United States v. Thomas

United States v. Thomas, U.S. legal case that was one of the first prosecutions involving the distribution of “obscene” material in cyberspace. The case was notable because it extended the concepts of “community” and “community standards” beyond physical location and into the Internet and virtual space. It also raised the question of whether officials in one community, in this case Tennessee, had the legal right to determine the content of a computer located in another geographic location, California.

Beginning in 1991, from their residence in Milpitas, California, Robert and Carleen Thomas owned and operated a small adult-oriented computer bulletin-board system (BBS) that they had created, named the Amateur Action Bulletin Board Service (AABBS). The service was operated from a dedicated computer and phone line, which allowed dial-in access (using modems) to the BBS from individuals’ homes. Once connected, individuals could read and post messages as well as download any materials (such as photographs) available on the BBS. The AABBS began with a small number of photographs and a single telephone. By 1993 it had become one of the most popular BBSs in the United States, with approximately 3,500 customers and more than 20,000 images available for downloading.

Federal authorities initiated an investigation into the AABBS in 1993 after a hacker in Tennessee dialed into the service and viewed what he believed to be images of child pornography. Upon his request, authorities from the U.S. Postal Service in Memphis, Tennessee, began looking into the allegation. Working with an assistant U.S. attorney in Memphis, a Tennessee postal investigator joined the BBS, downloaded sexually explicit images, ordered videotapes from the AABBS (delivered by United Parcel Service), and sent the AABBS unsolicited child pornography.

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In January 1994 a federal grand jury in Tennessee indicted the Thomases on 12 counts related to violations of obscenity laws, including the distribution of obscene materials across state lines, a violation of interstate commerce laws. Although most charges were based on the downloads of sexually explicit images, a charge of child pornography was also included as a result of the couple’s receipt of the unsolicited materials from the postal investigator.

The case against the Thomases was based on another landmark court decision, reached in Miller v. California (1973), in which the U.S. Supreme Court attempted to provide a framework for defining obscenity by arguing that it should be based on “contemporary community standards.” In doing so, the court avoided describing specifically what those standards should be and left it to the discretion of individual communities. The Miller decision included a three-part test to determine what may qualify as obscenity. A material is considered obscene and excluded from First Amendment protection if: (1) by applying contemporary standards, the average person would judge the material, on the whole, as arousing “prurient interest” (e.g., immoral or lustful desire); (2) the material describes or depicts, in a patently offensive manner, “sexual conduct specifically defined by applicable state law”; and (3) the material, on the whole, lacks any serious artistic, literary, political, or scientific value. Only material that fails all three parts of that test can be deemed obscene within a community and therefore denied protection.

In July 1994, on the basis of that standard, the Thomases were tried in federal court in Memphis and convicted of the obscenity charges though acquitted of the child pornography charge. In December, Robert and Carleen Thomas were sentenced to serve 37 and 30 months, respectively, in a federal penitentiary.

The use of Miller v. California in the Thomas case raised several questions about the applicability of that ruling—then some 20 years old—to virtual communities. Virtual communities exist outside geographic boundaries, and applying the Miller ruling meant, in essence, that the standards of the community in which an individual resides were held to determine what a person could do in cyberspace. The Thomas case can thus be viewed as an attempt to regulate new communication technologies by applying outdated precedents based on old forms of communication.

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Other critics of the application of the Miller ruling argued that materials could be downloaded from the AABBS without the knowledge of the owner-operators, calling into question the issue of intent to distribute. In other words, the question arose as to whether the accessibility of the material from certain locations would automatically imply the intent to distribute into specific geographic areas.

The decision by the U.S. Court of Appeals for the Sixth Circuit on a 1996 appeal based on those arguments and others failed to overturn the convictions, with the court ruling that the application of the obscenity standards per Miller v. California was appropriate. Furthermore, the court declined to redefine the term community as applied to materials sent by computer, and it supported the ruling that the Thomases could be prosecuted in Memphis, even with its more-conservative “community standards,” although the BBS was based in California. The court argued that since a BBS owner-operator could control the locations from which images could be accessed, the Thomases were in violation of interstate commerce laws. The outcome of United States v. Thomas is commonly regarded as the reason why adult-oriented sites with sexually explicit material contain disclaimers regarding age authentication, sexual content, and legal jurisdiction of the Web sites.