[Also appeared in _SF_Examiner_] VIRTUAL COMMUNITY STANDARDS BBS Obscenity Case Raises New Legal Issues By Mike Godwin At first glance, the obscenity prosecution of Robert and Carleen Thomas of Milpitas seem little different from the average obscenity prosecution. Sure, this case involves a computer bulletin-board system (BBS), but there's nothing new about prosecuting pornography distributors in conservative states like Tennessee, is there? Except that this BBS wasn't in Tennessee. It was in California. But that didn't stop Tennessee prosecutors from going after it. Because of the way BBSs normally operate, a conservative jurisdiction like Memphis may be in a position to dictate what's allowable on BBSs all over the country, from New York City to San Francisco. For this reason, the prosecution of the Thomases and their "Amateur Action BBS" calls into question the continuing validity of the Supreme Court's obscenity decision in Miller v. California, now more than 20 years old. That case, which was designed to allow communities to set their own standards of what is acceptable and what is obscene, has now been used for just the opposite purpose--it has allowed a Memphis prosecutor to dictate the content of a computer system in California. MEMPHIS REACHES OUT TO TOUCH SOMEONE The facts of the case are straightforward. The Thomases are the system operators (sysops) of an adults-only sexually oriented BBS in Milpitas, California. The operator of a BBS typically dedicates a computer and one or more phone lines at his home or business for the use of a "virtual community" of users. Each user calls up the BBS (using a modem connected to his or her telephone) and leaves public messages that can be read by all other users and/or private mail that can be read by a particular user. BBSs become forums--digital nightclubs, salons, and Hyde Park corners--for their users, and users with similar interests can associate with one another without being hindered by the accidents of geography. A BBS also can be used to trade in computer files, programs, and digital images, including sexually graphic images. A Tennessee postal inspector, working closely with an assistant U.S. attorney in Memphis, became a member of the Thomases' BBS. Once he had become a member, he did three things: he downloaded sexually oriented images, ordered a videotape (which was delivered via UPS), and sent an unsolicited child-porn video to the Thomases. This led to a federal indictment with a dozen obscenity counts, most based on the downloading of the computer images. The indictment also included one child-pornography count, based on the unsolicited video. At trial, the Memphis jury convicted the Thomases on all the obscenity counts, but acquitted them on the child-porn count. (A reporter at the scene who interviewed jurors said they believed the child-porn count smacked of entrapment.) The Thomases now face sentencing on the 11 obscenity convictions, each carrying a maximum sentence of five years in prison and $250,000 in fines. The Thomases' lawyer says they will appeal, based at least on part on a claim that the jury instructions as to "community standards" were incorrect. "This case would never have gone to trial in California," he has said. COMMUNITY STANDARDS AND BBSs It has long been held that obscenity is not protected by the First Amendment, but what qualifies as "obscenity" has not always been clear. After Miller v. California, a 1973 Supreme Court case, there has been no national standard as to what is obscene. In that case, the Court stated that material is "obscene" (and therefore not protected by the First Amendment) if 1) the average person, applying contemporary community standards, would find the materials, taken as a whole, arouse immoral lustful desire (or, in the Court's language, appeals 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. To put it in layman's terms, the trial court would ask something like these four questions: 1) Is it designed to be sexually arousing? 2) Is it arousing in a way that one's local community would consider unhealthy or immoral? 3) Does it depict acts whose depictions are specifically prohibited by state law? 4) Does the work, when taken as a whole, lack significant literary, artistic, scientific, or social value? If the answer to all four questions is "yes," the material will be judged obscene, and it will be Constitutional to prosecute someone for distributing it. (It should be noted in passing that pictures of the "hardness" of Playboy and Penthouse photography are never found to be obscene--their appearance in digital form on Usenet sites may create copyright problems, but they won't create obscenity problems. Remember also that "pornography" and "obscenity" are not identical categories--much pornography is not legally obscene.) Normally, an appeal on the issue of obscenity will focus on one or more of the answers to the four questions. If, for example, a Robert Mapplethorpe photo is found obscene at a trial, defense on appeal might argue that, even if the photo is sexually arousing in a way that violates community standards and state law, the work's social value renders it protected by the First Amendment. In hardcore porn cases, the defense might argue that, in fact, the community is highly tolerant of such images (in adult bookstores, films, and the like). It has long been held to be Constitutional to prosecute any porn vendors located in more liberal jurisdictions who have knowingly or intentionally distributed obscenity into conservative jurisdictions. Many large-scale commercial porn vendors have made deliberate decisions not to distribute their materials into jurisdictions likely to prosecute--postal inspectors frequently engage in "sting" operations in order to test whether a vendor will send obscene material into their states. This case is different, however. Consider: a seller of adult magazines normally makes a conscious decision to send his product into the jurisdiction in which he's prosecuted, thus establishing criminal intent for the purpose of an obscenity-distribution prosecution. In contrast, a BBS operator may be wholly unaware of the distribution--it may occur overnight, for example--due to the automatic operation of his software. What's more, even if the Thomases were to attempt to screen their users on a state-by-state basis, there's no guarantee that this attempt would protect them--a user could simply lie about which state he is calling from, or he could obtain a membership while living in California yet maintain it after he moved to Tennessee. Since a BBS operator cannot block out calls from conservative jurisdictions, there is inherent vulnerability for a BBS operator that exceeds that for traditional pornography distributor. While the Thomases' conviction with regard to the UPS-delivered video is likely to stand on traditional grounds, their convictions with regard to the downloaded images raise a number of critical issues. For example, does it make sense for a court to infer a defendant's criminal intent to distribute obscenity into Tennessee merely because neither he nor his BBS can ensure that someone cannot download that material into the state? More importantly, the case turns the whole community-standards doctrine on its head. The Supreme Court was attempting, in Miller v. California, to prevent the standards of acceptability in New York City or San Francisco from dictating the standards of Kansas City or Norman, Oklahoma. Yet if it's wrong for New York City to set the standards for Norman, it's surely just as wrong for Memphis to set the standards for Milpitas. Finally, the case raises the question of whether it makes sense to define "community standards" solely in terms of geographic communities. Now that an increasing number of Americans find themselves participating in "virtual communities" on services such as America Online, CompuServe, Prodigy, and the WELL, does it make make sense to have what those citizens are allowed to bring into their own homes be dictated by the arbitrary fact of where their physical homes happen to be. It's time for the courts to revisit the Miller obscenity standard. In the face of changes in communications media and the evolving nature of "community," the courts should modify the application of the Miller standard to prevent this kind of prosecutorial overreaching. Failing that, the courts should abandon the "community standards" approach altogether. Until these issues are addressed, this case will create a "chilling effect" all over the country, as BBSs either censor themselves or cease operations in order to avoid prosecution. The case sends a frightening message to virtual communities: "It doesn't matter if you're abiding by your own community's standards--you have to abide by Memphis's as well." Mike Godwin (godwin@eff.org) is staff counsel of the Electronic Frontier Foundation, a public-interest civil-liberties organization based in Washington, DC.