Free Speech and the Internet: Spring, 2010 Update

FREE SPEECH & THE INTERNET

By: J. D. OBENBERGER 
J.D. OBENBERGER AND ASSOCIATES  
Copyright 2010, 2011 J. D. Obenberger. No claim made as to the text of government documents.

1. Commmunity Standards Cases 
 

THE NINTH CIRCUIT HOLDS THAT INTERNET OBSCENITY
MUST BE JUDGED BY NATIONAL COUMMUNIT STANDARDS –
THE ELEVENTH CIRCUIT AND A TRIAL JUDGE IN DC DECLINE
TO FOLLOW THE NINTH CIRUIT

 

A constellation of decisions in three cases addressed the application of community standards to the first and second fork of the Miller Test with respect to Internet content against defense contentions that national standards must be applied:

     United States v. Kilbride, 584 F3d 1240, 2009 WL 3448360, 2009 ILRWeb (P&F) 2877, 28 ILR (P&F) 376 (9th Cir., 2009) (Kilbride is also treated below regarding constitutional challenge to the CAN SPAM Act..)
        United States v. Little, No. 08-15964, 2010 WL 357933, 2010 ILRWeb (P&F) 1207, (11th Cir., February 2, 2010) (Unpublished, per curiam)  
            United States v. Stagliano, Memorandum Opinion, No. 1:08-cr-00093-RJL, Criminal Action No. 08-93 (D.D.C., Feb. 19, 2010). 

A. Kilbride
FACTS

 

Jeffrey Kilbride and his co-defendant were indicted and tried in Phoenix with respect to the following counts: Conspiracy to violate 18 U.S.C. § 1037(a)(3) through fraud in connection with electronic mail; violation of § 1037(a)(3) and (a)(4) through such fraud; interstate transportation of obscene materials in violation of 18 U.S.C. § 1462; interstate transportation of obscene materials for sale in violation of 18 U.S.C. § 1465; commit money laundering in violation of 18 U.S.C. § 1956; and failure to meet record keeping requirements in violation of 18 U.S.C. § 2257. Convicted by jury on all Counts, June 25, 2007. They were sentenced to 78 mos. (Kilbride) 63 mos. (Schaffer). The Ninth Circuit was not petitioned for review en banc; It is not clear whether a cert petition will be filed. The defendants remain free on appellate bond.  

The allegations arose from the transmission of spam email containing sexually explicit images; One of the emails contained a montage with a thumbnail image of a fist inserted into a vagina.

 

TRIAL  

    The Government introduced substantial evidence concerning attitudes toward pornography extrinsic to the District of Arizona; at trial, the Government introduced evidence of 622,000 complaints from around the country to the Federal Trade Commission (and the contents of some of those complaints) and it presented eight (8) witnesses from different parts of the country who testified concerning the “circumstances under which they received Defendants’ emails, their reactions to and attitude towards the images sent by Defendants, and their views on pornography generally.” 584 F.3d at 1245.  

        The meaning or identity of the “community” relevant to the elements was not defined or identified. However, the jury was instructed as follows with respect to the community:  

what is in fact accepted in the community as a whole; that is to say by society at large, or people in general, and not merely by what the community tolerates nor by what some persons or groups of persons may believe the community as a whole ought to accept or refuse to accept.

 The ‘community’ you should consider in deciding these questions is not defined by a precise geographic area. You may consider evidence of standards existing in places outside of this particular district.

 The parties have presented evidence concerning contemporary community standards. You should consider the evidence presented, but you may also consider your own experience and judgment in determining contemporary community standards.

 [Emphasis added.]   

        The Defendants did not request an instruction that the standards of the nation as a whole should apply. There was no relevant objection to the instructions. Accordingly, the standard of review was Plain Error. Plain Error review requires the reviewing court to find (1) an error that is (2) plain and (3) affects substantial rights. Even if these conditions are not met, the reviewing court exercises discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. 584 F.3d at 1247.  

APPEAL TO THE NINTH CIRCUIT

        Appellate counsel made bookended alternative arguments;

1. First, that the instructions permitted the jury to apply a community standard extrinsic to the District of Arizona contrary to the Supreme Court’s holding in Hamling v. United States, 418 U.S. 87, 106, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); and  

(alternatively,) 

2.  Second, that jury should have been instructed in a case involving communication via mass email on the Internet, to apply a nationwide community standard as a result of the “fractured decision” in Ashcroft v. ACLU, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002).

        The Ninth Circuit roundly rejected the first argument: It held that there was no prejudicial error. It observed that the relevant community was general rather than  geographic and that it was for the jury to determine the community and its standards, finding support at Hamling, 418 U.S. 104-05, 94 S.Ct. 2887; United States v. Cutting, 538 F.2d 835, 841 (9th Cir.1976) (en banc); and United States v. Dachsteiner, 518 F.2d 20, 22 (9th Cir.1975).

 
        With respect to the second argument, it found that the trial court erred by failure to instruct on a national “community standard”.

 Following Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), the Ninth Circuit determined that in Ashcroft, the Supreme Court had held that national community standards must be applied in judging obscenity alleged to have been distributed via the Internet:  

Justice Thomas's opinion held broadly that application of either a national community standard or local community standards to regulate Internet speech would pose no constitutional concerns by itself. None of the remaining justices, however, joined that broad holding. Justices O'Connor and Breyer held more narrowly that while application of a national community standard would not or may not create constitutional concern, application of local community standards likely would. Justice O'Connor's and Justice Breyer's opinions, therefore, agreed with a limited aspect of Justice Thomas's holding: that the variance inherent in application of a national community standard would likely not pose constitutional concerns by itself. They did not join his broader conclusion, however, that application of local community standards is similarly unproblematic. In this latter disagreement, Justices O'Connor and Breyer were joined by Justice Kennedy's opinion, as well as Justice Stevens's dissent. Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself. . . accordingly, following Marks, we must view the distinction Justices O'Connor and Breyer made between the constitutional concerns generated by application of a national and local community standards as controlling. [¶] Accepting this distinction, in turn, persuades us to join Justices O'Connor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. . . To “avoid the need to examine the serious First Amendment problem that would otherwise exist,” we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the Internet. 584 F.3d at 1254. [Citations omitted, emphasis added.]

This holding means that the Phoenix jury was not properly instructed; despite the error, the Ninth Circuit declined to reverse, holding that the error was “far from plain” and, in fact, based on its “distillation” [!] from “various decisions” in Ashcroft. 584 F.3d at 1256. The Ninth Circuit affirmed the conviction and the sentence.



QUESTIONS ABOUT COMMUNITY STANDARDS PRESENTED IN KILBRIDE:

 

1. Did any of the “fractured opinions” in Ashcroft control the Court’s judgment reversing the Third Circuit? Are the fractured views of the justices just dicta?

 

2. Kilbride’s conviction was affirmed, and the Ninth Circuit holds plainly that there was no reversible error. Does that render its own ruminations concerning a national standard as dicta?

 

3. Given the Government’s use of evidence concerning 622,000 FTC complaints, including the contents of some of them, from all over the country, its use of eight (8) witnesses from around the country, and instructions alluding to the community as “society at large”, and the absence of any geographic limitation in the instructions, did the Ninth Circuit believe that Kilbride essentially was judged on a national standard, and is that the real reason why it found no prejudice in the error beyond reasonable doubt?



B. Little “Max Hardcore”
FACTS

 

Paul Little, under the persona known as “Max Harcore”, is a well-known producer of porn that is regarded, even within the adult industry, as extreme in nature and hard in character. Max was the target of several California state prosecutions that ended without obscenity prosecutions during the past decade. 

Paul Little was indicted in the Central District of Florida at Tampa on ten obscenity counts under 18 USC §§ 1461, 1462, 1465 and Forfeiture under 18 USC § 1467 (b) and 21 USC 2461 (c). Both Internet and physical delivery underlie the Indictment’s allegations. 

He had the misfortune of drawing Hon. Susan C. Bucklew, previously seen as the trial judge in the VoyeurDorm case as his judge. Convicted by jury on all counts June 6, 2008 with forfeiture of “maxhardcore.com”. No forfeiture of personal assets. Sentenced October 3, 2008 to 46 months in prison for distributing obscene material through the mail and the Internet. Little was fined a total of $7,500 and the corporate defendant was fined a total of $75,000. The jury ordered the internet domain MaxHardcore.com to be forfeited but declined to forfeit Little's house. He took appeal to the 11th Circuit. Paul F. Little is still prisoner number 44902-112 and due to be released May 29, 2012.

 The material at issue included Fisting, Urine. Auto-Felching, and hard anal sex The titles of the works were Max Hardcore Extreme 20 Euro Edition,” “Pure Max 19 – Euro Edition,” “Max Hardcore Golden Guzzlers 7 Euro Edition,” “Fists of Fury 4 Euro Edition” and “Planet Max 16 Euro Edition” and Five Video Clips ranging in length from 1:28 to 2:38.

APPEAL TO THE ELVENTH CIRUIT

On February 2, 2010, the Eleventh Circuit affirmed the convictions but remanded for resentencing inasmuch as Little’s sentence was enhanced because his revenues derived from the crimes was determined to be in excess of $30,000.00 under the table at U.S.S.G. § 2B 1.1(b)(1)(D). The Eleventh Circuit determined that, in the absence of evidence that the income was derived in the Middle District, enhancement was improper because there had been no determination that the material was obscene, or its sale illegal, anywhere but in the Middle District of Florida.  

1. Little argued that the obscenity statutes violated a constitutional right to sexual privacy and these arguments were rejected by the court, finding its support in United States v. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674, 2678 (1973) and United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410, 1412 (1971) and the other cases associated with them. The court did not directly deal with the cases raised by the defendant.

            2. The per curam decision summarily rejected Little’s argument that indictment and trial for short video clips excised from his website denied him what Miller guarantees, the right to be tried on a “work as a whole” The defense contended that the Miller Test could not be applied to the Internet because objects and places online have elusive borders defining their extent. The court concluded that nothing in the record suggested that the larger context of the website would make a difference, noting that “If an art critic were asked to judge the quality of the Mona Lisa he would not consider the Louvre part of the work.” Fn. 10. [Actually that is the opposite proposition from the proposition argued: the question is not whether the website was a part of the clip, but whether the clip can be said to represent a mere portion of a bigger work, and perhaps not representative of it - whether the directed work of one person with one vision, a thematic website, might properly be judged by a short piece excised from it, such judging the corpus of Michelangelo’s work by the genitalia of his David which is generally regarded as flawed in execution because of problems with the stone or the self-actualizing inscription on the banner of the Pieta (or even judging that statue by its inscription), or the nose of the Mona Lisa.] 


The court rejected numerous arguments addressed to trial procedure, contacts
with jurors, and a personal tragedy in the life of one juror.

         The view of the 11th Circuit seems to reverse the burden of proof inasmuch as it calls upon the defendant to affirmatively prove the work and its nature, and if convicted, to demonstrate that its contents would necessitate a different outcome; a “work as a whole” is an integral part of the elements of the offense: Rather, it is the burden of the prosecution under Miller that the work presented to the jury is the whole work, because in the absence of a work or evidence of a work before the finder of fact, no conviction can stand.  

The Court considered arguments arising from Ashcroft that the application of local community standards to the Internet unduly burdens expression with the heckler’s veto from conservative jurisdiction and rejected them; it assessed the Supreme Court’s language central to Kilbride as obiter dicta “and not the ruling of the Court”, 2010 WL 357933 at 4 ; it took note of the decision in Kilbride from the Ninth Circuit and expressly declined to follow its reasoning. The Court noted that local community standards work to protect those who desire material that would be obscene in other locales or under a national standard as much as it works to proscribe the same content in more conservative venues. Id. fn. 9


C. John Stagliano - Pending 

[The case was ultimately resolved by dismissal amounting to acquittal; this article was written before trial, and it is obviously no longer "pending".]

FACTS  

    John Stagliano is a well-known adult content producer who has been a part of the adult industry for many years; some of his works have been acclaimed for artistry.  

    Indicted in the District of Columbia, April 8, 2008. 18 U.S.C. § 1465 (Transportation of Obscene Matters for Sale or Distribution); 18 U.S.C. § 1462 (Using a Common Carrier or Interactive Computer Service to Transport Obscene Matters); 18 U.S.C. § 1466 (Engaging in the Business of Selling or Transferring Obscene Matter); 47 U.S.C. § 223(d) (Sending or Displaying Offensive Material to Persons Under 18); 18 U.S.C. § 2 (Aiding and Abetting); 18 U.S.C. § 1467 (Criminal Forfeiture). Both Internet and physical delivery underlie the Indictment’s allegations.  

    The materials charged in the Indictment are: "MILK NYMPHOS," STORM SQUIRTERS 2 'TARGET PRACTICE," and "FETISH FANATIC CHAPTER 5,"  

On February 19, the District Court denied defendants’ multi-pronged motion to dismiss in what I would term an ill-spirited Memorandum. Others might call it worse. 2. The defendants argued (1) that Section 1465 and Section 223(d), both of which incorporate the "community standards" and "as a whole" elements of the obscenity test set forth in Miller, are unconstitutionally overbroad and vague as applied to Internet speech and (2) they argued that Section 223( d) is a content-based restriction on speech that fails strict scrutiny under the First Amendment. Beyond these overbreadth and vagueness claims, (3) defendants urged that all counts of the Indictment must be dismissed because individuals have a substantive due process right under the Constitution not only to possess and use obscene materials but to produce and distribute those materials. The defendants made an argument derived from R.A.V. v. City of St. Paul, 505 U.S. 377, 383 (1992) that the constitution is not blind to obscenity, and that principles of content-based discrimination of speech should apply to it. They did not convince the judge who felt that obscenity statutes generally aimed precisely at materials that are legitimately proscribable and unprotected in general. 

2 See e.g.: “Thus, absent clear support in the constitutional text or in Supreme Court case law, I will neither certify the defendants' gold-toned constitutional concoction, nor conjure one up on my own.

 
 COMMUNITY STANDARDS

 

The court summarized defendants’ community standards argument as follows:

 
The defendants contend that
the federal obscenity statutes, which incorporate the "community standards" test, suppress substantially more speech than is constitutionally permissible when applied to the Internet. Because Internet publishers, unlike those who use mail or telephone, cannot limit the geographic reach of the materials they post on the Internet, those materials are subject to the community standards of the most conservative jurisdictions in the country. Thus, to avoid criminal liability, the publishers must either tailor their speech to conform to those standards or abstain altogether from using the Internet as a medium for their speech. As a consequence, Internet speech that more permissive jurisdictions would surely protect will be unconstitutionally burdened or chilled. Memorandum Op. at 7-8.

At Footnotes 9 and 10, the court argues that if a work is obscene in one jurisdiction, but nonobscene in another jurisdiction only because of a difference in community standards, it is plain that the work lacks any serious value, inasmuch as the third prong has no connection to local values, and works with serious value are protected everywhere. Ergo, it is a work not really entitled to any protection because of its lack of value, and therefore a difference in community standards affects no right protected by the constitution. In the opinion of the trial judge, this guts the overbreadth issue, because the statute is applied to material with constitutionally insignificant value, and therefore no protection.

 The judge also noted that the Supreme Court held that "reliance on community standards ... does not by itself render [COPA] substantially overbroad for purposes of the First Amendment." Aschcroft, 535 U.S. at 585. He asserted that COPA regulated far more material than is affected by obscenity statutes, and that accordingly, there is no support for an overbreadth attack on them.  

The judge confronted the holding in Kilbride – and rejected it, disagreeing with the Ninth Circuit that Justice Breyer’s opinion was the narrowest and controlled under Marks:  

Of the five justices who found the use of community standards to be constitutionally problematic, only Justice Breyer based his decision on the belief that a national community standard applied. Notwithstanding their concerns, the other four justices were willing to accept the constitutional viability of community standards in the absence of evidence establishing substantial overbreadth based on the amount of speech covered and the degree of variance among communities. Because Justice Breyer disregarded the possibility that local community standards might be constitutional in light of the facts and circumstances of the case and instead imposed a uniform national standard that no other justice thought was necessary, his rationale is not the narrowest, and as a result, it does not control.

 

Id. at fn. 8.

2. SEARCH AND SEIZURE DEVELOPMENTS

The Ninth Circuit Articulates Extensive Standards for The Search
Of Digital Media Containing Private Media – The Seventh Circuit
Declines To Follow The Ninth Circuit

United States v. Comprehensive Drug Testing, Inc., __F.3d __2009 (9th Cir Aug. 26, 2009), 2009 WL 2605378, ILRWeb (P&F) 2477

 United States v. Mann, 592 F.3d 779, (7th Cir., Ind. 2010)

 In Comprehensive Drug Testing, the en banc U.S. Court of Appeals for the Ninth Circuit dramatically articulated computer searches by setting out a list of strict requirements for search warrants for electronic data when mixed with data for which it possesses no probable cause. Important questions remain as to whether the Ninth Circuit decision is based on the 4th Amendment or whether it is exercising its supervisory authority. Practical questions about applying the new requirements and their potential application to state courts in the Ninth Circuit remain.                                                                                                                                         

This case came out of a federal grand jury investigation into the distribution of steroids to Major League Baseball players. The government obtained a warrant authorizing the seizure and search of the computer records of a private company that had been hired by MLB to administer its drug testing program. But the investigators walked away with far more than the records of the ten players - They seized the records of hundreds of other players and individuals, claiming that those records were in "plain view" when the agents were in the database.

The court of appeals eventually upheld district court orders, pursuant to Fed. R. Crim. P. 41, compelling the government to return all of the testing records it had seized other than those related to the 10 targeted players.

In an opinion by Judge Alex Kozinski, the court in Comprehensive Drug Testing acknowledged that "overseizing" is a necessary and inherent feature of searches of electronically stored information. On the other hand, the court insisted that "[t]he process of segregating electronic data that is seizable from that which is not must not become a vehicle for the government to gain access to data which it has no probable cause to collect."

"Th[e] pressing need of law enforcement for broad authorization to examine electronic records . . . creates a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant," the circuit court warned. To keep this from happening, the court announced the following requirements for the issuance and execution of search warrants for commingled electronically stored information: __ F.3d at __.

Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.

Segregation and redaction must be either done by specialized personnel or an independent third party. If the segregation is to be done by government computer personnel, it must agree in the warrant application that the computer personnel will not disclose to the investigators any information other than that which is the target of the warrant.

Warrants and subpoenas must disclose the actual risks of destruction of information as well as prior efforts to seize that information in other judicial fora.

    The government's search protocol must be designed to uncover only the information for which it has probable cause, and only that information may be examined by the case agents. The investigators may not use special forensics searching for particular suspected images from a law enforcement data base without explicit authorization in the warrant.

    • The government must destroy or, if the recipient may lawfully possess it, return non-responsive data, keeping the issuing magistrate informed about when it has done so and what it has kept.

In US v. Mann, 592 F.3d 779, (7th Cir., Ind. 2010) the Seventh Circuit considered the case of Mathew Mann, who was being investigated for voyeurism by means of covert cameras that he allegedly placed in the women’s changing room at a pool at which he worked as a swimming instructor for the Red Cross. One of his female students discovered the camera with videotape; the tape included a depiction of Mann installing it. Detectives obtained a warrant for the search and seizure of his personal computer, identifying “video tapes, CD’s or other digital media, computers, and the contents of said computers, tapes, or other electronic media, to search for images of women in locker rooms or other private areas.”; two months later, the detective began the search by using a “forensic tool kit” which includes an overview screen lists files flagged by the software as “KFF (Known File Filter) alert” and “KFF Ignorable” files. The “KFF Alert” flags those files identifiable from a library of known files previously submitted by law enforcement—most of which are images of child pornography. Child pornography was present when the computer was examined. It was also clear that he had visited PervertsAreUs.com containing child sex stories. He was charged and convicted of Child Pornography and sentenced to a lengthy prison term. On appeal, the most significant issue was whether the Government might use the fruits of this search under the Plain View doctrine. Inasmuch as Comprehensive Drug Testing starts its mandate with a requirement that the Government waive Plain View,

 The Seventh Circuit states that, once the KFF alert came on, the detective should have been on notice that child pornography was present on the computer and also, that a search for child pornography would be outside the warrant; the detective testified that he never consciously searched for child pornography, but that his quest was always for voyeur images. The court implies that the four files identified by KFF were improperly seized, but notes that it would have no effect on the outcome. In declining to follow Comprehensive Drug Testing, the court said:

Mann urges us to apply the Ninth Circuit’s rationale to conclude that Detective Huff’s search was unconstitutional. Although the Ninth Circuit’s rules provide some guidance in a murky area, we are inclined to find more common ground with the dissent’s position that jettisoning the plain view doctrine entirely in digital evidence cases is an “efficient but overbroad approach.” (Callahan, J., concurring in part and dissenting in part). As the dissent recognizes, there is nothing in the Supreme Court’s case law (or the Ninth Circuit’s for that matter) counseling the complete abandonment of the plain view doctrine in digital evidence cases. We too believe the more considered approach “would be to allow the countours of the plain view doctrine to develop incrementally through the normal course of fact based case adjudication.”. We are also skeptical of a rule requiring officers to always obtain pre-approval from a magistrate judge to use the electronic tools necessary to conduct searches tailored to uncovering evidence that is responsive to a properly circumscribed warrant. 592 F.3d at __, Slip Opinion at 13-14. [Citations omitted.]

Evidence that a defendant paid $79.95 for a one-month subscription to a website advertising child pornography was enough to establish probable cause to search his computer for illegal pictures more than a year late According to the Eight Circuit.

US v. Frechette, 583 F.3d 374, (C.A.6 Mich. 2009)

Man Downloads Limewire Software, a File Sharing Protocol and
Opens His Computer Contents to the Internet. Eighth Circuit Holds
That He Waived His Reasonable Expection of Privacy.

 

United States_v_Stults, 575 F3d 834, 2009 ILRWeb (P&F) 2539, (8th Cir.,2009)

 

The investigator used Limewire and conducted a search for the term PTHC, which means Pre Teen Hard Core. An examination of the content of the computer’s hard drive disclosed child pornography. The Limewire search led to defendant’s IP address; while he contended that this amounted to an illegal search of his computer, the Eight Circuit concluded that, by installing Limewire, he had waived his reasonable expectation of privacy.

 3. Criminal Case Developments

FEDERAL CRIMINAL CASE DEVELOPMENTS

Fourth Circuit Affirms Obscenity Conviction In Trial At Which
Evidence Of Comparables - in the Form of Internet Availability Of
Extreme Content - Was Proffered By Defense And Excluded By
The Trial Judge

 

U.S. v. Adams Slip Copy, 2009 WL 2196796 (4th D. (W.Va.), July 24, 2009)

 

    Resident of Indianapolis alleged to have mailed obscene (bestiality and fisting) DVDs to Martinsburg, W.V. Convicted on all six counts by jury trial; tried by Pam Satterfield of the DOJ Obscenity Task Force. Sentenced to to 33 months in prison for shipping obscene DVDs through the U.S. mail. U.S. District Chief Judge John Preston Bailey also ordered Adams to serve three years supervised release and to forfeit his Web site domain name and all copies of DVDs involved in the case. Adams had a prior Indiana state obscenity conviction.  

Adams intended to call a computer systems administrator who would testify that, by entering the terms “fisting” and “bestiality” into search engines, he found thousands of articles, movies, links, and photos devoted to these terms, which were available to anyone in the Martinsburg, West Virginia area with internet access.

 

Rejecting Adams’ contention that he was denied a fair trial, the Fourth Circuit held:

 By introducing testimony of the availability of like materials on the internet, Adams sought to demonstrate that such materials were “accepted” in the Martinsburg community, and therefore did not appeal to the prurient sexual interest. However, “the availability of similar materials ... [in] the community does not automatically make them admissible as tending to prove the nonobscenity of the materials which the defendant is charged with circulating.” Hamling v. United States, 418 U.S. 87, 125 (1974). Instead, the “[m]ere availability of similar material by itself means nothing more than that other persons are engaged in similar activities.” Id. at 126 (internal quotation marks and citation omitted). . . he availability of certain materials in the fringe of a community is no indication of community acceptance of it. The conclusion follows that the district court acted within its discretion, and appropriately followed both Supreme Court and Circuit precedent, in finding that the testimony Adams wished to present regarding the accessibility of comparable materials online was not relevant to the determination of contemporary community standards.

 

The 4th Circuit cited United States v. Pryba, 900 F.2d 748, 758 (4th Cir.1990) for the proposition that the Miller Test applies a standard of acceptance rather than tolerance in support of its conclusion.

Federal Trial Judge in Georgia Denies Motion to Dismiss
Indictment Predicated on Transmitting Links to Stories and Also
Alleging Prosecutorial Misconduct in that the Grand Jury Was
Never Informed that Federal Magistrate Judge and Federal
District Judge Refused to Authorize Search

United States v. McCoy, Memorandum Opinion, No. 1:07-CR-18 (WLS) (M.D. Ga., Dec. 24, 2009)

 McCoy is reported to be well-known author of many stories on alt.sex.stories during the 1990’s. He is a Minnesota resident indicted in Georgia federal Court. He is indicted on one Count Transportation of Obscene Matter under 18 USC §1462. The material at bar is text-only, relating to the torture and mutilation of children.

His motion to quash indictment was denied December 24, 2009 and he is awaiting trial in the Middle District of Georgia.  McCoy’s counsel filed comprehensive motions to dismiss the Indictment, raising novel arguments as well as those seen in other recent obscenity cases.

    McCoy challenged venue, asserting that the Indictment alleges merely that he transmitted three web links (to a story on a website) to an undercover agent and that it is not alleged that he ever transmitted or distributed obscene matter itself in the Middle District of Georgia.  

The court accepted the Government’s argument that the distribution of obscenity is a continuing offense that may be prosecuted in any venue through which it travels, and that the defendant may be tried on the theory that, though the text of the links themselves are non-obscene, by transmitting the links to the agent, he aided and abetted the agent in obtaining the allegedly-obscene stories from the server in Texas. The court viewed the web server host as a middle man between the author and potential customers; by providing the link, the defendant completed the chain of distribution that was possible through the web address contained in the links.

 [A] server or “host” is a necessary middleman that stores the creator's electronic content and transmits it to the recipient. Defendant's counterargument appears to discount this fact, apparently asserting instead that the content was simply waiting somewhere to be snatched by the recipient. The Court does not find that this theory comports with reality . . . Id. at 5.

 Several arguments arise from the circumstance in which a Federal Magistrate Judge and a Federal District Judge sitting in Minneapolis declined to authorize a search warrant and issued a written order setting forth the reasons.  

McCoy unsuccessfully argued that the denial of the application for a search warrant barred his indictment, arguing Res Judicata, Collateral Estoppel, Law of the Case, Judicial Estoppel, and Equitable Estoppel. Each such basis was rejected by the court.

The court ruled that McCoy could not assert Res Judicata because he was not a party to the proceedings in Minnesota and because nothing contained in the orders suggested that the Magistrate or Trial judge intended to terminate the prosecution of the defendant; the court determined that the denial of a search authorization had no preclusive effect against the government: rather, it meant only that the Government had failed to meet its burden on that day, leaving it with the option of trying again and perhaps succeeding on another occasion. In short,the denials were not a final order of the judges. The court determined that the proceedings before it were not a transfer of a prior existing case that was transferred and that, accordingly, Law of the Case had no applicability.  

The court determined that judicial estoppel had no preclusive effect where the government had informed the magistrates in Minnesota that the defendant had transmitted stories, but now contend that he had transmitted links. The court appears to hold that in the big picture (and stressing that an aider and abetter theory underlies the Indictment) it’s really all the same. Finally, the court said that there was no unfair advantage to the government or unfair prejudice to the defendant.

Further, McCoy argued that, by not informing the Grand Jury, and presenting it with the orders of the Minnesota Federal Judges, the Prosecutors were guilty of misconduct before the Grand Jury, depriving them of the ability to determine community standards. Because the transcript was sealed at the time the motions were briefed, it was not clear whether the jury had been informed about the denials of search authorizations; the trial judge assumed that the Grand Jury had not been so informed, but ruled that any determination concerning obscenity as based on the community standards prevailing in Minnesota would not be germane to a Georgia determination of probable cause for obscenity, applying its standards.

 Defense counsel covered the waterfront with arguments addressed to the applicability of 18 USC §1462 to him and its constitutionality; all of them were denied; nevertheless, the advocacy appears to be both creative and masterful, and this case should be carefully read prior to the preparation of any future motion to dismiss in an obscenity case.

Manga Collector Sentenced to Six Months in Southern District of Iowa
for Japanese Comic Books Sexuallizing Children

 

United States v. Christopher Handley, Sentencing Order, 1:07-cr-00030-JEG­RAW (February 11, 2010)

 The celebrated manga case involving Christopher Handley came to an end with his guilty pleas to:  18 U.S.C. § 1466A(b) Possession of Obscene Visual Representations of the Sexual Abuse of Children and 18 U.S.C. § 1461 Mailing Obscene Matter.

 He was sentenced to 6 months incarceration and three years supervised release.

STATE CRIMINAL CASE DEVELOPMENTS

 

California 3d District Reverses Juvenile Delinquency Determination
Arising From “Obscene” Telephone Communications – Without
Recourse to Miller Test

 

People of California v. C. C, 178 Cal. App. 4th 915, 100 Cal. Rptr. 3d 746 (3d. Dist, Oct. 27, 2009) WL 3431384, 2009 ILRWeb (P&F) 2881.

 C. C. sent his former girlfriend two text messages expressing strong negative feelings about their breakup. A delinquency petition charged him with criminal threats and making a threatening or obscene telephone communication. (Pen. Code, §§ 422, 653m, subd. (a).)1 The People dismissed the criminal threat count and the juvenile court sustained the petition, finding C. C. sent threatening or obscene texts. The juvenile court placed C. C. on informal probation and ordered him to write a 500-word essay on the Columbine High School shootings. C. C. completed his essay and filed his appeal.

 The Court of Appeal reversed for lack of substantial evidence, concluding that C. C.'s text messages were not obscene as those terms are used in section 653m, and in their context.

 The text exchange in issue follows:

 no [S.] im gonna come to school with one of [P's] gun and kill half the school ill load everyone with bullets and then shoot myself in the head right in front of u.

 "just to show u how much u pushed me "fuck u u stupid fuckin girl!

"fuck u!!

 "god u stupid little fuckin cunt!

 "god i waited to kiss u for a fuckin month its been two weeks ur kissing ppl [Sh.'s] friends try to cuddle with me and i push them off ur all i think about i do drugs now because of u because u r constantly hurting me i told u i cheating on u cause i didnt want to hide things from u i could have and i could have been happy but no . . . .

 "u pushed me to cheat on u u would constantly tease me and fuck with me and put me thru things those were all bitch moves and i took them i cheated on u because of that u find a fuckin guy that will stay with u when u tease but dont put out and i waited all that time u will probably fuck [B.] right after he wins the [football game] i fuckin hate u i wanna kill myself cause u put me thru all this but only ppl c my bad side not ur shitty side cause ur a cheerleader and ill i did was b nice and i get picked on so fuck u [S.]

 "god ur a lyer and a jerk. "fuck."

 The court raises the Miller Test only to note that prior California decisions construe the word “obscene” as used in the statute to mean something different from the obscenity standards applied in erotic expression under the Miller Test. In People v. Hernandez 231 Cal. App. 3d 1376 (1991) the court approved an instruction defining " 'obscene' " as used in section 653m as " 'offensive to one's feelings, or to prevailing notions of modesty or decency; lewd.' ". Id at 1384. The Hernandez court gave the word “obscene” a broader meaning than its use in traditional criminal obscenity cases because its purpose “was to protect an individual's right to privacy from annoying intrusions[,]" section 653m was not limited to " 'obscene' language dealing with sex and appealing to the prurient interest under the Miller standard. . . “ C.C. at ___

 The court expressly notes that CC did not challenge Hernandez’s definition of “obscene” (the compass of which was far broader than the Miller Test), and therefore applied it here.

    Citing People v. Goulet, 21 Cal App 3d Supp. 1, 3-4 (1971) and In re Price 4 Cal App 3d 941 (1970) (defendant charged with calling a police officer a “motherfucking pig”) to demonstrate the importance of context, the C.C. court found that in the context of communications among students in a high school where the use of these words was common, with secondary non-sexual meanings, where the victim was not offended, where there was no evidence of lewd meaning , the communications by telephone were non in their context, “offensive to prevailing notions of modesty or decency” so as to support a determination of delinquency.  

4. CDA SECTION 230 IMMUNITY CASE(S)

Cook County Sheriff Sues Craiglist as a Public Nuiscance, Seeking Damages for the $105,081.00 Costs of Enforcing Prostitution Laws and Injunctive Relief; Judgment on the Pleadings for Defendant Under Section 230

 

Dart v. Craigslist, __F.Supp.2d__, 2009 WL 3416106 (N.D.Ill., 2009)

 
    Sheriff Tom Dart retained Querry and Harrow who filed a copiously illustrated Complaint of 196 pages amounting to a parade of horribles emerging from the Erotic Services (later “Adult Services”) category of advertising on its Craigslist Chicago Bulletin Board, alleging that it amounted to a public nuisance facilitating prostitution and child prostitution in Chicago, seeking damages, including those for enforcement of the prostitution laws in the amount of $105,081.00 and injunctive relief against the Erotic Services/Adult category. The Complaint included arrest reports detailing contacts made through Craigslist ads that resulted in meeting underage girls and arrests for juvenile pimping.

This was filed without the participation of the State’s Attorney or the Illinois Attorney General. Craigslist responded that it was immune under Section 230 and moved for judgment on the pleadings. The Complaint did not survive that motion and judgment was entered for the defendant.

 Craigslist operates a bulletin board for numerous local and international communities that is broken down by a broad range of categories from apartments for rent and employment and books and electronics for sale, to lonely hearts and friendship. All of the advertisements are written exclusively by the advertiser. The Erotic Services classification was in turn broken down into subcategories including “escort” and “erotic massage”. It requires its advertisers to accept the following terms at the time an ad is placed:

 By using the Service in any way, you are agreeing to comply with the [Terms of Use]. . . . You agree not to post, email, or otherwise make available Content: a) that is unlawful, harmful, threatening, abusive, harassing, defamatory, libelous, invasive of another’s privacy, or is harmful to minors in any way. “Content” includes “all postings, messages, text, files, images, photos, video, `sounds, or other materials

 Users entering that section agree to “flag ‘prohibited’” any content that violates Craigslist’s Terms of Use including “offers. for or the solicitation of prostitution.”

 Nevertheless, the court related that the ads submitted by Sheriff Dart were:

 . . veiled (sometimes very thinly) using code words. He alleges, for example, that “roses” mean dollars and “greek” refers to anal sex. (Id. at ¶ 30.) One advertisement states: “15 Min $50 Roses . . . 1hour $150 Roses” — so much for the code — and “How About A G-R-E-E-K Lesson I’m A Great Student!!” (Id. at ¶ 32.) Other sample advertisements are more ambiguous. (Pl.’s Resp. at Ex. 2 (“HELLO GENTELMEN NOW YOU MEET JADE AND TIPHANY WE DO TWO GIRL SHOWS AND INDIVISUAL CALLS!! WE GARAUNTEE THE TIME OF YOUR LIFE!!!”) (spelling errors in the original).) Memorandum at 3. [Emphasis added.]

 Sheriff Dart alleged that Craigslist:

“solicits for a prostitute” within the meaning of 720 ILCS 5/11-15 by “arrang[ing]”meetings of persons for purposes of prostitution and “direct[ing]” persons to places of prostitution. He also alleges more generally that Craigslist makes it easier for prostitutes, pimps, and patrons to conduct business. Id. at 5.

 Test Applied: The court articulated the test for a motion for judgment on the pleadings The court will view the facts in the complaint in the light most favorable to the nonmoving party and will grant the motion only if it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief. However, we need not ignore facts set forth in the complaint that undermine the plaintiff 's claim or give weight to unsupported conclusions of law.

 Jurisdiction: His standing to sue for the abatement of a public nuisance was not challenged and neither party raised subject matter jurisdiction, but the court raised it sua sponte. Diversity of the parties was uncontested. The court noted that in public nuisance cases, the representative of the public cannot recover damages; the sheriff ignored this defense contention except to say that nonprofit groups he seeks to add as parties might recover damages. The court views the Sheriff as having conceded that it cannot recover damages. However, it preserved its jurisdiction by observing that the cost to Craigslist of complying with any injunction issued by the court would exceed the statutory minimum.

 Craigslist argued that Section 230 (c ) (1) of the Communications Decency Act broadly immunizes providers of interactive computer services from liability for the dissemination of third-party content, which appears to be the majority rule. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir., 1997). (It was undisputed that the ads in question were written by independent advertisers.) However, the Seventh Circuit has not followed this case (See Chicago Lawyers’ Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F.Supp.2d 681; Doe v. GTE Corporation, 347 F.3d 665, 656-57 (7th Cir. 2003). The Seventh Circuit holds that liability “may be foreclosed in the appropriate case”. Memorandum at 11.

     The district judge looked to Chicago Lawyers for guidance. At issue were racikally discriminatory ads for apartments. The target website – Craigslist also -  allowed for personal narratives that at least sometimes contained racially restrictive messages concerning the apartment. The Seventh Circuit held that the website must not be treated as a publisher under a clear reading of the CDA and that it therefore had no liability.

     Here, Dart alleged that Craigslist itself broke Illinois law, by “arranging” prostitution or “directing” people to such connections. The court concluded that Dart strained the ordinary meaning of these words by accusing Craigslist of criminal misconduct. Dart alleged that Craigslist provided the location of prostitutes and brothels, but the court concluded that the users did.

     Though Dart carefully avoided the word “publish” in his complaint – except a solitary reference to “negligent” publication, the court treated the gravamen of the complaint as addressed to the publication activity of Craigslist and found no liability.

     The Sheriff alleged that Craigslist was guilty of aiding and abetting, and that its involvement was more profound than that of a mere publisher, because, through its detailed categorization of various kinds of adult services, it participated in any inducement contained in the ads. For example, a web service designed for illegal activity, such as copyright infringement has no immunity. See Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

     The court conclude that the category of “Adult” simply did not amount to “causing” prostitution because the term was broad enough to encompass plainly lawful conduct, including erotic dance. (About which it said: “It may even be entitled to some limited protection under the First Amendment.” Citing Barnes. And because the Search function was neutral, it did not participate or cause a search for illegal matters in concert with the posters. The district court held that Craigslist “does not cause or induce anyone to create, post, or search for illegal content. Memorandum at 19.

5. STUDENT WEBSITE CASES


THIRD CIRCUIT HOLDS IN TWO CASES THAT THE FIRST AMENDMENT PROTECTS STUDENTS WEBSITE EXPRESSION FROM SCHOOL DISCIPLINE UNLESS IT CAUSES OR THREATENS TO CAUSE A SUBSTANTIAL DISRUPTION OF OR MATERIAL INTERFERENCE WITH SCHOOL OR INVADES THE RIGHTS OF OTHER MEMBERS OF THE SCHOOL COMMUNITY, HOLDING FOR THE STUDENT IN ONE CASE AND FOR THE DISTRICT IN THE OTHER

 

J.S. v. Blue Mountain School District, __F3d. __ (3d Cir, 2009) 2010 WL 376186, 2010 ILRWeb (P&F) 1203,

 

Layshock v. Hermitage, ___ F3d ___ (3d Cir., 2010) 2010 WL 3761842010, 2010 ILRWeb (P&F) 1201.

 

In J.S., the student appealed from a District Court order granting summary judgement to the District in litigation challenging a ten-day suspension; the Third Circuit held that school officials did not violate an eighth grade student's First Amendment rights by disciplining her for creating a vulgar and lewd profile of her middle school principal on the MySpace social networking site, even though she created the profile at her home during non-school hours.

 C.S. created a Myspace page (KidsRockMyBed) under the Principal’s identity containing numerous crude slurs, including the following:

 

HELLO CHILDREN

yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL

I have come to myspace so i can pervert the minds of other principal’s to be just like me. I know, I know, you’re all thrilled

Another reason I came to my space is because- I am keeping an eye on you students

(who i care for so much)

For those who want to be my friend, and aren’t in my school I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs)

The court found that Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), applies to student speech, whether on- or off-campus, that causes or threatens to cause a substantial disruption of or material interference with school or invades the rights of other members of the school community. There was no actual disruption here, due to what the court determined to be the quick corrective actions taken by the principal to curb the profile's effect. The court found that the school district established that the profile presented a reasonable possibility of a substantial future disruption, given that it alluded to the principal's interest or engagement in sexually inappropriate behavior and illegal conduct. Thus, it threatened to substantially disrupt the middle school regardless of whether the student's role in creating the profile was criminal or tortious. The Constitution allows school officials the ability to regulate student speech where, as here, it reaches beyond mere criticism to significantly undermine a school official's authority in challenging his fitness to hold his position by means of baseless, lewd, vulgar, and offensive language. [One judge concurs in part and dissents in part.]

 In Layshock, the school district suspended the student for ten days, placed him in a program reserved for students who are unable to function in a regular classroom, banned him from all extracurricular activities (including foreign language tutoring and academic games), and prohibited him from participating in his graduation ceremony as a result of a parody Myspace page that satirized his Principal In distinction to the facts in J.S., this site was widely viewed on school computers. The court noted:

 Students 6 assigned to ACE meet in a segregated area of the high school for three hours each day. The program is typically reserved for students with behavior and attendance problems who are unable to function in a regular classroom. Prior to creating the Myspace profile, Justin was classified as a gifted student, was enrolled in advance placement classes, and had won awards at interscholastic academic competitions. The record does not reveal how the school district determined that it was appropriate to place such a student in a program designed for students who could not function in a

classroom. Id. at fn.6.

 

The direction of the material in Layshock was parody of the Principal as “big” man; in distinction from the facts in J.S., while the comments were insulting, they were not of a nature to challenge his authority and position, as claims of pedophilia were in J.S. He created it on the computer at his grandmother’s house; The parody included the Principal’s answers to a fake survey:

 

Birthday: too drunk to remember

         Are you a health freak: big steroid freak

 In the past month have you smoked: big blunt3

In the past month have you been on pills: big pills

In the past month have you gone Skinny Dipping: big lake, not big dick

In the past month have you Stolen Anything: big keg

 Ever been drunk: big number of times

 Ever been called a Tease: big whore

 Ever been Beaten up: big fag
 Ever Shoplifted: big bag of kmart Number of Drugs I have taken: big

 Under “Interests,” Justin listed: “Transgender, Appreciators of Alcoholic Beverages.” Justin also listed “Steroids International” as a club Trosch belonged to.

 The Third Circuit held that the District overstepped its bounds here; The court held that a school district many not punish a student for expressive conduct that originated outside of the classroom, where that conduct did not disturb the school environment and was not related to any school sponsored event. The Court held that the District court properly concluded that the school district's actions violated the student's First Amendment rights absent a showing that the off-campus conduct caused a substantial disruption of the school environment. Indeed, the school district does not challenge the district court's finding that the student's conduct did not result in any substantial disruption of school. The court importantly held that school could not claim disciplinary jurisdiction just because the message reached into the school in the absence of harm.

 

6. CAN-SPAM CASES

Ninth Circuit Rejects Plaintiffs’ Contentions that the CAN-SPAM Act

Is Unconstitutional as Vague.

Kilbride, citation supra.

The defendants in Kilbride were convicted under 18 USC §§ 1037(a)(3), (a)(4). Section 1037(a)(3) criminalizes the material falsification of header information and intentional initiation of the transmission of multiple commercial e-mail messages.

They had registered websites under false names, had published false contact information, including phone numbers that did not work, and had spoofed email addresses in marketing porn through ads that a jury had found to be obscene.

Section 1037(a)(4) prohibits the use of false contact information when registering five or more e-mail accounts, or two or more domain names, for purposes of transmitting multiple commercial e-mail messages.

The statute also states, at 18 USC §1037(d)(2):

header information or registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message . . . to identify, locate, or respond.

The defendants in Kilbride asserted that the terms "impair" and "altered or concealed" in the CAN SPAM Act were unconstitutionally vague, both as applied to them and facially because they do not provide reasonable notice that the use of fictitious e-mail addresses in the "from" field of their e-mail messages violated CAN-SPAM.

The alleged error in refusing the motion to dismiss was obviously preserved. The Ninth Circuit reviewed the issue de novo. "A statute is unconstitutionally vague as applied as it failed to put a defendant on notice that his conduct was criminal.

The Ninth Circuit summed up the background of the vagueness doctrine and observed:

“Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment.” United States v. Williams, 128 S. Ct. 1830, 1845 (2008). “Vague statutes are invalidated for three reasons: (1) to avoid punishing people for behavior that they could not have known was illegal; (2) to avoid subjective enforcement of laws based on ‘arbitrary and discriminatory enforcement’ by government officers; and (3) to avoid any chilling effect on the exercise of First Amendment freedoms.” Humanitarian Law Project v. Mukasey, 552 F.3d 916, 928 (9th Cir. 2009) (quoting Foti v. City of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998)) (internal quotation marks omitted). A statute is unconstitutionally vague as applied if it failed to put a defendant on notice that his conduct was criminal. United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001). A statute is unconstitutionally vague on its face if it “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Williams, 128 S. Ct. at 1845. For statutes like § 1037 involving criminal sanctions “the requirement for clarity is enhanced.” Info. Providers’ Coal. for the Def. of the First Amendment v. FCC, 928 F.2d 866, 874 (9th Cir.1991). However, even applying this heightened requirement, “due process does not require impos-sible standards of clarity.” Id. (quoting Kolender v. Lawson, 461 U.S. 352, 361 (1983)) (internal quotation marks omitted). __F3d. at __, Slip Opinion at 14496-7.

Against the defendants’ claims that the elastic vagueness of the terms in issue invited selective prosecution at the whim of law enforcement, the court found, to the contrary, that the undefined terms in question, “impair,” “altered,” and concealed” were common words with conventional meanings, and used as such by Congress, that should have put the defendants – and other speakers on notice of the conduct that was prohibited.

The Ninth Circuit found Cameron v. Johnson, 390 U.S. 611 (1968) sufficiently similar to guide its decision in Killbride:

 [In] Cameron v. Johnson, 390 U.S. 611 (1968), the Court reviewed for vagueness a statute forbidding “picketing in such a manner as to obstruct or unreasonably interfere with free ingress or egress to and from any county courthouses.” Id. at 616 (internal quotations marks and alterations omitted). The Court found “[t]he terms ‘obstruct’ and ‘unreasonably interfere’ ” were not unconstitutionally vague because they “plainly require no guessing at their meaning” and are “words of common understanding.

 

Id. at 14499.

 

The defendants also challenged the intent element of the offense as vague with respect to the words, “material falsification” and argued that law enforcement might conclude that a registration made in another name to protect the privacy of the actual owner would invite suspicion and investigation – The Ninth Circuit frankly stated that it would consider such a tactic precisely as a material falsification.

7. FEDERAL REGULATIONS IMPACTING
ONLINE ADULT ENTERTAINMENT

FTC Publishes Final Guides Governing Endorsements,
Testimonials – Advertisers by Blog, Beware!

The Federal Trade Commission, on October 5, 2009, promulgated final regulations regarding the use of endorsement and testimonial ads in implementation of the FTC Act.

The Guides in this part represent administrative interpretations of laws enforced by the Federal Trade Commission for the guidance of the public in conducting its affairs in conformity with legal requirements. Specifically, the Guides address the application of Section 5 of the FTC Act (15 U.S.C. 45) to the use of endorsements and testimonials in advertising. The Guides provide the basis for voluntary compliance with the law by advertisers and endorsers. Practices inconsistent with these Guides may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the practices fall within the scope of conduct declared unlawful by the statute. 16

CFR Part 255 § 255.0

The notice incorporates several changes to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, which address endorsements by consumers, experts, organizations, and celebrities, as well as the disclosure of important connections between advertisers and endorsers. The Guides were last updated in 1980.

Under the revised Guides, advertisements that feature a consumer and convey his or her experience with a product or service as typical when that is not the case will be required to clearly disclose the results that consumers can generally expect.

In contrast to the 1980 version of the Guides – which allowed advertisers to describe unusual results in a testimonial as long as they included a disclaimer such as “results not typical” – the revised Guides no longer contain this safe harbor.

The revised Guides also add new examples to illustrate the existing principle that “material connections” (sometimes payments or free products) between advertisers and endorsers – connections that consumers might not expect – must be disclosed. These examples address what constitutes an endorsement when the message is conveyed by bloggers or other “word-of­mouth” marketers. The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in­kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.. And a paid endorsement – like any other advertisement – is deceptive if it makes false or misleading claims.

While the 1980 Guides did not explicitly state that endorsers as well as advertisers could be liable under the FTC Act for statements they make in an endorsement, the revised Guides reflect Commission case law and clearly state that both advertisers and endorsers may be liable for false or unsubstantiated claims made in an endorsement – or for failure to disclose material connections between the advertiser and endorsers. The revised Guides also make it clear that celebrities have a duty to disclose their relationships with advertisers when making endorsements outside the context of traditional ads, such as on talk shows or in social media. [Extracts from the FTC Press Release were used in this summary.]

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net.