MEMO: Prosecutions Under the Federal Obscenity Statutes

U.S. Department of Justice

Office of the Deputy Attorney

The Deputy Attorney General
DC 20530

June 10, 1998


FROM: Eric H. Holder, Jr.

SUBJECT: Prosecutions
Under the Federal Obscenity Statutes

As you are aware, within
the past few years there has been increasing concern about the distribution
of obscenity and child pornography both by traditional purveyors of
"adult material" and in particular by those who distribute such material
over the Internet. As a result of this unprecedented growth, I wish
to remind you of the Department's policies and priorities in the prosecution
of federal obscenity cases.

There are a number of federal
statutes relating to obscenity and child pornography. See 18 U.S.C.
Ch. 71, 109(A), 110, & 117. Because there are many state statutes
prohibiting obscenity and child pornography, and obscenity in particular
is determined by local community standards, federal investigation and
prosecution should be undertaken in those areas where there is a need
for federal resources. Thus, the Federal role in prosecuting obscenity
cases should be to focus upon the major producers and interstate distributors
of obscenity and child pornography, while leaving to local jurisdictions
the responsibility of dealing with local exhibitions and sales. See
USAM § 9-75.320.

Thus, priority should be
given to cases involving large-scale distributors who realize substantial
income from multistate operations and cases in which there is evidence
of organized crime involvement. However, prosecution of cases involving
relatively small distributors can have a deterrent effect and would
dispel any notion that obscenity distributors are insulated from prosecution
if their operations fail to exceed a predetermined size or if they fragment
their business into small-scale operations. Therefore, prosecution of
such distributors also may be appropriate on a case-by-case basis. See
USAM § 9-75.020.

In particular, priority
also should be given to large-scale distributors of obscenity over the
Internet. See United States v. Thomas, 74 F.3d 701 (6th Cir.),
cert. denied, 117 S.Ct. 74 (1996). Because of the nature of the
Internet and the availability of agents trained in conducting criminal
investigations in cyberspace, investigation and prosecution of Internet
obscenity is particularly suitable for federal resources

As you are well aware,
priority has been given during this administration to cases involving
the use of minors in producing pornography and cases involving the interstate
or foreign shipment of material depicting minors engaging in sexually
explicit conduct (18 U.S.C. §§ 2251 et seq.). We continue
to make these cases a priority.

I encourage you to follow
this guidance and that set forth in the United States Attorneys' Manual
and to consult with the Criminal Division's Child Exploitation and Obscenity
Section. The Section is available to assist you in all advisory and
litigation matters and has materials in its library that are useful
in the prosecution of obscenity cases.

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