Obscenity - Discussion

SERVICE PROVIDER LIABILITY

Obscenity: Discussion

● Generally

The state of the law regarding Service Provider liability for obscenity is particularly unsettled at this time. The Communications Decency Act of 1996 (CDA) could dramatically alter the potential liability that Service Providers face for the conduct of their users and subscribers. The ACLU filed a suit challenging the CDA, which has been argued before the U.S. Supreme Court and a decision is pending.

Click on this graphic to go to the ACLU Web site for more information on this case. Also, the ACLU will post an announcement and the text of the Supreme Court's Decision when it becomes available (probably in July, 1997).

The case law for Service Provider liability for the conduct of users is scant at best. A recent case in which the Service Provider was held liable does not adequately represent the liability that a service provider might actually face because, in this case, it was the Service Provider that was responsible for uploading the offending content. Clearly, if a cause of action arises out of a Service Provider's conduct, the facts are not square on all four corners with liability based on a theory of vicarious liability.

● Case analysis

In United States v. Thomas, the defendants were the operators of the Amateur Action Bulletin Board System (AABBS). The purpose of the AABBS was to provide subscribers with access to sexually explicit material. The defendants uploaded sexually explicit pictures onto the system, which could then be downloaded and viewed by subscribers for a fee. The system also accepted orders for sexually explicit video tapes that were shipped by common carrier. The defendants were then not merely a Service Provider but also the principle actors whose conduct gave rise to the cause of action. Thus, on its face, this case does not represent a illustrative set of facts on which to base an analysis of vicarious liability for Service Providers where the original cause of action arises out of the conduct of someone other than the Service Provider. However, a brief discussion of some of the salient aspects of the case may serve to illuminate some potential areas of concern to Service Providers.

The defendants in Thomas argued that the local community standards for obscenity (see Miller v. California) of Memphis, Tennessee should not be applied because they were from and their BBS was located in California. Miller stands for the proposition that juries are to apply the standards of the community into which the materials are sent. The defendants argued that a new definition of community should be adopted due to the nature of BBS systems, in that a BBS is capable of transmitting material virtually all over the world. The court rejected this argument on the basis that the defendants knew where the materials were going and had control over whether the materials were to be available because they had approved an application for membership that was submitted from Tennessee, just as they approved each application for membership. Thomas (see also, Obscenity in Cyberspace). Some might argue that this case represents setting a national, if not international, community standard of indecency (the standard of Memphis, Tennessee E-Law 3.0.1, or of the most restrictive locale that a BBS or the Internet could reach or has reached). Although, this argument may ultimately prevail, it does not take into account that the community standards of Memphis was allowed in Thomas precisely because the defendants did know that their material was being accessed from and shipped to Memphis.

Thomas also argued that §1465 does not apply to computer generated files transmitted in binary code. Thomas. The court reasoned that " . . . focusing solely on the manner and form in which the computer generated images were transmitted . . . " is erroneous. Thomas, (quoting U.S. v. Gilboe). "[e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account." Thomas, (quoting Gilboe). The Thomas court applied the Gilboe rationale and held that focusing on the means of transmission did not take them out of the scope of §1465. See also, Obscenity in Cyberspace.

Furthermore, the court held that §1465 applied to their facts notwithstanding the fact that it does not expressly cover computer transmissions. The court pointed out that "the rule of ejusdem generis should not be 'employed to render general words meaningless' or 'be used to defeat the obvious purpose of the legislation.'" Thomas, (quoting U.S. v. Alpers). The court further said that construing statutes should be done " . . . so as to give effect to the intent of Congress" and that the intent of Congress was clearly to prevent the interstate transportation of obscene material. Thomas.

Finally, Thomas relied on Stanley v. Georgia in arguing that the First Amendment right to freedom of speech protects their possession of the GIF files (digital files that contain or store the data which becomes an image when displayed on a computer screen) in their home. Thomas. Here, the court presents a clarification of Stanley as contained in U.S. v. 12 200-Ft. Reels of Super 8mm. Film. The Supreme Court explained in Reels of Super 8mm. Film that the holding in Stanley was based upon a right to privacy in the home and not on a First Amendment right to freedom of speech. Thomas. The Supreme Court has also held that the right to possess obscene materials does not create a right to receive, transport, or distribute it and that the zone of protection created by the right to privacy is around the home and not around the protected materials when they are moved from the home. Thomas, (citing, U.S. v. Orito). Thus, because "[the Thomases] went beyond merely possessing obscene GIF files in their home (i.e., they sold and distributed the materials)," they had exceeded the bounds of the protection created by the right to privacy in the home. Thomas.

● Communications Decency Act

The Communications Decency Act of 1996 was passed on February 1, 1996. By February 7, 1996, the ACLU had filed a challenge to it on Constitutional grounds in the federal courts. A three judge panel determined that the challenged provisions were unconstitutional during the summer of 1996. The Department of Justice appealed the decision to the U.S. Supreme Court and oral arguments were heard on March 19, 1997. A decision is expected in July of 1997.

> The CDA

The CDA would criminalize the providers of certain material on the Internet if the material can be displayed in a manner available to a person under the age of 18. CDA. The material in question includes depictions, descriptions, and communications of a sexual nature. The language of the act resorts to the standards of "patently offensive as measured by contemporary community standards" and "indecent" in determining what material would be prohibited or criminalized. §§ 223(a)(1)(B)(ii) & (d)(1)(B). The use of the words "offensive" and "indecent" are broad terms and would have the effect of proscribing much valuable content on the Internet. In the minds of commentators, scholars, and analysts, this would have the effect of reducing or "dumbing down" the content available on the Internet to that which is appropriate for school children. Amicus Brief. Thus, even adults would not be able to access content of a nature that they can already access in print, at movies, or from cable television services.

Furthermore, the CDA would establish severe criminal penalties for Service Providers that knowingly permit their facilities to be used for any activity prohibited by certain provisions of the CDA. §223(d)(2). The CDA does provide defenses for Service Providers if they either (1) provide nothing but an unimproved Internet connection (§223(e)(1)) or (2) restrict access by minors to the Web sites containing material that could be construed as prohibited by the CDA. §223(e)(5). In the case of the first defense available to Service Providers, the defense could be lost if their Web sites contain search engines or links that enable a minor to find content that comes within the broad purview of the CDA. Content Restrictions. In the case of the second defense available to Service Providers, the defense is available if they make a good faith attempt to censor the content available from their Internet server. Content Restrictions. The Service Providers attempts to restrict access to these materials would have the effect of making them the guardians of what is acceptable content and might also allow them to violate the privacy of what would otherwise be legally protected communications. Content Restrictions. The incentives provided by either of the two defenses would result in an Internet that is more difficult to use and navigate (because of the difficulty of accessing search tools and links) and/or an Internet that does not contain material which adults could obtain through a variety of other media (because of Service Providers' attempts to restrict content to the lowest common denominator of community standards), much of which has significant SLAP value (Scientific, Literary, Artistic, Political, including educational, journalistic, and medical, inter alia). Amicus Brief and Content Restrictions.

Ultimately, we do not know what the status of Service Provider liability for obscenity will be. It is sufficient to say, however, that a Service Provider could be exposed to some liability under the current scheme (or lack thereof) if a subscriber were to violate 18 U.S.C. 1465 and the Service Provider either knew or should have known of the activity. We have not found an incident of this happening so far. It may be that interested parties are awaiting the outcome of the CDA decision before proceeding with legal action. And finally, if the Supreme Court does strike down the CDA, it will only be a matter of time before more carefully drawn legislation makes its way through Congress.

Service Provider Liability Pages

Introduction • Table of Contents
Servcie Providers - Overview • Service Providers - Discussion • Liability Analogies - Overview • Liability Analogies - Discussion • Defamation - Overview • Defamation - Discussion • Intellectual Property - Overview • Intellectual Property - Discussion • Obscenity - Overview • Obscenity - Discussion • Criminal - Overview • Criminal Discussion • Privacy - Overview • Privacy - Discussion • Policy Discussion • Conclusion • Pocket Part • Notes & Links

Prepared for Professor Laura Gasaway's Cyberspace Law Seminar (Law - 357C)
UNC School of Law - Spring 1997

By: Ashe Lockhart (Webmaster) & Carol Kozar

Instructor: Laura N. Gasaway, Professor of Law and Director of the Katherine R. Everett Law Library