February 9, 1996

   Honorable Albert Gore, Jr.
   President of the Senate
   United States Senate
   Washington, DC 20510

   Dear Mr. President:

   On February 7, 1996, a lawsuit was filed challenging the
   constitutionality of a provision of 18 U.S.C. 1462, as amended by
   section 507(a) of the Telecommunications Act of 1996. Sanger, et al v.
   Reno, Civ. No. 96-0526 (E.D.N.Y.). Yesterday, a second lawsuit was
   filed, raising the same challenge to 1462 along with claims that
   several other provisions of the Telecommunications Act are
   unconstitutional. American Civil Liberties Union, et al v. Reno, Civ.
   No. 96-963 (E.D. Pa,). This letter was relates solely to the claims
   regarding 1462, as amended. Plaintiffs in both cases allege that 1462,
   as amended, violates the First Amendment insofar as it prohibits the
   interstate transmission of certain communications regarding abortion
   via common carrier or via an interactive computer service.

   This is to inform you that the Department of Justice will not defend
   the constitutionality of the abortion-related speech provision of 1462
   in those cases, in light of the Department's longstanding policy to
   decline to enforce the abortion-related speech prohibitions in 1462
   (and in related statutes, i.e., 18 U.S.C. 1461 and 39 U.S.C. 3001)
   because they are unconstitutional under the First Amendment.

   In 1981, Attorney General Civiletti informed the Speaker of the House
   and the President of the Senate that it was the policy of the
   Department of Justice to refrain from enforcing similar speech
   prohibitions in two cognate statutes--39 U.S.C. 3001 and 18 U.S.C.
   1461--with respect to "cases of truthful and non-deceptive documents
   containing information on how to obtain a lawful abortion." Letter of
   Attorney General Benjamin R. Civiletti to the Hon. Thomas P. O'Neill,
   Jr., at 2 (Jan 13, 1981). According to the Attorney General, there was
   "no doubt" that those statutes were unconstitutional as applied to
   such speech. Id at 1. The Attorney General left open the possibility
   that the two statutes might still be applied to certain
   abortion-related commercial speech. Id at 3.

   Two years later, the Supreme Court held that 3001 cannot
   constitutionally be applied to commercial speech concerning
   contraception at least not where the speech in question is truthful
   and not misleading. Bolger v. Youngs Drug and Product Corp., 463 U.S.
   60 (1983). The holding in Bolger would apply equally with respect to
   abortion-related commercial speech. See Bigelow v. Virginia, 421 U.S.
   809 (1975).

   Section 1462 is subject to the same constitutional defect as 1461 and
   3001 with respect to its application to abortion-related speech and
   information. (1) As a result of the Department's conclusion that
   prosecution of abortion-related speech under 1462 and related statutes
   would violate the First Amendment, the Department's longstanding
   policy has been to decline to enforce those statutes with respect to
   that speech. What is more, we are not aware of any reported decision
   reflecting a prosecution of abortion-related speech under 1462.

   Nothing in the Telecommunications Act provides any reason to alter the
   Department of Justice's nonenforcement policy. In his signing
   statement yesterday, the President stated:

   "I...object to the provision in the Act concerning the transmittal of
   abortion-related speech and information. Current law, 18 U.S.C. 1462,
   prohibits transmittal of this information by certain means, and the
   Act would extend that law to cover transmittal by interactive computer
   services. The Department of Justice had advised me of its longstanding
   policy that this and related abortion provisions in current law are
   unconstitutional and will not be enforced because they violate the
   First
   Amendment. The Department has reviewed this provision of S. 652 and
   advised me that it provides no basis for altering that policy.
   Therefore, the Department will continue to decline to enforce that
   provision of current law, amended by this legislation, as applied to
   abortion-related speech."

   The principal function of 1462 is to prohibit the interstate carriage
   of "obscene, lewd, lascivious...filthy...[and] indecent" materials.
   See 1462(a). The Supreme Court has construed this prohibition to be
   limited to materials that meet the test of "obscenity" announced in
   Miller v. California, 413 U.S. 15 (1973). (2) Congress's express
   purpose in enacting the amendment to 1462 in Telecommunications Act
   507 was to "clarify[]" that obscene materials cannot be transmitted
   interstate via interactive computer services. (3) In this respect,
   1462 and its amendment in 507 are constitutionally unobjectionable,
   and the Department will continue to enforce 1462 with respect to the
   transmittal of obscenity.

   However, 1462 also prohibits the interstate transmission of certain
   communications regarding abortion. As amended by 507 of the
   Telecommunications Act, 1462 provides, in pertinent part, that is
   shall be a felony to

   "knowingly use any express company or other common carrier or
   interactive computer service..., for carriage in interstate or foreign
   commerce (of)...

   (c) 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 [drug,
   medicine, article, or thing designed, adapted, or intended for
   producing abortion] may be obtained or made."

   Thus, on its face, 1462 prohibits the use of an interactive computer
   service for "carriage in interstate...commerce" of any information
   concerning "any drug, medicine, article, or thing designed, adapted,
   or intended for producing abortion." (4)

   It plainly would be unconstitutional to enforce 1462 with respect to
   speech or information concerning abortion, because the restriction on
   abortion-related speech is impermissibly content based. This
   conclusion is confirmed by the judicial and Executive Branch treatment
   of similar prohibitions on speech concerning abortion and
   contraception, contained in two cognate statutes, 39 U.S.C. 3001 and
   18 U.S.C. 1461. Section 3001 provides that abortion- and
   contraception-related speech is "nonmailable"; and 1461 makes such
   mailings subject to criminal sanctions. In 1972, a district court
   declared that 3001 was unconstitutional insofar as it rendered
   abortion-related speech "nonmailable." Atlanta Coop. News Project v.
   United States Postal Service, 350 F. Supp. 234, 238-39 (N.D. Ga. 1972)
   The next year, another district court declared both 3001 and 1461
   unconstitutional as applied to noncommercial speech concerning
   abortion and contraception. Associated Students for Univ. of
   California at Riverside v. Attorney General, 368 F. Supp. 11, 21-24
   (C.D. Calif 1973). As the Attorney General later explained to the
   Congress, the Solicitor General declined to appeal the decisions in
   Atlanta Coop. News Project and Associated Students "on the grounds
   that 18 U.S.C. 1461 and 39 U.S.C. 3001(e) were unconstitutionally
   indefensible" as applied to abortion-related speech. See Letter of
   Attorney General Benjamin R. Civiletti to the Hon. Thomas P. O'Neill,
   Jr., at 2 (Jan 13, 1981). And, as explained above, in 1981 the
   Attorney
   General informed the Congress that the Department of Justice would
   decline to enforce 1461 and 3001 in cases of truthful and
   non-deceptive documents containing information on how to obtain a
   lawful abortion.

   Nothing in recent Supreme Court law respecting the First Amendment has
   affected the conclusions reached by the district courts in Atlanta
   Copp. News Project and Associated Students, the 1981 opinion of
   Attorney General Civiletti, or the Supreme Court's decision in Bolger.
   Indeed, the Supreme Court on several recent occasions has strongly
   reaffirmed the principle that the First Amendment, subject only to
   narrow and well-understood governmental control over the content of
   messages expressed by private individuals." Turner Broadcasting
   System, Inc. v. FCC, 114 S.C. 2445, 2456-59 (1994) (citing R.A.V. v.
   City of St. Paul, 505 U.S. 377 (1992); Texas v. Johnson, 491 U.S. 397
   (1989)).

   In the Ganger case, Judge Sifton yesterday denied plaintiffs' motions
   for a temporary restraining order after the United States Attorney
   represented that the Department's policy is to decline to enforce the
   pertinent provisions of 1462. Judge Sifton further ruled that a
   three-judge court hearing on any dispositive motions will be convened
   next month, after briefing. In the ACLU case before Judge Buckwalter,
   the Government is due to respond to a motion for a TRO on February 14,
   1996. In accordance with the practice of the Department, I am
   informing the Congress that in neither case will the Department of
   Justice defend the constitutionality of the provision 1462 that
   prohibits speech concerning abortion.

   Sincerely,

   Janet Reno

     _________________________________________________________________


   (1) The only material difference between 1462 and the cognate
   prohibitions in 1461 and 3001 is that 1462 regulates interstate
   "carriage" of information by common carrier, rather than dissemination
   of the information through the mail. This distinction is not material
   to the constitutional issue in this context.

   (2) See Hamling v. United States 418 U.S. 87, 114 (1974): United
   States v. Orito, 413 U.S. 139, 145 (1973): United States v. 12 200-Ft.
   Reels of Super 8mm Film, 413 U.S. 123, 130 n. 7

   (3) The Conference Committee on the Telecommunications Act noted that
   507 is intended to address the use of computers to sell or distribute
   "obscene" material. Joint Explanatory Statement of the Committee of
   Conference at 77, reprinted in 142 Cong. Rec. H1130 (daily ed. Jan 31,
   1996).

   (4) The Conference Committee Report on the Telecommunications Act
   explicitly notes that the prohibitions in 1462 apply regardless of
   whether the purposes for distributing the material in question is
   commercial or non-commercial in nature. Joint Explanatory Statement of
   the Committee of Conference at 77, reprinted in 142 Cong. Rec. H1130
   (daily ed. Jan 31, 1996).

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