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IP: Another Cyberporn Prosecution Article
From: Dave Farber <farber () central cis upenn edu>
Date: Thu, 08 Feb 1996 12:17:28 -0500
Date: Thu, 8 Feb 1996 11:07:17 -0600 From: shaynes () research westlaw com (Steve Haynes) Dave - Here's another cyberporn prosecution article from West's Legal News. You may distribute to IP. ---------------------Forwarded Mail----------------------------- Thursday, February 8, 1996 Cincinnati cyberporn case may be first to test 'Thomas' ruling By Jon Kerr, Staff Writer West's Legal News, 2/8/96 -- Obscenity charges facing two Cincinnati-area men may test the breadth of a recent 6th U.S. Circuit Court of Appeals case holding that courts are permitted to apply the contemporary community standards of their own geographical areas in determining whether cyberspace transmissions originating in another state are obscene. And their common attorney is admittedly worried that the Feb. 1 ruling by the Memphis-based 6th Circuit in U.S. v. Thomas may be too close at hand, physically and jurisprudentially. "It's a horrible decision and certainly doesn't help us. We can only hope the judge will agree with us and reject the 6th Circuit," said Cincinnati attorney Louis Sirkin, whose client Robert Emerson's motion to dismiss is expected to be ruled upon by a Clermont County judge sometime in the next two weeks. Sirkin also represents another bulletin board operator, Gilbert Vogt, whose trial on similar charges in Kenton County, Ky., is expected to get underway Feb. 27. Both men are only facing charges in their home states at this point. But prosecutors are expected to argue that the 6th Circuit's decision upholding the Thomases' conviction in Tennessee for knowingly transporting obscene materials via their California home-based bulletin board system (BBS) confirms cyberporn's vulnerability to local prosecution. "The defense attorney has tried to argue that the statute didn't cover transmissions by computers," said Clermont County Prosecutor Tim Rodenberg. "It does take that issue away from him." The Cincinnati cases may, however, be an even better test of computer transmitters' criminal liability when allegedly obscene electronic material is mixed with a variety of other materials and sources. "Bob [Emerson] doesn't even supply the adult content. He just makes the bulletin board available," said Sirkin, who said his client has been operating a BBS with a number of services for more than 10 years. "From a First Amendment lawyer's standpoint, this is really very disturbing." Prosecutors still must prove the material is both obscene and that the BBS operators knew of the obscene material, noted Sirkin. But the Thomas ruling has clearly eased their burden of proving the legal equivalence of computer transmissions with other forms of distribution. "As the equipment speeds up and technology gets better you may see even more of these prosecutions," predicts Sirkin. "We're moving ahead and coming back to a period of time when sexual content is going to be attacked again." CASES DISCUSSED -- United States v. Thomas, 1996 WL 30477 (6th Cir. (Tenn.) Jan. 29, 1996). -- Ohio v. Emerson, Clermont County Common Pleas (No. 95-CR- 005265). STATUTES -- KRS ' 531.020, Distribution of obscene matter, WESTLAW find: ky st 531.020 -- Ohio R.C. ' 2907.32, Pandering obscenity, WESTLAW find: oh st 2907.32 ARTICLE -- Cincinnati Post, "Cyber-porn ruling may affect Ky. cases," Page A8, Jan. 30, 1996, WESTLAW find: 1996 WL 5050661 RELATED WLN STORIES -- "Civil libertarians decry 6th Circuit ruling in Internet obscenity case," Criminal Law and Procedure, Feb. 5, 1996. -- "6th Circuit rejects new definition of 'community' in upholding bulletin board operators' obscenity convictions," Criminal Law and Procedure, Feb. 2, 1996. -- "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. -- "Internet is highway to indecency for minors, say police," Criminal Law and Procedure, June 14, 1995. 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 ATTORNEY -- For defendants: H. Louis Sirkin, partner Sirkin, Pinales, Mezibov & Schwartz, WESTLAW: WLD-OH database. West's Legal News, Copyright © West Publishing 1996
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