The opinion of the court was delivered by: Robert P. Patterson, Jr., United States District Judge
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.)*fn1 For the following reasons, the Defendant's motion is denied.
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)*fn2, 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
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
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.
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 ...