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1978. Telecommunications Offenses Described

Title 47 U.S.C. § 223 makes it a Federal offense for any person in interstate or foreign communications by means of a telecommunication device to knowingly make, create or solicit and initiate transmission of any communication which is obscene, lewd, or indecent. Section 223(b), which also creates civil and injunctive remedies that may be used against such communications, was intended to provide effective remedies against inter alia, the "Dial-A-Porn" services, by which a person can make a telephone call and receive a recorded obscene message. The FBI has primary jurisdiction to investigate alleged violations of 47 U.S.C. § 223.

This section was amended by the Communications Decency Act of 1996 (CDA). Section 223(a)(1)(B)(ii) made it a crime to communicate anything "indecent" to a minor using a "telecommunications device." Section 223(d)(1)(B) made it a crime to "display" in a manner "available to" a minor, by "interactive computer service," a communication that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

The consolidated cases of ACLU et al. v. Reno and ALA et al. v. DOJ et al., 929 F. Supp 824 (E.D. Pa. 1996) challenged 47 U.S.C. §  223(a)(1)(B) and (a)(2) and 223(d) with respect to "indecency." A special three judge panel in Philadelphia on June 12, 1996, found these sections to be unconstitutional and enjoined the Department from action under these sections (including enforcement, prosecution, investigation or review).

In Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 1996), a three judge panel held that the plaintiff, an editor and publisher of a newspaper distributed exclusively through electronic means, had not sustained his burden of demonstrating a likelihood of success on his claim that § 223(d) was unconstitutionally vague, but that the plaintiff did demonstrate a likelihood of success on his claim that the section was unconstitutionally overbroad because it bans protected indecent communications between adults. Thus, the plaintiff was granted a preliminary injunction.

On June 26, 1997, the United States Supreme Court held that the CDA's "indecent transmission" and "patently offensive display" provisions abridge the freedom of speech protected by the First Amendment. Reno v. ACLU, 521 U.S. 844 (1997). The Department is not prevented from enforcing, prosecuting, investigating, investigating or reviewing allegations of violations of Section 223(a)(2), based on prohibited activities specified in § 223 (a)(1)(A), (C), (D), or (E), or based on prohibited obscenity activities as specified in § 223(a)(1)(B). Because obscene speech may be banned totally, the Court severed the term "indecent" from the statute, leaving the "obscene" part of §223(a) standing.

In 1998, Congress passed the Child Online Protection Act (COPA) to restrict the dissemination of "obscene" or "harmful to minor" materials over the World Wide Web and provided for criminal and civil penalties. The Act also reates an affirmative defense to liability of the Web site has attempted to screen minors from viewing materials by requiring access through a credit card, debit card, or adult identification number.

COPA has been challenged on First and Fifth Amendment grounds in ACLU v. Janet Reno, 31 F. Supp.2d 473 (E.D. Pa.). After a hearing in the United States District Court for the Eastern District of Pennsylvania, the court upheld plantiffs' standing to challenge COPA on the premise that any material that is "sexual in nature" could be subject to prosecution under COPA.

The United States has appealed the preliminary injunction against the enforcement of the statute. The court entered a stay of proceedings pending the appeal.

[updated April 2000] [cited in USAM 9-75.050]

Updated June 11, 2015