since transmission of obscene matter by computer involves the telephone lines. In United States v. Carlin Communications, Inc., 815 F.2d 1367 (1987), however, the Tenth Circuit held that both 18 U.S.C. 1462 and 18 U.S.C. 1465 (interstate transportation) are restricted in their terms to tangible obscene objects and are inapplicable to intangible telephonic communications. The "dial-a-porn" statute, 47 U.S.C. 223, would appear to cover only voice communication. Accordingly, H.R. 3889 should include an amendment to 18 U.S.C. 1462, adding computer transmission to the list of items covered by $1462, to read as follows: "(d) any obscene, lewd, lascivious, or filthy writing, 2. Obscene or indecent cable television transmissions. While proposed Section 1464A admirably permits local regulation of "obscene or indecent" language or matter as long as the manner of regulation is "not inconsistent with the Constitution," proposed $1464A itself proscribes only obscene cable transmissions. Obscene cable transmissions, however, are already proscribed under 47 U.S.C. $639, which applies to obscene cable transmissions over "any cable system"-including intrastate transmissions. Concerns have been raised that other provisions of the Cable Communications Policy act of 1984 appear to conflict with the broad proscription on obscene programming contained in §639 of the Act. When the Policy Act is considered as an integrated whole as it must be, however, it becomes clear that Seciton 639 does indeed contain a broad federal prohibition on the transmission of cable TV obscenity. Any other interpretation would make nonsense of the words "whoever transmits over any cable system any matter which is obscene" and would permit cable operators to thumb their nose at the purpose of §639. Whatever benefit might be derived from proposed §1464A, would seem insignificant to the benefit that will be derived from including a federal proscription on both obscene or indecent programming. As the attached Comment on the Supreme Court's Wilkinson v. Jones decision indicates, the Court's summary affirmance of the Tenth Circuit Court of Appeals decision invalidating the Utah Cable T.V. Television Programming Decency Act does not foreclose either lower courts or the Supreme Court itself from addressing in a future case the validity of carefully constructed federal or state cable T.V. indecency legislation. Accordingly, H.R. 3889, p. 50, lines 15-16 should read as follows: "(a) Whoever knowingly utters any obscene or indecent 3. Subscription T.V. This is a form of broadcasting and should be regulated by clarifying 18 U.S.C. 1464 as including the same (see our analysis attached). New Developments in Obscenity Law Cable TV Indecency United States Supreme Court Affirms Decision Invalidating Utah Cable TV Indecency Law - The United States Supreme Court summarily affirmed without opinion a decision of the Tenth Circuit Court of Appeals invalidating the Utah Cable Television Programming Decency Act. Chief Justice Rehnquist and Justice O'Connor noted probable jurisdiction and voted to set the case for oral argument. [Wilkinson v. Jones, appeal filed, 55 L.W. 3514 (Jan. 5, 1987), affirmed summarily, 55 L.W. 3643 (March 23, 1987).] The Court of Appeals in a brief per curiam opinion (800 F.2d 989 (1986)], had affirmed a decision of the District Court for the District of Utah, basing its affirmance "on the basis of the reasons stated in the [district court] opinion." Circuit Judge Baldock, who agreed that the Utah law was overbroad and vague, wrote a lengthy concurring opinion supporting his conclusion "that the Pacifica rationale for the regulation of indecency applies to cablecasting." The district court had found that the Decency Act is unconstitutionally overbroad and vague, and void on its face. The district court, by reason of its analysis of the Cable Communications Policy Act of 1984, also held that the Utah statute was preempted by the Federal Communications Act but did not specifically claim that any state attempt to enact or enforce a cable TV "Indecency" Law was preempted. Published in the Obscenity Law Bulletin April 1987 -O.L.B. Comment While a summary affirmance is a ruling "on the merits" [Hicks v. Miranda, 422 U.S. 332, 344 (1975)] and does prevent lower courts from coming to opposite conclusions on the precise issues presented "and necessarily decided" (emphasis added) by the action [Mandel v. Bradley, 432 U.S. 173, 176 (1978)], it does not have the same precedential value as does an opinion of the Supreme Court after briefing and oral argument [Edelman v. Jordan, 415 U.S. 651, 671 (1974), Washington v. Confederated Bands and Tribes, 439 U.S. 476, n. 20 (1979)] and should not be read as necessarily adopting the reasoning of the lower court whose judgement is appealed [Mandel v. Bradley, supra at 176] or understood "as breaking new ground but as applying principles established by prior decisions to the particular facts involved" [Mandel, at 176]. As noted in Mandel v. Bradley, "ascertaining the reach and content of summary actions may itself present issues of real substance." How then should the Supreme Court's summary affirmance of the Tenth Circuit's per curiam opinion in Wilkinson v. Jones, supra be understood? The opinion of the district court, relied on by the Tenth Circuit, held that the Utah Cable Television Programming Decency Act was both unconstitutionally overbroad and vague. While dicta or overbroad language in the district court's opinion has prompted some to assert that the court's decision rests on a determination that the First Amendment prevents government prohibitions on all non-obscene cable TV programming, language in the opinion indicates that a more narrowly drawn and specifically delineated statute could have been found constitutional. Clearly, the district court decision could rest on several grounds and should not be read as establishing the broadest possible constitutional principle. Also, as noted above, a summary dismissal does not necessarily reflect the Court's agreement with the opinion of the lower court. An examination of the Jurisdictional Statement, submitted to the Supreme Court by Appellant David L. Wilkinson, and the Motion To Affirm, submitted to the Court by Appellees, further illustrates the problem of "ascertaining the reach and content of the Court's summary affirmance in Wilkinson v. Jones. The pertinent questions presented in Appellant's Jurisdictional Statement were the following: (1) Whether the First Amendment denies government any power to restrict the public dissemination of indecent material on cable television in any circumstances? (2) Whether the lower courts erred in striking down on its face a state cable television indecency statute notwithstanding the fact that the legislation, which rests on a nuisance rationale under which context is allimportant, has never been enforced in a concrete factual situation. In their Motion To Affirm, however, Appellees argued that the "statute at issue and the judgement below simply do not require or justify consideration of [Appellant's] questions.... In an effort to persuade this Court of the importance of the issue raised on this appeal, Appellant not only asks the Court to abstract from this case the broadest constitutional issue raised... but to disregard the other necessarily attendant issues that make clear that this statute is infirm on narrower constitutional grounds." By summarily affirming the Circuit Court opinion, the United States Supreme Court provided no indication of the rationale of the Court in affirming or of the justices that voted to affirm. Some or all of the justices could have concluded that the Utah statute as such was vague or overbroad (and therefore curable) and that the district court did not err in facially striking down the Utah statute as void on its face, without actually deciding Appellant's broad constitutional issue as phrased in question (1) above. We just do not know. It is a legitimate conclusion, therefore, that in agreeing with the Tenth Circuit affirmance, the Supreme Court has not struck down all cable TV indecency legislation as unconstitutional, but has only struck down the Utah version. As stated in Mandel v. Bradley, supra, "Summary actions... should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved (emphasis added)." The Court in Mandel indicated that the "precedential significance" of a summary decision must be assessed in light of all the facts in that decision and that where the facts of a subsequent case are "very different," lower courts must make an "independent examination of the merits" in the new case. Nor does the Supreme Court's summary affirmance foreclose the Court itself from addressing in a future case the question of the validity of carefully constructed cable TV indecency legislation. A SUMMARY OF H.R. 3889 "THE CHILD PROTECTION AND OBSCENITY ENFORCEMENT ACT OF 1988 Prepared by: Morality in Media, Inc. 475 Riverside Drive New York, NY 10115 HISTORICAL BACKGROUND 1. Attorney General's Commission on Pornography In July 1986, the Attorney General's Commission on Pornography released its Final Report, revealing the explosive growth of pornographic materials in American society since 1970, as well as the degenerative change in their content. The Commission had received testimony, pro and con, concerning a wide range of sexually explicit materials, but in making its Final Recommendations, the Commission focused on materials which do not enjoy First Amendment protection-to wit, obscene materials and child pornography. Of "obscenity" (the legal term for "hardcore" pomography) the United States Supreme Court in its landmark 1973 Miller v. California decision stated: "This much has been categorically settled by the court, that Of child porn, the Supreme Court said in its landmark 1982 New York v. Ferber decision: "When a definable class of material, such as that covered by Pursuant to its Charter Mandate and consistent with "Constitutional guarantees," the Commission made recommendations for both private and governmental action--including recommendations for changes in federal law. 2. Justice Department's Response to the Commission on Pornography On October 22, 1986, Attorney General Edwin Meese outlined a seven-point program to curb the growth of obscenity and child porn, promising inter alia, that a legislative package would be introduced in the next Congress. He attributed the "explosion of obscenity" in large measure to the work of organized criminal enterprises which have "taken over the large-scale production and distribution of obscenity on an interstate, multistate and international level," and said that the Pornography Commission's concern was not about materials "that are offensive to some but which nonetheless have been recognized by the courts as within the bounds of protected speech, but rather with hardcore materials deemed obscene and with child pornography. 3. The Child Protection and Obscenity Enforcement Act On November 10, 1987, President Reagan unveiled the "Child Protection and Obscenity Enforcement Act of 1987." In his transmittal message, the President stated: "This act is a direct outgrowth of the deep concern that The President further stated that the purposes of the Act are twofold: 1. 2. To update Federal law to take into account new To remove loopholes and weaknesses in the laws On February 2, 1988, the "Child Protection and Obscenity Enforcement Act of 1988" was introduced in the 100th Congress, 2d Session, by Congressman Hughes as H.R. 3889 and now has 242 cosponsors. A companion bill (S. 2033) was introduced in the Senate by Sen. Strom Thurmond on February 4, 1988 and now has 40 cosponsors. A section-by-section summary analysis of H.R. 3889 follows. |