The Law: Virtual Community Standards

Prosecutors are using local definitions of obscenity to censor the global Net.


We're now past the first wave of Internet publicity. That was the wave in which mainstream news stories about the Internet increased one hundredfold—the wave in which jokes about the "information superhighway" crept into Letterman and Leno monologues.

But the second wave of Internet publicity—the one warning of the darker, more dangerous aspects of global computer networks—is now upon us. And for many journalists and prosecutors, no specter is darker than that of pornography online.

Take for example the July 12 Los Angeles Times story about the discovery of a pornography cache on the computers at Lawrence Livermore National Laboratories. The story, by Times staff writer Adam Bauman, is a hopelessly confused mishmash of various computer terrors: computer crime, espionage, criminal copyright infringement. The lead paragraph of the piece breathlessly combines those threads with the notion that computer "hackers were using pornography on government computers in ways that Bauman told readers "[d]ramatically illustrat[e] the security problems posed by the rapid growth of the Internet computer network."

Never mind that careful readers of the Los Angeles Times story could find no evidence that the porn had ever been used in any way that compromised the system's security—the hook had been set. Bauman and his editors knew that sex on the Net was a guaranteed draw. Of course, to Net habitues, a report that a government computer had been found to contain "more than 1,000 pornographic images was anything but news. As students of the history of communications media could have predicted, users of Usenet and similar networks began exploring ways of transmitting sex-related material as soon as scanners and bandwidth became reasonably cheap. In the online crowd, stories about stockpiles of pornographic GIF (Graphic Image Format) files are unlikely to inspire much more than a yawn.

But in the law-enforcement community and the mainstream press, the prospect of online obscenity is still an eye-grabber (although it should be noted that the Lawrence Livermore worker who stashed porn on government systems has been indicted on theft-of-computer-services charges, not obscenity charges). That factor does much to explain the hoopla surrounding the obscenity prosecution of Robert and Carleen Thomas of Milpitas, California.

At first glance, the case may seem little different from the average obscenity prosecution. Sure, there's a computer bulletin-board system (BBS) involved, 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 1973 obscenity decision in Miller v. California. That case, which was designed to allow communities to set their own standards of what is acceptable and what is obscene, now has been used for just the opposite purpose—it has allowed a Memphis prosecutor to dictate the content of a computer system in California.

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 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 nearly a dozen obscenity counts, most based on the downloads. 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 legal framework for the conviction in the Thomases' case is two decades old, and it reflects both an outdated understanding of "community" and the ongoing desire of some prosecutors and much of the religious right to turn back the clock regarding sexually explicit materials. It seems clear that by exploiting both the ambiguities of current obscenity law and the media's hunger for any crime stories related to sexual materials, these social conservatives hope both to "chill" the spread of sexual materials on the Net and to establish a broad, national scope for prosecutions of that material.

The irony is that a national standard of obscenity was what the Supreme Court had hoped to avoid. By creating a system of obscenity law based on "community standards," Chief Justice Warren Burger was trying to prevent the standards of acceptability in New York City or San Francisco from dictating the standards of Kansas City or Norman, Oklahoma.

Burger's formulation went as follows: Material is "obscene (and therefore not protected by the First Amendment) if 1) the average person, applying contemporary community standards, would find that the material, taken as a whole, arouses immoral lustful desire (or, in the Court's language, appeals to the "prurient interest"), 2) the material depicts or describes, 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.

(It should be noted in passing that GIFs of the Playboy and Penthouse variety are never found to be obscene—their frequent 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.)

In the 21 years since Miller v. California, it has 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. (This has included not only printed matter and videotapes but also scrambled television signals delivered directly to subscribers' homes.) 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 to test whether a vendor will send obscene material into their states.

But the Thomases' case is different. 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 attempted 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 moves 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 distributors. 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? And does it make 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 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?

More important, the case turns the whole community-standards doctrine on its head. 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.

Until those issues are addressed, this case will have 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." At the same time, both the Thomas case and the Lawrence Livermore case signal new opportunities for prosecutors who are increasingly uninterested in going after traditional adult book and video stores: Bust someone for online porn and you'll make national headlines.

What those cases signal about freedom of expression in this country is clear. The high court's attempt in Miller to escape the choice between setting a national standard for obscenity and abolishing obscenity law altogether has led to a constitutional regime in which the most conservative jurisdictions in the country can set the standards for the rest of us. Which means that so long as the press shows an appetite for this kind of story, and so long as prosecutors are ready to feed that appetite, no carrier of online sexual materials in any jurisdiction is safe.