INTERNET LAW - Internet Obscenity is not a Constitutionally Protected Speech or Press

A United States federal statute prohibits individuals from reviewing or downloading obscene material from the Internet. 18 U.S.C.S. § 1462.  People indicted under this federal statute have tried to defend by claiming that this statute is unconstitutional because it violates the First Amendment rights.  This defense, however, has not succeeded. Most federal courts have held that obscenity is not within the area for constitutionally protected speech or press.  This article informs on a New York District Court decision that held this statute constitutional because the statute prohibits the electronic transportation and receipt, rather than the private possession of obscene materials.

18 U.S.C.S. § 1462 states that “[W]hoever 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 [47 USCS § 230(e)(2)]), 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; or

(b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound; or

(c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or

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--

Shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.” 

The First Amendment to the United States Constitution protects people’s freedom of speech. Yet, this right to freedom of speech is not absolute and limitations have been elucidated by the Supreme Court of the United States and federal courts.

In the case of United States of America v. Reilly, 2002 U.S. Dist. LEXIS 19564 (S.D.N.Y Oct. 11, 2002), the New York district court was to decide whether 18 U.S.C.S. § 1462 was unconstitutional. Defendant was an employee at the Bureau of Labor Statistics (BLS) of the U.S. Department of Labor.  Apparently, the government’s Internet account had been used on multiple occasions to access websites displaying obscene material. This use was reported after working hours. Some obscene material had been downloaded from the Internet and saved in computer diskettes.  These diskettes were seized. The indictment accused the defendant of violating 18 U.S.C.S. § 1462.  The defendant claimed that the statute is unconstitutional because it violates the First Amendment rights, and prohibits private possession of obscene matters, a right recognized by the Supreme Court in Stanley v. Georgia under the First Amendment.

The district court held that the defendant in this case did not demonstrate that the over-breadth was “real” or “substantial” in relation to its goal; the goal of prohibiting the trafficking of obscene material in channels of interstate commerce.  The court went further and stated that what the statute does not infringe people’s First Amendment rights nor it offends people’s privacy right as articulated in Stanley v. Georgia because it is the electronic transportation and receipt in interstate commerce, rather than the private possession of obscene material in one’s home, which the statute prohibits. 

Thus, the statutory phrase “for carriage in interstate or foreign commerce,” as an element of the offense, was met in this case by the act of accessing the Internet material (receiving it) and downloading it in diskettes. Likewise, the offense would have been committed if the person carries the material in a computer that is transported in interstate or foreign commerce.