Trial Tests Free Speech, Obscenity Laws Online -- Community Standards Apply In High-Tech Age?

MEMPHIS, Tenn. - Federal prosecutors have gone to court in the Bible Belt to try to get rid of what they argue are hard-core pornographic images on a membership-only computer bulletin board based in California.

A California couple is charged with transmitting obscenity through interstate phone lines via a computer bulletin board that offered members a wide range of sexually explicit pictures and text. Testimony began Tuesday.

The trial raises questions of how to apply the federal obscenity law and First Amendment free-speech protections to images on many public-access computers across the land. The case could wind up at the U.S. Supreme Court.

In 1973, the high court ruled that obscenity must be judged in part by local community standards. But the whole notion of community has since been blurred by networks available to anyone in the world with a computer.

"The courts will have to decide if the community standard makes any sense anymore," said Stephen Bates, a senior fellow at the Annenberg Washington Program, a communications think tank based in Washington. "The essential impact is that the most puritanical, blue-nosed district in the country could dictate policy on this issue for the entire nation."

Trial not in Milpitas, but Memphis

The trial also marks the first time prosecutors in an obscenity case have gone after a bulletin-board operator in the locale where its material was received, rather than where it originated, said Bates and Mike Godwin of Electronic Frontier Foundation, a public-interest group for computer users.

Godwin said it's no surprise the California couple was taken to trial in Memphis, where prosecutors have a long history of going after what they consider obscene.

Memphis prosecutors made headlines in the late 1970s when they went after the cast and producers of "Deep Throat," one of the first X-rated movies to make its way into the mainstream.

Prosecutors say Robert and Carleen Thomas, both 38, of Milpitas, Calif., were charged in Memphis, because a Tennessee resident complained about their Amateur Action Bulletin Board System.

The couple is also charged with sending pornographic videos by United Parcel Service, and Thomas is accused of receiving child pornography by mail from an undercover postal inspector. Child pornography is not protected by the First Amendment.

If convicted, they each face more than 50 years in prison and hundreds of thousands of dollars in fines.

Richard Williams, the Thomases' lawyer, argued unsuccessfully before trial that federal prosecutors shopped around for a city where a conservative, computer-illiterate jury could be found.

Devon Gosnell, an assistant U.S. attorney in Memphis, declined comment except to say, "The crime occurred here."

Defense argues it was adult members only

The jury yesterday looked at computer-transmitted pictures received by the Memphis postal inspector. They showed various sexually explicit scenes, including photos of both a woman and a man engaging in bestiality.

Williams acknowledged that pictures and text carried on the bulletin board was fetish material that may well upset the Memphis jury. But he said it was voluntary, private communication between adults who knew what they were getting and paid for it. Members paid $55 for six months access to the bulletin board, $99 for a year.

Several million Americans use various levels of online services. Small computer bulletin boards are estimated to number around 40,000 nationwide, while services like Prodigy and America Online provide national service to hundreds of thousands. The Internet, considered the network of networks, connects millions more people worldwide.

Online topics reflect much of general society - from sports to science. A user links a computer via phone to the service computer where it's often possible to upload or download text and images.

Although the trial focuses on a single bulletin- board system, pornography on the Internet has become an issue as well as more and more people plug in. As a result, the Memphis case is being watched closely by the Electronic Frontier Foundation and other interest groups on the Internet. ----------------------------------------------------------------- Following the case online

People with access to Usenet, a worldwide bulletin-board available on many online systems, can follow public discussion of the Memphis case on:

comp.org.eff.talk

Moreover, the Electronic Frontier Foundation has an Internet site with files on many aspects of online law, from cryptography to pornography. It can be reached via gopher at:

gopher.eff.org