Distilling Ashcroft: The Ninth Circuit's Application of National Community Standards to Internet Obscenity in United States V. Kilbride

I. INTRODUCTION The Ninth Circuit's recent decision in United States v. Kilbride1 highlights a circuit split regarding the application of the Miller v. California2 test for determining whether a work is obscene in the context of sexually explicit material disseminated via the Internet. It has long been held that obscene material "is not within the area of constitutionally protected speech or press."3 The Miller test indicates that in determining if material is obscene, a trier of fact must consider, among other things, "whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest."4 Lower courts have split over the difficult task of determining whether a national or local community standard should be applied to sexually explicit material transmitted over the Internet. The most recent Supreme Court case related to this issue, Ashcroft v. ACLU,5 left the Court highly divided and gave the lower courts little guidance. Since Ashcroft, circuit courts have continued to apply different community standards to sexually explicit Internet material.6 In Kilbride, the Ninth Circuit "distill [ed] the various opinions in Ashcroft" and held that a national community standard must be applied in regulating Internet obscenity.7 This Note argues that the Ninth Circuit in Kilbride incorrectly applied the Supreme Court's decisions in Miller and Ashcroft. The court failed to properly apply Miller's clear preference that local community standards be applied in obscenity cases. Instead, the Ninth Circuit distinguished Miller and its progeny by asserting that "speech disseminated via email is distinguishable from . . . speech disseminated via regular mails or telephone . . . because there is no means to control where geographically their messages will be received."8 Further, the Ninth Circuit improperly applied Ashcroft by "distill[ing] . . . the various opinions [of Ashcroft]r>9 to create a piecemealed holding. Part II of this Note describes the facts and procedural history of Kilbride. Part III explains and describes the relevant legal background against which the court decided Kilbride. Part IV outlines the court's reasoning and decision in Kilbride. Finally, part V analyzes Kilbride as described above. II. FACTS AND PROCEDURAL HISTORY A. Facts of the Case Jeffrey Kilbride and James Schaffer (collectively "Kilbride") began an email advertising business in 2003. 10 In response to new email regulations, Kilbride transferred the business overseas by using servers in the Netherlands and running the business through a Mauritian company, Ganymede Marketing.11 Kilbride profited from the business by receiving a commission every time a recipient of the company's emails followed a link to an advertised website and paid a fee to use the website.12 Kilbride's emails included sexually explicit images that formed the basis for the obscenity convictions in this case.13 To help mask the operation, Kilbride directed company employees to use various techniques to place fictitious and nonsensical information in place of the correct domain name and "From" field of the unsolicited emails.14 Additionally, Kilbride falsified the registration of domain names the company used by listing incorrect mailing addresses, non-functional email addresses, and fake entity names.15 B. Procedural History Kilbride was indicted on various counts on August 25, 2005. 16 Included in the indictment was a violation of 18 U.S.C. § 1462 for interstate transportation of obscene materials and a violation of 1 8 U.S.C. § 1465 for interstate transportation of obscene materials for sale.17 At trial, the sexually explicit images from Kilbride's emails were introduced, and a company employee testified that the images were sent out in connection with Kilbride's email advertising.18 In arguing that the images were obscene, the government called eight witnesses who testified that they had received sexually explicit images from Kilbride and expressed their views as to those messages. …