United States v. Jeffrey A. Kilbride
United States Court of Appeals for the Ninth Circuit
584 F.3d 1240 (2009)
- Written by Sharon Feldman, JD
Facts
Jeffrey Kilbride and James Schaffer (K&S) (defendants) ran a bulk-email-advertising business through a Mauritian company. The advertisements in the emails contained sexually explicit images. Fictitious information was placed in the email headers’ “From” field and the domain-name registrations. K&S were convicted of interstate transportation of and interstate transportation for sale of obscene materials, and bulk-email fraud in violation of 18 U.S.C. §§ 1462, 1465, and 1037, respectively. On appeal, K&S argued that (1) the jury should have been instructed to apply a national community standard in defining obscenity and (2) the terms “impair” and “altered or concealed” in 18 U.S.C. § 1037(d)(2)’s definition of “materially falsified” made the section unconstitutionally vague as applied to K&S’s conduct and on its face. K&S maintained that the prevailing definition of contemporary community standards, which permitted jurors to determine community standards based on knowledge of their own community, impermissibly burdened protected speech because email distributors of potentially obscene materials could not control where their materials went and would tailor materials to the least tolerant community’s standard.
Rule of Law
Issue
Holding and Reasoning (Fletcher, J.)
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