Ninth Circuit: Obscenity in E-Mail Messages Judged by National Community Standards

The U.S. Court of Appeals for the Ninth Circuit decided United States v. Kilbride a couple days ago, producing an opinion that interpreted criminal provisions in the CAN-SPAM Act and also discussed at length whether in a prosecution for transmission of allegedly obscene e-mail messages the contemporary community standard should be a local or national one.

Community Standards and E-Mail Communications

In a nutshell, the defendants used spam to promote adult websites.

The court ruled that the appropriate standard for e-mailed obscenity is a national community standard, due in large part to the fact that e-mail senders lack the ability to control which communities will receive their messages. The court reached this result by threading through the five opinions written in the U.S. Supreme Court's decision in Ashcroft v. ACLU, 535 U.S. 564 (2002), a case involving the constitutionality of a federal statute prohibiting the commercial online transmission of indecent speech. The problem, of course, is that subjecting e-mail speech to the community standards of the least tolerant community in the country may have an unconstitutional chilling effect on protected speech.

The Ninth Circuit wrote that, in light of Ashcroft, the application of a local community standard to e-mail speech was unconstitutional. However, the Ninth Circuit added, the application of a national community standard may also present constitutional problems. What? In a footnote, the court remarked that the application of local community standards "raises grave constitutional doubts" whereas the application of national community standards "does not raise grave constitutional doubts." Just to make sure that the reader understood that the court was not putting a stamp of approval on a national community standard, the court added that a First Amendment challenge to a national community standard will not necessarily be found meritless. Figure that one out, First Amendment lawyers.

(Personally, and this is probably an embarrassing confession of ignorance, but I have trouble understanding how a juror can determine what a "national community standard" looks like. Presumably, different communities have different sensibilities about artistic expression and obscene speech. How does a person deduce a national standard from a collection of varying local standards? Take an average? That can't be right. It's like asking, "What color is a rainbow?" A rainbow can't be reduced to a single color, can it. Same thing with community standards.)

Along the way, the court rejected the government's argument that e-mail speech is not entitled to the same First Amendment protection as the Internet communications at issue in Reno v. ACLU, 521 U.S. 844 (1997). "[F]or purposes of the First Amendment concerns raised by Defendants, Defendants' email communications are analogous to other Internet communications," the Ninth Circuit wrote.

Meaning of `Materially Falsifies' in CAN-SPAM Act
To carry out their spam operations, the defendants created several nonsense domain names, fake originating e-mail addresses, and fictitious names for e-mail senders. They also supplied false information when they registered their domain names. They argued on appeal that the definition of "materially falsified" in the criminal liability portion of the CAN-SPAM Act, 18 U.S.C. 1037(a)(4), was unconstitutionally vague -- raising both facial and as-applied challenges.

The court rebuffed these challenges. However, as it did so, the court remarked that domain name registrants who use private registration services that conceal the registrant's true identity have materially falsified their registration information. The court wrote:

[P]rivate registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.” Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague.

It is important to note that the CAN-SPAM Act requires proof "material falsification" plus an intent to send unlawful spam messages. Nevertheless, this court's belief that use of privacy-enhancing domain registration services -- a very common practice -- is a "material falsification" that helps create criminal liability is something e-mail senders should be aware of.