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.
- 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
- 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
telecommunications device to annoy, abuse, threaten or harass another
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.
- 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.
- 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
- 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,
U.S.C. § 223(a)(1)(B), to the extent it relates to "indecent"
- 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
- Sections 223(d)(1) and 223(d)(2) of the CDA, 47 U.S.C. §§
223(d)(1) and 223(d)(2).
- 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
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 USAM 9-75.050]