## Facts

- Robert Alan Thomas and Carleen Thomas operated an adult-oriented computer bulletin board service (BBS) from their home in Milpitas, California, allowing paid members to dial in by modem and download sexually explicit image files.
- The BBS advertised sexually explicit material, restricted full access through applications, fees, and passwords, and enabled members to download image files to their own computers.
- Robert Thomas created image files by scanning sexually explicit magazine images and uploading them to the BBS; the Thomases also sold and shipped sexually explicit videotapes to members based on orders placed through the BBS.
- A federal investigation in Tennessee involved an undercover postal inspector who joined the BBS, downloaded sexually explicit images while in Tennessee, and ordered and received videotapes delivered to Tennessee.
- A federal grand jury in the Western District of Tennessee indicted the Thomases for federal obscenity offenses under 18 U.S.C. §§ 1462 and 1465.
- A jury convicted both defendants on multiple counts, and the district court imposed sentences; the defendants appealed their convictions and sentences.

## Issues

1. Whether venue in the Western District of Tennessee was proper when the BBS was operated from California but the files were downloaded and tapes delivered in Tennessee.
2. Whether the jury could apply local community standards of the forum district to determine obscenity for electronically transmitted materials accessible from many locations.
3. Whether applying forum venue and local community standards to BBS transmissions violated the First Amendment or due process.

## Decision

- The Sixth Circuit affirmed the convictions and sentences.
- Venue in the Western District of Tennessee was proper because obscenity transportation is a continuing offense prosecutable in any district “from, through or into which” the material moves, and the material was transmitted into and received in Tennessee.
- The district court correctly instructed the jury to apply local community standards of the forum district to the obscenity determination.
- Applying local community standards and forum venue to electronically transmitted obscene material did not violate the First Amendment or due process.
- The court rejected challenges to the sufficiency of the evidence, jury instructions, and sentencing determinations.

## Legal Principles

- For federal obscenity offenses involving interstate movement, venue is proper in any district from, through, or into which the allegedly obscene matter is transported, including where recipients obtain the material.
- Under the Miller obscenity framework, juries may apply local community standards of the forum to determine whether material appeals to prurient interest and is patently offensive, even when the material is distributed across state lines by electronic transmission.
- The availability of electronic distribution to a broad audience does not, by itself, require a national community standard in federal obscenity prosecutions.
- Obscenity determinations are fact-intensive and are generally left to the jury when evidence supports findings on prurient interest, patent offensiveness, and lack of serious value.

## Conclusion

The Sixth Circuit upheld federal obscenity convictions arising from a password-restricted adult BBS, holding that prosecution could proceed where the material was downloaded and received and that local community standards of the forum may be used to judge obscenity for electronically transmitted content.


United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)