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Speech / First Amendment Law

Cases: United States v. Thomas
(In Depth Summary)
(Actual Text)
Yet another case which, like Reno and Pataki, considered which community's standards should be employed to determine obscenity is United States v. Thomas. The case involved the prosecution of a California couple who ran a bulletin board system ("BBS") out of their home that permitted paying members to download pornography which the couple had scanned onto their BBS. The defendants were charged and tried in Memphis, Tennessee where a postal inspector who had bought a membership to the BBS had downloaded photos depicting sado-masochism, bestiality and the like. They were convicted of violating a federal statute outlawing the knowing use of means of interstate commerce (i.e., their computer and phone line) for the purpose of transporting obscene materials in interstate commerce.

The United States Court of Appeals for the Sixth Circuit rejected the defendants' First Amendment argument that the relevant community standard under which the alleged obscenity of the materials must be determined was not that of Memphis, but rather that of the cyberspace community. The court rejected this argument on the ground that the law is settled that obscenity in the context of interstate distribution is determined by the standards of the community where the trial takes place even if that subjects the defendant to varying community standards. The court did not believe that this rule would lead to an impermissible chill on protected speech because the defendants asked for and received the postal inspector's address and could have avoided subjecting themselves to the community standards of Memphis by not sending any materials there, unlike the users in Reno and Pataki who had no practical way to determine who might be accessing the information they put on the Net.

Nevertheless, Thomas seems at odds with Pataki's concern about the danger of inconsistent state or local standards hampering an important instrument of national commerce and the need for single national standards governing the Internet. On another point, read

together, Thomas and Reno suggest that the provisions of the CDA struck down by the latter could be revived by the advent of new technology, for example, effective tagging.

Copyright SRBC 1998 up