IP: Another Cyberporn Prosecution Article

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

Date: Thu, 8 Feb 1996 11:07:17 -0600
From: shaynes () research westlaw com (Steve Haynes)


Dave -
 
Here's another cyberporn prosecution article from West's Legal 
News.  You may distribute to IP.
 
---------------------Forwarded Mail-----------------------------
 
Thursday, February 8, 1996 


Cincinnati cyberporn case may be first to test 'Thomas' ruling 
 
 
By Jon Kerr, Staff Writer  
 
West's Legal News, 2/8/96 -- Obscenity charges facing two  
Cincinnati-area men may test the breadth of a recent 6th U.S.  
Circuit Court of Appeals case holding that courts are permitted  
to apply the contemporary community standards of their own  
geographical areas in determining whether cyberspace  
transmissions originating in another state are obscene.  
 
And their common attorney is admittedly worried that the Feb. 1  
ruling by the Memphis-based 6th Circuit in U.S. v. Thomas may be  
too close at hand, physically and jurisprudentially.  
 
"It's a horrible decision and certainly doesn't help us. We can  
only hope the judge will agree with us and reject the 6th  
Circuit," said Cincinnati attorney Louis Sirkin, whose client  
Robert Emerson's motion to dismiss is expected to be ruled upon  
by a Clermont County judge sometime in the next two weeks. Sirkin  
also represents another bulletin board operator, Gilbert Vogt,  
whose trial on similar charges in Kenton County, Ky., is expected  
to get underway Feb. 27.  
 
Both men are only facing charges in their home states at this  
point. But prosecutors are expected to argue that the 6th  
Circuit's decision upholding the Thomases' conviction in  
Tennessee for knowingly transporting obscene materials via their  
California home-based bulletin board system (BBS) confirms  
cyberporn's vulnerability to local prosecution.  
 
"The defense attorney has tried to argue that the statute didn't  
cover transmissions by computers," said Clermont County  
Prosecutor Tim Rodenberg. "It does take that issue away from  
him."  
 
The Cincinnati cases may, however, be an even better test of  
computer transmitters' criminal liability when allegedly obscene  
electronic material is mixed with a variety of other materials  
and sources.  
 
"Bob [Emerson] doesn't even supply the adult content. He just  
makes the bulletin board available," said Sirkin, who said his  
client has been operating a BBS with a number of services for  
more than 10 years. "From a First Amendment lawyer's standpoint,  
this is really very disturbing."  
 
Prosecutors still must prove the material is both obscene and  
that the BBS operators knew of the obscene material, noted  
Sirkin. But the Thomas ruling has clearly eased their burden of  
proving the legal equivalence of computer transmissions with  
other forms of distribution.  
 
"As the equipment speeds up and technology gets better you may  
see even more of these prosecutions," predicts Sirkin. "We're  
moving ahead and coming back to a period of time when sexual  
content is going to be attacked again."  
 
 
 
CASES DISCUSSED 
 
-- United States v. Thomas, 1996 WL 30477 (6th Cir. (Tenn.) Jan.  
29, 1996).  
 
-- Ohio v. Emerson, Clermont County Common Pleas (No. 95-CR- 
005265).  
 
 
 
STATUTES 
 
-- KRS ' 531.020, Distribution of obscene matter, WESTLAW find:  
ky st 531.020  
 
-- Ohio R.C. ' 2907.32, Pandering obscenity, WESTLAW find: oh st  
2907.32  
 
 
 
ARTICLE 
 
-- Cincinnati Post, "Cyber-porn ruling may affect Ky. cases,"  
Page A8, Jan. 30, 1996, WESTLAW find: 1996 WL 5050661  
 
 
 
RELATED WLN STORIES 
 
-- "Civil libertarians decry 6th Circuit ruling in Internet  
obscenity case," Criminal Law and Procedure, Feb. 5, 1996.  
 
-- "6th Circuit rejects new definition of 'community' in  
upholding bulletin board operators' obscenity convictions,"  
Criminal Law and Procedure, Feb. 2, 1996.  
 
-- "New York: Sending porno via E-mail would be a crime, under  
legislative bill," State Legislative Affairs, Jan. 26, 1996.  
 
-- "Congress near agreement on cybersmut bill," Criminal Law and  
Procedure, Dec. 13, 1995.  
 
-- "Cyberporn battles continue," Criminal Law and Procedure, July  
6, 1995.  
 
-- "Bill limiting cyberspace porn passes Senate; software  
companies propose alternative," Criminal Law and Procedure, June  
15, 1995.  
 
-- "Internet is highway to indecency for minors, say police,"  
Criminal Law and Procedure, June 14, 1995.  
 
 
 
RELATED LEGAL ARTICLES 
 
-- Gallagher, "Free speech on the line: Modern technology and the  
First Amendment," CommLaw Conspectus 197, Summer 1995, WESTLAW  
find: 3 comlcon 197  
 
-- Goldman, "Put another log on the fire, there's a chill on the  
Internet:  The effect of applying current anti-obscenity laws to  
online communications," 29 Ga. L. Rev. 1075, Summer 1995, WESTLAW  
find: 29 galr 1075  
 
-- Rimm, "Marketing pornography on the information superhighway:  
A survey of 917,410 images, descriptions, short stories, and  
animations downloaded 8.5 million times by consumers in over 2000  
cities in forty countries, provinces, and territories," 83 Geo.  
L.J. 1849, June 1995, WESTLAW find: 83 geolj 1849   
 
-- Huelster, "Cybersex and community standards," 73 B.U. L. Rev.  
865, May 1995, WESTLAW find: 73 bulr 865  
 
-- Byassee, "Jurisdiction of cyberspace: Applying real world  
precedent to the virtual community," 30 Wake Forest L. Rev. 197,  
Spring 1995, WESTLAW find: 30 wflr 197  
 
-- Chiu, "Obscenity on the Internet: Local community standards  
for obscenity are unworkable on the information superhighway," 36  
Santa Clara L. Rev. 185, 1995, WESTLAW find: 36 sanclr 185  
 
-- Handelman, "Obscenity and the Internet: Does the current  
obscenity standard provide individuals with the proper  
constitutional safeguards?" 59 Alb. L. Rev. 709, 1995, WESTLAW  
find: 59 alblr 709  
 
-- Reske, "Computer porn a prosecutorial challenge: Cyberspace  
smut easy to distribute, difficult to track, open to legal  
questions," 80-DEC A.B.A. J. 40, December 1994, WESTLAW find: 80- 
dec abaj 40  
 
ATTORNEY 
 
--  For defendants: H. Louis Sirkin, partner Sirkin, Pinales,  
Mezibov & Schwartz, WESTLAW: WLD-OH database. 


West's Legal News, Copyright © West Publishing 1996