Obscenity and Indecency: Constitutional Principles and Federal Statutes
Prepared for Members and Committees of Congress
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. In 1997, however,
the Supreme Court held the inclusion of “indecent” communications in this statute
unconstitutional. In 1998, Congress, in response, enacted the less-broad Child Online Protection
Act (COPA), but it was also held unconstitutional and never took effect. Finally, the Children’s
Internet Protection Act (CIPA), enacted in 2000, 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.” In 2003, the Supreme Court held CIPA
I. Constitutional Principles..............................................................................................................1
A. The Miller Test.....................................................................................................................2
B. Zoning and Licensing of Pornography Dealers....................................................................4
C. Nude Dancing.......................................................................................................................7
II. Federal Obscenity and Indecency Statutes.................................................................................9
A. Postal Service Provisions.....................................................................................................9
C. Obscenity Provisions at 18 U.S.C. §§ 1460-1470...............................................................11
D. Cable Television.................................................................................................................17
E. The Communications Decency Act of 1996.......................................................................20
47 U.S.C. § 223(a)............................................................................................................21
47 U.S.C. § 223(d)............................................................................................................22
Reno v. American Civil Liberties Union...........................................................................22
F. Child Online Protection Act................................................................................................23
G. Children’s Internet Protection Act......................................................................................29
H. Dot Kids Internet Domain..................................................................................................32
I. Misleading Domain Names on the Internet.........................................................................32
J. Misleading Words or Digital Images on the Internet...........................................................32
K. Sexually Oriented Spam.....................................................................................................33
L. Video Voyeurism.................................................................................................................34
O. The Customs Service Provision.........................................................................................36
Author Contact Information..........................................................................................................37
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 1
law ... abridging the freedom of speech, or of the press.” Although pornography in general is
protected by the First Amendment, two types of pornography—obscenity and child 2
pornography—are not. Therefore, pornography that does not constitute obscenity or child
pornography may ordinarily be regulated only with respect to its time, place, and manner of 3
distribution. 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 4
least restrictive means to further the articulated interest.” Obscenity and child 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 5
outside the protection intended for speech and press.” Consequently, obscenity may be banned
simply because a legislature concludes that banning it protects “the social interest in order and 6
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, by Henry Cohen.
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 content-neutral [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. 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.
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 7
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. 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, 8
artistic, political, or scientific value.
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 9
determine applying contemporary community standards.” 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 10
reasonable person would find such value in the material, taken as a whole.”
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 11
obscene under Miller. In Sable Communications of California, Inc. v. Federal Communications
Commission, the Supreme Court
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, 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,
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 12
tailored to achieved those ends.
In Sable, the Supreme Court applied these principles to the government’s attempt to proscribe
dial-a-porn; see, Section II. B., 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 13
may read or what films he may watch.
Subsequently, however, the Supreme Court rejected the claim that under Stanley there is a 1415
constitutional right to provide obscene material for private use, or to acquire it for private use.
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 16
life within [the home].’”
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.
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 “least-restrictive-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).
In Young v. American Mini Theatres, 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 17
other licensing requirements is not a sufficient reason for invalidating these ordinances.” 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 Theatres, 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, single- or multiple-family dwelling, church, park, or 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 19
the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech.
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 “content-neutral” speech regulations as those that “are justified without 20
reference to the content of the regulated speech.”
In both Young and Renton, the Court found the ordinances in question to be narrow enough to 21
affect only those theaters shown to produce the unwanted secondary effects, such as crime. 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 22
showing films containing nudity when the screen was visible from a public street. 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 23
bookstore that featured coin-operated booths that permitted customers to watch nude dancing.
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 State Board of Censors and
17 427 U.S. 50, 62 (1976).
18 475 U.S. 41, 43 (1986).
19 Young, supra note 17, at 71-72 n.35.
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).
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 25
judicial resolution.... [T]he procedure must also assure a prompt final judicial decision.” The
Court cited a “model” for a constitutional procedure: “In Kingsley Books, Inc. v. Brown, 354 U.S.
The statute provides for a hearing one day after joinder of issue; the judge must hand down his 26
decision within two days after termination of the hearing.”
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 27
operate a sexually oriented business for a specified period of years.” 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 28
encounter center.” 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 29
In City of Littleton v. Z.J. Gifts D-4, L.L.C., the Court upheld a city’s “adult business” licensing 30
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 31
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
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 236-237. 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.
30 541 U.S. 774 (2004).
31 Id. at 780.
a reasonable period of time.’”32 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 33
procedural rules imposing special 2- or 3-day decisionmaking time limits.” Littleton, however,
involved a scheme that “applies reasonably objective, nondiscretionary criteria unrelated to the 34
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 35
problems of undue delay in individual cases as the ordinance is applied.”
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 36
more than one adult entertainment business in the same building, structure or portion thereof.” 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 37
secondary effects.” 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 §
reducing crime.” 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 demonstrating a causal connection
between speech and a substantial, independent governmental interest,” such as reducing crime or 39
maintaining property values. 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 40
and accessibility of speech substantially intact.” The four dissenting justices found that “the city
has failed to show any causal relationship between the breakup policy and elimination or
32 Id. at 781.
33 Id. at 782.
34 Id. at 783.
35 Id. at 784. 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
36 535 U.S. 425, 429 (2002).
37 Id. at 430.
39 Id. at 438.
40 Id. at 449.
regulation of secondary effects,” and, therefore, that summary judgment had been properly 41
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 42
“G-string” when they dance (nonobscenely) in such establishments. 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 43
a substantial, but not necessarily compelling, governmental interest.
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 44
of “protecting societal order and morality.” Justice Souter found the relevant governmental
interest to be “combating the secondary effects of adult entertainment establishments,” such as 45
prostitution, sexual assaults, and other criminal activity. 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 performed for expressive 46
purposes.” 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 47
viewers from what the State believes is the harmful message that nude dancing communicates.”
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 48
public nudity to an “adult” entertainment establishment. 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
41 Id. at 460.
42 501 U.S. 560 (1991).
43 391 U.S. 367 (1968).
44 Barnes, supra note 42, at 568.
45 Id. at 582.
46 Id. at 576 (emphasis in original).
47 Id. at 590-591 (White, J., dissenting, joined by Justices Marshall, Blackmun, and Stevens).
48 529 U.S. 277 (2000).
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 49
and other criminal activity.” 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 50
further proceedings. He acknowledged his “mistake” in Barnes in failing to make the same 51
demand for evidence.
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-52
strings. 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 53
combating such effects,” not that it further it to a particular extent. Justice Scalia, this time
joined by Justice Thomas, again took the view that, “[w]hen conduct other than speech itself is
regulated ... the First Amendment is violated only ‘[w]here the government prohibits conduct 54
precisely because of its communicative attributes.” He found, therefore, that the statute should
be upheld without regard to “secondary effects,” but simply as an attempt “to foster good 55
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 56
admittedly trivial advancements of a State’s interest may provide the basis for censorship.” It
concludes, that is, that the O’Brien “test can be satisfied by nothing more than the mere 57
possibility of de minimis effects on the neighborhood.”
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’
49 Id. at 292, 291.
50 Id. at 310-311.
51 Id. at 316.
52 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 108, 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.”
53 Id. at 301.
54 Id. at 310.
56 Id. at 317-318.
57 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.
or ‘Equus’ somewhere other than an ‘adult’ theater would further the State’s interest in avoiding 58
harmful secondary effects....”
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 argument that a vendor has a right under 59
the Constitution or otherwise to send unwanted material into the home of another.”
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
Violations of sections 3008 and 3010 are also subject to criminal penalties under 18 U.S.C. §
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.
58 Barnes, supra note 42, 501 U.S. at 585 n.2.
59 Rowan v. Post Office Department, 397 U.S. 728, 738 (1970).
Therefore, the pre-April 1988 version of section 223(b) apparently was constitutional. In April
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 60
indecent messages that are not obscene. The Court noted “that while the Government has a
legitimate interest in protecting children from exposure to indecent dial-a-porn messages, §
Amendment.” “[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 62
children.” The government argued that these methods “would not be effective enough,” but the 63
Court found “no evidence in the record ... to that effect....” 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, 64
we hold that the ban does not survive constitutional scrutiny.
The upshot of Sable was that Congress’s 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-a-porn “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 65
providing indecent communications. 47 C.F.R. § 64.201.
The Helms Amendment was challenged as unconstitutional, but a federal court of appeals upheld 66
it, and the Supreme Court declined to review the case. The court of appeals found that the word 67
“indecent” as used in the statute was not void for vagueness, that the statute was the least
60 Sable Communications of California, Inc. v. F.C.C., supra note 4, 492 U.S. 115 (1989).
61 Id. at 126.
62 Id. at 128.
64 Id. at 131.
65 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.
66 Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992).
67 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
restrictive means to achieve a compelling governmental interest,68 and that the requirement that
the dial-a-porn provider inform the telephone company that its message was indecent did not
constitute prior restraint.
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.
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.
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 non-
mailable matter. This statute should be read to prohibit only what constitutionally may be 69
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 70
“hard core” conduct.
In 1996, P.L. 104-104, § 507(a), amended 18 U.S.C. § 1462 to apply to any “interactive computer
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 the text accompanying note 79, infra. Id. at 1541.
68 Id. at 1541-1543; see, text accompanying note 4, supra.
69 See, United States v. Merrill, 746 F.2d 458 (9th Cir. 1984), cert. denied, 469 U.S. 1165 (1985).
70 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973).
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
‘obscene’ character” (and does not include “writing [on a post card] that a female runs around a 71
dwelling house naked”).
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 72
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
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 73
broadcast comparable to the right of every individual to speak, write, or publish.
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 74
at 2 p.m., and the station had claimed First Amendment protection. The Supreme Court upheld
the power of the FCC under § 1464 “to regulate a radio broadcast that is indecent but not 75
obscene.” 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, 76
broadcasting is uniquely accessible to children....”
71 United States v. Keller, 259 F.2d 54, 57, 58 (3d Cir. 1958).
72 This statute dates back to section 326 of the Communications Act of 1934, 48 Stat. 1091, which is why it refers only
to “language” (and not pictures) and to “radio” (and not television). The term “radio,” however, today includes
broadcast television; i.e., television transmitted over radio waves. In dictum, the Supreme Court quoted the FCC with
approval 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).
73 395 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.
74 438 U.S. 726 (1978).
75 Id. at 729.
76 Id. at 748-749.
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 77
the composition of the audience....
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 78
definition of ‘indecent’ merely refers to nonconformance with accepted standards of morality.”
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 79
when there is a reasonable risk that children may be in the audience.”
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 80
Commission may not ban such broadcasts entirely.” 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.-81
to-midnight ban imposed on non-public stations.
The court of appeals found “that the Government has a compelling interest in supporting parental 82
supervision of what children see and hear on the public airwaves,” and “that the Government
has an independent and compelling interest in preventing minors from being exposed to indecent 83
broadcasts.” The court found, in addition, that the statute used the least restrictive means to 84
serve these interests. However, the court found that “Congress has failed to explain what, if any,
77 Pacifica, supra, note 74, 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).
78 Pacifica, supra, note 74, 438 U.S. at 740.
79 Id. at 732. See, note 67, supra.
80 Action for Children’s Television v. Federal Communications Commission (ACT II), 932 F.2d 1504, 1509 (D.C. Cir.
1991), cert. denied, 503 U.S. 913 (1992).
81 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).
82 Id. at 661.
83 Id. at 663.
84 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,
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 85
enacted section 16(a).” The court therefore held “that the section is unconstitutional insofar as it 86
bars the broadcasting of indecent speech between the hours of 10:00 p.m. and midnight.”
In 2003, on the broadcast of the Golden Globe Awards, the singer Bono said that his winning an
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 87
offensive to members of the public who actually hear it as to amount to a nuisance.”
In 2006, the FCC took action against four other television broadcasts that contained fleeting
expletives, but, in 2007, the U.S. Court of Appeals for the Second Circuit found “that the FCC’s
new policy regarding ‘fleeting expletives’ represents a significant departure from positions
previously taken by the agency and relied on by the broadcast industry. We further find that the
FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that
the FCC’s new policy regarding ‘fleeting expletives’ is arbitrary and capricious under the 88
Administrative Procedure Act.” Having overturned the FCC policy on statutory grounds, the
court had no occasion to decide whether it also violated the First Amendment. It explained,
however, why it was “skeptical that the Commission can provide a reasonable explanation for its 89
‘fleeting expletive’ regime that would pass constitutional muster.” The Supreme Court has
agreed to hear the case.
In 2008, the U.S. Court of Appeals for the Third Circuit issued a unanimous decision invalidating
the FCC’s fine against CBS broadcasting station affiliates for broadcasting Janet Jackson’s 90
exposure of her breast for nine-sixteenths of a second during a SuperBowl halftime show. The
court found that the FCC had acted arbitrarily and capriciously in finding the incident indecent;
the court did not address the First Amendment question.
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.
85 Id. at 668.
86 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.
87 In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the “Golden Globe
Awards” Program, File No. EB-03-IH-0110 (March 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, by Henry Cohen and
Kathleen Ann Ruane.
88 Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444, 447 (2d Cir. 2007), cert.
granted, 128 S. Ct. 1647 (2008).
89 Id. at 462.
90 CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008).
This section, as amended by P.L. 109-248 (2006), § 506, makes it a crime knowingly to
“produce[ ] with the intent to transport. distribute, or transmit in interstate or foreign commerce,”
or knowingly to “transport[ ] or travel[ ] in, or use[ ] a facility or means of interstate or foreign
commerce or an interactive computer service ... in or affecting commerce for the purpose of sale
or distribution of any obscene, lewd, lascivious, or filthy” material, “or any other matter of 91
indecent or immoral character.” Section 1465 should be read as limited by the Miller standard.
The President’s message that accompanied the original proposal that became P.L. 100-690 ( the
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 92
sold to customers outside of Virginia.
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 93
transmissions. 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 94
standards.” 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 95
precluding the risk of liability.”
In 1996, P.L. 104-104, § 507(b), amended 18 U.S.C. § 1465 to apply to any “interactive computer
91 See, United States v. Alexander, 498 F.2d 934, 935-936 (2d Cir. 1974).
92 H.R. Doc. No. 100-129, 100th Cong., 1st Sess. 78 (1987).
93 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).
94 Id. at 711. In Reno v. American Civil Liberties Union, supra note 11, 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 132, the Supreme Court held that the use of community standards to assess “harmful to
minors” material on the Internet is not by itself unconstitutional.
This section, as amended by P.L. 109-248 (2006), § 506, makes it a crime for any person
“engaged in the business of producing with intent to distribute or sell, or selling or transferring
obscene matter” knowingly to “receive[ ] or possess[ ] with intent to distribute any obscene
[material] which has been shipped or transported in interstate 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 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 96
v. Free Speech Coalition.
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. In 2006, P.L. 109-248, § 505(a), repealed subsections (b) through (n) of section 1467 and
made “section 413 of the Controlled Substances Act (21 U.S.C. 853), with the exception of
subsections (a) and (d),” applicable to the criminal forfeiture of property pursuant to section 1467.
Section 505(b) of the 2006 amendment provided that any property subject to forfeiture pursuant
to section 1467 may be forfeited to the United States in a civil case in accordance with the
procedures set forth in 18 U.S.C. §§ 981-986.
This section, enacted in 1988, makes it a crime “knowingly to utter[ ] obscene language or distri-
bute[ ] 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
96 535 U.S. 234 (2002).
made it “unclear under what circumstances, if any, the federal government could enforce [47 97
U.S.C. § 559].”
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.
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.
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.
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
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 98
First Amendment protection. 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 99
Amendment validity of cable regulation.” 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
97 H.R. Doc. No. 100-129, supra note 92, at 93.
98 512 U.S. 622 (1994).
99 Id. at 639.
structural regulations at issue there (the ‘must carry’ rules), it has little to do with a case that 100
involves the effects of television viewing on children.”
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 101
cable operators to prohibit indecent material on leased access channels. In upholding § 10(a),
the Court, citing Pacifica, noted that cable television “is as ‘accessible to children’ as over-the-air
broadcasting,” has also “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 102
warning.” Applying something less than strict scrutiny, the Court concluded “that § 10(a) is a 103
sufficiently tailored response to an extraordinarily important problem.” It also found that “the 104
statute is not impermissibly vague.”
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 105
objective, it also seems considerably ‘more extensive than necessary.’”
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 106
appropriately tailored to secure that end.”
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
100 518 U.S. 727, 748 (1996).
101 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.”
102 Denver Consortium, supra, note 100, 518 U.S. at 744-745.
103 Id. at 743.
104 Id. at 753.
105 Id. at 755.
106 Id. at 766. Two other justices concurred in the judgment that § 10(c) is invalid, but for different reasons.
television. Section 504 added § 640 to the Communications Act of 1934, 47 U.S.C. § 560, which
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.
This section includes no restriction on the type of material that a subscriber may request to have
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 mul-
tichannel 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.
In 2000, the Supreme Court declared § 505 unconstitutional, making clear, as it had not in Denver 107
Consortium, that strict scrutiny applies to content-based speech restrictions on cable television.
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, 108
so that only paying customers had access to certain programs.” 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 109
second, or ‘time channeling,’ approach. 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 110
or not the household or the viewer wanted to do so.” The Court also noted that “[t]he speech in
question was not thought by Congress to be so harmful that all channels were subject to
107 United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813 (2000).
108 Id. at 806.
109 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).
110 Id. at 806-807.
restriction. Instead, the statutory disability applies only to channels ‘primarily dedicated to 111
“Since § 505 is a content-based speech restriction,” the Court wrote, “it can stand only if it
satisfies strict scrutiny.... If a statute regulates speech based on content, it must be narrowing
tailored to promote a compelling Government interest.... If a less restrictive alternative would 112
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 would “not discount the possibility that a graphic image could have a 113
negative impact on a young child.” Instead, it addressed the question of whether § 505
constituted the least restrictive means to advance that interest.
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 114
speakers and willing listeners....” 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 115
burden here.” 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 116
nudity” on public access and leased access channels.
The Communications Decency Act of 1996 (CDA) is Title V of the Telecommunications Act of
Code. This section of the report examines § 502 of the act, which would have limited indecent
111 Id. at 812.
112 Id. at 813.
113 Id. at 826. This suggests the possibility that the Court might not find a compelling interest in shielding older children
from sexually oriented material. The Court rejected another interest as compelling: “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.
114 Id. at 815.
115 Id. at 816.
116 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.
material transmitted by telecommunications devices and interactive computer services, and Reno 117
v. American Civil Liberties Union, the Supreme Court decision holding it unconstitutional.
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
Section II. B., above). In Reno, the Supreme Court struck down § 223(a) in part and § 223(d) in
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 118
used for such activity.
Although the CDA defines “telecommunications,”119 it does not define “telecommunications
device.” However, it provides in § 223(h)(1)(B) that the term “does not include the use of an 120
interactive computer service.” Thus, it appears that § 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
117 Reno, supra, note 11, 521 U.S. 844 (1997). The CDA also prohibits the transmission to minors of obscene material,
and the Supreme Court, without a written opinion, affirmed the decision of a three-judge federal district court that
rejected a claim that this prohibition is unconstitutionally overbroad. Nitke v. Gonzales, 413 F. Supp. 2d 262 (S.D.N.Y.
2005), aff’d, 547 U.S. 1015 (2006).
118 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.
119 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.”
120 Section 230(f)(2) defines “interactive computer service” as “any 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
obscenity and child pornography, both of which are unprotected by the First Amendment. Section
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 122
the constitutional issue that gave rise to Reno v. American Civil Liberties Union.
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) 123
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.
The Supreme Court found in this case that “the CDA is a content-based blanket restriction on 124
speech....” As such, it may be found constitutional only if it serves “to promote a compelling 125
interest” and is “the least restrictive means to further the articulated interest.” As for whether
the CDA promotes a compelling interest, although the Court referred to “the legitimacy and 126
importance of the congressional goal of protecting children from harmful materials,” it
suggested that there may be less of a governmental interest in protecting older children from 127
indecent material—at least such material as had artistic or educational value.
121 See note 117, supra.
122 Section 223(a)(1)(C) makes it a crime for a person, in interstate or foreign communications, to “make[ ] a telephone
call or utilize[ ] a telecommunications device, whether or not conversation or communication ensues, without
disclosing his identity and with intent to annoy, abuse, threaten, or harass any person....” Section 223(h)(1) was
amended by P.L. 109-162, § 113 (2005) to define “telecommunications device,” as used in section 223(a)(1)(C), to
“include[ ] any device or software that can be used to originate telecommunications or other types of communications
that are transmitted, in whole or in part, by the Internet....”
123 See, Reno, supra note 11, 521 U.S. at 871.
124 Id. at 868.
125 Sable, supra note 4.
126 Reno, supra note 11, 521 U.S. at 849.
127 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.
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 128
be as effective as the CDA.” 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 129
legitimate purpose that the statute was enacted to serve.” “[T]he Government may not ‘reduc[e] 130
the adult population ... to ... only what is fit for children.’”
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—131
such as commercial web sites—differently from others, such as chat rooms.
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), 47 U.S.C.
§ 231. COPA was an attempt to enact a constitutional version of the CDA. It has never taken
effect, however, because a federal district court issued a preliminary injunction against its
enforcement pending trial. The preliminary injunction was affirmed on appeal, most recently by 132
the Supreme Court, which, in 2004, remanded the case for trial. In 2007, a federal district court
found COPA to be unconstitutional and issued a permanent injunction against its enforcement; in
declined to review the case.
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 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
128 Id. at 879.
129 Id. at 874.
130 Id. at 875.
131 Id. at 879.
132 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, 542 U.S. 656 (2004).
133 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. American Civil
Liberties Union v. Mukasey, 534 F.3d 181 (3d Cir. 2008), cert. denied, No. 08-565 (U.S. Jan. 21, 2009).
(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.134
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 135
speech that adults have a constitutional right to receive and to address to one another.” 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 136
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 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 137
likely to succeed on the merits.” 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, and, on June 29, 2004, the Supreme
Court also affirmed the preliminary injunction, and it remanded the case for trial. On March 22,
2007, a federal district court found COPA to be unconstitutional and issued a permanent
injunction against its enforcement; on July 22, 2008, the Third Circuit affirmed. We now consider
these seven 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 138
not obscene by adult standards.” 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
134 Despite the fact that only the first prong of this test refers to “community standards,” community standards are also
to be used in applying the second prong. See the Supreme Court’s first decision in Ashcroft v. ACLU, supra note 132,
535 U.S. at 576, n.7.
135 Reno, supra note 11, 521 U.S. at 874.
136 Id. at 877-878.
137 Id., 217 F.3d at 166.
138 Id., 31 F. Supp. 2d at 495.
to achieve the goal of restricting the access of minors to this material.”139 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 140
operators.” 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 141
incorporating the substance of the affirmative defenses in the elements of the crime.
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 Amendment 142
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 143
standards,” 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 144
against the benefits gained from those limitations.”
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 145
render the statute substantially overbroad for purposes of the First Amendment.” 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.
139 Id. at 497.
142 Id., 217 F.3d at 166.
143 Id. at 173.
144 Id. at 179.
145 Ashcroft, supra note 132, 535 U.S. 564, 585 (2002) (emphasis in original).
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 146
violate the First Amendment.” 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 147
communities.” 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 148
requiring the speaker to find another forum.”
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 covered and the variations in community 149
standards with respect to that speech.” 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 150
the number of venues in which the government could prosecute violations of the act.
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 151
to the variation between local communities,” and Justice Breyer, to avoid a First Amendment
problem, would have construed the phrase “community standard” in the statute to mean a national
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 152
the technological screening of users for the purpose of age verification.”
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
147 Id. at 583.
148 Id. at 606 n.2.
149 Id. at 597.
150 Id. at 600.
151 Id. at 589.
152 322 F.3d 240, 251 (3d Cir. 2003) (emphasis in original).
context.153 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 154
entire collection of Renaissance artwork.” 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 155
interest, or be patently offensive with respect to those minors....”
As for the definition of “commercial purposes,” the court was “satisfied that COPA is not
narrowly tailored to proscribe commercial pornographers and their ilk, as the Government 156
contends, but instead prohibits a wide range of protected expression.” 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 157
identification information in order to gain access to content....”
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 158
access to harmful material.” 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 159
independent ground as well.”
In 2004, the Supreme Court, by a 5-4 vote, affirmed the preliminary injunction and remanded the
case for trial. The Court, in an opinion by Justice Kennedy, 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
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 160
end, not universal restriction at the source.” In addition filters may be more effective than
COPA because “a filter can prevent minors from seeing all pornography, not just [the 60% of all
Internet] pornography posted to 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 161
Wide Web.” Furthermore, “[m]ore and better filtering alternatives may exist than when the
District Court entered its findings,” and “a congressionally appointed commission issued a report 162
that found that filters are more effective than [age] verification screens.” Nevertheless, the
153 Id. at 252.
154 Id. at 253.
155 Id. at 254.
156 Id. at 257.
157 Id. at 259.
158 Id. at 265.
159 Id. at 271.
160 Ashcroft, supra note 132, 542 U.S. at 667.
161 Id. at 667, 668
162 Id. at 671-672.
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, 163
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 164
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’ 165
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 166
quo,” and “[i]t is always less restrictive to do nothing than to do something.” In addition,
Breyer asserted, “filtering software depends upon parents willing to decide where their children 167
will surf the Web and able to enforce that decision.” (The majority opinion countered that
Congress “may act to encourage the use of filters,” and “[t]he need for parental cooperation does 168
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 169
Internet’s commercial pornography” is not “insignificant.” Justice Breyer’s dissent was joined
by two other justices, and Justice Scalia wrote a separate dissent, claiming that “harmful-to-
minors” material is not protected by the First Amendment.
Upon remand, the district court, as noted above, found COPA to be unconstitutional.170 The
grounds for its decision were that “COPA is not narrowly tailored to Congress’ compelling
interest,” the Attorney General “failed to meet his burden of showing that COPA is the least
restrictive, most effective alternative in achieving the compelling interest,” and “COPA is 171
impermissibly vague and overbroad.” The court found COPA to be overinclusive, which means
that it prohibited “more speech than is necessary to further Congress’ compelling interest,” as it
“covers more than just commercial pornographers” and “applies to speech that is obscene as to all 172
minors from newborns to age sixteen, and not just to speech that is obscene as to older minors.”
The court also found COPA to be underinclusive, as it does not apply to “a significant amount of
sexually explicit material on the Internet which originates from outside of the United States,”
which is one reason, the court found, that COPA would not be not as effective as alternatives, 173
such as filters, would be in achieving its ends. In 2008, the Third Circuit affirmed, finding that
COPA “does not employ the least restrictive alternative to advance the Government’s compelling 174
interest” and is also vague and overbroad. In 2009, the Supreme Court declined to review the
163 Id. at 673.
164 Id. at 678.
165 Id. at 682.
166 Id. at 684.
167 Id. at 685.
168 Id. at 669.
169 Id. at 687.
170 American Civil Liberties Union v. Gonzales, supra note 133, 478 F. Supp. 2d 775.
171 Id. at 777-778.
172 Id. at 810.
174 American Civil Liberties Union v. Mukasey, supra note 133, 534 F.3d at 198.
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 175
filters adults’ Internet access to visual depictions that are obscene or child pornography.
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 176
define “obscene.” 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, 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
(i) taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex,
(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
175 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.
176 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.
(iii) taken as a whole, lacks serious literary, artistic, political, or scientific value as to 177
In United States v. American Library Association, a three-judge federal district court unanimously 178
declared CIPA unconstitutional and enjoined its enforcement insofar as it applies to libraries.
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 179
court, finding CIPA constitutional.
The decision included 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 180
recipient [of federal funds] ‘to engage in activities that would themselves be unconstitutional.’”
The plurality therefore viewed the question before the Court as “whether [public] libraries would 181
violate the First Amendment by employing the filtering software that CIPA requires.” 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 182
in public libraries is neither a ‘traditional’ or a ‘designated’ public forum,” and that therefore it
would not be appropriate to apply strict scrutiny to determine whether the filtering requirements 183
are constitutional. 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 184
of the Court appear to agree” that it does) 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 185
meet Congress’ goals”).
177 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 134, 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.
178 201 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.
179 539 U.S. 194 (2003).
180 Id. at 203.
182 Id. at 205. The district court had found “that when the government provides Internet 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).
183 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.
184 Id. at 215.
185 Id. at 207 n.3.
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 186
software users intend to block.” It found, however, that, “[a]ssuming that such erroneous
blocking presents constitutional difficulties, any such concerns are dispelled by the ease with 187
which patrons may have the filtering software disabled.”
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 188
they were authorized.” “CIPA does not ‘penalize’ libraries that choose not to install such
software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, 189
CIPA simply reflects Congress’ decision not to subsidize their doing so.”
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 190
Justice Breyer would have applied “a form of heightened scrutiny,” greater than rational basis 191
scrutiny but “more flexible” than strict scrutiny, to assess CIPA’s constitutionality. He would
ask “whether the harm to speech-related interests is disproportionate in light of both the 192
justifications and the potential alternatives.” Applying this test, he concurred that CIPA is
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 193
is any point in asking for the filter to be removed.”
186 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.
187 Id. at 209.
188 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, by Henry Cohen.
189 Id. at 212.
190 Id. at 215.
191 Id. at 216, 218.
192 Id. at 217.
193 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.
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 194
staffed than main libraries.’” Further, “the statute says only that a library ‘may’ unblock, not 195
that it must.”
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 196
minors” is essentially the same as COPA’s. 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 URL for the new domain is http://www.kids.us; that site lists
This provision, 18 U.S.C. § 2252B, which was enacted as § 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
This provision, 18 U.S.C. § 2252C, which was created by § 703 of the Adam Walsh Child
Protection and Safety Act of 2006, P.L. 109-248 (2006), 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 to knowingly embed words or digital images into the source
code of a website with the intent to deceive a person into viewing material that constitutes
obscenity, or with the intent to deceive a minor into viewing material that is “harmful to minors.”
It defines “harmful to minors” as defined in section 2252B (the statute described immediately
above under “I. Misleading Domain Names on the Internet”).
194 Id. at 232-233.
195 Id. at 233.
196 See, text accompanying note 134, supra.
Section 5(d) of the CAN-SPAM Act of 2003, 15 U.S.C. §§ 7701 et seq., P.L. 108-187,197 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 e-mail “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
(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 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 ‘SEXUALLY-EXPLICIT:’ in capital letters as the first 198
nineteen (19) characters at the beginning of the subject line.” 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
(i) the phrase “SEXUALLY-EXPLICIT:” in a clear and conspicuous manner;
(ii) clear and conspicuous identification that the message is an advertisement or a
197 “CAN-SPAM” is an acronym for “Controlling the Assault of Non-Solicited Pornography and Marketing.”
69 Fed. Reg. 21024 (2004), 16 C.F.R. Part 316; http://www.ftc.gov/opa/2004/04/adultlabel.htm.
(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....”
The Video Voyeurism Prevention Act of 2004, Public Law 108-495,18 U.S.C. § 1801, makes it a
misdemeanor—but only “in the special maritime and territorial jurisdiction of the United States,”
as that phrase is defined at 18 U.S.C. § 7—for a person, having “the intent to capture an image of
a private area of an individual without their consent.... knowingly [to do] so in circumstances in
which the individual has a reasonable expectation of privacy.”
A “private area” refers to “naked or undergarment clad genitals, pubic area, buttocks, or female
breast [below the top of the areola].” To “capture an image” means “to videotape, photograph,
film, record by any means, or broadcast,” with “broadcast” meaning “electronically transmit.”
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
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 199
RICO statute, of books or other expressive materials, was unconstitutional. 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 200
presumptively protected books and films.” This presumption of First Amendment protection “is
not rebutted until the claimed justification for seizing books or other publications is properly 201
established in an adversary proceeding.” The Federal RICO statute, in any event, does not 202
provide for pretrial seizure.
199 489 U.S. 46 (1989).
200 Id. at 66.
201 Id. at 67.
202 Id. at 67 n.13.
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 203
‘necessary sensitivity to first amendment rights.’” Further, the Court held that such obscenity
violations need not be “affirmed convictions on successive dates ... in the same jurisdiction as that 204
where the RICO charge is brought.”
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 205
constitutional requirements have been met.”
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 206
brought. “But, as long as, for example, 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 207
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 208
consist of expressive materials that are otherwise protected by the First Amendment. 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
203 Id. at 57.
204 Id. at 61.
206 This could be the case even in a RICO prosecution based on predicate offenses in a 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
207 489 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
208 509 U.S. 544 (1993).
activities.”209 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 210
materials as punishment for criminal conduct.”
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 211
property imposed by criminal statutes.
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.
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 212
its civil forfeiture. P.L. 100-690, § 7522(e), 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, 213
importation of obscene material....” 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
The amendment then sets forth the subsequent procedures to be followed by the U.S. Attorney.
209 Id. at 550-551.
210 Id. at 554-555.
211 Austin v. United States, 509 U.S. 602 (1993).
212 Subsection (e) apparently should have been “(d),” as there is no “(d)” following “(c).”
213 H.R. Doc., supra note 92, at 82.