U.S. v. Kilbride

Citation: United States v. Kilbride, 2009 WL 3448360 (9th Cir. Oct. 28, 2009)

Factual Background
Since the U.S. Supreme Court’s holding in Miller v. California, 413 U.S. 15 (1973)./ref> the test for determining whether expression is obscene, and therefore not protected by the First Amendment, consists of determining (1) whether the average person, applying community standards would find he work as a whole to appeal to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The application of “community standards” is meant to ensure that material will be judged by an average person rather than a particularly sensitive one. For federal obscenity statutes, however, there is no precise geographical area that can be applied in defining “community standards.” In federal obscenity prosecutions, a juror may draw on knowledge of the community from which he or she comes in determining community standards.

Trial Court Proceedings
Defendants were convicted of fraud and conspiracy to commit fraud in connection with electronic mail, interstate transportation and interstate transportation for sale of obscene materials, and conspiracy to commit money laundering. The conviction arose from “spam” e-mail caused to be sent by the defendants containing sexually explicit images.

The jury was instructed to determine community standards by considering (1) what is accepted by society at large, or people in general; (2) evidence of standards existing in places outside that particular district; and (3) their own experience and judgment in determining community standards. Defendants objected to the instructions.

Appellate Court Proceedings
Hamling v. United States held that a specifically defined geographic community is not required in federal obscenity prosecutions, permitting a jury to apply their own sense of what community standards are based on their own community. Defendants argued that the approach used in Hamling is not appropriate for speech through e-mail because there is no way for a sender to control what geographical region an email will end up, ultimately subjecting the sender to the least tolerant community in the country. Instead, defendants argued for a national community standard instruction.

The court agreed that a national standard is required to govern speech on the internet and in email to avoid inconsistent results under local community standards, however, it affirmed the conviction by refusing to find that the jury instructions were plain error.