Saturday, October 31, 2009

Case o' The Week: Obscene in Oshkosh? Perverse in Poughkeepsie? Kilbride and the National Obscenity Standard

Federal obscenity statutes require the jury to determine whether the image at issue is "obscene" using "community standards." When there's no control over where the image is sent geographically, however, (like in a spam e-mail), what is the relevant "community" whose standards are to be used to identify "obscene" images? Even in the Ninth Circuit, there's a pretty wide range in "communities" between, say, San Francisco and San Diego, Missoula and Mill Valley. Fortunately, Judge Betty Fletcher (left) answers this question for us in a particularly thoughtful and thorough new opinion, United States v. Kilbride,__ F.3d __, No. 087-10528 , 2009 WL 3448360 (9th Cir. Oct. 28, 2009), decision available here.

Players: Decision by Judge Betty Fletcher, joined by Judges Hug and Hawkins.

Facts: Kilbride and others controlled an overseas company, “Ganymede Marketing.” Id. at *1. The company send spam into the states with sexually-explicit images and faked email headers. Id. The defendants were charged with, among other things, interstate transportation of obscene materials for sale. Id. at *2. (Ed. Note: this does not appear to involve child porn, which is (also) criminalized under separate federal statutes that carry much higher exposures).

At trial the jury instruction regarding whether the material was “obscene” did not define which “community’s standards” the jurors were to consider when reaching this determination. Id. at *4. Using the Supreme Court’s ‘74 Hamling language, the instruction allowed the juror to “simply draw on knowledge of the community or vicinage from which he comes in determining contemporary community standards.” Id. at *4 (emphasis added).

Issue(s): “Defendants assert . . . that Hamling’s prevailing definition of contemporary community standards is not appropriate for speech disseminated via email. Because persons utilizing email to distribute possibly obscene works cannot control which geographic community their works will enter, 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.” Id. at *8.

Held: “[We] join Justices O’Connor and Breyer [who wrote concurring decisions in Ashcroft v. ACLU, 535 U.S. 564 (2002)] in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via e-mail. . . . To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the internet.” Id. at *12 (internal quotations and citation omitted). “In light of our holding, the district court’s jury instructions defining obscenity pursuant to Hamling was error. However, this error does not require reversal because this error was far from plain.” Id.

Of Note: This long decision discusses many issues other than what is described above. Judge Fletcher considers, and rejects, a “void for vagueness” challenge brought against the anti-SPAM statute. Id. at *13. Like Judge Berzon in last week’s Van Alstyne decision, Judge Fletcher also struggles to make sense of a severely fractured, controlling, Supreme Court decision. Id. at *9-*12.

Of greatest interest, however, is the new rule (or rather, newly-distilled rule) on the relevant “community” to be used to determine “obscenity.” It is a good rule: the national community standard denies “the most puritan of communities [the] heckler’s Internet veto affecting the rest of the Nation.” Id. at *10 (quoting Justice Breyer from Ashcroft v. ACLU). Interesting to speculate on how the Kilbride rule can be expanded – maybe to the “lascivious” prong of the federal child porn definition? See 18 U.S.C. § 2256(2)(a)(v).

How to Use: Kilbride will be a seminal decision for cases involving obscenity on the internet. Note, however, that (by and large) it will not be a important decision in child pornography cases. Pornography involving real children can be prosecuted even if it is not “obscene” under the Miller test. See New York v. Ferber, 458 U.S. 747 (1982). Hence, with the possible exception of the example above, Kilbride should not be read as requiring a “national community” test for whether an image is child porn – the obscenity definition (generally) is irrelevant in (real-child) porn cases.

For Further Reading: For an interesting article on the Hon. Betty Fletcher, thankfully one of the most “active” (as in “busy,” not “activist”) Senior Judges in the Ninth, visit the Seattle Weekly here.

Image of the Hon. Betty Fletcher by Steven Miller, of the Seattle Weekly, from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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