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The Entertainment Litigation Reporter
August 15, 1995


Thomas v. United States A host of civil liberties groups have filed an amicus brief in the Sixth Circuit U.S. Court of Appeals, supporting the appeal of Robert Thomas, the computer bulletin board operator convicted of sending obscene images over his network. The groups say that if the conviction is allowed to stand, free speech rights on the information highway will be severely curtailed. Thomas v. United States, Nos. 94-6648, 94-6649 (6th Cir.). The brief was filed by the American Civil Liberties Union Foundation, the ACLU of Northern California, the ACLU of Tennessee, the National Writers Union, Feminists for Free Expression, and the Thomas Jefferson Center for the Protection of Free Expression.

Robert Thomas and his wife, Carleen, are appealing their convictions by a Memphis, TN, jury on 11 counts of distributing obscene pictures through their Amateur Action Bulletin Board system and of mailing obscene videotapes to members who responded to ads placed on the bulletin board. Members paid a fee for access to the bulletin board, and could download "Graphics Interchange Format" or "GIF" files. A postal inspector in Memphis joined under a false name and retrieved the images which formed the basis of the indictment. The amici contend that the statute under which Mr. Thomas was convicted, <=1> 18 U.S.C. 1465, is inapplicable because it prohibits transport of tangible objects, not intangible computer impulses; it covers travel by private conveyance, not telephone lines; and it covers the behavior of the person who transports the material. In this case, the groups argue, the postal inspector, not the Thomases, took the steps necessary to connect to the Thomases' computer system and download the GIF files. "In this case, the government seeks to use a criminal law never intended to apply to computer communications, to put a break on that development, to stifle the explosive creativity and breadth of expression occurring on computer networks," the amici state. "Where Congress has moved slowly and deliberately, acting only where the implications of action, and the need for action, are fully explored, the prosecutors seek to rush, stretching a federal obscenity law beyond its intended purpose and imposing the 'local community standards' of a conservative jurisdiction to communications originated elsewhere and existing within that jurisdiction only in the privacy

of the home. In seeking to impose censorship on computer networks like the Internet through the mechanism of a single case, the government risks not only the chilling of protected speech, but its direct suppression." The amici took no position on Mr. Thomas' conviction for sending the videotapes. The brief was filed by Christopher A. Hansen and Marjorie Heins of the ACLU in New York.