When Is an Online Post an "Advertisement" Under 18 U.S.C. § 2251?

Whether a post on a closed online board counts as a "notice or advertisement" can be a question for the jury, not the judge. In United States v. Brown, the Ninth Circuit reversed a conviction because the trial judge refused to let the defense make that argument.

Under 18 U.S.C. § 2251(d)(1), it is a federal crime to make or publish a "notice or advertisement seeking or offering— (A) to receive, exchange, buy, produce, display, distribute, or reproduce, any visual depiction, if the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct and such visual depiction is of such conduct."

The Facts

Daniel Brown was a member of a closed online bulletin board called "Dark Moon," where members shared child pornography. The board required a username and password, members were told not to share login information, and shared files had to be encrypted. It had only a few users.

Brown was charged with conspiring to advertise child pornography. At trial, he wanted to argue that these features meant his posts were not a "notice or advertisement" under the statute.

The judge would not let him make that argument to the jury. The judge ruled his posts were a "notice or advertisement" as a matter of law, so the jury never got to decide the question. That distinction matters: juries decide the facts, and judges decide the law.

The Ninth Circuit's Ruling

Brown appealed. In a 2-1 decision, the Ninth Circuit reversed. It held Brown was entitled to argue to the jury that, given the board's particular features, his posts were not a "notice or advertisement." Blocking that argument violated his Sixth Amendment right to present a defense.

The government relied on United States v. Grovo, 826 F.3d 1207 (9th Cir. 2016), which had upheld a conviction for posts on a closed board. The court said Grovo did not decide that such posts are always advertisements; it asked only whether the evidence was enough to convict. The court explained:

While Grovo is instructive, it is not dispositive in this case. We did not rule there that the closed nature of an online bulletin board is irrelevant to the factfinder's determination of whether posts on that bulletin board constituted "advertisements." Id. at 1219 ("A rational factfinder could conclude beyond a reasonable doubt that these two posts were advertisements 'offering to . . . display' child pornography to other KOFD members.") (emphasis added). Grovo did not present us with the opportunity to opine on that question, because the only issue before the court was whether the evidence presented in that case was sufficient to sustain the defendant's conviction. In United States v. Franklin, relied upon in Grovo, the Tenth Circuit likewise concluded in a review of the sufficiency of the evidence "that a rational factfinder could regard [the defendant's] postings of child pornography as advertisements or notices under § 2251(d)(1)(A)." 785 F.3d 1365, 1370 (10th Cir. 2015). The question now before the Court is not whether the evidence against Brown was sufficient to support a conviction. Were that the question before us, we would ask whether, "viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Kaplan, 836 F.3d 1199, 1211–12 (9th Cir. 2016). Instead, the question is whether the defense had a fair chance to argue the evidence in the first place. There is a wide gulf between saying that evidence is sufficient to convict, and saying that such evidence is always sufficient as a matter of law to convict.

The court was careful to say that the closed nature of the board alone would not have been enough:

To be clear, had counsel wanted to argue only that Brown's posts could not qualify as "advertisements" or "notice" because he had posted on a closed board, such an argument would be foreclosed by Grovo. Rather, as he told the trial court, counsel wanted to argue that in this particular case "the features of the board don't meet the . . . common and contemporary definition of 'notice' and 'advertisement.'"

These features included not only that the board was closed, but also that it was password-protected, that the rules of the forum required that files be encrypted, and that it had relatively few participants. As Brown aptly points out, "Grovo does not create an automatic finding of guilt anytime someone is charged with advertising child pornography on an electronic bulletin board," and certainly no case reaches that conclusion on the particular facts before us.

The case was sent back for a new trial. United States v. Brown, No. 15-30148 (9th Cir. 2017).

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