cases. It seems likely that for at least some of the distributors, the concern over having their names published in the Commission report compelled them to withdraw the sale and distribution of some of plaintiffs' magazines and books. That issue should be put to rest; accordingly, the Court will enter a preliminary injunction to prohibit such publication.
The Court stresses that the injunction relating to publication of names goes no further than that, and relates back to the defendants' threat to identify the distributors of purported pornographic material in the final report. This part of the injunction does no more than to incorporate in an order what the defendants have stated in open court.
Plaintiffs also request that the defendants be required to furnish the plaintiffs with the names of the corporations sent copies of the subject letter. The Commission is required to do so under the terms of the FACA. 5 U.S.C. App. § 10(b). That requirement will be incorporated in the order with a requirement that the defendants do so within five days of the date of the order.
Plaintiffs also seek to have the Court direct the defendants to send a letter to each corporation or person who was sent a copy of the original letter, withdrawing the original letter and advising the addressee that the Commission will not publish a listing in the final report. Plaintiffs have also asked the Court to require the Commission to disavow the original letter and to include a statement that the Commission does not consider Playboy to be obscene, or to be linked to rape, or sexual violence, or organized crime.
The Court will direct the Commission to send a letter to each addressee of the original letter advising them that the original letter has been withdrawn and that no reply is required. In this way, the failure to answer the original letter cannot be interpreted as an admission by the addressee that the addressee is or was a distributor of pornography. The letter shall also advise the corporations that their names will not be included in the final report as sellers or distributors of pornographic materials. With respect to the remaining requests made by the plaintiffs, those requests are denied since to grant those requests would inject the Court into the determination process of the Commission.
Defendants have argued against any injunctive relief on the grounds that enjoining the report itself would be contrary to the First Amendment. The Court need not address this issue since it does not enjoin the issuance of the report, in fact, based upon the representations made by the defendants in open court, the Court's order does not affect the final report to be entered by the Commission. The defendants also argue that the Court cannot review the recommendations of an Executive Branch Advisory Committee that are to be made to the Attorney General and in turn to the President. This Court has not done so in its order.
An appropriate Order consistent with this Memorandum has been entered.
The Attorney General's Commission on Pornography has held six hearings across the United States during the past seven months on issues related to pornography. During the hearing in Los Angeles, in October 1985, the Commission received testimony alleging that your company is involved in the sale or distribution of pornography. The Commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.
You will find a copy of the relevant testimony enclosed herewith. Please review the allegations and advise the Commission on or before March 3, 1986, if you disagree with the statements enclosed. Failure to respond will necessarily be accepted as an indication of no objection.
Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if you have any questions.
Thank you for your assistance.
Alan E. Sears
Postage Paid Mailing Label
[EDITOR'S NOTE: The following Court provided text does not appear at this cite in 639 F. Supp.]
These consolidated cases comes before the Court on the plaintiffs motions for a preliminary injunction. After giving careful consideration to the motions, the opposition thereto, the arguments of counsel, and the record in this case, the Court concludes, for the reasons set forth in the accompanying memorandum, that the motions should be granted.
In view of the above, it is hereby
ORDERED that the defendants are preliminarily enjoined, pending trial in these cases:
1. From including in its report or final report, a list or listing of identified distributors or retailers of "pornography," if inclusion of such distributor or retailer is based in whole or in part on its distribution or sale of constitutionally protected publications;
2. From intentionally interfering, through blacklisting, through letters to or other intimidation of, distributors or retailers, or through other unlawful practices, with the lawful publication, distribution, and sale of constitutionally protected materials;
and it is further
ORDERED that within five days of the date of this order, the defendants shall furnish to the plaintiffs a complete list of all corporations, companies, or persons that were sent copies of the letter dated in February 1986, Defendants' Opposition Exhibit 1(B), the list to include the address and the name of the actual addressee, a copy of said list to be furnished to the Court within the same time frame, and it is further
ORDERED that the defendants shall issue forthwith to all recipients of the Commission's letter described above, a notice advising (1) that the Commission and the defendants withdraw the letter and the warning contained therein that the failure to respond to the letter will be taken as an admission that the recipient does not object to being publically identified as a distributor of "pornography,", and (2) that the Commission will not publish a list of publishers, distributors, or retailers of allegedly "pornographic" materials, and it is further
ORDERED that a copy of the notice shall be furnished to the plaintiffs and to those persons who seek to intervene in these case, and to the Court, within the same time frame, and it is further
ORDERED that the plaintiffs shall not be required to post bond or any other form of undertaking.