Landmark Obscenity and CAN-SPAM Case Changes Ninth Circuit Obscenity Law

Added: (Thu Oct 29 2009)

Pressbox (Press Release) - On October 28, 2009, the Ninth Circuit Court of Appeals issued its opinion in United States v. James Robert Schaffer and Jeffery A. Kilbride, holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. This holding sounds the death knell for the long-standing “Miller Test” for determining whether materials are obscene when the materials are published via the Internet or in email communications. The Court was persuaded by Appellants’ arguments that applying the Miller Test’s “local community standards” to Internet or email communications unavoidably subjects those communications to the standards of the least tolerant community in the country. The Court was extremely concerned by the “grave constitutional doubts” generated by applying local community standards to the Internet and email.

Unfortunately, this victory was bittersweet for Schaffer, Kilbride and their Appellate counsels. While the Court agreed that a national standard was proper, the justices affirmed Schaffer and Kilbride’s convictions, holding that because their former trial counsel (who were not their appellate counsel) had failed to properly object at trial, the error was not “plain” and therefore did not require reversal.

“I am pleased that we were able to change the law on obscenity in the Ninth Circuit. What the Court is saying, in effect, is that the days of trying to fit “horse and buggy” law to the digital age are over. And it makes sense - how can you subject a person to criminal prosecution for having the bad luck to open their email or log onto a website in Boise, Idaho rather than Los Angeles, California?”

“But it was an ultimately pyrrhic victory for our clients,” said Mr. Schaffer’s attorney, Gary Jay Kaufman of The Kaufman Law Group. “As it stands they will be the last Defendants convicted under an unjust law. We are very disappointed that the Court affirmed my client’s convictions and we are reviewing our options as far as challenging the Court’s rulings on several issues.”

Greg Piccionelli of Piccionelli & Sarno, appellate counsel for Mr. Kilbride, had this to say: “It has been clear to those of us practicing in the Internet law area for the last fifteen years that the old formulation of letting the most conservative communities in America dictate what is or is not obscene on the Internet is deeply destructive to our fundamental freedoms. I am glad that we persuaded the Ninth Circuit to make this long-overdue change in obscenity law. It is very unfortunate that my client’s former counsel failed to make certain objections at trial. Had he done so, it is my belief that my client would be celebrating this victory for freedom today instead of facing a term in prison.”

Colin Hardacre, also of The Kaufman Law Group, had mixed emotions. “It’s tough. We won the battle, but lost the war. We have been living with this case for two years now and to change the law this way is definitely bittersweet.”

In November 2007, after hiring The Kaufman Law Group and Piccionelli & Sarno, both Schaffer and Kilbride were granted bail pending appeal.

For more information, Contact:

Gary Jay Kaufman, Esq.
Colin Hardacre, Esq.
The Kaufman Law Group
1901 Avenue of the Stars, Suite 1010
Los Angeles, California 90067
Tel: 310-286-2202
Email: Gary@kaufmanlawgroupla.com

or

Greg Piccionelli
Piccionelli & Sarno
2801 Townsgate Road, Suite 200
Westlake Village, California 91361
Tel: (805) 497-5886
Email: greg@piccionellisarno.com