9th Circuit: National community standard must be applied in regulating Internet obscenity
U.S. v. Kilbride, No. 07-10528, 584 F.3d 1240 (9th Cir., Oct 28, 2009)
9th Circuit: “Community standards” are national rather than local when obscenity is transported via email.
At issue in this case is the kind of community–e.g., local, global, national–to which a judge or jury must make reference when determining obscenity according to the “contemporary community standards” doctrine set out in the first prong of the Miller test. In Miller v. California, 413 U.S. 15 (1973), the Supreme Court held that “the basic guidelines for the trier of fact [in obscenity cases] must be:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.
Defendants Kilbride and Schaffer were convicted on several charges stemming from the operation of a “bulk email advertising [spam] business,” including convictions on four counts of interstate transportation of obscenity in violation of 18 U.S.C. § 1462 and 18 U.S.C. § 1465. In its instructions to the jury, the district court asked that jurors consider “what is in fact accepted in the community as a whole; that is to say by society at large, or people in general” and “[t]he ‘community’ you should consider in deciding these questions is not defined by a precise geographic area. You may consider evidence of standards existing in places outside of this particular district . . .you may also consider your own experience and judgment in determining contemporary community standards.”
On appeal, the defendants argued that the district court erred in its jury instruction regarding community standards:
Defendants first assert that the district court erred by instructing the jurors to apply the standards of communities beyond their own community or of a global community in determining contemporary community standards, contravening Hamling’s expectation that jurors would look only to their own local community’s standards.
Second, Defendants argue that as the obscenity at issue was transported via email, the district court erred by failing to hold that existing precedent was inapplicable and instructing the jury to determine contemporary community standards by reference to the national community . . . In the view of Defendants, the instructions neither complied with the localized definition of contemporary community standards mandated by existing precedent, nor complied with the national definition of contemporary community standards that Defendants propose we should now hold is applicable to expression disseminated through email.
The first challenge, then, involves a dispute over whether the jury instructions conform to the Supreme Court’s decision in Hamling v. United States, 418 U.S. 87 (1974). The 9th Circuit describes the decision:
The Court . . . has held, in a case involving obscenity disseminated via the regular mails, that for purposes of federal obscenity statutes no “precise geographical area” need be applied in defining “contemporary community standards.” As a result, in federal obscenity prosecutions, a juror may simply “draw on knowledge of the community or vicinage from which he comes” in determining contemporary community standards.
According to the 9th Circuit, the instructions did not contravene Hamling and, therefore, the court did not commit prejudicial error:
Even assuming the challenged references erroneously allowed the jury to apply a global community standard, we conclude Defendants were not prejudiced. The Government at no point presented evidence to the jury purporting to illustrate a global or societal community standard and at no point argued to the jury for application of such a standard.
The second challenge, however, has to do with the method by which obscenity is transported. Hamling, for example, dealt on a federal level with distribution via the “regular mail.” In this case the transportation occurred via email. The Defendants argue that existing community standards precedent does not take into account the fact that “persons utilizing email to distribute possibly obscene works cannot control which geographic community their works will enter.” Therefore:
Defendants argue that applying Hamling’s definition of contemporary community standards to works distributed via email unavoidably subjects such works to the standards of the least tolerant community in the country. This, Defendants assert, unacceptably burdens First Amendment protected speech. To avoid this constitutional problem, Defendants argue, obscenity disseminated via email must be defined according to a national community standard.
Though the 9th Circuit upheld the obscenity convictions, the court agreed with the defendants that the district court’s jury instructions regarding community standards in the context of email “transportation” are technically in error–not prejudicial or plain, but error nevertheless. In reaching its decision, the court sought guidance from what it termed the “fractured” decision of the Supreme Court in Ashcroft v. ACLU, 535 U.S. 564 (2002), in particular from the separate concurring opinions of Justices O’Connor and Breyer. Justice O’Connor wrote that since “internet speakers [were unable to] control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech . . . may be entirely too much to ask, and would potentially suppress an inordinate amount of expression.” Breyer wrote: “To read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.”
Therefore, according to the 9th Circuit:
Here, 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 . . .
Prior to our holding here, the relevant law in this area was highly unsettled with the extremely fractured opinion in Ashcroft providing the best guidance. While our holding today follows directly from a distillation of the various opinions in Ashcroft, our conclusion was far from clear and obvious to the district court. Hence, we conclude that the district committed no reversible error in its §§ 1462 and 1465 jury instructions.