2465. Instructions On Final Injunction On Prosecutions Under The Communications Decency Act

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS

 FROM:       John C. Keeney             Acting Assistant Attorney General

SUBJECT: Instructions on Final Injunction on Prosecutions under Certain Provisions of the Communications Decency Act.

1. On February 8, 1996, the President signed the Telecommunications Act of 1996, which contained the Communications Decency Act (CDA) that amended Title 47 U.S.C. § 223 to prohibit certain transmissions of obscene or indecent material to minors, or knowingly displaying indecent material in a manner which makes it available to minors. See 47 U.S.C. §§  223(a)(1)(B) and (a)(2), 223(d), as amended or added by Title V, Section 502 of the Telecommunications Act of 1996 (hereinafter the "indecency provisions").As a result of a lawsuit challenging the CDA filed in the Eastern District of Pennsylvania, on June 12, 1996, a three-judge District Court issued a preliminary injunction against both provisions. The Court's order enjoined the Government from enforcing § 223(a)(1)(B) and Section 223(a)(2) insofar as they relate to "indecent" communications, but expressly preserved the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of § 223(d) was unqualified because that section contained no separate reference to obscenity or child pornography. ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996). On June 28, 1996, the Court issued an additional order which clarified that the preliminary injunction order did not encompass prosecutions under Section 223(a)(2) for violations of 47 U.S.C. § 223(a)(1)(A), (C), (D), or (E) which concern the use of a telecommunications device to annoy, abuse, threaten or harass another person.[FN1]
   1. FN1. Section 223(a)(1)(A), which prohibits the transmission over a telecommunications device of,any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person, is presently being challenged in Apollomedia Corp. V. Reno, NO. 97-346 (N.D. CA.). We will provide separate guidance to you on the outcome of that case, as warranted.

   At the time it granted the plaintiffs' motion for a preliminary injunction, the Court directed the parties to "advise the Court, in writing, as to their views regarding the need for further proceedings" within "ten days after final appellate review of" the preliminary injunction order. See ACLU v. Reno, supra, 929 F. Supp at 884.

2. The Government appealed to the Supreme Court under the CDA's special review provisions. On June 26, 1997, the Court affirmed the issuance of the preliminary injunction on the ground that the CDA unconstitutionally restricted the freedom of speech protected by the First Amendment. Reno v. American Civil Liberties Union, ___ S.Ct. ___ (1997 WL 348012)(June 26, 1997).

   On July 29, 1997, the parties complied with the District Court's request for their views regarding the need for further proceedings. In a Joint Report to the Court on Further Proceedings, the parties advised the Court that further proceedings were not warranted and attached a proposed final order reflecting the Supreme Court's decision and District Court's prior Order of June 12, as clarified by the Order filed June 28, 1996.

3. On July 30, 1997, the District Court signed a Final Order permanently enjoining the Attorney General, the Department of Justice, and all acting under the Attorney General's direction and control, from enforcing, prosecuting, investigating, or reviewing any matter premised upon:
   1. Section 223(a)(1)(B) of the Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104-104, § 502, 110 Stat. 133, 133-136, 47 U.S.C. § 223(a)(1)(B), to the extent it relates to "indecent" communications; and
   2. Section 223(a)(2), 47 U.S.C. § 223(a)(2), only with respect to the prohibited activities specified in Section 223(a)(1)(B) as they relate to "indecent" communications; and
   3. Sections 223(d)(1) and 223(d)(2) of the CDA, 47 U.S.C. §§  223(d)(1) and 223(d)(2).
4. The Order further made clear that the Government is not enjoined from enforcing, prosecuting, investigating, or reviewing allegations of violations of Section 223(a)(1)(B) based on prohibited obscenity or child pornography, or Section 223(a)(2) based on: (i) prohibited activities specified in Sections 223(a)(1)(A), (C), (D), or (E); or (ii) prohibited obscenity or child pornography activities as specified in Section 223(a)(1)(B).

A copy of the July 30, 1997 Order is attached.

The terms of this order shall govern the conduct of your office.

Attachment Criminal Resource Manual 2466.

[cited in JM 9-75.050]