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On June 8, 2009, Oral Argument was heard in the joint appeal of the first convictions in the Ninth Circuit for Internet Obscenity not involving child pornography and the first convictions ever under the Federal CAN-SPAM Act. Gary Jay Kaufman of The Kaufman Law Group and Greg Piccionelli of Piccionelli & Sarno, attorneys for James Robert Schaffer and Jeffrey A. Kilbride respectively, argued the case before a three-judge panel of the Ninth Circuit Court of Appeals. The argument focused on an unconstitutional jury instruction that allowed a jury in Arizona to convict Schaffer and Kilbride of obscenity based on lay witness testimony as to community standards existing in places all over the country, including Ames, Iowa and Boston, Massachusetts. Mr. Kaufman is cautiously optimistic about the outcome: “The panel was very receptive to our arguments. The law as it stands is that obscenity is judged by local community standards. We, of course, believe that a national standard is more appropriate for internet communications. Whether the Court agrees remains to be seen. But one thing we do know, it’s either one or the other, and, in this case, the jury got neither. That was reversible error. I hope that the Court will agree.”
Mr. Piccionelli had this to say: “The judges’ questions showed a clear appreciation of the problem of determining which community’s standards should apply to allegedly obscene content transmitted via the Internet. It was a problem brought front and center in this case by a jury instruction so erroneous that, to this day, no one knows just which community’s or communities’ standards were actually used by the jury to convict the defendants. I am hopeful that the Court will not allow a situation like that to stand. I am also hopeful that the Court will take the next logical step to prevent this from happening again by requiring that content transmitted by the Internet be judged by a national community standard.” Colin Hardacre, also of The Kaufman Law Group, had this to say: “This case should be on everyone’s radar. If the Ninth Circuit finds that this instruction was not plainly erroneous, then internet obscenity prosecutions will become a circus, with the prosecution and defense each bringing in witness after witness to testify to community standards in location after location where the material was allegedly viewed.” In November, 2007, after hiring The Kaufman Law Group and Piccionelli & Sarno, both Schaffer and Kilbride were granted bail pending appeal.
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