newsday column by quittner concerning the Memphis BBS prosecution

[David Farber <farber () central cis upenn edu>]

PUBLICATION DATE      Tuesday. August 16, 1994
EDITION               ALL EDITIONS
HEADLINE              COMPUTERS IN THE 90s
                      LIFE IN CYBERSPACE
                      The Issue of Porn on Computers
BYLINE                Joshua Quittner
                        Newsday Staff Writer
                                (c) Newsday
LENGTH                83   Lines
  BRUCE KRAMER, an attorney in Memphis, Tenn., read the local headlines
  one day last month, and winced.
     It was the day a federal jury there found an out-of-state couple
  guilty on 11 counts related to distributing pornography from their
  home-based computer bulletin board in Milpitas, Calif. Robert Thomas,
  38, and his wife Carleen, 39, face a maximum penalty of 5 years in jail
  and $250,000 fine for each count.
      Kramer took one look at the story and thought the clock had been
  rolled back to 1976. That was the year that the U.S. attorney's office,
  again in Memphis, charged 60 people and companies for conspiring to
  transport "an obscene, lewd, lascivious and filthy motion picture"
  across state lines.
     The motion picture was "Deep Throat," and Kramer, an American Civil
  Liberties Union attorney, represented the porn star, Harry Reems, whose
  work in that film has always been overlooked, I think.
     You should know that "Deep Throat" wasn't even being shown in Memphis
  at the time (that is, until federal prosecutors screened it for the
  jury). The case was brought on the theory that a copy of the movie was
  flown  over that prudish city in an airplane, en route elsewhere.
  Memphis, with its conservative juries, was selected by federal
  authorities as a fine place to crack down on the newly burgeoning
  dirty-movies business.
     And now, here we are again. Same charges, only this time, our
  government is using Memphis to combat porn on computers.
     The July 28 verdict sets a dangerous precedent. It means that if you
  have questionable material on your computer system, and your system is
  open to the public  -  whether over direct phone lines, like the
  Thomases, or the Internet  -  the  U.S. attorney's office in Memphis
  wants you.
     "The message going out there is, do this at your peril," Kramer said.
  "This is censorship any way you look at it."
     The standard for obscenity prosecution is a 1973 U.S. Supreme Court
  decision that held that obscenity is a matter best left for the local
  community to decide.
     "The idea is that they didn't want to have New York and Times Square
  setting standards for places like Memphis," explained Mike Godwin, an
  attorney with the Electronic Frontier Foundation, a nonprofit
  organization concerned with civil liberties in cyberspace. But that test
   -  community standards  -  has been rendered meaningless by the very
  notion of cyberspace, a "community" without geographic boundaries.
     What is the community standard of the world, after all?
     The Thomas verdict perverts the intent of the Supreme Court holding
  because it would effectively "allow Memphis to set standards for places
  like Milpitas," Godwin said.
     The relevant facts of the case are pretty straightforward: The
  Thomases operated a BBS, or bulletin board service,  called Amateur
  Action BBS, which had 3,500 users nationwide. Subscribers paid $99 a
  year to access the board, where they could choose from more than 20,000
  digital images of people engaged in all flavors of sex. Some of the
  images involved animals; others purported to involve incest and other
  taboos. Most of them were in a directory with one-line descriptions that
  used words that cannot be printed here.
     Which is to say, it was a bulletin board just like scores of others
  around the United States. I could find you a dozen just like it on Long
  Island and in New York City; I could, if I had as much free time on my
  hands as federal investigators in Memphis, that is.
     In any event, a U.S. Postal Service inspector, who was working
  undercover, logged into the AA BBS and downloaded a whole mess of sweaty
  pictures, which became Exhibits A, and B, and so on, right down the
  alphabet, and which clearly moved the jury.
      Defending the First Amendment, after all, takes a pretty strong
  stomach sometimes, and may even require you to defend someone's right to
  publish something that you find grotesque. The postal inspector also
  sent the Thomases pictures of child porn, which they did not solicit,
  and which caused local federal agents to raid the Thomas residence 10 to
  15 minutes after the mail carrier delivered the pics.
      The Memphis jury did not find the couple guilty of receiving and
  trafficking in child porn.
     So what will happen in the Thomas case? Kramer's prognosis is this:
  The case will doubtless be appealed to the Sixth Circuit Court of
  Appeals, which Kramer said has a reputation for conservative
  jurisprudence. Assuming it upholds the trial court, the case could then
  be appealed to the Supreme Court, which could be asked to revisit its
  1973 holding, and redefine the very notion of community standards, where
  the community is held together by modems and wire.
     In the meantime, though, Memphis appears to be setting the community
  standards for all of us.
     "During the `Deep Throat^ trial, my brother, a fairly intelligent
  individual, came into town and was amazed that there was not more
  [media] coverage because of the significance of the prosecution," Kramer
  said. "I have the same feeling now, twenty years later, with respect to
  the prosecution of this case. People should be up in arms that the
  government is trying to impose censorship."


  To contact Joshua Quittner via e-mail on the Internet: quit () newsday com