Internet Obscenity Conviction Requires Assessment of National Community Standards–US v. Kilbride

By Eric Goldman

U.S. v. Kilbride, 2009 WL 3448360 (9th Cir. Oct. 28, 2009)

Jeffrey Kilbride and James Schaffer were porn spammers, operating through Ganymede Marketing, a Mauritian company. I previously blogged on their case in 2007. Their spam failed to comply with CAN-SPAM in several respects, including forged headers, fake email addresses and bogus contact info. The FTC claimed that it had received over 662,000 complaints about their spam. After a 3 week trial, a jury convicted them of criminal CAN-SPAM violations, criminal obscenity for 2 spammed images and other charges. Kilbride was sentenced to 6 1/2 years and Schaffer got over 5 years. Both appealed their convictions.

In the resulting Ninth Circuit opinion, the most important discussion relates to their obscenity convictions. The Supreme Court defined obscene material in the Miller case as:

(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable … law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value [emphasis added]

On the Internet, the question arises: whose community standards? The Miller test anticipates that geographically dispersed communities could have different norms, and in theory an Internet content publisher needs to conform to all of them or at least the most restrictive ones. For an early example of this, see United States v. Thomas, 74 F.3d 701 (6th Cir. 1996) (involving a dial-in BBS). However, the cost and limitations of geographic authentication technology means that many Internet content publishers can’t steer their content into or away from a particular geography. Personally, I think this is especially true for publishing content by email because I know of no effective way to accurately authenticate the geography of most email recipients.

The US Supreme Court squarely wrestled with the issue of disparate geographic communities being collapsed on the Internet in 2002 in its first Ashcroft v. ACLU ruling (this should be distinguished with the more influential second Ashcroft v. ACLU opinion from 2004, which I still teach today in Cyberlaw). That case involved a challenge to the 1998 Child Online Protection Act (COPA), and the Third Circuit had affirmed a preliminary injunction against COPA on the grounds that the application of a “contemporary community standards” clause to Internet publication was constitutionally infirm due to disparate community standards. In 2002, the US Supreme Court reversed the Third Circuit in a massively fractured way, with 5 different opinions and no clear consensus on anything.

To resolve this appeal, the Ninth Circuit had to divine a single rule of law from this mess-o-opinions. After parsing the inscrutable Supreme Court opinions, the Ninth Circuit concluded that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email.” Whether or not the Ninth Circuit read the Ashcroft v. ACLU precedent correctly, it reached the only logical outcome for a communication medium without clear geographic authentication. Nevertheless, this is hardly an unquestionable conclusion; the Miller case expressly rejected a national standard (whatever that means): “obscenity is to be determined by applying ‘contemporary community standards’…not ‘national standards.'” Presumably, the 2002 Ashcroft v. ACLU opinion overwrote this statement from Miller (and similar statements in earlier obscenity cases), but no one really understands what the Supreme Court said in 2002.

While the Ninth Circuit reached a sound result, its ruling doesn’t help these appellants. Even though the district court provided different jury instructions, the Ninth Circuit concluded that the district court’s instructions were not “plain error” (the applicable review standard), so the convictions stand. Harsh.

Even if appellants wrested a reversal, I’m not sure it would matter because I have never fully understood the import of regionally disparate “contemporary community standards.” The phrase only explicitly modifies the Miller test’s determination of whether a work “appeals to the prurient interests”–basically, whether the work appeals to content consumers’ interest in sex. Community standards can also implicitly come into play with the determination of what is “patently offensive” or the perceived value of the work, but these are not explicitly referenced in the Miller test.

With respect to the prurient interest reference, I could imagine regional differences about some borderline cases (say, a sex education tutorial) or with respect to niche sexual interests, where the niche audience would find that the work appeals to their esoteric interests and the remainder of a region’s population might find the work so unappealing that it’s not viewed as sexually interesting at all. But for a lot of “mainstream” pornography, my guess is that there are not meaningful regional differences about the work’s sexual appeal. I haven’t seen the 2 images at issue in this case, so maybe they fall into the borderline cases. Otherwise, I wonder if a new trial using national community standards would actually change the result. (Another reason for skepticism: our rage towards spam frequently causes us to ignore the rule of law when we have a chance to punish spammers).

In the ruling, the Ninth Circuit also rejected the defendants’ facial and as-applied challenges to the criminal CAN-SPAM provisions. The defendants focused their attack on CAN-SPAM restrictions on falsifying information in a way that would “impair” spam blocking. The court concludes that none of the provisions are constitutionally too vague. This wasn’t really a close case for the as-applied challenge because of the defendants’ egregious handling of their email campaigns. In contrast, I would like to think the facial challenge has not been resolved permanently; these were clearly not the right defendants to raise or litigate the facial issues.

Along the way, the Ninth Circuit takes a swipe at domain name proxy registrations. Pulling a quote only slightly out of context, the court says “Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute ‘material falsification'” (one of the elements of a CAN-SPAM crime). You may also recall the recent Solid Host v. NameCheap case suggesting that proxy service providers could face contributory ACPA liability. Collectively, these two opinions indicate legally disadvantageous treatment for proxy service usage. Given this disconcerting trend, I don’t see the domain name proxy business as a growth industry.

Thomas O’Toole also discusses the ruling.