Schaffer and Kilbride represent the first convictions in the Ninth Circuit for Internet Obscenity not involving child pornography, and the first convictions ever under the CAN-SPAM Act. Both were granted bail pending appeal in November, 2007.
The appeal argues, among other things, the District Court's instructions to the jury on the obscenity charges that allowed the jury to consider evidence from jurisdictions outside their own community.
Kilbride's attorney, Greg Piccionelli of Piccionelli and Sarno, is confident the Ninth Circuit will reverse:
"The Miller test's requirement that juries apply 'local community standards' in deciding whether materials are obscene is outdated and simply cannot be applied to Internet communications," Piccionelli told AVN Online. "The District Court judge recognized this and attempted to craft a workable community standards instruction. However, his attempt, while well-intentioned, resulted in an unprecedented hybrid instruction that combined local and non-local community standards and allowed the jury to decide for themselves which standards to apply."
Further exacerbating the instruction's unconstitutionality, the District Court permitted the government to bring in witnesses from all over the country and testify that they were "offended" by the images, according to Piccionelli.
"The fact that lay witnesses were permitted to testify as to their opinion of the images was truly unbelievable and by itself constitutes grounds for reversal; their opinions were completely irrelevant," Schaffer's attorney, Gary Jay Kaufman of the Kaufman Law Group, explained to AVN Online. "Combine that with the fact that the jury was allowed to consider evidence from other jurisdictions and there is no doubt that this instruction was erroneous. If that instruction were allowed to stand, then the most puritanical community's standards would govern what is or is not considered obscene."
The appeal also disputes the CAN-SPAM Act as unconstitutionally unclear.
"Nobody likes getting spam, and we all agree that it must be regulated," Colin Hardacre, another of Schaffer's attorneys from the Kaufman Law Group, added. "At the same time, Congress cannot be allowed to run roughshod over the First Amendment and violate due process in the name of easing an inconvenience."