Opinion
No. 01 Cr. 1114 (RPP)
April 11, 2003
James B. Comey, United States Attorney for the Southern District of New York, New York, N.Y., By: Deidre A. McEnvoy, A.U.S.A.
For Defendant: Jason L. Solotaroff, Esq., New York, N.Y.
OPINION AND ORDER
Based on the First Amendment of the Constitution of the United States and Stanley v. Georgia, 394 U.S. 557 (1969), Defendant, Brian Reilly ("Reilly"), moves to dismiss Counts Six through Ten of the Superseding Indictment on the ground that "the statute as charged, 18 U.S.C. § 1462, insofar as it prohibits individuals from privately reviewing or downloading obscene material from the Internet, is unconstitutionally overbroad." (Def. Memo at I.) For the following reasons, the Defendant's motion is denied.
"Def. Memo" refers to the Memorandum in Support of Defendant's Motion to Dismiss Indictment, dated January 13, 2003.
18 U.S.C. § 1462 reads in pertinent part as follows:
Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the communications Act of 1934), for carriage in interstate or foreign commerce.
(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; . . .
Whoever knowingly takes or receives from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful.
47 U.S.C. § 230(f)(2) of the Communications Act of 1934 defines the term "Interactive Computer Service" as:
(2) The term "interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
(Pub.L. 105-277, Title XIV, § 1404(a)(2), Oct. 21 1998, 112 Stat. 2681-739, redesignated former subsec. (e) as (f)).
The charges in the indictment that the Defendant seeks to have dismissed on overbreadth grounds state in pertinent part that:
"the Defendant, unlawfully, willfully and knowingly did use an interactive computer service for carriage in interstate commerce obscene pictures, to wit, . . . the Defendant, used an Internet Service to download an obscene image . . . which had traveled in interstate commerce." ( See Superseding Indictment dated March 12, 2003 "the indictment" counts Six through Ten.)
I. BACKGROUND
An evidentiary hearing was held on April 8, 2002 and established that Defendant is an employee of the Bureau of Labor and Statistics ("BLS") of the United States Department of Labor ("DOL"). (Tr. at 4). An agent of the DOL ascertained that between approximately January 9, 2001 and March 13, 2001, the Defendant's government Internet account had been used on multiple occasions to access Web sites displaying what appeared to be images of nude and partially-nude children, images of children displaying their genitals and images of adults engaging in sexual acts. (Govt. Ex. 1). The agent also ascertained that the Defendant's computer accessed these materials from within the BLS office, and generally after working hours. (Tr. at 16).
In the early evening of March 13, 2001, federal agents observed the Defendant seated at his desk in front of his computer, and noted that the Defendant's computer screen contained a small window that indicated that material had just been downloaded from the Internet and a 3 1/2 inch computer diskette lying on the desk next to Defendant's computer. (Tr. at 25-26, 82). An agent also observed that the Defendant had been downloading material from a Web site entitled, "http://worldlolitas.net\nude." (Tr. at 28, 83). Another diskette was found inside the government computer. (Tr. 32-33). The Defendant was detained for an interview and the computer and diskettes were seized. (Tr. at 33).
Subsequent analysis of the diskette found inside the computer and the diskette that was on the desk revealed images that are the subject of Counts Six through Ten of the Superseding Indictment. (Tr. at 34). The Defendant is not charged with distributing or displaying the offending materials to other persons.
II. DISCUSSION
The Defendant argues that the obscenity statute, 18 U.S.C. § 1462, under which he is charged in Counts Six through Ten of the Superseding Indictment, is unconstitutionally overbroad, because it prohibits and chills a substantial amount of protected speech, namely, the private possession of obscene matter, a right recognized in Stanley v. Georgia as protected by the First Amendment.
i. The Scope of the "Right to Receive" under Stanley v. Georgia
In Stanley v. Georgia, the Supreme Court held that the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. The Court, while recognizing that the states retain broad power to regulate obscenity, held that that power does not extend to mere possession by the individual in the privacy of his own home. See Stanley v. Georgia, 394 U.S. at 568. In reaching this holding, the opinion of the Court made the following statements: "[i]t is now well established that the Constitution protects the right to receive information and ideas. `This freedom (of speech and press) . . . necessarily protects the right to receive. . . .'" Id. at 564 (quoting Martin v. City of Struthers, 319 U.S. 141, 143 (1943) (collecting cases)). "This right to receive information and ideas, regardless of their social worth, see, Winters v. New York, 333 U.S. 507, 510 (1948). is fundamental to our free society." Stanley v. Georgia, 394 U.S. at 568.
Subsequent to Stanley v. Georgia, however, the Supreme Court in interpreting statutes regulating obscenity has limited the "right to receive," relying principally on extensions of its earlier decision in Roth v. United States, 354 U.S. 476 (1957). In Roth, the Court held that 18 U.S.C. § 1461, the statute prohibiting the use of the mails for distribution of obscene materials was constitutional. The Court stated that obscenity "is not within the area of constitutionally protected speech or press." Id. at 485.
In 1971, the Court in United States v. Reidel, 402 U.S. 351 (1971), held that 18 U.S.C. § 1461 was constitutional even when applied to the distribution of materials to willing recipients who state they are adults. In reaching its opinion, the Court distinguished its holding in Stanley v. Georgia, saying, "[w]hatever the scope of the `right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here — dealings that Roth held unprotected by the First Amendment." Id. at 355. In his concurring opinion, Mr. Justice Harlan stated, [t]he Court today correctly rejects the contention that the recognition in Stanley v. Georgia, that private possession of obscene materials is constitutionally privileged under the First Amendment carries with it a "right to receive such materials through any modes of distribution as long as adequate precautions are taken to prevent the dissemination to unconsenting adults and children." Id. at 357-358 (internal citation omitted).
In 1973, the Supreme Court in United States v. 12 200-Ft. Reels of Super 8mm Film, et al., 413 U.S. 123 (1973), held that Congress has the constitutional power, to proscribe the importation of obscene matter, even though the obscene material was solely for the importer's private personal use and possession. The Court stated that, "Stanley depended, not on any First Amendment right to purchase or possess obscene materials, but on the right to privacy in the home." Id. at 126 see also United States v. Thirty Seven (37) Photographs, 402 U.S. 363 (1971).
That same day, the Supreme Court in United States v. Orito, 413 U.S. 139 (1973), interpreting 18 U.S.C. § 1462, held that the Constitution does not prohibit "comprehensive federal regulation of interstate transportation of obscene material merely because such transport may be by private carriage, or because the material was intended for the private use of the transporter." Id. at 143. The Court rejected the Appellee's contentions that "Stanley has firmly established the right to possess obscene material in the privacy of the home and that this creates a correlative right to receive it, transport it, or distribute it," ( Id. at 141) holding that the right of privacy that Stanley v. Georgia protected does not extend beyond the home. Id. at 143.
Congress, in enacting the predecessor to 18 U.S.C. § 1462, intended to prevent channels of interstate commerce from being used to disseminate any matter that, in its essential nature, communicated obscene, lewd, lascivious, or filthy ideas. See U.S. v. Alpers, 338 U.S. 680 (1950). The 1996 Amendment to Section 1462, adding terms "or interactive computer service" and "receives," were intended to be "clarifying in nature." See Pub.L. 104-104 § 507(a)(1) and (2). "Interactive Computer Service" merely added to the list of prohibited methods for transporting obscene matter in interstate commerce.
Using an Interactive Computer Service for carriage does involve the use of interstate commerce. At oral argument, the parties agreed that the nature of the Internet essentially requires the user to click a link, in order to command the electronic transportation of code from a remote server, to review a copy of a requested image. (Tr. March 3, 2003 at 10-11; 31-32). Moreover, there is case law holding that use of the Internet by interactive computer service involves interstate commerce. See e.g., United States v. Carroll, 105 F.3d 740, 742 (1st Cir. 1997) ("transmission of photographs by means of the Internet is tantamount to moving photographs across state lines and thus constitutes transportation in interstate commerce"); United States v. Runyun, 290 F.3d 223 (5th Cir. 2002) (finding interstate commerce element in 18 U.S.C. § 2252A established when Government linked specific images to the Internet); United States v. Thomas, 74 F.3d 701, 706-09 (6th Cir. 1996) (finding interstate commerce element in 18 U.S.C. § 1465 satisfied where pornographic material sent via the Internet).
As the plain words of 18 U.S.C. § 1462 equate an "interactive computer service" to "any express company or any other common carrier" it is clear that the use of the Internet by an interactive computer service can not be distinguished from the line of Supreme Court cases related to the knowing transportation and receipt of obscene material that has traveled in interstate commerce. Accordingly, Congress did not prohibit the individual's right under Stanley v. Georgia to receive obscene material, rather, it limited receiving obscene material by certain means of transportation or "modes of distribution," to use Mr. Justice Harlan's phrase.
The Defendant also argues that the natural tendency to keep material in the home private, favors the protection of downloading obscenity from the Internet. (Def. memo at 11). However, this was already addressed in dicta by the Supreme Court in United States v. Twelve 200-Ft. Reels, 413 U.S. 123 (1973), which recognized that "[e]ven single copies, represented to be for personal use, can be quickly and cheaply duplicated by modern technology thus facilitating wide-scale distribution." Id. at 129. As such, it follows that with the case of duplication of photographs via the computer and wide-scale distribution via the Internet, this concern is particularly heightened when one is using an interactive computer service for carriage in interstate commerce of obscene matter. See 18 U.S.C. § 1462.
In Stanley v. Georgia, Mr. Justice Harlan stated:
. . . Stanley rests on the proposition that freedom from governmental manipulation of the content of a man's mind necessitates a ban on punishment for the mere possession of the memorabilia of a man s thoughts and dreams, unless that punishment can be related to a state interest of a stronger nature than the simple desire to proscribe obscenity as such. In other words, the `right to receive' recognized in Stanley is not a right to the existence of modes of distribution of obscenity which the State could destroy without serious risk of infringing on the privacy of a man's thoughts; rather, it is a right to a protective zone ensuring the freedom of a man's inner life, be it rich or sordid. Cf. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943).
Reidel, 402 U.S. at 359-360.
ii. The Overbreadth Challenge
The Defendant's motion papers do not demonstrate that Section 1462 is unconstitutionally overbroad. The Defendant argues that privately downloading material freely available on the Internet should be considered the fundamental equivalent to reviewing material in one's private library. (Def. Memo at 9; Def. Reply Memo at 3-4). The Defendant maintains that a person who simply views or downloads material already freely available on the Internet has done nothing to offend the sensibilities of others or risk exposure to juveniles and is distinguishable from someone who causes such material to enter the stream of commerce. (Def. Reply Memo at 4). The Defendant argues that in light of the advent of the Internet and the new world of cyberspace, this Court should reexamine the distinction between constitutionally permitted and forbidden regulation of obscene material and engage in "new line drawing." (Def. Reply Memo at 5).
"Def. Reply Memo" is Defendant's Reply Memorandum of Law in Support of Defendant's Motion to Dismiss Indictment, dated February 7, 2003.
These assertions do not enunciate how 18 U.S.C. § 1462 is overbroad as pertaining to other persons affected by the amended statute. An overbreadth challenge allows a First Amendment litigant to "challenge a statute not because [his] own rights of free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression," Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Otherwise, the absent third parties may not exercise their rights for fear of triggering "sanctions provided by a statute susceptible of application to protected expression." Gooding v. Wilson, 405 U.S. 518, 520-21 (1972). Standing in such a case is permitted because, "it has long been recognized that the First Amendment needs breathing space and that statutes attempting to restrict or burden the exercise of the First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S. 601 at 611-612 (1973). The Defendant, however, has not demonstrated how any individual, even in the privacy of his or her own home downloading images of obscenity from the Internet, would be in a different position than his own and should have a constitutional protection for the interstate transportation of obscene material via an interactive computer service.
"Particularly where conduct and not merely speech is involved . . . the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 615; see also Los Angeles Police Dept. v. United Reporting Pub. Corp., 528 U.S. 32, 39 (1999) (the overbreadth doctrine is "strong medicine" . . . employed with hesitation, and `only as a last resort.'. . . . Because it conflicts with the "personal nature of constitutional rights and the prudential limitations on constitutional adjudication.'" (internal citation omitted)). The Defendant has not demonstrated that the overbreadth is "real" or "substantial" in relation to the statute's plainly legitimate goal of prohibiting the trafficking of obscenity in channels of interstate commerce. Particularly with the advent of the Internet, absent a prohibition on the receipt of obscene materials, the use of offshore Web sites to distribute such material via the Internet would be unhindered.
Here, the statute does not abridge the freedom to engage in any "protected speech" nor is it susceptible to the application of "protected expression." It has long been established that "obscenity" is not "protected" by the First Amendment. Miller v. California, 413 U.S. 15, 20-21 (1973) (citing Roth v. United States, 354 U.S. 476 at 484-485). Any "obscene matter" is subject to the three pronged Miller test which requires the Government to prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value. Free Speech, 122 S.Ct. 1389 at 1399 (citing Miller, 413 U.S. at 24.)
18 U.S.C. § 1462 is not unconstitutionally overbroad as it does not infringe on "protected speech." Nor does the statute offend the privacy right articulated in Stanley v. Georgia, as it is the act of electronic transportation and receipt, and not the private possession of obscene material in one's home, which the statute proscribes. Mr. Reilly's motion to dismiss the counts charging him with the violation of 18 U.S.C. § 1462 is denied.
IT IS SO ORDERED.