FREE SPEECH & THE INTERNET FALA WINTER MEETING, 2010 By: J. D. OBENBERGER J.D. OBENBERGER AND ASSOCIATES XXXLAW® www.xxxlaw.com 1. Commmunity Standards Cases THE NINTH CIRCUIT HOLDS THAT INTERNET OBSCENITY MUST BE JUDGED BY NATIONAL COUMMUNIT STANDARDS – THE ELEVENTH CIRCUIT AND A TRIAL JUDGE IN DC DECLINE TO FOLLOW THE NINTH CIRUIT A constellation of decisions in three cases addressed the application of community standards to the first and second fork of the Miller Test with respect to Internet content against defense contentions that national standards must be applied: United States v. Kilbride, 584 F3d 1240, 2009 WL 3448360, 2009 ILRWeb (P&F) 2877, 28 ILR (P&F) 376 (9th Cir., 2009)1. United States v. Little, No. 08-15964, 2010 WL 357933, 2010 ILRWeb (P&F) 1207, (11th Cir., February 2, 2010) (Unpublished, per curiam) United States v. Stagliano, Memorandum Opinion, No. 1:08-cr-00093-RJL, Criminal Action No. 08-93 (D.D.C., Feb. 19, 2010). 1 Kilbride is also treated below regarding constitutional challenge to the CAN SPAM Act. Copyright 2010 J. D. Obenberger 1 No claim of copyright is made as to the text of any court document quoted nor any publication of the United States Government. A. Kilbride FACTS Jeffrey Kilbride and his co-defendant were indicted and tried in Phoenix with respect to the following counts: Conspiracy to violate 18 U.S.C. § 1037(a)(3) through fraud in connection with electronic mail; violation of § 1037(a)(3) and (a)(4) through such fraud; interstate transportation of obscene materials in violation of 18 U.S.C. § 1462; interstate transportation of obscene materials for sale in violation of 18 U.S.C. § 1465; commit money laundering in violation of 18 U.S.C. § 1956; and failure to meet record keeping requirements in violation of 18 U.S.C. § 2257. Convicted by jury on all Counts, June 25, 2007. They were sentenced to 78 mos. (Kilbride) 63 mos. (Schaffer). The Ninth Circuit was not petitioned for review en banc; It is not clear whether a cert petition will be filed. The defendants remain free on appellate bond. The allegations arose from the transmission of spam email containing sexually explicit images; One of the emails contained a montage with a thumbnail image of a fist inserted into a vagina. TRIAL The Government introduced substantial evidence concerning attitudes toward pornography extrinsic to the District of Arizona; at trial, the Government introduced evidence of 622,000 complaints from around the country to the Federal Trade Commission (and the contents of some of those complaints) and it presented eight (8) witnesses from different parts of the country who testified concerning the “circumstances under which they received Defendants’ emails, their reactions to and attitude towards the images sent by Defendants, and their views on pornography generally.” 584 F.3d at 1245. The meaning or identity of the “community” relevant to the elements was not defined or identified. However, the jury was instructed as follows with respect to the community: what is in fact accepted in the community as a whole; that is to say by society at large, or people in general, and not merely by what the community tolerates nor by what some persons or groups of persons may believe the community as a whole ought to accept or refuse to accept. The ‘community’ you should consider in deciding these questions is not Copyright 2010 J. D. Obenberger 2 No claim of copyright is made as to the text of any court document quoted nor any publication of the United States Government. defined by a precise geographic area. You may consider evidence of standards existing in places outside of this particular district. The parties have presented evidence concerning contemporary community standards. You should consider the evidence presented, but you may also consider your own experience and judgment in determining contemporary community standards. [Emphasis added.] The Defendants did not request an instruction that the standards of the nation as a whole should apply. There was no relevant objection to the instructions. Accordingly, the standard of review was Plain Error. Plain Error review requires the reviewing court to find (1) an error that is (2) plain and (3) affects substantial rights. Even if these conditions are met, the reviewing court exercises discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. 584 F.3d at 1247. APPEAL TO THE NINTH CIRCUIT Appellate counsel made bookended alternative arguments; ) First, that the instructions permitted the jury to apply a community standard extrinsic to the District of Arizona contrary to the Supreme Court’s holding in Hamling v. United States, 418 U.S. 87, 106, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); and (alternatively,) ) Second, that jury should have been instructed in a case involving communication via mass email on the Internet, to apply a nationwide community standard as a result of the “fractured decision” in Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002). The Ninth Circuit roundly rejected the first argument: It held that there was no prejudicial error. It observed that the relevant community was general rather than Copyright 2010 J. D. Obenberger 3 No claim of copyright is made as to the text of any court document quoted nor any publication of the United States Government. geographic and that it was for the jury to determine the community and its standards, finding support at Hamling, 418 U.S. 104-05, 94 S.Ct. 2887; United States v. Cutting, 538 F.2d 835, 841 (9th Cir.1976) (en banc); and United States v. Dachsteiner, 518 F.2d 20, 22 (9th Cir.1975). With respect to the second argument, it found that the trial court erred by failure to instruct on a national “community standard”. Following Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Ninth Circuit determined that in Ashcroft, the Supreme Court had held that national community standards must be applied in judging obscenity alleged to have been distributed via the Internet: Justice Thomas's opinion held broadly that application of either a national community standard or local community standards to regulate Internet speech would pose no constitutional concerns by itself. None of the remaining justices, however, joined that broad holding. Justices O'Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. Justice O'Connor's and Justice Breyer's opinions, therefore, agreed with a limited aspect of Justice Thomas's holding: that the variance inherent in application of a national community standard would likely not pose constitutional concerns by itself. They did not join his broader conclusion, however, that application of local community standards is similarly unproblematic. In this latter disagreement, Justices O'Connor and Breyer were joined by Justice Kennedy's opinion, as well as Justice Stevens's dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. accordingly, following Marks, we must view the distinction Justices O'Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling. [¶] Accepting this distinction, in turn, persuades us to join Justices O'Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. To “avoid the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a Copyright 2010 J. D. Obenberger 4 No claim of copyright is made as to the text of any court document quoted nor any publication of the United States Government. national community standard when disseminated via the Internet. 584 F.3d at 1254. [Citations omitted, emphasis added.] This holding means that the Phoenix jury was not properly instructed; despite the error, the Ninth Circuit declined to reverse, holding that the error was “far from plain” and, in fact, based on its “distillation” [!] from “various decisions” in Ashcroft. 584 F.3d at 1256. The Ninth Circuit affirmed the conviction and the sentence. The Ninth Circuit also rejected defendants’ contentions QUESTIONS ABOUT COMMUNITY STANDARDS PRESENTED IN KILBRIDE: 1. Did any of the “fractured opinions” in Ashcroft control the Court’s judgment reversing the Third Circuit? Are the fractured views of the justices just dicta? 2. Kilbride’s conviction was affirmed, and the Ninth Circuit holds plainly that there was no reversible error. Does that render its own ruminations concerning a national standard as dicta? 3. Given the Government’s use of evidence concerning 622,000 FTC complaints, including the contents of some of them, from all over the country, its use of eight (8) witnesses from around the country, and instructions alluding to the community as “society at large”, and the absence of any geographic limitation in the instructions, did the Ninth Circuit believe that Kilbride essentially was judged on a national standard, and is that the real reason why it found no prejudice in the error beyond reasonable doubt? B. Little – “Max Hardcore” FACTS Paul Little, under the persona known as “Max Harcore”, is a well-known producer of porn that is regarded, even within the adult industry, as extreme in nature and hard in character.