Opinion
No. 3:04-CR-181-M.
March 16, 2005
MEMORANDUM OPINION AND ORDER
On February 9, 2005, Defendant was convicted on two counts of violating 18 U.S.C. § 1470 (2005). The jury found that Defendant had used instant messaging software to knowingly transfer, and to attempt to transfer obscene material over the Internet, to a person under sixteen years of age. Before the Court is Defendant's "Motion to Dismiss the Indictment", filed on February 8, 2005. For the reasons stated on the record at the pretrial conference, the Court found good cause to defer ruling on Defendant's Motion until after the conclusion of trial. See FED. R. CRIM. P. 12(d). After reviewing Defendant's Motion, the Court is of the opinion that it should be DENIED.
Defendant admits that three of the arguments asserted in his Motion are foreclosed by Supreme Court precedent. His Motion alleges that: (1) the statute's use of "community standards" renders it void for vagueness; (2) the statute fails to afford him fair notice of the jury's personal predilections with respect to the "community standards"; and (3) the statute violates his rights to equal protection because persons prosecuted under the statute will receive disparate treatment according to the unique predilections of the juries in their cases. These arguments are expressly rejected by Smith v. United States, 413 U.S. 291 (1977), and Miller v. California, 415 U.S. 15 (1973). The Court is not at liberty to disregard binding precedent, and it therefore DENIES Defendant's Motion with respect to these three arguments. The Court finds that Defendant's Motion is also foreclosed by precedent, insofar as he argues the statute's use of "community standards" violates his confrontation rights and his rights to a republican form of government under Article I of the Constitution. See Hamling v. United States, 418 U.S. 87, 104-05 (1974) ("a juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is entitled to draw on his knowledge of the propensities of a `reasonable' person in other areas of the law").
Defendant next alleges that the statute violates the First Amendment because it risks chilling constitutionally protected activity and does not utilize the least restrictive means of achieving Congress's legitimate goals. Defendant attempts to draw an analogy between 18 U.S.C. § 1470 and the Child Online Protection Act ("COPA"), which the Supreme Court held unconstitutional in Ashcroft v. ACLU, 124 S.Ct. 2783 (2004) (" Ashcroft II"). The Court finds Defendant's argument to be without merit. The statute under which Defendant was convicted is unlike COPA, in that it criminalizes the transfer of only material found "obscene" under the approach of Miller v. California, 413 U.S. 15, 24 (1973). "Obscenity is not within the area of constitutionally protected speech or press." Roth v. United States, 354 U.S. 476, 485 (1957). Insofar as Defendant argues that the statute's language is ambiguous and might cause a person to fear prosecution for the transmission of material that is not obscene, but could be deemed "obscene with respect to a minor", the Court finds said fear to be unreasonable. The meaning of the statute is clear from its text and it is not subject to a valid attack under the First Amendment.
Finally, Defendant alleges the statute is unconstitutional as particularly applied to Internet communications. He alleges that a majority of the Justices of the Supreme Court have expressed the opinion that the jury should employ a national standard, rather than a community standard, when determining whether information transferred over the Internet is obscene. Defendant suggests the Court go one step further and recognize that the Constitution requires his speech to be judged by the standards of the Internet community. Defendant misconstrues the dicta on which his argument relies. In Ashcroft v. ACLU, 535 U.S. 564 (2002) (" Ashcroft I"), five Justices questioned the use of "community standards" when a jury is asked to judge whether information published on an Internet website is obscene. Justice O'Connor reasoned that an Internet publisher is unable to control the geographic location of his audience, and is thereby unable to know which community's standards will determine whether his speech meets the test for obscenity. See id. at 587. This reasoning is distinguishable from Defendant's conduct. Defendant used instant messaging software to intentionally communicate with a single person whom he had reason to believe was located in Texas. Defendant's conduct was not unlike a person who transmits obscene material to a child over the telephone or via the postal service. In such cases, there is no constitutional barrier to judging whether a defendant's speech is obscene according to the standards of the local community to which his message is targeted. See Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989); Hamling, 418 U.S. at 106. Defendant has not persuaded the Court that his communication is analogous to the types of communication considered in dicta in Ashcroft I. The Court therefore finds Defendant's attack on the statute's use of "community standards" to be without merit.
For these reasons, Defendant's Motion to Dismiss the Indictment is DENIED.
SO ORDERED.