IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 94-6648 No. 94-6649 ROBERT ALAN THOMAS AND CARLEEN THOMAS Appellants, v. UNITED STATES OF AMERICA, Appellees. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION BRIEF FOR AMICUS CURIAE ELECTRONIC FRONTIER FOUNDATION Shari Steele Michael Godwin ELECTRONIC FRONTIER FOUNDATION Suite 801 1667 K Street, N.W. Washington, DC 20006 (202) 861-7700 Internet: [email protected] APRIL 19, 1995INTEREST OF THE AMICUS CURIAE The Electronic Frontier Foundation (EFF) is a privately funded nonprofit organization concerned with the civil liberties, technical and social issues raised by the application of new computing and telecommunications technology. EFF was founded by Mitchell Kapor, a leading pioneer in software development who was the first CEO of the Lotus Development Corporation and developed the Lotus 1-2-3 spreadsheet software, and John Perry Barlow, an author and lecturer interested in digital technology and society. The Electronic Frontier Foundation is concerned with the chilling effect the District Court's decision will have on the freedom of speech of users of electronic communications and on the growth of online communications technology and communities. EFF respectfully asks this court to overturn the lower court's decision regarding the files downloaded from the Amateur Action bulletin board system. TABLE OF CONTENTS INTEREST OF THE AMICUS CURIAE 1 STATEMENT OF THE ISSUE 4 SUMMARY OF THE ARGUMENT 5 ARGUMENT 6 I. THE DISTRICT COURT'S APPLICATION OF THE MEMPHIS, TENNESSEE, COMMUNITY STANDARDS TO THE AMATEUR ACTION BULLETIN BOARD SYSTEM IS UNCONSTITUTIONAL IN THAT IT RESTRICTS EVERYONE IN THE WORLD TO ONLY MATERIALS THAT ARE DEEMED FIT FOR CITIZENS OF MEMPHIS, TENNESSEE 6 II. THE DISTRICT COURT ERRED IN APPLYING THE COMMUNITY STANDARDS OF MEMPHIS, TENNESSEE, WHEN THE MATERIALS WERE DOWNLOADED TO A COMPUTER DISK IN MEMPHIS BUT NEVER ACTUALLY ENTERED THE "MEMPHIS COMMUNITY" 7 III. THE DISTRICT COURT ERRED IN APPLYING THE COMMUNITY STANDARDS OF MEMPHIS, TENNESSEE, BECAUSE ELECTRONIC COMMUNICATIONS GIVE INDIVIDUALS THE AUTONOMY TO SELECT THE ELECTRONIC COMMUNITIES THEY WISH TO JOIN AND PROVIDESCREENING MECHANISMS TO RESTRICT ACCESS TO CHILDREN 11 IV. THIS IS A CASE OF FIRST IMPRESSION AND SHOULD BE CONSIDERED IN LIGHT OF THE SERIOUS CHILLING EFFECT ON FREEDOM OF EXPRESSION THAT WOULD RESULT FROM THE LIMITING OF SPEECH ON ALL COMPUTER COMMUNICATIONS TO THE STANDARDS OF THE MOST RESTRICTIVE COMMUNITY 16 CONCLUSION 19 CERTIFICATE OF SERVICE 20 TABLE OF CASES, STATUTES AND OTHER AUTHORITY CASES City of Belleville v. Morgan, 60 Ill. App. 3d 434, 376 N.E.2d 704 (1974) 8 Commonwealth v. 707 Main Corp., 371 Mass. 374, 357 N.E.2d 753 (1976) 8 FCC v. Pacifica Found.,, 438 U.S. 726, 748 (1978) 16 LaRue v. State, 611 S.W.2d 63 (Tex. Crim. App. 1980) 8 Miller v. California, 413 U.S. 15 (1974) 6,9,14 People v. Better, 33 Ill. App. 3d 58, 337 N.E.2d 272 (1975) 8 People v. Calbud, Inc., 49 N.Y.2d 389, 426 N.Y.S.2d 238, 402 N.E.2d 1140 (1980) 8 People v. Ridens, 59 Ill. 2d 362, 321 N.E.2d 264 (1974), cert. denied, 421 U.S. 993 (1975) 8 Pierce v. State, 292 Ala. 473, 296 So.2d 218 (1974), cert. denied, 419 U.S. 1130 (1975) 8 Price v. Commonwealth, 214 Va. 490, 201 S.E.2d 798, cert. denied, 419 U.S. 902 (1974) 8 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989) 9 Sedelbauer v. Indiana, 428 N.E.2d 206 (Ind. 1981), cert. denied, 455 U.S. 1035 (1982) 8 Stanley v. Georgia, 394 U.S. 557 (1972) 8 State v. DePiano, 150 N.J. Super. 309, 375 A.2d 1169 (1977) 8 United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973) 8 United States v. Bagnell, 679 F.2d 826, 836 (11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983) 8 United States v. Dachsteiner, 518 F.2d 20, 21-22 (9th Cir.), cert. denied, 421 U.S. 954 (1975) 8 United States v. Danley, 523 F.2d 369, 370 (9th Cir. 1975) 8 United States v. Orito, 413 U.S. 139 (1973) 8 United States v. Reidel, 402 U.S. 354 8Wisconsin v. Yoder, 406 U.S. 205 (1972) 15 OTHER AUTHORITY Julian Dibbell, "A Rape in Cyberspace," The Village Voice, December 21, 1993, 38(51): pp. 36-42. 13 Hiltz and Turoff, The Network Nation 29 (1993). 12 Karo and McBrian, Note: The Lessons of Miller and Hudunt: On Proposing a Pornography Ordinance that Passes Constitutional Muster , 23 U. Mich. J.L. Rev. 179 (1989). 7 Howard Rheingold, "A Slice of Life in my Virtual Community," Global Networks: Computers and International Communication 57 (1993). 11 Howard Rheingold, The Virtual Community: Homesteading on the Electronic Frontier (1994). 11 STATEMENT OF THE ISSUE SHOULD MEMPHIS, TENNESSEE, BE PERMITTED TO DICTATE THE APPROPRIATE COMMUNITY STANDARDS FOR ALL ONLINE COMMUNITIES THAT CAN BE ACCESSED FROM MEMPHIS, EVEN WHERE WARNINGS AS TO THE NATURE OF THE MATERIALS ARE CLEARLY POSTED, CHILDREN ARE DENIED ACCESS TO ADULT MATERIALS, AND USERS SELF-SELECT WHICH ONLINE COMMUNITIES TO JOIN? SUMMARY OF THE ARGUMENT This is a case of first impression regarding jurisdiction over computer networks. Online communications are physically nonterritorial, and individuals have a heightened ability to self-select which electronic "communities" to join, and are empowered to willingly and knowledgeably accept or block access to materials available electronically. Any obscenity definition that relies on the boundaries of the physical world is dangerous to the growth of online communications, in that such a definition would require all electronic communities to limit acceptable speech to only what is acceptable in the most restrictive of physical-world communities. In a realm where adults can easily avoid unwanted materials and prevent their children from accessing these materials, the state's interest in protecting the unwanting or underage from exposure to materials is substantially weakened, and First Amendment protections of speech and association must prevail. Computer communications are still in their infancy, but we already know that they implicate long-standing speech and privacy issues under theConstitution. The precedents we set today may radically affect the course of the computer networks of the future, and with it the fate of an important tool for the exchange of ideas in a democratic society. When the law limits or inhibits the use of new technologies, or