The Ethical Spectacle, July 1995, http://www.spectacle.org

Amateur Action

Robert and Carleen Thomas operated a private, commercial bulletin board system called Amateur Action, in Milpitas, California, distributing explicitly sexual GIF files and videotapes. A postal inspector in Memphis, Tennessee, joined their BBS, downloaded GIF's and ordered videotapes. As a result, the Thomases were indicted, tried and convicted in Memphis for having violated local community standards. The indictment involved separate charges for making the GIF's available and for mailing the tapes. The part of the case pertaining to the GIF files apparently stands for the proposition that, before making anything available in cyberspace, you must make sure it conforms to the laws of Tennessee. The Thomases were sentenced to prison and are presently appealing their convictions.

The important question raised by the Amateur Action case is whether Tennessee can rule the world.

Under the rule imposed by the Supreme Court case of Miller v. California in 1972, community standards are used to determine what is obscene under federal law. The rationale at the time was that what will play in Times Square may not play in Peoria. At the time, there was a certain fairness to the concept that the people of Peoria ought not to be subjected to the subject matter that entertains customers in Times Square. The corrolary to this was that the people of Times Square ought not to have to live by Peoria's rules--but this latter is exactly what the Amateur Action case actually stands for.

Miller was decided at a time when obscene material could only be a book, magazine, film or live performance. In each of these cases, all Miller stands for is the right to exclude the material from your community, not from everyone else's. The author or publisher of obscene materials could exercise a choice not to send the materials into the community: aware that Tennessee had more conservative standards on obscenity, he or she could decide not to ship the book or magazine, run the movie, or schedule the live performance there.

The Thomases of Amateur Action had no such choice. Once they connected their bulletin board system to a telephone line, it was effectively available everywhere. Although phone technology in certain parts of the country gives you the ability to identify caller's phone numbers and, at least in theory, block calls from certain area codes, this technology is not available everywhere. Had their BBS been connected to the Internet, blocking particular regions would not have been possible--there is no reliable way to identify the geographical location of a user's domain, and even if you could, a user from Tennessee might be using a server located somewhere else as their "port of entry" to the Internet.

The publisher of old fashioned obscene materials under Miller had to make a choice, take an action, to propel the obscene materials into a forbidden state like Tennessee. He or she had to address and stamp a package, or make a phone call to book a film or a performance there. The Thomases took no action whatever to ship obscene GIF files to Tennessee--a postal inspector, acting undercover, called up their BBS and downloaded the files himself. Thus, Tennessee claims that it acquired jurisdiction over the Thomases, could have them arrested and brought accross the country to be tried and jailed, because they connected their BBS to a telephone line and a Tennessee citizen called the BBS and transmitted obscene files to himself.

Imagine that a citizen of New Jersey, using a high power telescope, looks accross the Hudson River and spots an obscene performance taking place in New York City. Can New Jersey arrest the performers and try them for offending New Jersey community standards? What about a performance in the U.S. that can be viewed from an Iranian satelite in orbit and which offends the standards of the mullahs in Iran? If I'm getting too absurd here, think about the fact that every country in the world can connect to the Internet. The Ayatollah Khomeini already issued a fatwa, an edict, of death against an Indian novelist living in Britain; the first fatwa against the author of a web site containing material offensive to Iranian standards should certainly cite Amateur Action as a precedent.

The Electronic Frontier Foundation argued in its amicus brief in the case that the only standards that should be applied to material in cyberspace are the standards of the online community. This is audacious and there is very little possibility that the judges of today, most of whom grew up before computers and do not use them, will accept this. What an electronic community standard would mean is that anything goes in cyberspace. Cyberspace itself would not have any one community standard, but millions of them. Analogizing cyberspace to geographical space, any web site, ftp site or newsgroup would be equivalent to a town with its own standards. Alt.sex.bestiality would function in undisturbed peace on the grounds that the people who participate there--the citizens of "Bestiality Town"-- are those who find such discussion or behavior appropriate. Since the shocked are not a member of the community, there is no legal issue of obscenity.

Where this breaks down is that it was not Miller's intention to encourage the creation of communities to evade obscenity laws. Miller cannot prevent the gradual evolution of such communities-- this is why a gay live performance on Christopher Street would be unlikely to be prosecuted in Manhattan today--but a group of intrepid pioneers attempting to found "Bestiality Town" on some vacant land in Montana would probably be treated unsympathetically by the local authorities, who would attempt to apply the standards of the pre-existing community located closest to the new settlement. Looked at this way, the EFF is asking for greater independence for citizens of cyberspace. These kinds of arguments are likely to be received very unsympathetically; the battle today is really to prove that citizens of cyberspace should be treated no worse than anyone else, not better.

I think that Miller itself was outmoded. It was a cop-out in 1972. Obscenity is a free speech issue, thus a First Amendment matter. There is no other constitutional question on which community standards are relevant. No other type of speech may be free in New York and restricted in Tennessee. Acts of racial discrimination that are illegal in California may not be legal in Georgia. A search and seizure that violated a defendant's rights in Wisconsin is not legal in Minnesota. Miller was marginally acceptable as a compromise solution in 1972 because a defendant could choose not to send questionable materials into communities that would object to them. The Internet has ended all that. Now it is the community which must keep its people, and especially its children, off the Internet if it so desires. You cannot make a publisher of information on the Net responsible for knowing the standards of all the communities in all 50 states (not to mention the view that will be taken of his material in Iran or hundreds of other countries.)

If the Amateur Action precedent stands, the standards of the most restrictive community will govern everywhere. The only safe thing to do will be to post only those materials to the Net that can satisfy Tennessee scrutiny. This is not what Miller intended.

I haven't said anything so far about the moral issues involved in the Amateur Action case, and it would be dishonest to close without doing so. The material available on the BBS, including descriptions of videos that could be ordered from the sysops, included rape, torture, incest and bestiality. The Thomases were convicted not only for posting the GIF's that were downloaded by the Tennessee investigator, but for shipping videotapes to him in Tennessee. This was an action they could have refrained from and I do not raise any legal objection to their conviction on this count.

Do I raise a moral objection? Probably not. Professor Catherine Mackinnon of the University of Michigan argues very persuasively that pornography is the oppression of women (see her book Only Words , 1995). Graphic portrayals of rape, torture, or the sexual exploitation and subjection of women create a hostile and unequal environment. Mackinnon has shown that there is a conflict between equality law, which promotes the 14th amendment right of equality over the free speech right of the First (I cannot utter racist or sexist speech in the workplace and shield myself behind the First Amendment) and speech law (I can plead the First Amendment as my excuse for promoting the rankest racism and sexism outside the workplace). GIF's and videos distributed by the Thomases which portrayed rape and brutality were morally reprehensible and contribute to actual violence against women. If this kind of material cannot be held obscene under local community standards, it is hard to see what can. I am not arguing for an end to obscenity law or for an "anything goes" environment.

I have written elsewhere that violence against women, the objectification of women and their treatment as inferiors, is the subtext of pornography, and I intend to treat this issue at much greater length soon. Persuaded by Mackinnon, I am beginning to believe that the civil libertarians have a major blind spot where pornography is concerned; there is a major double standard involved in leaping to condemn racist speech while defending degrading sexist speech.

Please note the differences between my viewpoint and the EFF's on this score. If Miller is antiquated and a national standard is called for, that standard is likely to be more liberal than that of Tennessee, but this is not guaranteed, especially in today's political environment. But at least it will be a standard voted by the majority of the representatives of all the people, and elucidated by the judges appointed or elected to act on behalf of all the people; it will not be a standard imposed by one relatively small community on the rest of the world. By contrast, the EFF's "cyberspace community" approach, taken to its logical extreme, would support a result in which obscene material could be distributed throughout geographical space with impunity, because it did not offend the standards of the very denizens of cyberspace who promoted it. This is effectively allowing the pornographer to make his own rules. As with any dispute, the best solution will be found on the middle ground, and only by discounting the extremes, staked out here by the Tennessee prosecutor on the one side and the EFF on the other.