United States vs. Thomas

United States vs. Thomas 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.

In 1991, from their residence in Milpitas, California, Robert and Carleen Thomas created, owned, and operated a small adult-oriented computer bulletin-board system (BBS), 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 individual's 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 life with 12 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, earning it the moniker of “the nastiest place on Earth.”

In 1993, a man in Tennessee dialed into the AABBS and viewed what he believed to be images of child pornography. Upon his request, authorities from the U.S. Postal Service in Memphis launched an investigation into the BBS. Working with an assistant United States attorney in Memphis, a Tennessee postal investigator joined the BBS, downloaded sexually explicit images, ordered a videotape from the AABBS (which was delivered by United Parcel Service), and sent the AABBS an unsolicited child-pornography videotape.

In early 1994, Robert and Carleen Thomas were arrested after a five-month investigation by federal authorities, and charged with distributing 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 videotape described above.

The case against the Thomases was based on another landmark court decision, reached in 1973's Miller vs. California, in which the U.S. Supreme Court attempted to provide a framework for defining obscenity by arguing that it should be based on “community standards.” In doing so, the Court avoided describing specifically what those standards should be, and left it to the discretion of individual communities. Chief Justice Berger argued that such an approach was needed to avoid having standards from one community dictate the standards of another.

The Miller vs. California decision included a three-part test to determine what may qualify as obscenity, and was applied in the United States vs. Thomas case. A material is considered obscene and excluded from First Amendment protection if: 1) 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 the 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 this test can be deemed obscene within a community, and therefore denied protection.

...