Had the Thomases scrutinized the password the Tennessean selected for his account, they might still be successful cyberpornographers instead of convicted felons facing three years downtime in prison. A clue to the new user's intentions were contained in his password: "SCOURGE."
The Tennessee man, it turned out, was a snooping U.S. postal inspector who would bust the Thomas' operation in January 1994 and reignite the controversy over free speech limitations in cyberspace. Last July, a Memphis jury convicted the Thomases on 10 counts of obscenity, six of them stemming from computer images sent by modem to Tennessee. Robert Thomas has already begun serving his sentence at a federal correctional facility in Springfield, Missouri; his wife's term will begin in July after their son graduates from Milpitas High School. And the Thomas' legal problems are far from over -- the couple also faces child pornography charges in Utah stemming from their Tennessee conviction.
"I feel like we're being made an example of," says Carleen Thomas. "It's not fair. It's a violation of our First Amendment rights and I don't know how many others.I think it's totally unfair."
The Thomas case has received national publicity, rightly being seen as a landmark case that raises unresolved legal questions about how to apply federal obscenity laws to cyberspace. For more than two decades, obscenity cases have followed the precedent established by the 1973 Supreme Court ruling, Miller v. California, which allows states to judge obscenity according to "local community standards." But where is the "local community" of a bulletin board service that can be accessed from anywhere in the world? If someone in Memphis downloads an X-rated computer file generated in Silicon Valley, is it proper to judge it according to Tennessee standards?
The government apparently thinks it is proper, since the Thomas trial marked the first obscenity case in which prosecutors went after a bulletin board operator in the community where its material was received, rather than where it originated. The Thomas' conviction temporarily stands Miller v. California on its head. Instead of letting local communities decide for themselves what is obscene, the Thomas ruling allows a local community to dictate what goes on the Net -- effectively establishing a nationwide obscenity standard.
Even before the case went to trial, the Thomas' lawyer complained that federal prosecutors had "shopped" for a conservative area to try the case before settling on the buckle of the Bible Belt -- Memphis. The Land of Elvis has a long history of prosecuting pornography cases no one else will touch with a 10-foot, uh, pole. Porn star Harry Reams was once hauled into a Memphis court on a conspiracy charge stemming from his conspicuous appearance in Deep Throat.
"There's no way this case would have gone to trial in California," says San Jose defense attorney Richard Williams, who represented the Thomases during their trial. "The Thomases were basically railroaded. I don't think there's any doubt that prosecutors shopped for a venue where they knew they'd get a sympathetic jury. Outside of perhaps Dade County, Florida, I'd say Memphis is the most conservative jurisdiction in the country."
"If someone flew from Tennessee, went to a bookstore in San Francisco and bought pornography, and then flew back to Tennessee, you couldn't charge the bookstore in San Francisco with obscenity," notes Palo Alto attorney Thomas Nolan, who is handling the Thomas' appeal. "But there's very little difference between that and phoning up on your computer and accessing the same information. I see this case as an attempt by the government to put constraints on cyberspace. And it's going to have a chilling effect."
Indeed, the chill has already begun to set in, spreading through the Net like a computer virus designed to attack pubic hair. San Jose computer consultant Keith Henson estimates that 500 adult bulletin boards have exited the I-way lest they suffer the Thomas' fate, and many other boards have established more restrictive posting policies. There are dozens of Internet sites where X-rated graphics interchange format files (GIFs) have been removed, some with a note citing the Thomas case. Last November, Carnegie-Mellon University blocked access to bulletin boards that students could use to call up pornographic pictures. Despite the angry protests of students, university officials said they feared that the school could be prosecuted for distributing pornography to minors via the Internet.
Opportunistic politicians have also mounted the cyberporn issue and are riding it doggie style. Last month, Sen. Jim Exon (D-Neb.) introduced the Communications Decency Act, which would make online services liable for any illicit, inflammatory or obscene material on their network. "I want to keep the information superhighway from resembling a red-light district," Exon intoned on the Senate floor. The looming prospect of cybercops patrolling the information superhighway has free-speech advocates worried.
"If you're going to apply community standards to judge obscenity, the courts ought to take into account the existence of virtual communities," says Mike Godwin, staff counsel for the Electronic Frontier Foundation, which supports unfettered communication on the Net. "But in the near future, I think you're going to see more cases like [the Thomas'], until we start to build a consensus among citizens that as long as you don't force people to see this stuff and take measures to prevent children from getting access, you should leave people alone."
The Thomas' case turns out to be considerably more complex than the pencil sketch hurriedly drafted by the mainstream media. A foot-tall stack of court documents from the case reveals that the prosecution was based entirely on the investigation launched by SCOURGE, Memphis-based U.S. Postal Inspector David Dirmeyer. Dirmeyer's zealous investigation, in which he repeatedly offered Robert Thomas kiddie porn, was close enough to entrapment that the judge gave the jury a mini-seminar on its legal definition. Dirmeyer's efforts were so over the top that even the conservative Memphis jury threw out the kiddie-porn charge against Robert Thomas. And the net public gain from the government's prosecution of the Thomases is practically nil -- the AABBS is still quietly humming away in a Milpitas warehouse, even with Robert Thomas now in prison. On the other hand, the Thomases aren't exactly the First Amendment poster children that many news accounts have made them out to be. At the time of the bust, the Thomases were raking in more than a quarter of a million dollars a year on their bulletin board and related adult-videotape sales. The material on their bulletin board was so tawdry that the press could only refer gingerly to acts of "bestiality" and "sadomasochism." In reality, some of the material on the Thomas' bulletin board and tapes was so depraved and rawly misogynist -- including rape and torture films -- that a righteous San Francisco jury might well have sent the couple up the river for longer than the Memphis jury did.