Obscenity and Indecency: Constitutional Principles and Federal Statutes

Order Code 95-804 A

CRS Report for Congress

Received through the CRS Web

Obscenity and Indecency:

Constitutional Principles

and Federal Statutes

Updated June 29, 2004

Henry Cohen

Legislative Attorney

American Law Division

Congressional Research Service ˜ The Library of Congress

Obscenity and Indecency: Constitutional Principles and

Federal Statutes

Summary

The First Amendment provides: “Congress shall make no law . . . abridging the

freedom of speech, or of the press.” In general, the First Amendment protects

pornography, with this term being used to mean any erotic material. The Supreme

Court, however, has held that the First Amendment does not protect two types of

pornography: obscenity and child pornography. Consequently, they may be banned

on the basis of their content, and federal law prohibits the mailing of obscenity, as

well as its transport or receipt in interstate or foreign commerce.

Most pornography is not legally obscene; to be obscene, pornography must, at

a minimum, “depict or describe patently offensive ‘hard core’ sexual conduct.” The

Supreme Court has created a three-part test, known as the Miller test, to determine

whether a work is obscene. Pornography that is not obscene may not be banned, but

may be regulated as to the time, place, and manner of its distribution, particularly in

order to keep it from children. Thus, the courts have upheld the zoning and licensing

of pornography dealers, as well as restrictions on dial-a-porn, nude dancing, and

indecent radio and television broadcasting.

Federal statutes, in addition to making it a crime to mail obscenity or to

transport or receive it in interstate or foreign commerce, provide for criminal and

civil forfeiture of real and personal property used in making obscenity pornography,

and of the profits of obscenity — in some instances even when they were already

used to pay a third party. In addition, obscenity crimes are included among the

predicate offenses that may give rise to a violation of the Federal Racketeer

Influenced and Corrupt Organizations Act (RICO).

The Internet has given rise to three federal statutes designed to protect minors

from sexual material posted on it. The Communications Decency Act of 1996 makes

it a crime knowingly to use a telecommunications device (telephone, fax, or e-mail)

to make an obscene or indecent communication to a minor, or knowingly to use an

interactive computer service to transmit an obscene communication to anyone or an

indecent communication to a minor. The Supreme Court, however, held the

inclusion of “indecent” communications in this statute unconstitutional. Congress,

in response, enacted the less-broad Child Online Protection Act (COPA), the

enforcement of which has been enjoined while its constitutionality is being

challenged. Finally, the Children’s Internet Protection Act (CIPA), enacted at the end

of the 106th Congress, requires schools and libraries that accept federal funds to

purchase computers or Internet access to block or filter obscenity, child pornography,

and, with respect to minors, material that is “harmful to minors.” Filters may be

disabled, however, “for bona fide research or other lawful purpose.” On June 23,

2003, the Supreme Court held CIPA constitutional.

Contents

I. Constitutional Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. The Miller Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Zoning and Licensing of Pornography Dealers . . . . . . . . . . . . . . . . . . . . . 4

C. Nude Dancing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

II. Federal Obscenity and Indecency Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

A. Postal Service Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

B. Dial-a-Porn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

C. Obscenity Provisions at 18 U.S.C. §§ 1460-1470 . . . . . . . . . . . . . . . . . . 13

Section 1460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 1461 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 1462 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 1463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Section 1464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Section 1465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Section 1466 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Section 1466A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Section 1467 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Section 1468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Section 1469 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section 1470 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

D. Cable Television . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

E. The Communications Decency Act of 1996 . . . . . . . . . . . . . . . . . . . . . . 24

47 U.S.C. § 223(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

47 U.S.C. § 223(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Reno v. American Civil Liberties Union . . . . . . . . . . . . . . . . . . . . . . . 25

F. Child Online Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

G. Children’s Internet Protection Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

H. Dot Kids Internet Domain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

I. Misleading Domain Names on the Internet . . . . . . . . . . . . . . . . . . . . . . . 36

J. Sexually Oriented Spam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

K. RICO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

L. Wiretaps . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

M. The Customs Service Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Obscenity and Indecency: Constitutional

Principles and Federal Statutes

I. Constitutional Principles

To be constitutional, a federal statute must be enacted pursuant to a power of

Congress enumerated in the Constitution and must not contravene any provision of

the Constitution. Two powers enumerated in Article I, Section 8 of the Constitution

give Congress the power to enact statutes regulating or banning pornography: the

power “To regulate Commerce with foreign Nations, and among the several States,”

and the power “To establish Post Offices and post Roads.” Thus, Congress may

enact statutes, provided they do not contravene any provision of the Constitution, that

regulate pornography that crosses state or national boundaries, is imported or

exported, or is mailed.

The provision of the Constitution that federal statutes regulating pornography

are most likely to be in danger of contravening is the First Amendment’s provision

that “Congress shall make no law . . . abridging the freedom of speech, or of the

press.”1 Although pornography in general is protected by the First Amendment, two

types of pornography — obscenity and child pornography — are not.2 Therefore,

pornography that does not constitute obscenity or child pornography may ordinarily

be regulated only with respect to its time, place, and manner of distribution.3 An

outright ban on pornography other than obscenity or child pornography would violate

the First Amendment unless it served “to promote a compelling interest” and was

“the least restrictive means to further the articulated interest.”4 Obscenity and child

1

Despite its mentioning only “Congress,” the First Amendment applies equally to all

branches of the federal government and the states. Herbert v. Lando, 441 U.S. 153, 168 n.16

(1979).

2

Child pornography is material that visually depicts sexual conduct by children. New York

v. Ferber, 458 U.S. 747, 764 (1982). It is unprotected by the First Amendment even when

it is not legally obscene; i.e., child pornography need not meet the Miller test to be banned.

For additional information, see CRS Report 95-406, Child Pornography: Constitutional

Principles and Federal Statutes.

3

In Frisby v. Schultz, 487 U.S. 474, 481 (1988), the Supreme Court noted: “The State may

. . . enforce regulations of the time, place, and manner of expression which are contentneutral [i.e., “are justified without reference to the content of the speech,” Renton v.

Playtime Theaters, Inc., 475 U.S. 41, 48 (1986) (emphasis in original)], are narrowly

tailored to serve a significant [not necessarily a compelling] government interest, and leave

open ample alternative channels of communication [but need not necessarily be the least

restrictive means to further the government interest].”

4

Sable Communications of California v. Federal Communications Commission, 492 U.S.

(continued...)

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pornography, however, being without First Amendment protection, may be totally

banned on the basis of their content, not only in the absence of a compelling

governmental interest, but in the absence of any evidence of harm.

Obscenity apparently is unique in being the only type of speech to which the

Supreme Court has denied First Amendment protection without regard to whether it

can cause harm. According to the Court, there is evidence that, at the time of the

adoption of the First Amendment, obscenity “was outside the protection intended for

speech and press.”5 Consequently, obscenity may be banned simply because a

legislature concludes that banning it protects “the social interest in order and

morality.”6

A. The Miller Test

Most pornography is not legally obscene (i.e., most pornography is protected by

the First Amendment). To be obscene, pornography must, at a minimum, “depict or

describe patently offensive ‘hard core’ sexual conduct.”7 The Supreme Court has

created a three-part test, known as the Miller test, to determine whether a work is

obscene. The Miller test asks:

(a) whether the “average person applying contemporary community standards”

would find that the work, taken as a whole, appeals to the prurient interest; (b)

whether the work depicts or describes, in a patently offensive way, sexual

conduct specifically defined by the applicable state law; and (c) whether the

work, taken as a whole, lacks serious literary, artistic, political, or scientific

value.8

4

(...continued)

115, 126 (1989).

5

Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting,

wrote: “[T]here is no special historical evidence that literature dealing with sex was

intended to be treated in a special manner by those who drafted the First Amendment.” Id.

at 514.

6

Id. at 485.

7

Miller v. California, 413 U.S. 15, 27 (1973).

8

Id. at 24 (citation omitted). In Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498

(1984), the Court struck down a state statute to the extent that it defined “prurient” as “that

which incites lasciviousness or lust.” The Court held that a publication was not obscene if

it “provoked only normal, healthy sexual desires.” To be obscene it must appeal to “a

shameful or morbid interest in nudity, sex, or excretion.” In Manual Enterprises v. Day, 370

U.S. 478, 480 (1962), the Court indicated that photographs of nude male models, although

they appealed to the prurient interest and lacked literary, scientific, or other merit, were not

patently offensive merely because they were aimed at homosexuals. In Jenkins v. Georgia,

418 U.S. 153, 160 (1974), the Court held that the film “Carnal Knowledge” was not

obscene, writing: “Even though questions of appeal to the ‘prurient interest’ or of patent

offensiveness are ‘essentially questions of fact,’ it would be a serious misreading of Miller

to conclude that juries have unbridled discretion in determining what is ‘patently

offensive.’” In Jacobellis v. Ohio, 378 U.S. 184, 197 (1964), Justice Stewart, concurring,

(continued...)

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In Pope v. Illinois, the Supreme Court clarified that “the first and second prongs

of the Miller test — appeal to prurient interest and patent offensiveness — are issues

of fact for the jury to determine applying contemporary community standards.”9

However, as for the third prong, “[t]he proper inquiry is not whether an ordinary

member of any given community would find serious literary, artistic, political, or

scientific value in allegedly obscene material, but whether a reasonable person would

find such value in the material, taken as a whole.”10

When a federal statute refers to “obscenity,” it should be understood to refer

only to pornography that is obscene under the Miller standard, as application of the

statute to other material would ordinarily be unconstitutional. However, narrowly

drawn statutes that serve a compelling interest, such as protecting minors, may be

permissible even if they restrict pornography that is not obscene under Miller.11 In

Sable Communications of California, Inc. v. Federal Communications Commission,

the Supreme Court

8

(...continued)

noted that “criminal laws in this area are constitutionally limited to hard-core pornography,

which he would not attempt to define. Then followed his famous remark: “But I know it

when I see it, and the motion picture involved in this case is not that.” The motion picture

was a French film called “Les Amants” (“The Lovers”).

9

481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court

noted that a “community” was not any “precise geographic area,” and suggested that it might

be less than an entire state. In Jenkins v. Georgia, supra note 8, 418 U.S., at 157 (1974), the

Court approved a “trial court’s instructions directing jurors to apply ‘community standards’

without specifying what ‘community.’”

10

Justice Scalia concurred in the result in Pope v. Illinois, but wrote: “[I]n my view it is

quite impossible to come to an objective assessment of (at least) literary or artistic value,

there being many accomplished people who have found literature in Dada, and art in the

replication of a soup can. Since ratiocination has little to do with esthetics, the fabled

‘reasonable man’ is of little help in the inquiry, and would have to be replaced with,

perhaps, the ‘man of tolerably good taste’ — a description that betrays the lack of an

ascertainable standard. . . . I think we would be better advised to adopt as a legal maxim

what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there

is no arguing about taste, there is no use litigating about it.” Id. at 504-505.

11

In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 749-750

(1978), the Supreme Court, upholding the power of the Federal Communications

Commission to regulate a radio broadcast that was “indecent” but not obscene, wrote:

We held in Ginsberg v. New York, 390 U.S. 629, that the government’s interest

in the “well-being of its youth” and in supporting “parents’ claim to authority in

their own household” justified the regulation of otherwise protected expression.

Id., at 640 and 639. The ease with which children may obtain access to broadcast

material, coupled with the concerns recognized in Ginsberg, amply justify

special treatment of indecent broadcasting.

In Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997), the Supreme Court

suggested that the strength of the government’s interest in protecting minors may vary

depending upon the age of the minor, the parental control, and the artistic or educational

value of the material in question.

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recognized that there is a compelling interest in protecting the physical and

psychological well-being of minors. This interest extends to shielding minors

from the influence of literature that is not obscene by adult standards. The

government may serve this legitimate interest, but to withstand constitutional

scrutiny, “it must do so by narrowly drawn regulations without unnecessarily

interfering with First Amendment freedoms.” It is not enough to show that the

government’s ends are compelling; the means must be carefully tailored to

achieved those ends.12

In Sable, the Supreme Court applied these principles to the government’s

attempt to proscribe dial-a-porn; see, page 10, below.

The Supreme Court has allowed one exception to the rule that obscenity, as

defined by Miller, is not protected under the First Amendment. In Stanley v.

Georgia, the Court held that “mere private possession of obscene material” is

protected. The Court wrote:

Whatever may be the justifications for other statutes regulating obscenity, we do

not think they reach into the privacy of one’s own home. If the First Amendment

means anything, it means that a State has no business telling a man, sitting alone

in his house, what books he may read or what films he may watch.13

Subsequently, however, the Supreme Court rejected the claim that under Stanley

there is a constitutional right to provide obscene material for private use,14 or to

acquire it for private use.15 The right to possess obscene material does not imply the

right to provide or acquire it, because the right to possess it “reflects no more than . . .

the law’s ‘solicitude to protect the privacies of the life within [the home].’”16

B. Zoning and Licensing of Pornography Dealers

In Young v. American Mini Theaters, Inc., the Supreme Court held that “[t]he

mere fact that the commercial exploitation of material protected by the First

Amendment is subject to zoning and other licensing requirements is not a sufficient

12

492 U.S. 115, 126 (1989) (citations omitted). It might appear that regulations could be

“narrowly drawn” or “carefully tailored” without being the “least restrictive means” to

further a governmental interest. But Sable, on the same page, also uses the latter phrase

(quoted above in the text accompanying note 4), and the Court has elsewhere made clear that

the “narrow tailoring” required for content-based restrictions is more stringent than that

required for time, place, and manner restrictions (see, note 3, supra), where “leastrestrictive-alternative analysis is wholly out of place.” Ward v. Rock Against Racism, 491

U.S. 781, 798-799 n.6 (1989).

13

394 U.S. 557, 565, 568 (1969). The Court has held that there is no right even to private

possession of child pornography. Osborne v. Ohio, 495 U.S. 103 (1990).

14

United States v. Reidel, 402 U.S. 351 (1971).

15

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).

16

Id. at 127. See, Edwards, Obscenity in the Age of Direct Broadcast Satellite: A Final

Burial for Stanley v. Georgia(?), a National Obscenity Standard, and Other Miscellany, 33

William and Mary Law Review 949 (1992).

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reason for invalidating these ordinances.”17 In Young, the Court upheld ordinances

that required dispersal of “adult” establishments; specifically, the ordinances

provided that an adult theater could not be located within 1,000 feet of any two other

“regulated uses” (adult bookstores, cabarets, bars, hotels, etc.) or within 500 feet of

a residential area. In Renton v. Playtime Theaters, Inc., the Court upheld an

ordinance that required that adult theaters be concentrated in limited areas; it prohibited adult “theaters from locating within 1,000 feet of any residential zone, singleor multiple-family dwelling, church, park, or school.”18

In Young, the Court reasoned that

what is ultimately at stake is nothing more than a limitation on the place where

adult films may be exhibited, even though the determination of whether a

particular film fits that characterization turns on the nature of its content. . . .

The situation would be quite different if the ordinance had the effect of

suppressing, or greatly restricting access to, lawful speech.19

In Renton, the Court wrote:

The ordinance by its terms is designed to prevent crime, protect the city’s retail

trade, maintain property values, and generally “protec[t] and preserv[e] the

quality of [the city’s] neighborhoods, commercial districts, and the quality of

urban life,” not to suppress the expression of unpopular views. . . . In short, the

Renton ordinance is completely consistent with our definition of “contentneutral” speech regulations as those that “are justified without reference to the

content of the regulated speech.”20

In both Young and Renton, the Court found the ordinances in question to be

narrow enough to affect only those theaters shown to produce the unwanted

secondary effects, such as crime.21 In this respect they were unlike the regulations

the Court struck down as overbroad in two other cases. In Erznoznik v. City of

Jacksonville, the ordinance prohibited drive-in theaters from showing films

containing nudity when the screen was visible from a public street.22 In Schad v.

Mount Ephraim, the ordinance prohibited live entertainment from a broad range of

commercial uses permitted in a commercial zone; the ordinance in this case was used

to prosecute an adult bookstore that featured coin-operated booths that permitted

customers to watch nude dancing.23

In Freedman v. Maryland, the Court struck down a statute that required the

owner or lessee of a fil, prior to exhibiting a film, to submit the film to the Maryland

17

427 U.S. 50, 62 (1976).

18

475 U.S. 41, 43 (1986).

19

Young, supra note 17, at 71-72 n.35.

20

Renton, supra note 18, at 48 (emphasis in original).

21

427 U.S. at 71; 475 U.S. at 52.

22

422 U.S. 205 (1975).

23

452 U.S. 61 (1981).

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State Board of Censors and obtain its approval.24 The Court held that, for such a

statute to be constitutional, “the burden of proving that the film is unprotected

expression must rest on the censor,” and the censor must, “within a specified brief

period, either issue a license or go to court to restrain showing the film. Any restraint

imposed in advance of a final judicial determination on the merits must similarly be

limited to preservation of the status quo for the shortest fixed period compatible with

sound judicial resolution. . . . [T]he procedure must also assure a prompt final

judicial decision.”25 The Court cited a “model” for a constitutional procedure: “In

Kingsley Books, Inc. v. Brown, 354 U.S. 436, we upheld a New York injunctive

procedure designed to prevent the sale of obscene books. . . . The statute provides

for a hearing one day after joinder of issue; the judge must hand down his decision

within two days after termination of the hearing.”26

In FW/PBS, Inc. v. Dallas, the Supreme Court considered a challenge to a city

ordinance that regulated “sexually oriented businesses through a scheme

incorporating zoning, licensing, and inspections,” and prohibited “individuals

convicted of certain crimes from obtaining a license to operate a sexually oriented

business for a specified period of years.”27 The ordinance defined a “sexually

oriented business” as “an adult arcade, adult bookstore or adult video store, adult

cabaret, adult motel, adult motion picture theater, escort agency, nude model studio,

or sexual encounter center.”28 The Court held that the licensing scheme

does not provide for an effective limitation on the time within which the

licensor’s decision must be made. It also fails to provide an avenue for prompt

judicial review so as to minimize suppression of the speech in the event of a

license denial. We therefore hold that the failure to provide these essential

safeguards renders the ordinance’s licensing requirement unconstitutional insofar

as it is enforced against those businesses engaged in First Amendment activity.29

24

380 U.S. 51 (1965).

25

Id. at 58-59.

26

Id. at 60.

27

493 U.S. 215, 220-221 (1990).

28

Id. at 220.

29

Id. at 229. A type of business that the ordinance covered that did not engage in First

Amendment activity was adult motels, which the ordinance defined as motels that rented

rooms for less than 10 hours. Inclusion of these motels was challenged on two grounds: (1)

that the city had “violated the Due Process Clause by failing to produce adequate support

for its supposition that renting rooms for less than 10 hours results in increased crime or

other secondary effects,” and (2) “that the 10-hour limitation on the rental of motel rooms

places an unconstitutional burden on the right to freedom of association . . . .” Id. at 236237. The Court rejected both arguments. As for the first, it found “it reasonable to believe

that shorter rental time periods indicate that the motels foster prostitution.” Id. at 236. As

for the second, it found that the associations “that are formed from the use of a motel room

for less than 10 hours are not those that have ‘played a critical role in the culture and

traditions of the Nation by cultivating and transmitting shared ideals and beliefs.’” Id. at

237.

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On June 7, 2004, in City of Littleton v. Z.J. Gifts D-4, L.L.C., the Court upheld

a city’s “adult business” licensing ordinance. The Court first rejected the city’s

argument that, because the Court, in FW/PBS, Inc. v. Dallas, had used the phrase

“prompt judicial review,” rather than “prompt final judicial decision,” which it had

used in Freedman, “[t]he First Amendment, as applied to an ‘adult business’

licensing scheme, demands only an assurance of speedy access to the courts, not an

assurance of a speedy court decision.” The Court noted, “A delay in issuing a

judicial decision, no less than a delay in obtaining access to a court, can prevent a

licence from being ‘issued within a reasonable period of time.’” The Court held,

however, that the city’s ordinance satisfied the First Amendment’s requirement of a

prompt judicial decision.

The Court noted that, in a case such as Freedman, involving “a scheme with

rather subjective standards and where a denial likely meant complete censorship,”

there was a need “for special procedural rules imposing special two- or three-day

decisionmaking time limits.” Littleton, however, involved a scheme that “applies

reasonably objective, nondiscretionary criteria unrelated to the content of the

expressive materials,” but related instead to matters such as whether the applicant

had had an adult business license revoked or suspended and had timely paid taxes,

fees, fines, or penalties. “Where (as here and as in FW/PBS) the regulation simply

conditions the operation of an adult business on compliance with neutral and

nondiscretionary criteria . . . and does not seek to censor content, an adult business

is not entitled to an unusually speedy judicial decision of the Freedman type. . . . Of

course, those denied licenses in the future remain free to raise special problems of

undue delay in individual cases as the ordinance is applied.”30

In Los Angeles v. Alameda Books, Inc., the Supreme Court reversed a grant of

summary judgment that had struck down a municipal ordinance that prohibited “the

establishment or maintenance of more than one adult entertainment business in the

same building, structure or portion thereof.”31 A federal district court had granted

summary judgment and the Court of Appeals for the Ninth Circuit had affirmed on

the ground “that the city failed to present evidence upon which it could reasonably

rely to demonstrate a link between multiple-use adult establishments and negative

secondary effects.”32 The Supreme Court reversed, finding that “[t]he city of Los

Angeles may reasonably rely on a study it conducted some years before enacting the

present version of § 12.70(C) to demonstrate that its ban on multiple-use adult

establishments serves its interest in reducing crime.”33 It therefore remanded the case

so that the city would have the opportunity to demonstrate this at trial.

The four-judge plurality opinion in Alameda Books “held that a municipality

may rely on any evidence that is ‘reasonably believed to be relevant’ for

30

Similarly, a “content-neutral time, place, and manner regulation of the use of a public

forum” need not “adhere to the procedural requirements set forth in Freedman.” Thomas

v. Chicago Park District, 534 U.S. 316, 322 (2002).

31

535 U.S. 425, 429 (2002).

32

Id. at 430.

33

Id.

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demonstrating a causal connection between speech and a substantial, independent

governmental interest,” such as reducing crime or maintaining property values.34

Justice Kennedy, whose concurring opinion was necessary for a majority, added that,

not only must the city demonstrate that its ordinance “has the purpose and effect of

suppressing secondary effects”; it must also demonstrate that it will leave “the

quantity and accessibility of speech substantially intact.”35 The four dissenting

justices found that “the city has failed to show any causal relationship between the

breakup policy and elimination or regulation of secondary effects,” and, therefore,

that summary judgment had been properly granted.36

C. Nude Dancing

The Supreme Court has twice upheld the application of laws banning public

nudity to nudity in “adult” entertainment establishments where the viewers are all

consenting adults who have paid to see the dancers. In Barnes v. Glen Theatre, Inc.,

the Supreme Court held that the First Amendment does not prevent the government

from requiring that dancers wear “pasties” and a “G-string” when they dance

(nonobscenely) in such establishments.37 Indiana sought to enforce a state statute

prohibiting public nudity against two such establishments, which asserted First

Amendment protection. The Court found that the statute proscribed public

nudity across the board, not nude dancing as such, and therefore imposed only an

incidental restriction on expression. A statute that is intended to suppress speech will

be upheld only if it serves a compelling governmental interest and is the least

restrictive means to further that interest. By contrast, under United States v. O’Brien,

a statute that imposes an incidental restriction, like one that imposes a time, place,

or manner restriction, will be upheld if it is narrowly tailored to further a substantial,

but not necessarily compelling, governmental interest.38

There was no majority opinion in the case. Justice Rehnquist, joined by Justices

O’Connor and Kennedy, found the statute no more restrictive than necessary to

further the governmental interest of “protecting societal order and morality.”39

Justice Souter found the relevant governmental interest to be “combating the

secondary effects of adult entertainment establishments,” such as prostitution, sexual

assaults, and other criminal activity.40 The fifth Justice necessary to uphold the nude

dancing prohibition, Justice Scalia, thought that the case raised no First Amendment

issue at all, because the incidental restriction was on conduct, not speech, and

“virtually every law restricts conduct, and virtually any prohibited conduct can be

34

Id. at 438.

35

Id. at 449.

36

Id. at 460.

37

501 U.S. 560 (1991).

38

391 U.S. 367 (1968).

39

Barnes, supra note 37, at 568.

40

Id. at 582.

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performed for expressive purposes.”41 Four Justices dissented, finding insufficient

“the plurality and Justice Scalia’s simple references to the State’s general interest in

promoting societal order and morality . . . . The purpose of forbidding people to

appear nude in parks, beaches, hot dog stands, and like public places is to protect

others from offense. But that could not possibly be the purpose of preventing nude

dancing in theaters and barrooms since the viewers are exclusively consenting adults

who paid money to see these dances. The purpose of the proscription in these

contexts is to protect the viewers from what the State believes is the harmful message

that nude dancing communicates.”42 This purpose is impermissible under the First

Amendment.

In Erie v. Pap’s A.M., the Supreme Court again upheld the application of a

statute prohibiting public nudity to an “adult” entertainment establishment.43

Although there was again only a plurality opinion, this time by Justice O’Connor,

Parts I and II of that opinion were joined by five justices. These five adopted Justice

Souter’s position in Barnes, that the statute satisfied the O’Brien test because it was

intended “to combat harmful secondary effects,” such as “prostitution and other

criminal activity.”44 Justice Souter, however, though joining the plurality opinion,

also dissented in part in Erie. He continued to believe that secondary effects were

an adequate justification for banning nude dancing, but did not believe “that the city

has made a sufficient evidentiary showing to sustain its regulation,” and therefore

would have remanded the case for further proceedings.45 He acknowledged his

“mistake” in Barnes in failing to make the same demand for evidence.46

The plurality opinion in Erie found that the effect of Erie’s public nudity ban

“on the erotic message . . . is de minimis” because Erie allows dancers to perform

wearing only pasties and G-strings.47 It may follow that “requiring dancers to wear

pasties and G-strings may not greatly reduce . . . secondary effects, but O’Brien

requires only that the regulation further the interest of combating such effects,” not

that it further it to a particular extent.48 Justice Scalia, this time joined by Justice

Thomas, again took the view that, “[w]hen conduct other than speech itself is

41

Id. at 576 (emphasis in original).

42

Id. at 590-591 (White, J., dissenting, joined by Justices Marshall, Blackmun, and Stevens).

43

529 U.S. 277 (2000).

44

Id. at 292, 291.

45

Id. at 310-311.

46

Id. at 316.

47

Id. at 294. The plurality said that, though nude dancing is “expressive conduct” [which

ordinarily means it would be entitled to full First Amendment protection], “we think that it

falls only within the outer ambit of the First Amendment’s protection.” Id. at 289. The

opinion also quotes Justice Stevens to the same effect with regard to erotic materials

generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., infra note

101, 529 U.S., at 826, however, the Court wrote that it “cannot be influenced . . . by the

perception that the regulation in question is not a major one because the speech is not very

important.”

48

Id. at 301.

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regulated . . . the First Amendment is violated only ‘[w]here the government

prohibits conduct precisely because of its communicative attributes.”49 He found,

therefore, that the statute should be upheld without regard to “secondary effects,” but

simply as an attempt “to foster good morals.”50

Justice Stevens, dissenting in Erie and joined by Justice Ginsburg, wrote: “Until

now, the ‘secondary effects’ of commercial enterprises featuring indecent

entertainment have justified only the regulation of their location. For the first time,

the Court has now held that such effects may justify the total suppression of protected

speech. Indeed, the plurality opinion concludes that admittedly trivial advancements

of a State’s interest may provide the basis for censorship.”51 It concludes, that is, that

the O’Brien “test can be satisfied by nothing more than the mere possibility of de

minimis effects on the neighborhood.”52

The plurality in Erie did not address the question of whether statutes prohibiting

public nudity could be applied to ban serious theater that contains nudity. In Barnes,

Justice Souter wrote: “It is difficult to see . . . how the enforcement of Indiana’s

statute against nudity in a production of ‘Hair’ or ‘Equus’ somewhere other than an

‘adult’ theater would further the State’s interest in avoiding harmful secondary

effects . . . .”53

II. Federal Obscenity and Indecency Statutes

A. Postal Service Provisions

Sections 3008 and 3010 of Title 39 allow people to prevent mail that they find

offensive from being sent to them. Section 3008 provides that a person who receives

in the mail “any pandering advertisement which offers for sale matter which the

addressee in his sole discretion believes to be erotically arousing or sexually

provocative” may request the Postal Service to issue an order directing the sender to

refrain from further mailings to the addressee, and the Postal Service must do so. If

the Postal Service believes that a sender has violated such an order, it may request

the Attorney General to apply to a federal court for an order directing compliance.

The language of 39 U.S.C. § 3008 is broad enough to apply to any unwanted

advertisement, regardless of content, as the Supreme Court indicated in upholding

the constitutionality of the statute. “We . . . categorically reject,” the Court said, “the

49

Id. at 310.

50

Id.

51

Id. at 317-318.

52

Id. at 324. Justice Stevens also wrote that the plurality was “mistaken in equating our

secondary effects cases with the ‘incidental burdens’ doctrine applied in cases such as

O’Brien. . . . The incidental burdens doctrine applies when speech and non-speech elements

are combined in the same course of conduct”[internal quotation marks omitted], whereas

secondary effects “are indirect consequences of protected speech.” Id.

53

Barnes, supra note 37, 501 U.S., at 585 n.2.

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argument that a vendor has a right under the Constitution or otherwise to send

unwanted material into the home of another.”54

Section 3010 provides that any person may file with the Postal Service a

statement “that he desires to receive no sexually oriented advertisements through the

mails.” The Postal Service shall make the list available, and “[n]o person shall mail

or cause to be mailed any sexually oriented advertisement to any individual whose

name and address has been on the list for more than 30 days.” Section 3011 provides

that, if the Postal Service believes that any person is violating section 3010, it may

request the Attorney General to commence a civil action against such person in a

federal district court. The court may employ various remedies to prevent future

mailings.

Violations of sections 3008 and 3010 are also subject to criminal penalties under

18 U.S.C. § 1737.

B. Dial-a-Porn

The federal law concerning dial-a-porn is section 223(b) of the Communications

Act of 1934, as amended, 47 U.S.C. § 223(b). Prior to April 1988, it banned both

obscene and indecent dial-a-porn in interstate commerce and foreign communications, but only if it involved persons under eighteen. Although pornography that is

indecent but not obscene is protected by the First Amendment, restricting minors’

access to pornography, even to non-obscene pornography, generally presents no

constitutional problems, as minors do not have the same rights as adults under the

First Amendment.

Therefore, the pre-April 1988 version of section 223(b) apparently was

constitutional. In April 1988, however, P.L. 100-297, § 6101, amended section

223(b) to ban obscene and indecent dial-a-porn in interstate and foreign communications, whether involving adults or children.

In June 1989, the Supreme Court declared section 223(b) unconstitutional

insofar as it applies to indecent messages that are not obscene.55 The Court noted

“that while the Government has a legitimate interest in protecting children from

exposure to indecent dial-a-porn messages, § 223(b) was not sufficiently narrowly

drawn to serve that purpose and thus violated the First Amendment.”56 “[C]redit

card, access code, and scrambling rules . . . [would have] represented a ‘feasible and

effective’ way to serve the Government’s compelling interest in protecting

children.”57 The government argued that these methods “would not be effective

54

Rowan v. Post Office Department, 397 U.S. 728, 738 (1970).

55

Sable Communications of California, Inc. v. F.C.C., supra note 4, 492 U.S. 115 (1989).

56

Id. at 126.

57

Id. at 128.

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enough,” but the Court found “no evidence in the record . . . to that effect . . . .”58

The Court concluded:

Because the statute’s denial of adult access to telephone messages which are

indecent but not obscene far exceeds that which is necessary to limit the access

of minors to such messages, we hold that the ban does not survive constitutional

scrutiny.59

The upshot of Sable was that Congress’ 1988 extension to adults of the ban on

dial-a-porn that is indecent but not obscene resulted in federal law’s not banning such

dial-a-porn at all, even if used by minors. Section 223(b) after the decision banned

dial-a-porn only if it was obscene.

Therefore, in 1989, Congress enacted P.L. 101-166, known as the “Helms

Amendment,” which amended section 223(b) to ban indecent dial-a-porn, if used by

persons under 18. Under the 1988 law, section 223(b) applied “in the District of

Columbia or in interstate or foreign communications”; under the Helms Amendment,

it applies to all calls “within the United States.”

The Helms Amendment also added section 223(c), which prohibits telephone

companies, “to the extent technically feasible,” from providing access to any dial-aporn “from the telephone of any subscriber who has not previously requested [it] in

writing . . . .” In order to enable telephone companies to comply with this provision,

Federal Communications Commission regulations require dial-a-porn providers to

give written notice to the telephone company that they are providing indecent

communications. 47 C.F.R. § 64.201.60

The Helms Amendment was challenged as unconstitutional, but a federal court

of appeals upheld it, and the Supreme Court declined to review the case.61 The court

of appeals found that the word “indecent” as used in the statute was not void for

vagueness,62 that the statute was the least restrictive means to achieve a compelling

58

Id.

59

Id. at 131.

60

Section 223(b) provides that a person found guilty of knowingly communicating obscene

dial-a-porn “shall be fined in accordance with title 18 of the United States Code, or

imprisoned not more than two years, or both.” Title 18, § 3571, provides for fines of up to

$250,000 for individuals and up to $500,000 for organizations. A person found guilty of

knowingly communicating indecent dial-a-porn “shall be fined not more than $50,000 or

imprisoned not more than six months, or both.” Section 223(b) also provides for additional

fines.

61

Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert.

denied, 502 U.S. 1072 (1992).

62

The court noted that the word has been “defined clearly” by the Federal Communications

Commission, in the dial-a-porn context, “as the description or depiction of sexual or

excretory activities or organs in a patently offensive manner as measured by contemporary

community standards for the telephone medium.” 938 F.2d, at 1540. The court noted that

this definition tracks the one quoted in note 74, infra. Id. at 1541.

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governmental interest,63 and that the requirement that the dial-a-porn provider inform

the telephone company that its message was indecent did not constitute prior

restraint.

C. Obscenity Provisions at 18 U.S.C. §§ 1460-1470

Federal law contains no outright ban on all obscenity; it leaves this to state law.

However, the following federal statutes prohibit, among other things, obscenity on

federal land or in federal buildings, in the mail, on radio and television, in interstate

or foreign commerce, and on interstate highways and railroads even when the

obscene material is transported intrastate.

Section 1460. This section makes it a crime, “in the special maritime and

territorial jurisdiction of the United States or on any land or building owned by,

leased to, or otherwise used by or under the control of the Government of the United

States,” or “in the Indian country as defined in section 1151 of this title,” to sell or

to possess with intent to sell, any obscene visual depiction.

Section 1461. This section declares to be “nonmailable matter” any “obscene,

lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance,”

and makes it a crime knowingly to mail nonmailable matter. This statute should be

read to prohibit only what constitutionally may be prohibited.64

Section 1462. This section prohibits importation of, and interstate or foreign

transportation of, “any obscene, lewd, lascivious, or filthy” printed matter, film, or

sound recording, “or other matter of indecent character.” The Supreme Court has

written that, if and when serious doubt is raised as to the vagueness of the terms used

in section 1462,

we are prepared to construe such terms as limiting regulated material to patently

offensive representations or descriptions of that specific “hard core” sexual

conduct given as examples in Miller v. California, ante, at 25. . . . Of course,

Congress could always define other specific “hard core” conduct.65

In 1996, P.L. 104-104, § 507(a), amended 18 U.S.C. § 1462 to apply to any

“interactive computer service.”

Section 1463. This section prohibits mailing matter, “upon the envelope or

outside cover or wrapper of which, and all postal cards, upon which, any

delineations, epithets, terms, or language of an indecent, lewd, lascivious, or obscene

character are written or printed or otherwise impressed or apparent.” Under this

provision, “language of an ‘indecent’ character must be equated with language of an

63

Id. at 1541-1543; see, text accompanying note 4, supra.

64

See, United States v. Merrill, 746 F.2d 458 (9th Cir. 1984), cert. denied, 469 U.S. 1165

(1985).

65

United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973).

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‘obscene’ character” (and does not include “writing [on a post card] that a female

runs around a dwelling house naked”).66

Section 1464. This section provides, in full:

Whoever utters any obscene, indecent, or profane language by means of radio

communication shall be fined under this title or imprisoned not more than two

years, or both.67

This statute, unlike the others cited thus far, may be applied to language that is

not obscene under Miller. This is because broadcasting has more limited First

Amendment protection than other media. As the Supreme Court explained in Red

Lion Broadcasting Co. v. Federal Communications Commission:

Where there are substantially more individuals who want to broadcast than there

are frequencies to allocate, it is idle to posit an unabridgeable First Amendment

right to broadcast comparable to the right of every individual to speak, write, or

publish.68

In Federal Communications Commission v. Pacifica Foundation, the FCC had

taken action against a radio station for broadcasting a recording of George Carlin’s

“Filthy Words” monologue at 2 p.m., and the station had claimed First Amendment

protection.69 The Supreme Court upheld the power of the FCC under § 1464 “to

regulate a radio broadcast that is indecent but not obscene.”70 The Court cited two

distinctions between broadcasting and other media: “First, the broadcast media have

established a uniquely pervasive presence in the lives of all Americans . . .

confront[ing] the citizen, not only in public, but also in the privacy of the home . . . ,”

and “Second, broadcasting is uniquely accessible to children . . . .”71

66

United States v. Keller, 259 F.2d 54, 57, 58 (3d Cir. 1958).

67

This statute dates back to section 326 of the Communications Act of 1934, 48 Stat. 1091,

which is why it uses only the term “radio.” The term “radio,” however, today includes

broadcast television; i.e., television transmitted over radio waves. In dictum, the Supreme

Court quoted the FCC with approving as noting that “the televising of nudes might well

raise a serious question of programming contrary to 18 U.S.C. § 1464. . . .” Federal

Communications Commission v. Pacifica Foundation, 438 U.S. 726, 741 n.16 (1978) (not

addressing whether nudes are “language” under § 1464). “Radio communication” is defined

for purposes of Title 47, U.S. Code, to mean “the transmission by radio of writing, signs,

signals, pictures, and sounds of all kinds . . . .” 47 U.S.C. § 153(33) (emphasis added).

68

395 U.S. 367, 388 (1969). In this case, the Supreme Court upheld the constitutionality of

the Federal Communication Commission’s “fairness doctrine,” which required broadcast

media licensees to provide coverage of controversial issues of interest to the community and

to provide a reasonable opportunity for the presentation of contrasting viewpoints on such

issues.

69

438 U.S. 726 (1978).

70

Id. at 729.

71

Id. at 748-749.

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Nevertheless, the broadcast media have some First Amendment protection, and

the Court emphasized the narrowness of its holding:

This case does not involve a two-way radio conversation between a cab driver

and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided

that an occasional expletive in either setting would justify any sanction. . . . The

time of day was emphasized by the Commission. The content of the program in

which the language is used will also affect the composition of the audience. . . .72

Section 1464, as quoted above, refers to “obscene, indecent, or profane

language.” The Court in Pacifica noted that, to be indecent, a broadcast need not

have prurient appeal; “the normal definition of ‘indecent’ merely refers to

nonconformance with accepted standards of morality.”73 The FCC holds that the

concept “is intimately connected with the exposure of children to language that

describes, in terms patently offensive as measured by contemporary community

standards for the broadcast medium, sexual or excretory activities and organs, at

times of the day when there is a reasonable risk that children may be in the

audience.”74 The FCC applied this definition in a case in which the singer Bono said

at the Golden Globe Awards that his award was “f[***]ing brilliant.” The FCC

Enforcement Bureau found that use of the word “as an adjective or expletive to

emphasize an exclamation” did not fall within the definition of “indecent.” The

Commission, however, overturned the Bureau, ruling that “any use of that word or

a variation, in any context, inherently has a sexual connotation. . . .” The

Commission also found that Bono’s phrase was “profane” under § 1464, defining

“profane” as “those personally reviling epithets naturally tending to provoke violent

resentment or denoting language so grossly offensive to members of the public who

actually hear it as to amount to a nuisance.”75

In 1988, Congress enacted P.L. 100-459, § 608, which required the FCC to

promulgate regulations to ban indecent broadcasts 24 hours a day. The FCC did so,

but the regulations never took effect because the court of appeals declared the ban

unconstitutional because “the Commission may not ban such broadcasts entirely.”76

72

Pacifica, supra, 438 U.S. at 750. A federal court of appeals subsequently held

unconstitutional a federal statute that banned “indecent” broadcasts 24 hours a day, but, in

a later case, the same court upheld the present statute, 47 U.S.C. § 303 note, which bans

“indecent” broadcasts from 6 a.m. to 10 p.m. Action for Children’s Television v. FCC, 932

F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992); Action for Children’s

Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043

(1996).

73

Pacifica, supra, 438 U.S. at 740.

74

Id. at 732. See, note 62, supra.

75

In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing

of the “Golden Globe Awards” Program, File No. EB-03-IH-0110 (Mar. 18, 2004). For

additional information, including an analysis of whether prohibiting the broadcast of

“indecent” words regardless of context would violate the First Amendment, see CRS Report

RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis.

76

Action for Children’s Television v. Federal Communications Commission (ACT II), 932

(continued...)

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In 1992, Congress enacted P.L. 102-356, § 16 of which required the FCC to

promulgate regulations that prohibit broadcasting of indecent programming on radio

and television from 6 a.m. to midnight, except for public radio and television stations

that go off the air at or before midnight, which may broadcast such material

beginning at 10 p.m. 47 U.S.C. § 303 note. In 1993, a three-judge panel of the U.S.

Court of Appeals for the District of Columbia held the law unconstitutional, but, on

June 30, 1995, the full court of appeals, by a 7-4 vote, overturned the panel and

upheld the statute, except for its 10 p.m.-to-midnight ban imposed on non-public

stations.77

The court of appeals found “that the Government has a compelling interest in

supporting parental supervision of what children see and hear on the public

airwaves,”78 and “that the Government has an independent and compelling interest

in preventing minors from being exposed to indecent broadcasts.”79 The court found,

in addition, that the statute used the least restrictive means to serve these interests.80

However, the court found that “Congress has failed to explain what, if any,

relationship the disparate treatment accorded certain public stations bears to the

compelling Government interest — or to any other legislative value — that Congress

sought to advance when it enacted section 16(a).”81 The court therefore held “that

the section is unconstitutional insofar as it bars the broadcasting of indecent speech

between the hours of 10:00 p.m. and midnight.”82

Section 1465. This section makes it a crime knowingly to transport in

interstate or foreign commerce for the purpose of sale or distribution, any “obscene,

lewd, lascivious, or filthy” material, “or any other matter of indecent or immoral

character.” It also makes it a crime knowingly to travel in interstate commerce, or

to use any facility or means of interstate commerce, for the purpose of transporting

obscene material in interstate or foreign commerce. Section 1465 should be read as

76

(...continued)

F.2d 1504, 1509 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992).

77

Action for Children’s Television v. Federal Communications Commission (ACT III), 58

F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996).

78

Id. at 661.

79

Id. at 663.

80

The court wrote: “While we apply strict scrutiny to regulations of this kind regardless of

the medium affected by them, our assessment of whether section 16(a) survives that scrutiny

must necessarily take into account the unique context of the broadcast media.” Id. at 660.

Chief Judge Edwards, in his dissent, wrote: “This is the heart of the case, plain and simple,”

as “[t]he majority appears to recognize that section 16(a) could not withstand constitutional

scrutiny if applied against cable television operators.” Id. at 671.

81

82

Id. at 668.

Id. at 669. Note that the court struck down the 10 p.m.-to-midnight ban not because it

failed strict scrutiny under the First Amendment, but because it applied only to non-public

stations. Chief Judge Edwards, in his dissent, commented that “the majority appears to

invite Congress to extend the 6 a.m. to midnight ban to all broadcasters, without exception.”

Id. at 670 n.1.

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limited by the Miller standard.83 The President’s message that accompanied the

original proposal that became P.L. 100-690 states:

The term “facility of commerce” would include such things as the federal

interstate highway system, federally numbered highways, and interstate railroads,

even if such facility were used only intrastate. The term “means of interstate

commerce” would include motor vehicles, boats, and airplanes capable of

carrying goods in interstate commerce. The new offense would be committed,

for example, by transporting obscene material by truck via Interstate 95 from

Richmond to Alexandria, Virginia, with the intent that at least part of it would

then be sold to customers outside of Virginia.84

In 1994, in Memphis, Tennessee, Robert and Carleen Thomas, a husband and

wife from Milpitas, California, were convicted and sentenced to prison under 18

U.S.C. § 1465 for transmitting obscenity, from California, over interstate phone lines

through their members-only computer bulletin board. The Sixth Circuit affirmed,

holding that 18 U.S.C. § 1465 applies to computer transmissions.85 The defendants

had also raised a First Amendment issue, arguing that they “cannot select who gets

the materials they make available on their bulletin boards. Therefore, they contend,

BBS [bulletin board service] operators like Defendants will be forced to censor their

materials so as not to run afoul of the standards of the community with the most

restrictive standards.”86 The court did not decide the issue because it found that, in

this case, the defendants had transmitted only to members whose addresses they

knew, so “[i]f Defendants did not wish to subject themselves to liability in

jurisdictions with less tolerant standards for determining obscenity, they could have

refused to give passwords to members in those districts, thus precluding the risk of

liability.”87

In 1996, P.L. 104-104, § 507(b), amended 18 U.S.C. § 1465 to apply to any

“interactive computer service.”

Section 1466. This section makes it a crime for any person “engaged in the

business of selling or transferring obscene matter” knowingly to receive or possess

with intent to distribute any obscene material that has been transported in interstate

83

United States v. Alexander, 498 F.2d 934, 935-936 (2d Cir. 1974).

84

H.R. Doc. No. 100-129, 100th Cong., 1st Sess. 78 (1987).

85

United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), cert. denied, 519 U.S. 820 (1996).

The court cited another conviction under 18 U.S.C. § 1465 for computer pornography —

this one by an Air Force court. United States v. Maxwell, 42 M.J. 568 (A.F.Ct.Crim. App.

1995).

86

Id. at 711. In Reno v. American Civil Liberties Union, supra note 12, the Supreme Court

noted that “the ‘community standards’ criterion as applied to the Internet means that any

communication available to a nation-wide audience will be judged by the standards of the

community most likely to be offended by the message.” In Ashcroft v. American Civil

Liberties Union, infra note 125, the Supreme Court held that the use of community

standards to assess “harmful to minors” material on the Internet is not by itself

unconstitutional.

87

Id.

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or foreign commerce. Offering to sell or transfer, at one time, two or more copies of

any obscene publication, or a combined total of five, shall create a rebuttable

presumption that the person so offering them is “engaged in the business.” In other

words, if the government proved that the defendant had offered to sell, at one time,

two or more copies of any obscene publication, or a combined total of five, then the

defendant would be deemed to be “engaged in the business” unless he could prove

otherwise.

Section 1466A. Section 504 of the PROTECT Act, P.L. 108-21 (2003),

created this section, which makes it a crime knowingly to produce, distribute,

receive, or possess, with or without intent to distribute, “a visual depiction of any

kind, including a drawing, cartoon, sculpture, or painting,” that depicts a minor

engaging in sexually explicit conduct and is obscene or lacks serious literary, artistic,

political, or scientific value. Section 1466A applies whether an actual minor is used

or not, but covers only depictions of minors engaged in specified sexual activities,

and not in lascivious exhibition of the genitals or pubic area. To the extent that

§ 1466A applies to non-obscene material produced without the use of an actual

minor, it would be unconstitutional under Ashcroft v. Free Speech Coalition.88

Section 1467. This section provides for criminal forfeiture in obscenity cases.

Specifically, it provides that a person convicted under the federal obscenity statute

(18 U.S.C. §§ 1460-1469) shall forfeit to the United States (1) the obscene material,

(2) property traceable to gross profits or other proceeds obtained from the obscene

material, (3) property used or intended to be used to commit the offense, “if the court

in its discretion so determines, taking into consideration the nature, scope, and

proportionality of the use of the property in the offense.” Thus, the court must

determine, for example, whether a vehicle used to transport obscene material was

owned by the defendant and was frequently used for that purpose, or, on the other

hand, whether it had been borrowed from someone who had no knowledge of the use

to which the defendant intended to put it.

The right of the United States to the property vests upon violation of the

obscenity statute, not upon conviction. Therefore, property that was transferred

between the violation and the conviction belongs to the United States, and shall also

be forfeited. However, the statute contains an exception precluding forfeiture if the

person to whom the property was transferred establishes that at the time of purchase

he “was reasonably without cause to believe that the property was subject to forfeiture.” Thus, if a person is convicted and the money he paid his lawyer to defend him

can be traced to gross profits from the sale of obscene material, the lawyer may be

required to forfeit the money unless he can convince the court that he had no

reasonable cause to believe that the money was subject to forfeiture.89 The Supreme

Court has held that forfeiture of lawyers’ fees under the federal drug forfeiture statute

88

89

535 U.S. 234 (2002).

The lawyer could argue that the money came from a source independent of his client’s

alleged criminal activity; it seems less certain whether he could argue that, at the time his

client paid him, he (the lawyer) was reasonably without cause to believe that the money was

subject to forfeiture because he reasonably believed that his client would be found not

guilty.

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does not violate the Due Process Clause of the Fifth Amendment or criminal

defendants’ Sixth Amendment right to counsel of choice.90

Section 1467(c) provides that, prior to conviction, upon application of the

United States, a court may issue an ex parte restraining order or injunction “to

preserve the availability of property . . . for forfeiture.” Section 1467(d) authorizes

courts to issue warrants for the seizure of property solely upon a showing of

“probable cause to believe that the property to be seized would, in the event of

conviction, be subject to forfeiture and that an order under subsection (c) of this

section may not be sufficient to assure the availability of the property for forfeiture.”

A federal district court declared these provisions unconstitutional insofar as they

allow “seizure or restraint . . . without a prior adversarial hearing.”91 The court based

this holding on the Supreme Court’s decision in Fort Wayne Books, which is

discussed in the section on RICO, below.

The court also declared two aspects of the post-conviction criminal forfeiture

provisions unconstitutional. However, on appeal, the court of appeals, without

addressing its merits, vacated the entire decision on the ground that, because the

government had not threatened the plaintiffs with enforcement, the plaintiffs’ claims

were not ripe for judicial resolution.92

Section 1468. This section, enacted in 1988, makes it a crime “knowingly to

utter[ ] obscene language or distribute[ ] any obscene matter by means of cable

television or subscription services on television.” The section defines “distribute”

to include transmissions by “wire, microwave, or satellite.” Similarly, 47 U.S.C.

§ 559, enacted in 1984, makes it a crime to “transmit[ ] over any cable system any

matter which is obscene or otherwise unprotected by the Constitution of the United

States.” The President’s message that accompanied the original proposal that became

section 1468 explained that the reason for its enactment was that ambiguities in Title

47 of the U.S. Code made it “unclear under what circumstances, if any, the federal

government could enforce [47 U.S.C. § 559].”93

Section 1468 also provides that no provision of federal law is intended to

preempt the power of the states, including their political subdivisions, “to regulate

the uttering of language that is obscene or otherwise unprotected by the Constitution

or the distribution of matter that is obscene or otherwise unprotected by the

Constitution.”

There are also other statutes codified in title 47 of the U.S. Code that regulate

obscenity and indecency on cable television; see below.

90

Caplin & Drysdale v. United States, 491 U.S. 617 (1989).

91

American Library Association v. Thornburgh, 713 F. Supp. 469, 485 (D.D.C. 1989),

vacated sub nom. American Library Association v. Barr, 956 F.2d 1178 (D.C. Cir. 1992).

92

Id. at 1196.

93

H.R. Doc. No. 100-129, supra note 84, at 93.

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Section 1469. This section creates a rebuttable presumption that an item

produced in one state and subsequently located in another, or produced outside the

United States and subsequently located in the United States, was transported in

interstate or foreign commerce. This means that, if the government proves the

change of location, then, unless the defendant shows that the allegedly obscene

material had not been transported in interstate or foreign commerce, it would be

deemed to have been so transported.

Section 1470. This section, added by P.L. 105-314, § 401 (1998), makes it

a crime to use the mail or interstate or foreign commerce knowingly to transfer

obscene matter to a person under 16, knowing that such person is under 16.

D. Cable Television

In addition to 18 U.S.C. § 1468 and 47 U.S.C. § 559 (discussed above under

“Section 1468”), both of which prohibit obscenity on cable television, various

provisions in the Communications Act of 1934, codified in title 47 of the U.S. Code,

regulate obscenity and indecency on cable television.

In 1994, in Turner Broadcasting System v. Federal Communications

Commission, which did not involve obscenity or indecency, the Supreme Court held

that cable television is entitled to full First Amendment protection.94 It wrote in

Turner: “In light of these fundamental technological differences between broadcast

and cable transmission, application of the more relaxed standard of scrutiny, adopted

in Red Lion and other broadcast cases is inapt when determining the First

Amendment validity of cable regulation.”95 In 1996, in Denver Area Educational

Telecommunications Consortium, Inc. v. Federal Communications Commission, a

plurality of the Justices retreated from the Court’s position in Turner. They wrote:

“The Court’s distinction in Turner, . . . between cable and broadcast television, relied

on the inapplicability of the spectrum scarcity problem to cable. . . . While that

distinction was relevant in Turner to the justification for structural regulations at

issue there (the ‘must carry’ rules), it has little to do with a case that involves the

effects of television viewing on children.”96

In Part II of the Denver Consortium opinion, a plurality (four justices) upheld

§ 10(a) of the Cable Television Consumer Protection and Competition Act of 1992,

47 U.S.C. § 532(h), which permits cable operators to prohibit indecent material on

leased access channels.97 In upholding § 10(a), the Court, citing Pacifica, noted that

cable television “is as ‘accessible to children’ as over-the-air broadcasting,” has also

94

512 U.S. 622 (1994).

95

Id. at 639.

96

518 U.S. 727, 748 (1996).

97

The Cable Communications Policy Act of 1984, P.L. 98-549, had required cable operators

to provide leased access and public access channels free of operator editorial control. 47

U.S.C. §§ 531(e), 532(c)(2). These two provisions were amended in 1996 by § 506 of the

Communications Decency Act to permit cable operators to refuse to transmit “obscenity,

indecency, or nudity.”

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“established a uniquely pervasive presence in the lives of all Americans,” and can

also “‘confron[t] the citizen’ in ‘the privacy of the home,’ . . . with little or no prior

warning.”98 Applying something less than strict scrutiny, the Court concluded “that

§ 10(a) is a sufficiently tailored response to an extraordinarily important problem.”99

It also found that “the statute is not impermissibly vague.”100

In Part III of Denver Consortium, a majority (six justices) struck down § 10(b)

of the 1992 Act, 47 U.S.C. § 532(j), which required cable operators, if they do not

prohibit such programming on leased access channels, to segregate it on a single

channel and block that channel unless the subscriber requests access to it in writing.

In this part of the opinion, the Court appeared to apply strict scrutiny, finding “that

protection of children is a ‘compelling interest,’” but “that, not only is [§ 10(b)] not

a ‘least restrictive alternative,’ and is not ‘narrowly tailored’ to meet its legitimate

objective, it also seems considerably ‘more extensive than necessary.’”101

In Part IV, which only three justices joined, the Court struck down § 10(c), 42

U.S.C. § 531 note, which permitted cable operators to prohibit indecent material on

public access channels. Without specifying the level of scrutiny they were applying,

the justices concluded “that the Government cannot sustain its burden of showing

that §10(c) is necessary to protect children or that it is appropriately tailored to secure

that end.”102

Another relevant statute concerning cable television is 47 U.S.C. § 544(d)(1),

which provides that a franchising authority and a cable operator may specify, in

granting or renewing a franchise, “that certain cable services shall not be provided

or shall be provided subject to conditions, if such cable services are obscene or are

otherwise unprotected by the Constitution of the United States.” In addition, 47

U.S.C. § 544(d)(2)(A) provides: “In order to restrict the viewing of programming

which is obscene or indecent, upon the request of a subscriber, a cable operator shall

provide (by sale or lease) a device by which the subscriber can prohibit viewing of

a particular cable service during a period selected by that subscriber.”

The Communications Decency Act of 1996, P.L. 104-104, which is known

primarily for its provisions regulating computer-transmitted indecency, also

contained provisions concerning cable television. Section 504 added § 640 to the

Communications Act of 1934, 47 U.S.C. § 560, which provides:

Upon request by a cable service subscriber, a cable operator shall, without

charge, fully scramble or otherwise fully block the audio and video programming

of each channel carrying such programming so that one not a subscriber does not

receive it.

98

Denver Consortium, supra note 96, 518 U.S., at 744-745.

99

Id. at 743.

100

Id. at 753.

101

Id. at 755.

102

Id. at 766. Two other justices concurred in the judgment that § 10(c) is invalid, but for

different reasons.

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This section includes no restriction on the type of material that a subscriber may

request to have blocked.

Section 505 added § 641, 47 U.S.C. § 561, which provides:

(a) In providing sexually explicit adult programming or other programming that

is indecent on any channel of its service primarily dedicated to sexually-oriented

programming, a multichannel video programming distributor shall fully scramble

or otherwise fully block the video and audio portion of such channel so that one

not a subscriber does not receive it.

(b) Until a multichannel video programming distributor complies with the

requirement set forth in subsection (a), the distributor shall limit the access of

children to the programming referred to in that subsection by not providing such

programming during the hours of the day (as determined by the [Federal

Communications] Commission) when a significant number of children are likely

to be viewing it.

On May 22, 2000, the Supreme Court declared § 505 unconstitutional, making

clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based

speech restrictions on cable television.103 The Court noted that “[t]he purpose of

§ 505 is to shield children from hearing or seeing images resulting from signal

bleed,” which refers to images or sounds that come through to non-subscribers, even

though cable operators have “used scrambling in the regular course of business, so

that only paying customers had access to certain programs.”104 Section 505 requires

cable operators to implement more effective scrambling — to fully scramble or

otherwise fully block programming so that non-subscribers do not receive it — or to

“time channel,” which, under an F.C.C. regulation meant to transmit the

programming only from 10 p.m. to 6 a.m.

“To comply with the statute,” the Court noted, “the majority of cable operators

adopted the second, or ‘time channeling,’ approach.105 The effect . . . was to

eliminate altogether the transmission of the targeted programming outside the safe

harbor period [6 a.m. to 10 p.m.] in affected cable service areas. In other words, for

two-thirds of the day no household in those service areas could receive the

programming, whether or not the household or the viewer wanted to do so.”106 The

Court also noted that “[t]he speech in question was not thought by Congress to be so

103

United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000). The

decision was 5-4, with Justices Breyer, Rehnquist, O’Connor, and Scalia dissenting.

104

Id. at 806.

105

Id. They may have done so because fully blocking or fully scrambling “appears not be

economical” (id. at 808) or because the technology is imperfect and cable operators

attempting to fully block or fully scramble might have still been “faced with the possibility

of sanctions for intermittent bleeding” (id. at 821).

106

Id. at 806-807.

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harmful that all channels were subject to restriction. Instead, the statutory disability

applies only to channels ‘primarily dedicated to sexually-oriented programming.’”107

As “a content-based speech restriction,” the Court wrote, § 505 “can stand only

if it satisfies strict scrutiny. . . . [I]t must . . . promote a compelling Government

interest. . . . If a less restrictive alternative would serve the Government’s purpose,

the legislature must use that alternative.” The Court did not explicitly say in this case

that protecting children from sexually oriented signal bleed is a compelling interest,

but assumed it, and addressed the question of whether § 505 constituted the least

restrictive means to advance that interest.108

The Court noted that there is “a key difference between cable television and the

broadcasting media, which is the point on which this case turns: Cable systems have

the capacity to block unwanted channels on a household-by-household basis. . . .

[T]argeted blocking enables the Government to support parental authority without

affecting the First Amendment interests of speakers and willing listeners . . . .”109

Furthermore, targeted blocking is already required — by § 504 of the CDA, which,

as noted above, requires cable operators, upon request by a cable service subscriber,

to, without charge, fully scramble or otherwise fully block audio and video

programming that the subscriber does not wish to receive. “When a plausible, less

restrictive alternative is offered to a content-based speech restriction, it is the

Government’s obligation to prove that the alternative will be ineffective to achieve

its goal. The Government has not met that burden here.”110 The Court concluded,

therefore, that § 504, with adequate publicity to parents of their rights under it,

constituted a less restrictive alternative to § 505.

One additional provision of the CDA affected cable television: § 506 amended

47 U.S.C. §§ 531(e) and 532(c)(2) to permit cable operators to refuse to transmit

“obscenity, indecency, or nudity” on public access and leased access channels.111

107

Id. at 812.

108

The Court wrote: “Even upon the assumption that the Government has an interest in

substituting itself for informed and empowered parents, its interest is not sufficiently

compelling to justify this widespread restriction on speech.” Id. at 825. The Court, in other

words, while assuming that the government has a compelling interest in aiding parents in

protecting their children from sexually oriented signal bleed, did not find that the

government has a compelling interest in protecting children from such material when their

parents allow it into the home. The Court also noted “the possibility that a graphic image

could have a negative impact on a young child.” Id. at 826. This suggests the possibility

that the Court might not find a compelling interest in shielding older children from sexually

oriented material.

109

Id. at 815.

110

Id. at 816.

111

Justice Kennedy, in the only footnote to his concurring and dissenting opinion in Denver

Consortium, wrote that the constitutionality of the amendments made by § 506, “to the

extent they differ from the provisions here [§§ 10(a) and 10(c) of the 1992 Act], is not

before us.” 518 U.S., at 782.

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E. The Communications Decency Act of 1996

The Communications Decency Act of 1996 (CDA) is Title V of the

Telecommunications Act of 1996, P.L. 104-104. This report has previously noted

amendments the act made to 18 U.S.C. §§ 1462 and 1465, and provisions relating to

cable television that it added to Title 47 of the U.S. Code. This section of the report

examines § 502 of the act, which would have limited indecent material transmitted

by telecommunications devices and interactive computer services, and Reno v.

American Civil Liberties Union, the Supreme Court decision holding it

unconstitutional.112

Section 502 rewrote 47 U.S.C. § 223(a) and added subsections (d) through (h)

to 47 U.S.C. § 223. It did not amend subsections (b) or (c), which restrict

commercial dial-a-porn services (see page 10, above). In Reno, the Supreme Court

struck down § 223(a) in part and § 223(d) in whole.

47 U.S.C. § 223(a). Prior to its amendment by § 603 of the PROTECT Act,

P.L. 108-21 (2003), § 223(a)(1)(A) made it a crime, by means of a

telecommunications device, knowingly to transmit a communication that is “obscene,

lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass

another person.” Prior to its amendment by § 603 of the PROTECT Act,

§ 223(a)(1)(B) made it a crime, by means of a telecommunications device, knowingly

to transmit a communication that is “obscene or indecent, knowing that the recipient

of the communication is under 18 years of age. . . .” Section 223(a)(2) makes it a

crime knowingly to permit any telecommunications facility under one’s control to be

used for any activity prohibited by § 223(a)(1) with the intent that it be used for such

activity.113

Although the CDA defines “telecommunications,”114 it does not define

“telecommunications device.” However, it provides in § 223(h)(1)(B) that the term

“does not include the use of an interactive computer service.”115 Thus, it appears that

112

Reno, supra, note 12, 521 U.S. 844 (1997).

113

In ApolloMedia Corp. v. Reno, 19 F. Supp.2d 1081, 1084 (N.D. Cal. 1998), aff’d, 526

U.S. 1061 (1999), the plaintiff sought to enjoin enforcement of § 223(a)(1)(A) and

§ 223(a)(2) “on the grounds that . . . , to the extent that they prohibit ‘indecent’

communications made ‘with an intent to annoy,’ [they] are impermissibly overbroad and

vague. . . .” The three-judge court denied the plaintiff’s request because it found that “the

provisions regulate only ‘obscene’ communications.” The Supreme Court affirmed without

a written opinion. The plaintiffs reportedly had appealed because they believed that the fact

that the word “indecent” was in the statute could have a chilling effect on indecent

nonobscene expression, even if the law was not enforceable against such expression.

114

Section 3 of P.L. 104-104 added to 47 U.S.C. § 153 the following definition of

“telecommunications”: “the transmission, between or among points specified by the user,

of information of the user’s choosing, without change in the format or content of the

information as sent and received.” The conference report adds that this information includes

“voice, data, image, graphics, and video.”

115

Section 230(f)(2) (added by § 509) defines “interactive computer service” as “any

(continued...)

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§ 223(a)(1)(A) and (B) are intended to apply to communications, by telephone, fax

machine, or computer, that are sent to particular individuals, not those that can be

accessed by multiple users.

In Reno v. American Civil Liberties Union, the Supreme Court declared

§ 223(a)(1)(B) unconstitutional insofar as it applies to “indecent” communications.

Section 603 of the PROTECT Act amended § 223(a)(1)(A) by substituting “or

child pornography” for “lewd, lascivious, filthy, or indecent.” Thus, § 223(a)(1)(A)

now bans only obscenity and child pornography, both of which are unprotected by

the First Amendment. Section 223(a)(1)(A) thereby no longer raises the

constitutional issue raised by the case cited in footnote 111.

Section 603 of the PROTECT Act amended § 223(a)(1)(B) by substituting

“child pornography” for “indecent,” so that it too now bans only obscenity and child

pornography, and no longer raises the constitutional issue that gave rise to Reno v.

American Civil Liberties Union.

47 U.S.C. § 223(d). Prior to its amendment by § 603 of the PROTECT Act,

§ 223(d) made it a crime knowingly to use “an interactive computer service to send

to a specific person or persons under 18 years of age, or . . . to display in a manner

available to a person under 18 years of age, any . . . communication that, in context,

depicts or describes, in terms patently offensive as measured by contemporary

community standards, sexual or excretory activities or organs . . . .” (italics added)

This prohibition seems equivalent to a prohibition of “indecent” material, but

§ 223(d) does not use the word “indecent,” a fact of which the Supreme Court took

note in Reno when it held § 223(d) unconstitutional.116

Section 603 of the PROTECT Act amended § 223(d)(1) by substituting “is

obscene or child pornography” for the words italicized above. Section 223(d) thus

no longer raises the constitutional issue that gave rise to Reno v. American Civil

Liberties Union.

Reno v. American Civil Liberties Union. The Supreme Court found in

this case that “the CDA is a content-based blanket restriction on speech . . . .”117 As

such, it may be found constitutional only if it serves “to promote a compelling

interest” and is “the least restrictive means to further the articulated interest.”118 As

for whether the CDA promotes a compelling interest, although the Court referred to

“the legitimacy and importance of the congressional goal of protecting children from

115

(...continued)

information service, system, or access software provider that provides or enables computer

access by multiple users to a computer server, including specifically a service or system that

provides access to the Internet and such systems operated or services offered by libraries or

educational institutions.”

116

See, Reno, supra note 12, 521 U.S., at 871.

117

Id. at 868.

118

Sable, supra note 4.

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harmful materials,”119 it suggested that there may be less of a governmental interest

in protecting older children from indecent material — at least such material as had

artistic or educational value.120

As for whether the CDA is the least restrictive means to further the

governmental interest, the Court found that “the Government [failed] to explain why

a less restrictive provision would not be as effective as the CDA.”121 The CDA’s

“burden on adult speech,” the Court held, “is unacceptable if less restrictive

alternatives would be at least as effective in achieving the legitimate purpose that the

statute was enacted to serve.”122 “[T]he Government may not ‘reduc[e] the adult

population . . . to . . . only what is fit for children.’”123

Could Congress reenact the CDA be reenacted in a narrower form that would

be constitutional? The Supreme Court did not say, but it did not foreclose the

possibility. It wrote:

The arguments in this Court have referred to possible alternatives such as

requiring that indecent material be “tagged” in a way that facilitates parental

control of material coming into their homes, making exceptions for messages

with artistic or educational value, providing some tolerance for parental choice,

and regulating some portions of the Internet — such as commercial web sites —

differently from others, such as chat rooms.124

F. Child Online Protection Act

On October 21, 1998, President Clinton signed into law the Omnibus

Appropriations Act for FY1999 (P.L. 105-277), title XIV of which is the Child

Online Protection Act (COPA). This law was an attempt to enact a constitutional

version of the CDA. Its enforcement has thus far been enjoined, and the Supreme

Court, on October 14, 2003, agreed to rule on the injunction.125

COPA differs from the CDA in two main respects: (1) it prohibits

communication to minors only of material that is “harmful to minors,” rather than

material that is indecent, and (2) it applies only to communications for commercial

119

Reno, supra note 12, 521 U.S., at 849.

120

See, id. at 878. The Court wrote: “[A] parent who sent his 17-year-old college freshman

information on birth control via e-mail could be incarcerated even though neither he, his

child, nor anyone in their home community found the material ‘indecent’ or ‘patently

offensive,’ if the college town’s community thought otherwise.” Id.

121

Id. at 879.

122

Id. at 874.

123

Id. at 875.

124

Id. at 879.

125

American Civil Liberties Union v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999), aff’d, 217

F.3d 162 (3d Cir. 2000), vacated and remanded sub nom. Ashcroft v. American Civil

Liberties Union, 535 U.S. 564 (2002), aff’d on remand, 322 F.3d 240 (3d Cir. 2003), aff’d

and remanded, No. 03-218 (June 29, 2004).

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purposes on publicly accessible websites. It defines “material that is harmful to

minors” as pictures or words that —

(A) the average person, applying contemporary community standards, would

find, taking the material as a whole and with respect to minors, is designed to

appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect

to minors, an actual or simulated sexual act or sexual contact, an actual or

simulated normal or perverted sexual act, or a lewd exhibition of the genitals or

post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value

for minors.126

A communication is deemed to be for “commercial purposes” if it is made in

the regular course of a trade or business with the objective of earning a profit; a

communication need not propose a commercial transaction to be deemed to be for

“commercial purposes.” Requiring a viewer to use a credit card, or to verify his age,

to gain access to material on the Internet would constitute a defense to prosecution.

In light of the Supreme Court’s decision in Reno, is COPA constitutional? The

fact that COPA makes exceptions for messages with serious literary, artistic,

political, or scientific value for minors, and that it applies only to commercial

websites, makes it more likely than the CDA to be upheld. Nevertheless it may well,

like the CDA, be found to “suppress[ ] a large amount of speech that adults have a

constitutional right to receive and to address to one another.”127 This is because a

website that is freely accessible, but is deemed “commercial” because it seeks to

make a profit through advertisements, would apparently have to stop making its

website freely accessible, or, in the alternative, would have to remove all words and

pictures that might be deemed “harmful to minors” “by the standards of the

community most likely to be offended by the message.”128

COPA was scheduled to take effect on November 20, 1998, but a coalition of

17 civil liberties groups filed suit challenging it, and, on November 19, Judge Reed

of the federal district court in Philadelphia, finding that there was a likelihood that

the plaintiffs would prevail, issued a temporary restraining order against enforcement

of the law. On February 1, 1999, he issued a preliminary injunction against

enforcement pending a trial on the merits. The preliminary injunction applies to all

Internet users (not just the plaintiffs in this case) and provides that, even if the law

126

Despite the fact that only the first prong of this test refers to “community standards,”

community standards are apparently also intended to be used in applying the second prong.

See footnote 7 of the Supreme Court’s opinion, supra note 125.

127

128

Reno, supra note 12, 521 U.S., at 874.

Id. at 877-878. In support of the law’s constitutionality, one might analogize its

restriction on speech to state law bans on “public display and unattended sale, in places

where minors might be present, of ‘obscene-as-to-minors’ materials.” See, Eugene Volokh,

Freedom of Speech, Shielding Children, and Transcending Balance, 1997 SUP. CT. REV.

141, 186.

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is ultimately upheld, the Administration may not prosecute online speakers

retroactively. On June 22, 2000, the U.S. Court of Appeals for the Third Circuit

upheld the preliminary injunction, as it was “confident that the ACLU’s attack on

COPA’s constitutionality is likely to succeed on the merits.”129 On May 13, 2002,

the Supreme Court vacated the Third Circuit’s opinion and remanded the case for

further proceedings. It did not, however, remove the preliminary injunction against

enforcement of the statute. On March 6, 2003, the Third Circuit again affirmed the

district court’s preliminary injunction. Finally, on June 29, 2004, the Supreme Court

affirmed the preliminary injunction and remanded the case for trial. We now

consider these five opinions in turn.

In issuing the preliminary injunction, the district court found that “[i]t is clear

that Congress has a compelling interest in the protection of minors, including

shielding them from materials that are not obscene by adult standards.”130 It also

found, however, that “it is not apparent to this Court that the defendant can meet its

burden to prove that COPA is the least restrictive means available to achieve the goal

of restricting the access of minors to this material.”131 This is because “[t]he record

before the Court reveals that blocking or filtering technology may be at least as

successful as COPA would be in restricting minors’ access to harmful material online

without imposing the burden on constitutionally protected speech that COPA

imposes on adult users or website operators.”132 In addition, “the sweeping category

of forms of content that are prohibited — ‘any communication, picture, image,

graphic image file, article, recording, writing, or other matter of any kind’ (emphasis

added [by the court]) — could have been less restrictive of speech on the Web and

more narrowly tailored to Congress’ goal of shielding minors from pornographic

teasers if the prohibited forms of content had included, for instances, only pictures,

images, or graphic image files, which are typically employed by adult entertainment

websites as ‘teasers.’ In addition, perhaps the goals of Congress could be served

without the imposition of possibly excessive and serious criminal penalties, including

imprisonment and hefty fines, for communicating speech that is protected as to adults

or without exposing speakers to prosecution and placing the burden of establishing

an affirmative defense on them instead of incorporating the substance of the

affirmative defenses in the elements of the crime.”133

On appeal, the Third Circuit affirmed on a different ground: “because the

standard by which COPA gauges whether material is ‘harmful to minors’ is based on

identifying ‘contemporary community standards’ the inability of Web publishers to

restrict access to their websites based on the geographic locale of the site visitor, in

and of itself, imposes an impermissible burden on constitutionally protected First

129

Id., 217 F.3d, at 166.

130

Id., 31 F. Supp.2d, at 495.

131

Id. at 497.

132

Id.

133

Id.

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Amendment speech.”134 This is because it results in communications available to a

nationwide audience being judged by the standards of the community most likely to

be offended. Applying strict scrutiny, the Third Circuit concluded that, though “[i]t

is undisputed that the government has a compelling interest in protecting children

from material that is harmful to them, even if not obscene by adult standards,”135 the

government “may not regulate at all if it turns out that even the least restrictive means

of regulation is still unreasonable when its limitations on freedom of speech are

balanced against the benefits gained from those limitations.”136

The Supreme Court held that COPA’s “use of ‘community standards’ to identify

‘material that is harmful to minors’ . . . does not render the statute facially

unconstitutional” — it “does not by itself render the statute substantially overbroad

for purposes of the First Amendment.”137 Although there were five separate opinions

in the case, eight of the nine justices favored remanding the case to the Third Circuit

to consider whether the act was nevertheless unconstitutional. Only Justice Stevens

dissented, as only he believed that the use of community standards was a sufficient

problem to warrant an affirmance of the Third Circuit’s opinion.

The Court’s statement that COPA’s use of community standards does not by

itself render the statute unconstitutional implies that COPA’s use of community

standards may nevertheless prove a factor among others that renders the statute

unconstitutional. Justice Thomas, however, despite writing the opinion for the Court,

including the by itself language quoted above, wrote, in a section of the opinion

joined only by Chief Justice Rehnquist and Justice Scalia, “that any variance caused

by the statute’s reliance on community standards is not substantial enough to violate

the First Amendment.”138 Justice Thomas also commented: “If a publisher wishes

for its material to be judged only by the standards of particular communities [and not

by the most puritanical community], then it need only take the simple step of utilizing

a medium [a medium other than the Internet] that enables it to target the release of

its materials into those communities.”139 Justice Stevens responded that the Court

should “place the burden on parents to ‘take the simple step of utilizing a medium

that enables’ . . . them to avoid this material before requiring the speaker to find

another forum.”140

Justice Kennedy, in a concurring opinion joined by Justices Souter and

Ginsburg, found that “[w]e cannot know whether variation in community standards

renders the act substantially overbroad without first assessing the extent of speech

134

Id., 217 F.3d, at 166.

135

Id. at 173.

136

Id. at 179.

137

Ashcroft, supra note 125, 535 U.S. 564, 585 (2002) (emphasis in original).

138

Id.

139

Id. at 583.

140

Id. at 606 n.2.

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covered and the variations in community standards with respect to that speech.”141

Justice Kennedy believed that, before an assessment could be made, the Third Circuit

should consider such questions as how much material COPA prohibits, how much

the standard of the most puritanical community in the nation differ from standards

of other communities, “what it means to evaluate Internet material ‘as a whole,’” and

the number of venues in which the government could prosecute violations of the

act.142

Justices O’Connor and Breyer wrote separate concurring opinions. Justice

O’Connor agreed with Justice Kennedy that the plaintiffs had failed “to demonstrate

substantial overbreadth due solely to the variation between local communities,”143

and Justice Breyer, to avoid a First Amendment problem, would have construed the

phrase “community standard” in the statute to mean a national standard.

On remand, the Third Circuit again affirmed the district court’s preliminary

injunction. It held “that the following provisions of COPA are not narrowly tailored

to achieve the Government’s compelling interest in protecting minors from harmful

material and therefore fail the strict scrutiny test: (a) the definition of ‘material that

is harmful to minors,’ . . . (b) the definition of ‘commercial purposes,’ . . . and (c) the

‘affirmative defenses’ available to publishers, which require the technological

screening of users for the purpose of age verification.”144

As for the definition of “material that is harmful to minors,” the court found that

the requirement that material be judged “as a whole” in determining whether it was

designed to appeal to the prurient interests of minors and to lack serious value for

minors meant “that each individual communication, picture, image, exhibit, etc. be

deemed ‘a whole’ by itself,” rather than in context.145 Yet “one sexual image, which

COPA may proscribe as harmful material, might not be deemed to appeal to the

prurient interest of minors if it were to be viewed in the context of an entire

collection of Renaissance artwork.”146 The court also found the word “minor” in the

definition of “material that is harmful to minors” to be “not narrowly drawn to

achieve the statute’s purpose,” because it precludes Web publishers from knowing

whether “an infant, a five-year old, or a person just shy of age seventeen . . . should

be considered in determining whether the content of their website has ‘serious . . .

value for [those] minors’” or “will trigger the prurient interest, or be patently

offensive with respect to those minors . . . .”147

As for the definition of “commercial purposes,” the court was “satisfied that

COPA is not narrowly tailored to proscribe commercial pornographers and their ilk,

141

Id. at 597.

142

Id. at 600.

143

Id. at 589.

144

322 F.3d 240, 251 (3d Cir. 2003) (emphasis in original).

145

Id. at 252.

146

Id. at 253.

147

Id. at 254.

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as the Government contends, but instead prohibits a wide range of protected

expression.”148 As for the affirmative defense available to publishers, the court found

that it “will likely deter many adults from accessing restricted content, because many

Web users are simply unwilling to provide identification information in order to gain

access to content . . . .”149

The Third Circuit also found that voluntary “blocking and filtering techniques

. . . may be substantially less restrictive than COPA in achieving COPA’s objective

of preventing a minor’s access to harmful material.”150 Finally, it held “that the

plaintiffs will more probably prove at trial that COPA is substantially overbroad, and

therefore, we will affirm the District Court on this independent ground as well.”151

On June 29, 2004, the Supreme Court, by a 5-4 vote, affirmed the preliminary

injunction and remanded the case for trial. The Court found that the district court had

not abused its discretion in granting a preliminary injunction, because the

government had failed to show that proposed alternatives to COPA would not be as

effective in accomplishing its goal. The Court did not address the Third Circuit’s

conclusions that various terms used in COPA rendered it unconstitutional.

The primary alternative to COPA, the Court noted, is blocking and filtering

software. Filters are less restrictive than COPA because “[t]hey impose selective

restrictions on speech at the receiving end, not universal restriction at the source.”

In addition “a filter can prevent minors from seeing all pornography, not just [the

60% of] pornography posted on the Web from America,” and filters “can be applied

to all forms of Internet communication, including e-mail, not just communications

available via the World Wide Web.” Nevertheless, the Court’s “opinion does not

foreclose the District Court from concluding, upon a proper showing by the

Government that meets the Government’s constitutional burden as defined in this

opinion, that COPA is the least restrictive alternative available to accomplish

Congress’ goal.”

Justice Breyer, in his dissent, found that COPA’s “burden on protected speech

. . . is no more than modest,” as it would limit “legally obscene material and very

little more.” Further, COPA “does not censor the material it covers,” but merely

“requires providers of the ‘harmful to minors’ material to restrict minors’ access to

it by verifying age.” Justice Breyer then wrote that blocking and filtering software

is not a less restrictive alternative because “it is part of the status quo,” and “[i]t is

always less restrictive to do nothing than to do something.” (The majority opinion

countered that Congress “may act to encourage the use of filters,” and “[t]he need for

parental cooperation does not automatically disqualify a proposed less restrictive

alternative.”) Justice Breyer also noted “four serious inadequacies” of filters, and

found that COPA’s application to “60% percent of the Internet’s commercial

pornography” is not “insignificant.” Justice Breyer’s dissent was joined by two other

148

Id. at 257.

149

Id. at 259.

150

Id. at 265.

151

Id. at 271.

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justices, and Justice Scalia wrote a separate dissent, claiming that “harmful-tominors” material is not protected by the First Amendment.

G. Children’s Internet Protection Act

The Children’s Internet Protection Act (CIPA), P.L. 106-554 (2000), 114 Stat.

2763A-335, amended three federal statutes to provide that a school or library may not

use funds it receives under these statutes to purchase computers used to access the

Internet, or to pay the direct costs of accessing the Internet, and may not receive

universal service discounts (other than for telecommunications services), unless the

school or library enforces a policy “that includes the operation of a technology

protection measure” that blocks or filters minors’ Internet access to visual depictions

that are obscene, child pornography, or “harmful to minors”; and that blocks or filters

adults’ Internet access to visual depictions that are obscene or child pornography.152

The sections of CIPA (1711 and 1712) that require schools and libraries to block

or filter if they use federal funds for computers or for Internet access, provide that the

blocking or filtering technology may be disabled “to enable access for bona fide

research or other lawful purpose.” The section of CIPA (1721) that requires schools

and libraries to block or filter if they receive universal service discounts, provides

that the blocking or filtering technology may be disabled “during use by an adult, to

enable access for bona fide research or other lawful purpose.”

Sections 1711, 1712, and 1721 all contain identical definitions of “minor,”

“obscene,” “child pornography,” and “harmful to minors. They define a “minor” as

a person under 17. They define “obscene” to have the meaning given such term in18

U.S.C. § 1460, but that section does not define “obscene.”153 In the absence of a

statutory definition, the courts will no doubt apply the Miller test to define the word.

Sections 1711, 1712, and 1721 all define “child pornography” to have the

meaning given such term in 18 U.S.C. § 2256. That section defines “child

pornography” as any “visual depiction” of “sexually explicit conduct” that is or

appears to be of a minor, and defines “sexually explicit conduct” as various “actual

or simulated” sexual acts or the “lascivious exhibition of the genitals or pubic area

of any person.” Child pornography need not be obscene under the Miller test; it is

unprotected by the First Amendment even if it does not appeal to the prurient interest,

152

Section 1711 amends Title III of the Elementary and Secondary Education Act of 1965,

20 U.S.C. §§ 6801 et seq. Section 1712 amends section 224 of the Museum and Library

Services Act, 20 U.S.C. § 9134, which is part of the Library Services and Technology Act

(LSTA), which is Title II of the Museum and Library Services Act. Section 1721 amends

section 254(h) of the Communications Act of 1934, 47 U.S.C. § 254(h), which establishes

the “universal service discount,” or “E-rate,” for schools and libraries. Only sections 1712

and 1721 (insofar as it applies to libraries) were at issue in the case before the three-judge

district court and the Supreme Court.

153

Nor does any other section of the U.S. Code, except 20 U.S.C. § 952(l), which defines

it for purposes of grants by the National Endowment for the Arts, and does so in a manner

that parallels the Miller test, except that it does not apply community standards to the

determination of whether material is patently offensive.

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is not patently offensive, and does not lack serious literary, artistic, scientific, or

political value.

Sections 1711, 1712, and 1721 define “material that is harmful to minors” as

any communication that —

(i) taken as a whole and with respect to minors, appeals to a prurient interest in

nudity, sex, or excretion;

(ii) depicts, describes, or represents, in a patently offensive way with respect to

what is suitable for minors, an actual or simulated sexual act or sexual contact,

actual or simulated normal or perverted sexual acts, or a lewd exhibition of the

genitals; and

(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value

as to minors.154

In United States v. American Library Association, a three-judge federal district

unanimously declared CIPA unconstitutional and enjoined its enforcement insofar

as it applies to libraries.155 CIPA, like the CDA but unlike COPA, authorizes the

government to appeal directly to the Supreme Court, and the government did so. In

2003, the Supreme Court reversed the district court, finding CIPA constitutional.156

The decision consisted of a four-justice plurality opinion by Chief Justice

Rehnquist, concurring opinions by Justices Kennedy and Breyer, and dissenting

opinions by Justices Stevens and Souter (the latter joined by Justice Ginsburg). The

plurality noted that “Congress may not ‘induce’ the recipient [of federal funds] ‘to

engage in activities that would themselves be unconstitutional.’”157 The plurality

therefore viewed the question before the Court as “whether [public] libraries would

violate the First Amendment by employing the filtering software that CIPA

requires.”158 Does CIPA, in other words, effectively violate library patrons rights?

The plurality concluded that it does not. In so concluding, the plurality found

that “Internet access in public libraries is neither a ‘traditional’ or a ‘designated’

public forum,”159 and that therefore it would not be appropriate to apply strict

154

This three-part test is similar to that of the Child Online Protection Act, 47 U.S.C.

§ 231(e), but three differences are that CIPA applies only to visual depictions, whereas

COPA applies also to words; CIPA does not, like COPA, provide that the determinations

of prurience and patent offensiveness (see note 126, supra) be made in accordance with the

views of “the average person applying contemporary community standards”; and CIPA does

not, like COPA, allow a visual depiction of a “post-pubescent female breast” to be found

harmful to minors.

155

201 F. Supp.2d 401 (E.D. Pa. 2002). The district court struck down § 1712(a)(2), which

concerns LSTA funds, and § 1721(b) which concerns E-rate discounts for libraries. The

provisions affecting schools were not challenged.

156

539 U.S. 194 (2003).

157

Id. at 203.

158

Id.

159

Id. at 205. The district court had found “that when the government provides Internet

(continued...)

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scrutiny to determine whether the filtering requirements are constitutional.160 This

means that the government did not have to demonstrate that CIPA serves a

compelling interest (though Justice Kennedy in his concurrence noted that “all

Members of the Court appear to agree” that it does161) or that CIPA does so by the

least restrictive means (the district court had found “that less restrictive alternatives

to filtering software would suffice to meet Congress’ goals”162).

The plurality acknowledged “the tendency of filtering software to ‘overblock’

— that is, to erroneously block access to constitutionally protected speech that falls

outside the categories that software users intend to block.”163 It found, however, that,

“[a]ssuming that such erroneous blocking presents constitutional difficulties, any

such concerns are dispelled by the ease with which patrons may have the filtering

software disabled.”164

The plurality also considered whether CIPA imposes an unconstitutional

condition on the receipt of federal assistance — in other words, does it violate public

libraries’ rights by requiring them to limit their freedom of speech if they accept

federal funds? The plurality found that, assuming that government entities have First

Amendment rights (it did not decide the question), CIPA does not infringe them.

This is because CIPA does not deny a benefit to libraries that do not agree to use

filters; rather, the statute “simply insist[s] that public funds be spent for the purposes

for which they were authorized.”165 “CIPA does not ‘penalize’ libraries that choose

not to install such software, or deny them the right to provide their patrons with

159

(...continued)

access in a public library, it has created a designated public forum,” and that “content-based

restrictions on speech in a designated public forum are most clearly subject to strict scrutiny

when the government opens a forum for virtually unrestricted use by the general public for

speech on a virtually unrestricted range of topics, while selectively excluding particular

speech whose content it disfavors.” 201 F.Supp.2d 401, 457, 460 (E.D. Pa. 2002).

160

The reason the plurality found that Internet access in public libraries is not a public forum

is that “[a] public library does not acquire Internet terminals in order to create a public

forum for Web publishers to express themselves, any more than it collects books in order

to provide a public forum for authors of books to speak. It provides Internet access, not to

‘encourage a diversity of views from private speakers,’ but for the same reasons it offers

other library resources: to facilitate research, learning, and recreational pursuits by

furnishing materials of requisite and appropriate quality.” Id. at 206.

161

Id. at 215.

162

Id. at 207 n.3.

163

Id. at 208. The three-judge court had found that “At least tens of thousands of pages of

the indexable Web are overblocked by each of the filtering programs evaluated by experts

in this case, even when considered against the filtering companies’ own category definitions.

Many erroneously blocked pages contain content that is completely innocuous for both

adults and minors, and that no rational person could conclude matches the filtering

companies’ category definitions, such as ‘pornography’ or ‘sex.’” 201 F. Supp.2d, at 449.

164

165

Id. at 209.

Id. at 211. For additional information on the issue of unconstitutional conditions, see

CRS Report 95-815, Freedom of Speech and Press: Exceptions to the First Amendment.

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unfiltered Internet access. Rather, CIPA simply reflects Congress’ decision not to

subsidize their doing so.”166

In effect, then, the plurality seemed to view CIPA as raising no First

Amendment issue other than the possible one of overblocking, which it found the

statute to deal with adequately by its disabling provisions. Justice Kennedy,

concurring, noted that, “[i]f some libraries do not have the capacity to unblock

specific websites or to disable the filter or if it is shown that an adult user’s election

to view constitutionally protected Internet material is burdened in some other

substantial way, that would be the subject for an as-applied challenge, not the facial

challenge made in this case.”167

Justice Breyer would have applied “a form of heightened scrutiny,” greater than

rational basis scrutiny but “more flexible” than strict scrutiny, to assess CIPA’s

constitutionality.168 He would ask “whether the harm to speech-related interests is

disproportionate in light of both the justifications and the potential alternatives.”169

Applying this test, he concurred that CIPA is constitutional.

Justice Stevens found CIPA unconstitutional because of its “vast amount of

‘overblocking,’” which he found not cured by the disabling provisions, because

“[u]ntil a blocked site or group of sites is unblocked, a patron is unlikely to know

what is being hidden and therefore whether there is any point in asking for the filter

to be removed.”170

Justice Souter said that he would not “dissent if I agreed with the majority of my

colleagues . . . that an adult library patron could, consistently with the act, obtain an

unblocked terminal simply for the asking. . . . But the Federal Communications

Commission, in its order implementing the act, pointedly declined to set a federal

policy on when unblocking by local libraries would be appropriate under the

statute. . . . Moreover, the District Court expressly found that ‘unblocking may take

days, and may be unavailable, especially in branch libraries, which are often less well

staffed than main libraries.’”171 Further, “the statute says only that a library ‘may’

unblock, not that it must.”172

166

Id. at 212.

167

Id. at 215.

168

Id. at 216, 218.

169

Id. at 217.

170

Id. at 222, 224. Justice Stevens quoted from the district court opinion: “[T]he search

engines that software companies use for harvestings are able to search text only, not images.

This is of critical importance, because CIPA, by its own terms, covers only ‘visual

depictions.’” Id. at 221.

171

Id. at 232-233.

172

Id. at 233.

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H. Dot Kids Internet Domain

The Dot Kids Implementation and Efficiency Act of 2002, P.L. 107-317, 47

U.S.C. § 941, directs the National Telecommunication and Information

Administration (NTIA), which is an agency in the Department of Commerce, to

establish a “new domain” “that provides access only to material that is suitable for

minors and not harmful to minors.” The statute’s definition of “harmful to minors”

is essentially the same as COPA’s.173 Its definition of “suitable for minors” is “not

psychologically or intellectually inappropriate for minors” and “serves (i) the

educational, informational, intellectual, or cognitive needs of minors; or (ii) the

social, emotional, or entertainment needs of minors.” The website for the new

domain is [http://www.kid.us]; that site lists three websites that use the new domain.

I. Misleading Domain Names on the Internet

This provision, 18 U.S.C. § 2252B, which was created by § 521 of the

PROTECT Act, P.L. 108-21 (2003), was placed in the child pornography statute, but

it concerns obscenity and “harmful to minors” material, and not child pornography,

except to the extent that obscenity or “harmful to minors” material may also be child

pornography. It makes it a crime knowingly to use a misleading domain name on the

Internet with the intent to deceive a person into viewing material that is obscene, or

with the intent to deceive a minor into viewing material that is “harmful to minors.”

It defines “harmful to minors” to parallel the Miller test for obscenity, as applied to

minors.

J. Sexually Oriented Spam

Section 5(d) of the CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701 et seq., Public

Law 108-187,174 makes it a crime to send to a “protected computer” (which as

defined in section 3 of the statute effectively means any computer) a commercial email “that includes sexually oriented material,” unless (1) “the recipient has given

prior affirmative consent to receipt of the message,” or (2) the e-mail includes in its

subject heading “the marks or notices prescribed by the [Federal Trade]

Commission,” or (3) “the matter in the message that is initially viewable to the

recipient includes only” —

(i) to the extent required or authorized pursuant to paragraph (2), any such

marks or notices;

(ii) the information required to be included in the message pursuant to

subsection (a)(5); and

(iii) instructions on how to access, or a mechanism to access, the sexually

oriented material.

Item (i) apparently should refer to paragraph (3) rather than paragraph (2). If

read to refer to paragraph (3), then it would mean that the FTC-prescribed marks and

173

174

See, text accompanying note 126, supra.

“CAN-SPAM” is an acronym for “Controlling the Assault of Non-Solicited Pornography

and Marketing.”

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notices may be in the body of the e-mail instead of in the subject heading. They may

be in the body of the e-mail, however, only if the sender complies with items (ii) and

(iii). Item (ii) refers to subsection (a)(5), which requires all spam to provide:

(i) clear and conspicuous identification that the message is an

advertisement or solicitation;

(ii) clear and conspicuous notice of the opportunity under paragraph (3) to

decline to receive further commercial electronic mail messages from the

sender; and

(iii) a valid physical postal address of the sender.

Item (iii) apparently means that the body of the e-mail may contain a link to

sexually oriented material, but may not contain sexually oriented material itself.

The Federal Trade Commission issued a final rule, effective May 19, 2004,

requiring that sexually oriented spam “exclude sexually oriented material from the

subject heading . . . and include in the subject heading the phrase ‘SEXUALLYEXPLICIT:’ in capital letters as the first nineteen (19) characters at the beginning of

the subject line.”175 The rule also requires –

that the content of the message that is initially viewable by the recipient

when the message is opened by any recipient and absent any further actions

by the recipient, include only the following information:

(i) the phrase “SEXUALLY-EXPLICIT:” in a clear and

conspicuous manner;

(ii) clear and conspicuous identification that the message is an

advertisement or a solicitation;

(iii) clear and conspicuous notice of the opportunity of a

recipient to decline to receive further commercial electronic mail

messages from the sender;

(iv) a functioning return electronic mail address or other

Internet-based mechanism, clearly and conspicuously displayed,

that . . . a recipient may use to submit . . . a reply . . .

requesting not to receive future commercial electronic mail

messages from the sender . . . .”

K. RICO

The Federal Racketeer Influenced and Corrupt Organizations Act (RICO), was

amended in 1984 to add the obscenity crimes specified in 18 U.S.C. §§ 1461-1465

to the definition of “racketeering activity” in 18 U.S.C. § 1961(1)(B). RICO makes

it a crime for any person employed by or associated with any “enterprise” engaged

in or affecting interstate or foreign commerce to participate in the affairs of the

enterprise “through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). A

“pattern of racketeering activity” means at least two acts of racketeering activity

175

69 Fed. Reg. 21024 (2004), 16 C.F.R. Part 316; [http://www.ftc.gov/opa/2004/04/

adultlabel.htm].

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within ten years (excluding any period of imprisonment). 18 U.S.C. § 1961(5).

Thus, if a person engages in two such activities, including the obscenity offenses

specified, he is subject to prosecution under RICO in addition to, or instead of,

prosecution for the particular activities.

RICO also provides for criminal forfeiture (18 U.S.C. § 1963), and its criminal

forfeiture provision has been used in obscenity prosecutions; see Alexander v. United

States, infra. In Fort Wayne Books, Inc. v. Indiana, the Supreme Court held that

pretrial seizure, under the Indiana RICO statute, of books or other expressive

materials, was unconstitutional.176 Although probable cause to believe that a person

has committed a crime is sufficient to arrest him, “probable cause to believe that

there are valid grounds for seizure is insufficient to interrupt the sale of

presumptively protected books and films.”177 This presumption of First Amendment

protection “is not rebutted until the claimed justification for seizing books or other

publications is properly established in an adversary proceeding.”178 The Federal

RICO statute, in any event, does not provide for pretrial seizure.179

In Fort Wayne Books, the Court did, however, uphold the constitutionality of

including obscenity violations among the predicate offenses under a RICO statute.

The Court rejected the argument “that the potential punishments available under the

RICO law are so severe that the statute lacks a ‘necessary sensitivity to first

amendment rights.’”180 Further, the Court held that such obscenity violations need

not be “affirmed convictions on successive dates . . . in the same jurisdiction as that

where the RICO charge is brought.”181

The fact that the violations need not be affirmed convictions means that the

obscenity violations may be proved as part of the RICO prosecution; no “warning

shot” in the form of a prior conviction for obscenity is required. “As long as the

standard of proof is the proper one with respect to all the elements of the RICO

allegation — including proof, beyond a reasonable doubt, of the requisite number of

constitutionally-proscribable predicate acts — all of the relevant constitutional

requirements have been met.”182

The fact that the predicate offenses need not be convictions in the same jurisdiction as that where the RICO charge is brought means that the predicate offenses

can be violations which were based on community standards different from those of

the jurisdiction where the RICO charge is brought.183 “But, as long as, for example,

176

489 U.S. 46 (1989).

177

Id. at 66.

178

Id. at 67.

179

Id. at 67 n.13.

180

Id. at 57.

181

Id. at 61.

182

Id.

183

This could be the case even in a RICO prosecution based on predicate offenses in a

(continued...)

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each previous obscenity conviction was measured by the appropriate community’s

standard, we see no reason why the RICO prosecution — alleging a pattern of such

violations — may take place only in a jurisdiction where two or more such offenses

have occurred.”184

In Alexander v. United States, the Supreme Court addressed a question it had

left open in Fort Wayne Books: whether there are First Amendment limitations to

RICO forfeitures of assets that consist of expressive materials that are otherwise

protected by the First Amendment.185 The defendant in the case had been found

guilty of selling four magazines and three videotapes that were obscene, and, on that

basis, had been convicted under RICO. He was sentenced to six years in prison,

fined $100,000, and ordered to pay the cost of prosecution, incarceration, and

supervised release. He was also ordered to forfeit all his wholesale and retail

businesses, including more than a dozen stores and theaters dealing in sexually

explicit material, all the assets of these businesses (i.e., expressive materials, whether

or not obscene), and almost $9 million. The government chose to destroy, rather than

sell, the expressive material.

The Supreme Court rejected the argument that the forfeiture of expressive

materials constitutes prior restraint, as the forfeiture order “does not forbid petitioner

from engaging in any expressive activities in the future, nor does it require him to

obtain prior approval for any expressive activities.”186 Consequently, the Court

analyzed the forfeiture “under normal First Amendment standards,” and could see no

reason why, “if incarceration for six years and a fine of $100,000 are permissible

forms of punishment under the RICO statute, the challenged forfeiture of certain

assets directly related to petitioner’s racketeering activity is not. . . . [T]he First

Amendment does not prohibit either stringent criminal sanctions for obscenity

offenses or forfeiture of expressive materials as punishment for criminal conduct.”187

The Court did, however, remand the case to the court of appeals to decide

whether the forfeiture constituted an “excessive fine” under the Eighth Amendment.

The same day, in another case, the Court held that the Excessive Fines Clause of the

Eighth Amendment applies to forfeitures of property imposed by criminal statutes.188

183

(...continued)

different part of the same state, as the relevant community may be an area less than the

entire state. See, Hamling v. United States, 418 U.S. 87, 105 (1974).

184

489 U.S., at 62. Although the Court uses the word “conviction” in this sentence, there

appears to be no reason why a RICO prosecution could not be based on a violation in

another jurisdiction that had not previously been prosecuted in that jurisdiction. In such a

case, the prosecution would have to prove beyond a reasonable doubt that the laws

(including, in an obscenity case, the community standards) of the state where the predicate

offense occurred had been violated.

185

509 U.S. 544 (1993).

186

Id. at 550-551.

187

Id. at 554-555.

188

Austin v. United States, 509 U.S. 602 (1993).

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L. Wiretaps

18 U.S.C. § 2516(1)(i) authorizes federal judges to approve “the interception of

wire or oral communications” to collect evidence of violations of the federal

obscenity statute (18 U.S.C. §§ 1460-1469). Section 201 of the PROTECT Act, P.L.

108-21 (2003), amended 18 U.S.C. § 2516(1)(c) to provide the same authorization

with respect to child pornography crimes.

M. The Customs Service Provision

This statute, which is codified at 19 U.S.C. § 1305, prohibits importation of,

among other things, obscene material, and provides, upon the appearance of any such

material at a customs office, for its civil forfeiture. P.L. 100-690, § 7522(e),189

amended 19 U.S.C. § 1305 to coordinate seizure by customs officers with criminal

prosecutions under 18 U.S.C. § 1462. As the message of the President that

accompanied the original proposal that became P.L. 100-690 explained, “While most

obscene material seized by the Customs Service is forfeited under section 1305, some

is of such a nature that it is referred for criminal prosecution as a violation of 18

U.S.C. 1462, importation of obscene material . . . .”190 The amendment to section

1305 provides:

[W]henever the Customs Service is of the opinion that criminal prosecution is

appropriate or that further criminal investigation is warranted in connection with

allegedly obscene material seized at the time of entry, the appropriate customs

officer shall immediately transmit information concerning such seizure to the

United States Attorney of the district of the addressee’s residence. . . .

The amendment then sets forth the subsequent procedures to be followed by the

U.S. Attorney.

189

Subsection (e) apparently should have been “(d),” as there is no “(d)” following “(c).”

190

H.R. Doc. 100-129, supra note 84, at 82.