Jan. 30, 1996, WESTLAW find: 1996 WL 5050659 
 
-- Pittsburgh Post-Gazette, "Can the Internet be sanitized?" Page 
4C, July 25, 1995, WESTLAW find: 1995 WL 9524626 
 
-- Time, "On a screen near you: cyberporn - it's popular, 
pervasive and surprisingly perverse, according to the first 
survey of online erotica. And there's no way to stamp it out," 
Page 38, July 3, 1995, WESTLAW find: 1995 
WL 9021173 
 
-- The (Memphis, Tenn.) Commercial Appeal, "Banned in Memphis, 
City has high profile in obscenity case history," Page 1C, June 
1, 1995, WESTLAW find: 1995 WL 8639346 
 
-- The Associated Press, "Couple gets prison for transmitting 
obscene material in cyberspace," Dec. 2, 1994, WESTLAW find: 1994 
WL 10110597 
 
-- USA Today, "Sex, laws & cyberspace // Regulating porn: Does it 
compute?" Page 1D, Aug. 9, 1994, WESTLAW find: 1994 WL 11103218 
 
RELATED LEGAL ARTICLES 
 
-- Gallagher, "Free speech on the line: Modern technology and the 
First Amendment," CommLaw Conspectus 197, Summer 1995, WESTLAW 
find: 3 comlcon 197 
 
-- Goldman, "Put another log on the fire, there's a chill on the 
Internet:  The effect of applying current anti-obscenity laws to 
online communications," 29 Ga. L. Rev. 1075, Summer 1995, WESTLAW 
find: 29 galr 1075 
 
-- Rimm, "Marketing pornography on the information superhighway: 
A survey of 917,410 images, descriptions, short stories, and 
animations downloaded 8.5 million times by consumers in over 2000 
cities in forty countries, provinces, and territories," 83 Geo. 
L.J. 1849, June 1995, WESTLAW find: 83 geolj 1849 
 
-- Huelster, "Cybersex and community standards," 73 B.U. L. Rev. 
865, May 1995, WESTLAW find: 73 bulr 865 
 
-- Byassee, "Jurisdiction of cyberspace: Applying real world 
precedent to the virtual community," 30 Wake Forest L. Rev. 197, 
Spring 1995, WESTLAW find: 30 wflr 197 
 
-- Chiu, "Obscenity on the Internet: Local community standards 
for obscenity are unworkable on the information superhighway," 36 
Santa Clara L. Rev. 185, 1995, WESTLAW find: 36 sanclr 185 
 
-- Handelman, "Obscenity and the Internet: Does the current 
obscenity standard provide individuals with the proper 
constitutional safeguards?" 59 Alb. L. Rev. 709, 1995, WESTLAW 
find: 59 alblr 709 
 
-- Reske, "Computer porn a prosecutorial challenge: Cyberspace 
smut easy to distribute, difficult to track, open to legal 
questions," 80-DEC A.B.A. J. 40, December 1994, WESTLAW find: 80-
dec abaj 40 
 
JUDGE 
 
-- Hon. Nancy G. Edmunds, District Judge, U.S. District Court 
Eastern District of Michigan, sitting by designation, WESTLAW: 
WLD-JUDGE database. 
 
West's Legal News, Copyright ) West Publishing 1996