SAN FRANCISCO—Internet spammers Jeffrey Kilbride and James Schaffer have lost their appeal to stay out of prison, but in the process, their case has produced a fundamental change as to how internet obscenity is to be judged—in the Ninth Circuit, at least.
"This is all tremendously good news," said entertainment industry attorney Greg Piccionelli, who represented Kilbride during the appeal process, "not only because this is the first court to unequivocally say, 'It's a national standard on the internet; enough's enough,' but the way they did it is, they very carefully looked at Breyer's and O'Connor's [COPA II] opinions. ... Basically, what they did is, they made sure they made a record for the Supreme Court, if it's appealed, to say, 'Look, we didn't reach this by pulling it out of our ass.' ... So that is the really encouraging thing, because it gives cover to everybody that comes after."
Piccionelli was referring to Judge Betty B. Fletcher's opinion in the Kilbride and Schaffer cases, which tracked closely to the arguments in the defense briefs. The Ninth Circuit found that trial judge David G. Campbell had erred in telling the jury in the case that in determining the community standards to be applied to the allegedly obscene material in Defendants' emails, they could 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 that, "The parties have presented evidence concerning contemporary community standards. You should consider the evidence presented, but you may also consider your own experience and judgment in determining contemporary community standards."
According to Piccionelli, such statements were tantamount to asking the jury either to apply a "national community standard," which up to that point had not been the holding in any circuit, particularly in light of the U.S. Supreme Court's rejection of the Third Circuit's opinion in the COPA I decision, or to decide for themselves what community standard they would apply.
"My argument was, the determination of the community is a matter of law," Piccionelli said, "and by essentially turning it over to the jury to determine which community was going to be used, what the judge in the case in effect did was let the jury decide a matter of law—which is up to the judge and not the jury. ... I made that argument and they didn't even bother to address it."
What the Ninth Circuit panel did, since the community standards argument had not been preserved in the trial record, was to consider whether Judge Campbell's jury instruction constituted "plain error"—that the court should have known that the instruction was a violation of the defendants' rights when he gave it. But while the appeals court did decide that the instruction was erroneous, it found that the error was far from "plain."
"Absent any argument or evidence presented to the jury illustrating a global or societal community standard less tolerant than that of the jurors' own sense of contemporary community standards, instruction to the jury allowing application of a global standard or societal standard is harmless," the appeals court found. "Reno [v. ACLU, the Communications Decency Act case] did not address, however, Defendants’ argument that the application of local community standards to regulate Internet obscenity by itself renders a statute fatally overbroad."
The appeals court then undertook an in-depth analysis of Ashcroft v. ACLU, the second COPA decision, attempting to see which justices addressed the issue of local versus national community standards, and what the consensus was on that sole issue.
"The divergent reasoning of the justices in and out of the majority in Ashcroft leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here," Judge Fletcher wrote. "Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. 'When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds'," quoting Marks v. United States. [Internal quotation marks removed]
The Ninth Circuit's analysis led them to "join Justices O’Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email."
There's just one problem for Kilbride and Schaffer, though: Since their attorneys never raised the community standard issue at trial, rather than determining whether Judge Campbell's flawed jury instruction prejudiced the jury sufficiently that it amounted to reversible error, the Ninth Circuit was only required to determine if the error was "plain error"; any lesser standard (like prejudicing the jury) was not in play.
"It is such a bittersweet victory. My client and Mr. Schaffer have the unfortunate distinction of probably being the last people to be tried under the old [community standard] standard," Piccionelli stated. "It's extremely unfortunate that these issues were not preserved on appeal. This is the place where you tell people, get an attorney that knows what they're doing. These are real consequences. The Ninth Circuit has pretty much said, everybody after you gets the national standard."
"It was an ultimately pyrrhic victory for our clients," added Gary Jay Kaufman, Schaffer's attorney for the appeal. "As it stands they will be the last defendants convicted under an unjust law. We are very disappointed that the Court affirmed my client's convictions and we are reviewing our options as far as challenging the Court's rulings on several issues."
What it means for the defendants, however, is that Kilbride's six-and-a-half-year and Schaffer's five-and-a half-year sentences have been upheld, although with "good time" and other considerations, Piccionelli believes that his client may be free after only three or three-and-a-half years.
But on the more positive side, Piccionelli said that he expects the Kilbride/Schaffer decision to be quoted extensively in existing obscenity cases involving internet content, such as the Max Hardcore appeal, which is being argued Thursday before the Eleventh Circuit in Atlanta, and the John Stagliano/Evil Angel case which is still in the pretrial stages in the District of Columbia Circuit.
"I would think that a few of the circuits like the Second Circuit [which ruled against the FCC in Fox Broadcasting's "fleeting expletives" case] would probably pick this up in a heartbeat," Piccionelli opined. "And the question is, how is it going to arise in the other circuits other than the D.C. Circuit?"
Piccionelli noted that the D.C. Circuit is primed to consider the issue, not just because the Evil Angel case is in that jurisdiction, but because every adult company that attempts to copyright its work may potentially fall afoul of local D.C. community standards if it doesn't.
"Since the Copyright Office wants you to send stuff over the internet for registration," Piccionelli explained, "they're in a situation where they [First Amendment attorneys] can argue, 'Wait a minute, guys; there's no other place we can send this. We have to send it to your servers here, and unless you put servers in the Ninth Circuit, we're caught in a real bind."
Piccionelli said he fully expects the idea of a national community standard for internet material to be picked up by the circuits nationwide.
"In this case, the Ninth Circuit did another thing that was tremendously good: They didn't try to formulate a way of applying that national standard," he added. "So therefore, it's going to be left up to future cases to ferret that out, and given the fact that there's likely to be a dearth of federal cases for a while, that may be a very slow process. My best guess is, it's going to be an extension of how it's done currently: You bring in experts to provide for the jury useful information to help them figure out just what the national community sentiment is regarding erotic material, and whether the charged materials are within that national community or not."