February 16, 1996
Court Rejects 'Virtual Community'
In Computer Pornography Conviction
Judge Blocks Law Banning Internet Smut
By WOODY BAIRDEMPHIS, Tenn. (AP) -- Cyberspace denizens may think of themselves as belonging to a special community of computer users, with their own standards of decency, but a Federal appeals court doesn't see it that way.
The United States Court of Appeals for the Sixth Circuit in Cincinnati said every individual community can judge for itself the obscenity of material downloaded from computer bulletin boards -- no matter where that board is based.
That opinion, unless overturned by the United States Supreme Court, could have far-reaching effects on computer bulletin boards with sexually explicit pictures and words.
Suddenly, bulletin board material which might have been at the far edge of acceptable in California or New York could be judged by the perhaps more conservative standards if downloaded in Tennessee or Iowa.
"What happens is, the most conservative jurisdictions in the country can now dictate standards for the rest of the country," said Mike Godwin of the San Francisco-based Electronic Frontier Foundation, a public interest group for computer users.
In a Jan. 29 ruling, the Sixth Circuit judges upheld the convictions of Robert and Carleen Thomas, who were tried in Memphis in 1994 because of explicit images of bestiality, sadomasochism and other fetishes on their Amateur Action Bulletin Board Service of Milpitas, Calif. The ruling was made public only this week.
The couple was tried in Memphis because that's where an undercover postal inspector downloaded the explicit material.
A 1973 Supreme Court ruling, Miller vs. California, allowed for the regulation of obscenity based on the notion of "community standards."
But until the Memphis trial, that rule had not been applied specifically to material on a computer bulletin board in the city it was received, rather than where it originated.
The Thomases and their supporters argued unsuccessfully that computer technology has wiped out traditional ideas of community. The "community" of computer users should decide what is acceptable in cyberspace, they said.
Stephen Bates of the Annenberg Washington Project, a communications research group, said he was not surprised the court rejected that idea.
"You might as well say that pornography should be judged by the worldwide community of pornographers," Bates said. "The law is geographic in how it looks at jurisdictions and boundaries and everything else. That's not going to change just because a new technology comes along."
But a defense lawyer, Thomas Nolan, who is handling Thomas' appeal, said he would ask the United States Supreme Court to review the Memphis case and reconsider its community standards rule.
In a world where millions of people communicate via computer networks, that rule gives local prosecutors too much power over what everyone else can look at or read, Nolan said.
"It may well be that they bring these cases because the community wants them to, or it could be they bring these cases because they have a personal belief in the impropriety of these materials," he said.
A telecommunications bill signed into law by President Clinton last week outlaws transmission of indecent and other sexually explicit materials to minors over the Internet and on-line services. But it makes no mention of adult bulletin boards like the one run by the Thomases. On Thursday, a Federal judge in Philadelphia temporarily banned the Government from enforcing the portions of the new law dealing with "indecency" on computer networks.
Copyright 1996 The New York Times Company