MEMO: Prosecutions Under the Federal Obscenity Statutes

U.S. Department of Justice

Office of the Deputy Attorney General

June 10, 1998

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS

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.