UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN LIBRARY ASSOCIATION, INC.,
50 East Huron Street, Chicago, IL
60611, on behalf of its members and
their patrons,
AMERICA ONLINE, INC., 8619 Westwood
Center Drive, Vienna, VA 22182, on
behalf of itself and its subscribers,
AMERICAN BOOKSELLERS ASSOCIATION,
INC., 828 South Broadway, Tarrytown,
NY 10591, on behalf of its members,
AMERICAN BOOKSELLERS FOUNDATION FOR
FREE EXPRESSION, 828 South Broadway,
Tarrytown, NY 10591, on behalf of its
members,
AMERICAN SOCIETY OF NEWSPAPER EDITORS,
Post Office Box 4090, Reston, VA
22090, on behalf of its members,
APPLE COMPUTER, INC., One Infinite
Loop, Cupertino, CA 95014, on behalf
of itself and its subscribers,
ASSOCIATION OF AMERICAN PUBLISHERS,
INC., 1718 Connecticut Avenue, N.W.,
Washington, D.C. 20009, on behalf of
its members,
ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS, 1736 Franklin Street, 8th
Floor, Oakland, CA 94612, on behalf of
its members,
CITIZENS INTERNET EMPOWERMENT
COALITION, 1634 Eye Street, Suite
1100, Washington, D.C. 20006, on
behalf of its members,
COMMERCIAL INTERNET EXCHANGE
ASSOCIATION, 1039 Sterling Road, Suite
201, Herndon, VA 22070, on behalf of
its members,
COMPUSERVE INCORPORATED, 5000
Arlington Centre Blvd., Columbus, OH
43220, on behalf of itself and its
subscribers,
FAMILIES AGAINST INTERNET CENSORSHIP,
2135 Wickes Road, Colorado Springs, CO
80919, on behalf of its members,
FREEDOM TO READ FOUNDATION, INC., 50
East Huron Street, Chicago, IL 60611,
on behalf of its members,
HOTWIRED VENTURES LLC, 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,
INTERACTIVE SERVICES ASSOCIATION, 8403
Colesville Road, Silver Spring, MD
20910, on behalf of its members,
MICROSOFT CORPORATION, One Microsoft
Way, Redmond, WA 98052, on behalf of
itself,
MICROSOFT NETWORK, One Microsoft Way,
Redmond, WA 98052, on behalf of itself
and its subscribers,
NETCOM ON-LINE COMMUNICATIONS SERVICE,
INC., 3031 Tisch Way, San Jose, CA
95128, on behalf of itself and its
subscribers,
NEWSPAPER ASSOCIATION OF AMERICA, 1160
Sunrise Valley Drive, Reston, VA
22091, on behalf of its members,
OPNET, INC., 901 Glenbrook Avenue,
Bryn Mawr, PA 19010, on behalf of
itself and its subscribers,
PRODIGY SERVICES COMPANY, a New York
General Partnership, 445 Hamilton
Avenue, White Plains, NY 10601, on
behalf of itself and its subscribers,
SOCIETY OF PROFESSIONAL JOURNALISTS,
Post Office Box 77, Greencastle, IN
46135, on behalf of its members,
WIRED VENTURES, LTD., 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF JUSTICE,
10th and Constitution Avenue, NW,
Washington, D.C. 20530; and
JANET RENO, Attorney General of the
United States, United States
Department of Justice, 10th &
Constitution Ave., NW, Washington,
D.C. 20530,
Defendants.
COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF
PRELIMINARY STATEMENT
1. During much of this century the mass media,
particularly radio and television, have been characterized by a
limited number of speakers transmitting programming and
information to essentially passive audiences. The communications
medium of the twenty-first century -- the Internet and
"cyberspace" generally -- is changing that, and will allow
hundreds of millions of individuals to engage in interactive
communication, on a national and global scale never before
possible. The public square of the past -- with pamphleteering,
soap boxes, and vigorous debate -- is being replaced by the
Internet, which enables average citizens to participate in
national discourse, publish a newspaper, distribute an electronic
pamphlet to the world, and generally communicate to and with a
broader audience than ever before possible. It also enables
average citizens to gain access to a vast and literally world-
wide range of information, while simultaneously protecting their
privacy, because in this new medium individuals receive only the
communications they affirmatively request.
2. In enacting the Communications Decency Act of 1996
(to be codified at 47 U.S.C. 223) (the "Act"), Congress
acknowledged that the Internet represents "an extraordinary
advance in the availability of educational and informational
resources to our citizens," and acknowledged that interactive
computer services "offer users a great degree of control over the
information that they receive." Congress therefore declared
"[i]t is the policy of the United States . . . to promote the
continued development of the Internet and other interactive
computer services; [and] to preserve the vibrant and competitive
free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State
regulation." Act 509 (to be codified at 47 U.S.C. 230).
Unfortunately, as we will show, provisions of the Act that were
intended only to protect minors from communications deemed
inappropriate for them will have the effect, perhaps unintended,
of depriving adults of communications that are appropriate, and
indisputably constitutionally protected, for them. Because of
the way the Internet works, the Act's prohibition of
communications that may be deemed "indecent" or "patently
offensive" for minors will effectively ban those same
communications between adults, reducing the adult population in
cyberspace to only what is appropriate for minors. The banned
speech includes valuable works of literature and art, information
about health and medical issues, and examples of popular culture.
It also includes robust human discourse about politics, current
events, and personal matters that may at times include harsh,
provocative, or even vulgar language, all of which is
constitutionally protected for adults.
3. Plaintiffs represent a broad range of individuals
and entities from the computer and communications industries and
the general public who are harmed by the Act. Plaintiffs include
publishers and creators of content on the Internet; "online
services," "Internet service providers," libraries, and others
who provide access or connection to the Internet; and speakers,
listeners, and users on the Internet. The Act's effective ban of
a broad category of communication that is constitutionally
protected for adults directly harms the First Amendment rights of
plaintiffs, and of the tens of millions of adult speakers and
listeners who are "online" and linked through this new
communications medium. Plaintiffs also include parents, who seek
to protect the rights of parents to decide what is appropriate
for their children to receive through interactive computer
communications.
4. The speech at issue in this case does not include
obscenity, child pornography, harassing speech, speech intended
to entice or lure minors into inappropriate activity, or other
speech that lacks First Amendment protection even for adults.
This complaint does not challenge governmental regulation of
those categories of non-protected speech, and the relief sought
herein will not affect the government's ability to prosecute the
communication of those categories of speech, all of which are
already prohibited by existing law.
5. The most sweeping provision of the Act, Section
502(2) (to be codified at 47 U.S.C. 223(d)), prohibits the
"display" of material deemed "patently offensive" "in a manner
available to a person under 18 years of age" (emphasis added).
That provision is subject to certain defenses, which the sponsor
of the Act and Congress apparently believed would enable speakers
to restrict access by minors while simultaneously permitting
access by adults. But those defenses, which were merely lifted
from the "dial-a-porn" laws, simply do not work in the quite
different medium of cyberspace. Because of the manner in which
information is stored, transmitted, and received on the Internet,
this provision has the (perhaps unintended) result of banning
speech between adults that is suitable and constitutionally
protected for adults.
6. The Act is also unconstitutional because there are
alternative ways of protecting minors from material inappropriate
for them that would not abridge the First Amendment rights of
adults, and would be more effective in protecting minors than the
mechanism Congress imposed. The speaker-based blocking required
by the Act will not protect minors from access to words and
images posted on the Internet abroad by foreign speakers, who are
not effectively subject to prosecution under the Act, or even by
domestic speakers who intentionally or inadvertently violate the
Act. But user-based blocking technology enables parents and
other users to block or screen whatever words or images they deem
inappropriate, regardless of where posted, at little or no cost.
For these reasons, every application of the Act unnecessarily and
unconstitutionally abridges the First Amendment rights of adults,
and does so even though there are less drastic alternatives that
would be more protective of minors.
JURISDICTION AND VENUE
7. This case arises under the Constitution and laws of
the United States and presents a federal question within this
Court's jurisdiction under Article III of the Constitution and 28
U.S.C. 1331.
8. This Court has authority to grant declaratory
relief pursuant to the Declaratory Judgment Act, 28 U.S.C.
2201.
9. Under 561 of the Telecommunications Act of 1996
("Telecommunications Act"), of which the Communications Decency
Act is a part, this action is required to be heard by a three-
judge court convened pursuant to 28 U.S.C. 2284.
10. Venue is proper in this Court under 28 U.S.C.
1391(e).
PARTIES
11. The named plaintiffs are briefly identified below.
Their interests and involvement with the Internet and interactive
computer communications are described more fully in paragraphs
122-137.
12. Plaintiff AMERICAN LIBRARY ASSOCIATION, INC.
("ALA"), founded in 1876, is a non-profit, educational
organization committed to the preservation of the American
library as a resource indispensable to the intellectual,
cultural, and educational welfare of the Nation. The ALA's
direct membership includes over 3,000 libraries, over 55,000
librarians, and other individuals. Plaintiff FREEDOM TO READ
FOUNDATION ("FTRF") is a non-profit membership organization
established in 1969 by the ALA to promote and defend First
Amendment rights; to foster libraries as institutions fulfilling
the promise of the First Amendment for every citizen; to support
the rights of libraries to include in their collections and make
available to the public any work they may legally acquire; and to
set legal precedent for the freedom to read on behalf of all
citizens.
13. Plaintiffs AMERICA ONLINE, INC. ("AOL"),
COMPUSERVE INCORPORATED ("COMPUSERVE"), MICROSOFT NETWORK
("MSN"), and PRODIGY SERVICES COMPANY ("PRODIGY") are the four
leading commercial online services in the United States, each
providing online services (including access to and content on the
Internet) to millions of customers worldwide.
14. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION, INC.
("ABA"), organized in 1900, is the leading association of general
interest bookstores in the United States. ABA has over 5500
members, including 4300 bookstores, which do business in over
7000 locations across the country. AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION ("ABFFE") was organized in 1990.
The purpose of the ABFFE is to inform and educate booksellers,
other members of the book industry, and the public about the
dangers of censorship and to promote and protect the free
expression of ideas, particularly freedom in the choice of
reading materials.
15. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS
("ASNE") is a nonprofit professional organization of more than
850 individuals who hold positions as directing editors of daily
newspapers throughout the United States. For over 50 years, ASNE
has worked to provide an effective and unfettered press in the
service of the American people by exercising and defending the
First Amendment rights of the press to gather and publish news.
16. Plaintiff APPLE COMPUTER, INC., is a global and
innovative leader in developing personal computers, personal
computer software, and server hardware and software for the
Internet. The company offers a wide range of products and
services for business and personal computer and data
communication. Apple's current and announced products include
hardware and software for accessing the Internet, hardware and
software for implementing and maintaining Internet servers and
other services such as operating system and database storage and
retrieval, and content software particularly for education,
business and home computing, and communication. In addition,
Apple maintains eWorld which provides online services including
access to the Internet.
17. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC.
("AAP") is the major national association in the United States of
publishers of general books, textbooks, and educational
materials. Its approximately 200 members include most of the
major commercial book publishers in the U.S. and many smaller or
non-profit publishers, including university presses and scholarly
associations. AAP's members publish most of the general,
educational, and religious books produced in the United States,
and are particularly active in all facets of the electronic
medium, including publishing a wide range of electronic products
and services.
18. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS is an unincorporated association of publishers, editors
and individual writers who publish their materials both in print
and online. Brought together by a common interest in protecting
the right to free expression, its members write, edit and publish
works on a wide range of subjects, including politics, techno-
logy, finance, education, human sexuality and the arts. As
producers and consumers of online content, its members will be
directly subject to or affected by the Act.
19. Plaintiff COMMERCIAL INTERNET EXCHANGE ASSOCIATION
("CIX") is the nation's largest trade association of commercial
Internet service providers ("ISPs") and access providers. CIX
members provide carriage for approximately 75% of the world's
Internet traffic, constituting millions upon millions of
electronic messages each day. In addition to serving as passive
carriers, many CIX members also provide Internet content, and
assist customers in presenting content on the Internet through
"World Wide Web," "gopher," and other Internet sites.
20. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP
("FAIC") is a voluntary, non-profit organization of parents
across the country. FAIC was founded on the belief that parents
are the people best suited to decide what their children should
and should not see. To be a member of FAIC, one must (1) oppose
censorship, (2) have an electronic mail address, and (3) have at
least one child living at home.
21. Plaintiff HOTWIRED VENTURES LLC, a California
limited liability company, is the creator of HotWired, a
cyberstation on the World Wide Web offering interactive
information about culture, lifestyle, and technology to over
300,000 subscribers.
22. Plaintiff INTERACTIVE SERVICES ASSOCIATION, formed
in 1981, is the leading association devoted exclusively to
promoting and developing consumer interactive services worldwide.
ISA's several hundred members span the entire interactive
industry, and include numerous commercial online services and
other Internet content and service providers.
23. Plaintiff MICROSOFT CORPORATION is a worldwide
leader in software for personal computers. The company offers a
wide range of products and services for business and personal
use. Microsoft's current and announced products include software
for accessing the Internet, software for implementing and
maintaining Internet servers and other services such as operating
system and database storage and retrieval, and content software
including compilations of musical, artistic, literary,
encyclopedic, technical, statistical, and general business and
specialized news information.
24. Plaintiff NETCOM ON-LINE COMMUNICATIONS SERVICE,
INC., is an Internet service provider. The Company's core
business is providing dial-up accounts for individuals and high-
speed dedicated connections for businesses. NETCOM operates its
own digital network and provides e-mail, NetNews, and web
services for its customers. Many of NETCOM's customers connect
to the Internet using the Netcruiser access software that NETCOM
developed and produced.
25. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA is a
nonprofit organization representing the interests of more than
1,500 newspapers that account for approximately 85 percent of the
daily newspaper circulation in the United States. Approximately
175 member newspapers in North America currently make their
editions available on the Internet.
26. Plaintiff OPNET, INC., is an Internet access
provider located in Bryn Mawr, Pennsylvania. OpNet provides
access to the Internet to individuals and businesses throughout
the Philadelphia area. OpNet also provides World Wide Web site
maintenance, file storage, and server support to organizations
which seek to put information on the World Wide Web.
27. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS is a
voluntary, non-profit organization of nearly 14,000 members. The
Society is the largest and oldest organization of journalists in
the United States, representing every branch and rank of print
and broadcast journalism, and for more than 80 years has been
dedicated to perpetuating a free press. Many of the members of
the Society write news stories, articles, and columns made
available over the Internet and other interactive computer
networks.
28. Plaintiff WIRED VENTURES, LTD., a California
limited partnership, publishes Wired, a monthly magazine that
addresses the cultural implications of the digital revolution,
focusing on the impact of new technologies on our society. In
addition to being distributed in printed format, the editorial
content of Wired magazine is available on the Internet through
HotWired (a cyberstation on the World Wide Web) and elsewhere.
29. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION
("CIEC") is an unincorporated coalition of parents, individuals,
private companies, and non-profit organizations, sharing the
common goals of promoting the continued development of the
Internet as a forum for the free exchange of valuable information
and ideas, and promoting the ability of parents to supervise and
assist their children in the appropriate use of the resources of
this global communications medium, free from improper
governmental censorship. Coordinated by the Center for Democracy
and Technology, the American Library Association, and America
Online, CIEC's members include providers of both Internet content
and access services, as well as public interest organizations.
As users of the Internet, as providers of Internet content and
services, and as organizations that include parents and other
individuals who themselves use the Internet, CIEC's members are
directly subject to or affected by the Act. Among CIEC's current
members -- in addition to the named plaintiffs -- are AMERICAN
ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES, AMERICANS FOR TAX
REFORM, ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF
AMERICAN UNIVERSITY PRESSES, ASSOCIATION OF NATIONAL ADVERTISERS,
ASSOCIATION OF RESEARCH LIBRARIES, CENTER FOR DEMOCRACY AND
TECHNOLOGY, COALITION FOR NETWORKED INFORMATION, MEDIA ACCESS
PROJECT, MEDIA INSTITUTE, MICROSYSTEMS, INC., NATIONAL
ASSOCIATION OF STATE UNIVERSITIES & LAND-GRANT COLLEGES, PEOPLE
FOR THE AMERICAN WAY, RECORDING INDUSTRY ASSOCIATION OF AMERICA,
SPECIAL LIBRARIES ASSOCIATION, SURFWATCH, INC., and THE
UNIVERSITY OF CALIFORNIA SANTA BARBARA LIBRARY.
30. Defendant UNITED STATES DEPARTMENT OF JUSTICE is a
federal executive agency, authorized to conduct federal criminal
investigations and prosecutions on behalf of the United States
Government throughout the United States. Defendant JANET RENO is
the Attorney General of the United States. She is the chief
executive officer of defendant UNITED STATES DEPARTMENT OF
JUSTICE and is authorized to conduct federal criminal
investigations and prosecutions throughout the United States.
Defendants have responsibility for enforcing the Act, including
initiating criminal prosecutions.
FACTS
Creation of the Internet and the Development of Cyberspace
31. The Internet is not a physical or tangible entity.
It is a giant network which interconnects innumerable smaller
groups of linked computer networks: a network of networks. This
is best understood if one considers what a linked group of
computers -- referred to here as a "network" -- is, and what it
does. Small networks are now ubiquitous (and are often called
"local area networks"). For example, in many United States
Courthouses, computers are linked to each other for the purpose
of exchanging files and messages (and to share equipment such as
printers). These are networks. In the language of the Act,
these networks would each be termed an "interactive computer
service."
32. Some networks are "closed" networks, not linked to
other computers or networks (although the Act still directly
applies to such closed local area networks). Many networks,
however, are connected to other networks, which are in turn
connected to other networks in a manner which permits each
computer in any network to communicate with computers on any
other network in the system. This global web of linked networks
and computers is the Internet.
33. This amalgam of computers and computer networks --
some owned by governmental and public institutions, some owned by
non-profit organizations, and some privately owned -- lacks any
central control or supervision. The resulting whole is a
decentralized, unrestricted global medium of communications -- or
"cyberspace" -- that links individuals, institutions,
corporations, and governments around the world. This
communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange ideas,
research, software, poetry, images, literature, sound, or simple
electronic mail with others on the Internet. These
communications can occur virtually instantaneously, and can be
directed either to specific individuals, to a broader group of
individuals interested in a particular subject, or to the world
as a whole.
34. The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project Agency
("ARPA"). First called ARPANET, the network linked computers and
computer networks owned by the military, defense contractors, and
university laboratories conducting defense-related research. The
network later allowed researchers across the country to access
directly and to use extremely powerful supercomputers located at
a few key universities and laboratories. As it evolved far
beyond its research origins in the United States to encompass
universities, corporations, and individuals around the world, the
ARPANET came to be called the "DARPA Internet," and finally just
the "Internet."
35. From its inception, the network was designed to be
a decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human involvement or
control, and with the automatic ability to re-route
communications if one or more individual links were damaged or
otherwise unavailable. Among other goals, this redundant, self-
healing system of linked computers was designed to allow vital
research and communications to continue even if portions of the
network were damaged.
36. To achieve this resilient nationwide (and
ultimately global) communications medium, the ARPANET encouraged
the creation of multiple links to and from each computer (or
computer network) on the network. Thus, a computer located in
Washington, D.C., might be linked (usually using dedicated
telephone lines) to other computers in neighboring states or on
the Eastern seaboard. Each of those computers would in turn be
linked to numerous other computers, which themselves would be
linked to other computers.
37. A communication sent over this redundant series of
linked computers could travel any of dozens of routes to its
destination. Thus, a message sent from a computer in Washington,
D.C., to a computer in Palo Alto, California, might first be sent
to a computer in Philadelphia, and then be forwarded to a
computer in Pittsburgh, and then to Chicago, Denver, and Salt
Lake City, before finally reaching Palo Alto. If the message
could not travel along that path (because of military attack,
simple technical malfunction, or other reason), the message would
automatically (without human intervention or even knowledge) be
re-routed, perhaps, from Washington, D.C. to Richmond, and then
to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto. This type of transmission, and re-routing,
would likely occur in a matter of seconds.
38. At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar decentralized networks
developed to link universities, research facilities, businesses,
and individuals around the world. These other formal or loose
networks included BITNET, CSNET, FIDONET, and USENET.
Eventually, each of these networks (many of which were
overlapping) were themselves linked together, allowing users of
any computers linked to any one of the networks to transmit
communications to users of computers on other networks. It is
this series of linked networks (themselves linking computers and
computer networks) that is commonly known today as the Internet.
39. No entity -- academic, corporate, governmental, or
non-profit -- controls, governs, or runs the Internet. It exists
and functions solely as a result of the fact that hundreds of
thousands of separate operators of computers and computer
networks independently decided to use a common data transfer
protocol to exchange communications and information with other
computers (which in turn exchange communications and information
with still other computers). There is no centralized storage
location, control point, or communications channel for the
Internet, and it would be impossible for any single entity to
regulate the information conveyed on the Internet.
40. The nature of the Internet is such that it is
impossible to determine its size. However, it is indisputable
that the Internet has experienced extraordinary growth in the
past few years. In 1981, fewer than 300 computers were linked to
the Internet, and by 1989, the number stood at fewer than 90,000
computers. By 1993, however, over 1,000,000 computers were
linked. Today, it is estimated that over 9,400,000 host
computers worldwide are linked to the Internet, and this count
does not include the tens of millions of personal computers used
by individuals to access the Internet using modems (as detailed
below). In all, reasonable estimates are that over 40 million
individuals around the world can and do access the enormously
flexible communication medium of the Internet. That figure is
expected to grow to 200 million Internet users by the year 1999.
How Individuals Access the Internet
41. Individuals have a wide variety of avenues to
access cyberspace in general, and the Internet in particular. In
terms of physical access, there are two common methods to
establish an actual link to the Internet. First, an individual
can use a computer or computer terminal that is directly (and
usually permanently) connected to a computer network that is
itself directly or indirectly connected to the Internet. Second,
an individual can use a "personal computer" with a "modem" to
connect over a telephone line to a larger computer or computer
network that is itself directly or indirectly connected to the
Internet. As detailed below, both direct and modem connections
are made available to individuals by a wide variety of academic,
governmental, or commercial entities.
42. Students, faculty, researchers, and others
affiliated with the vast majority of colleges and universities in
the United States can access the Internet through their
educational institutions. Such access is often via direct
connection using computers located in campus libraries, offices,
or computer centers, or may be through telephone access using a
modem from a student's or professor's campus or off-campus
location. Internet access is considered to be so important to
the modern educational process that many colleges and
universities install "ports" or outlets for direct network
connections in each dormitory room or provide access via
computers located in common areas in dormitories. Such access
enables students and professors to use information and content
provided by the college or university itself, and to use the vast
amount of research resources and other information available on
the Internet worldwide.
43. Similarly, Internet resources and access are
sufficiently important to many corporations and other employers
that those employers link their office computer networks to the
Internet and provide employees with direct or modem access to the
office network (and thus to the Internet). Such access is
especially important, for example, to any corporation involved in
scientific or medical research or manufacturing to enable
corporate employees to exchange information and ideas with
academic researchers in their fields.
44. Individuals who lack access to the Internet
through their schools or employers still have a variety of ways
they can access the Internet. Many communities across the
country have established "free-nets" or community networks to
provide their citizens with a local link to the Internet (and to
provide local-oriented content and discussion groups). The first
such community network, the Cleveland Free-Net Community Computer
System, was established in 1986, and free-nets now exist in
scores of communities as diverse as Richmond, Virginia,
Tallahassee, Florida, Seattle, Washington, and San Diego,
California. Individuals typically can access free-nets at little
or no cost via modem connection or by using computers available
in community buildings. Free-nets are often operated by a local
library, educational institution, or non-profit community group.
45. Individuals can also access the Internet through
many local libraries. Libraries often offer patrons use of
computers that are linked to the Internet. In addition, some
libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet.
Increasingly, patrons are using library services and resources
without ever physically entering the library itself. Such direct
or modem access is typically provided by libraries at no cost to
the individual user.
46. Individuals can also access the Internet by
patronizing an increasing number of storefront "computer coffee
shops," where customers -- while they drink their coffee -- can
use computers provided by the shop to access the Internet. Such
Internet access is typically provided by the shop for a small
hourly fee.
47. Individuals can also access the Internet through
commercial and non-commercial "Internet service providers" that
typically offer modem telephone access to a computer or computer
network linked to the Internet. Many such providers -- including
the members of plaintiff Commercial Internet Exchange Association
-- are commercial entities offering Internet access for a modest
monthly or hourly fee. Some Internet service providers, however,
are non-profit organizations that offer free or very low cost
access to the Internet. For example, the International Internet
Association offers free modem access to the Internet upon
request. Also, an increasing number of trade or other non-profit
associations offer Internet access as a service to members.
48. Another simple and common way that individuals can
access the Internet is through one of the major national
commercial "online services" such as America Online, Apple's
eWorld, CompuServe, the Microsoft Network, or Prodigy. These
online services offer nationwide computer networks (so that
subscribers can dial-in to a local telephone number), and the
services provide extensive and well organized content within
their own proprietary computer networks. In addition to allowing
access to the extensive content available within each online
service, the services also allow subscribers to link to the much
larger resources of the Internet. Full access to the online
service (including access to the Internet) can be obtained for
modest monthly or hourly fees. The major commercial online
services have almost twelve million individual subscribers across
the United States.
49. In addition to using the national commercial
online services, individuals can also access the Internet using
some (but not all) of the thousands of local dial-in computer
services, often called "bulletin board systems" or "BBSs." With
an investment of as little as $2,000.00 and the cost of a
telephone line, individuals, non-profit organizations, advocacy
groups, and businesses can offer their own dial-in computer
"bulletin board" service where friends, members, subscribers, or
customers can exchange ideas and information. BBSs range from
single computers with only one telephone line into the computer
(allowing only one user at a time), to single computers with many
telephone lines into the computer (allowing multiple simultaneous
users), to multiple linked computers each servicing multiple
dial-in telephone lines (allowing multiple simultaneous users).
Some (but not all) of these BBS systems offer direct or indirect
links to the Internet. Some BBS systems charge individuals a
nominal fee for access, while many others are free to the
individual users.
50. Although commercial access to the Internet is
growing rapidly, many individual users of the Internet -- such as
college students and staff -- do not individually pay for access
(except to the extent, for example, the cost of computer services
is a component of college tuition). These and other Internet
users can access the Internet without any requirement that they
provide a credit card or other form of payment.
51. In part because the Internet is an unregulated
"network of networks" with literally millions of access points
and tens of millions of users, individual Internet users often do
not have their own "username" or identification code that would
indicate to others on the Internet the identity of the user.
Many users access the Internet anonymously or through a method
that would not allow for clear identification by a remote content
provider.
Methods to Communicate over the Internet
52. Once an individual has access to the Internet,
there are a wide variety of different methods of communication
and information exchange over the network. These numerous
methods of communication and information retrieval are constantly
evolving and are therefore difficult to categorize concisely.
The most common methods of communications on the Internet (as
well as within the major online services) can be roughly grouped
into six categories: one-to-one messaging (such as "e-mail"),
one-to-many messaging (such as "listserv"), distributed message
databases (such as "USENET newsgroups"), real time communication
(such as "Internet Relay Chat"), real time remote computer
utilization (such as "telnet"), and remote information retrieval
(such as "ftp," "gopher," and the "World Wide Web"). Most of
these methods of communication can be used to transmit text,
data, computer programs, sound, or visual images.
53. One-to-one messaging. The simplest method of
communication on the Internet is via electronic mail, or "e-
mail," the modern equivalent to a first class letter. An
individual can address and transmit a message to one or more
specific other individuals. E-mail on the Internet is not routed
through any central control point, and can take numerous and
varying paths to the recipients. Unlike postal mail, simple e-
mail is not "sealed" or secure, and can be accessed or viewed on
intermediate computers between the sender and recipient (unless
the message is encrypted).
54. One-to-many messaging. The Internet also contains
automatic mailing list services (such as "listserv") that allow
simple and efficient communications about particular subjects of
interest. For example, individuals can subscribe to a "listserv"
mailing list on a particular topic of interest to them. The
individual can submit messages on the topic to the listserv that
are automatically forwarded (via e-mail) to anyone who has
subscribed to the mailing list. A recipient of such a message
can reply to the message and have the reply also distributed to
everyone on the mailing list. This service provides the
capability to keep abreast of developments or events in a
particular subject area. Most listserv-type mailing lists
automatically forward all incoming messages to all mailing list
subscribers. There are thousands of such mailing list services
on the Internet, collectively with hundreds of thousands of
subscribers.
55. Distributed message databases. Similar in
function to listservs -- but quite different in how
communications are transmitted -- are distributed message
databases such as "USENET newsgroups." Like listservs,
newsgroups are open discussions and exchanges on particular
topics. Users, however, need not subscribe to the discussion
mailing list in advance, but can instead access the database at
any time. An individual user can post a message to a newsgroup,
and the message is then automatically forwarded to all other
computers that furnish access to the newsgroups (but not to any
individual users). The messages are temporarily stored on each
receiving computer, where they are available for review and
response. The messages are automatically and periodically purged
from each system to make room for new messages. Responses to
messages -- like the original messages -- are automatically
distributed to all other computers receiving the newsgroup.
There are newsgroups on more than fifteen thousand different
subjects. In 1994, approximately 70,000 messages were posted to
newsgroups each day, and those messages were distributed to the
approximately 190,000 computers or computer networks that
participate in the USENET newsgroup system. Messages posted to
newsgroups are not stored on or channelled through any central
computer or location.
56. Real time communication. In addition to
transmitting messages that can be later read or accessed,
individuals on the Internet can engage in an immediate dialog --
in "real time" -- with other individuals on the Internet. In its
simplest forms, "talk" allows one-to-one communications and
"Internet Relay Chat" allows two or more individuals to type
messages to each other that almost immediately appear on the
other individuals' computer screens. In addition, commercial
online services such as America Online, CompuServe, eWorld, the
Microsoft Network, and Prodigy have their own "chat" systems
allowing their members to converse.
57. Real time remote computer utilization. Another
method to utilize information on the Internet is to access and
control remote computers using "telnet." For example, using
telnet, a researcher at a university would be able to utilize the
computing power of a supercomputer located at a different
university. A student can use telnet to connect to a remote
library to access the library's online card catalog program. Or,
individuals can link via telnet to a computer to interact
directly and communicate with other users linked to the same
computer. Accessing a computer via telnet occurs in "real time,"
and content and communication accessed via telnet is often
created only at the time of the communication.
58. Remote information retrieval. The final major
category of communication may be the most important and well
known use of the Internet -- the search for and retrieval of
information located on remote computers. There are numerous
methods to locate and retrieve information on the Internet. A
simple method uses "ftp" (or file transfer protocol) to list the
names of computer files available on a remote computer, and to
transfer one or more of those files to an individual's local
computer. Another approach uses a program and format named
"gopher" to guide an individual's search through the resources
available on a remote computer. A third approach, and fast
becoming the most well known on the Internet, is the "World Wide
Web." The Web utilizes a "hypertext" formatting language called
hypertext markup language (HTML), and programs that "browse" the
Web can display HTML documents containing text, images, and
sound. Any HTML document can include links to other types of
information or resources, so that while viewing an HTML document
that, for example, describes resources available on the Internet,
an individual can "click" using a computer mouse on the
description of the resource and be immediately connected to the
resource itself. Such "hyperlinks" allow information to be
accessed and organized in very flexible ways, and allow
individuals to locate and efficiently view related information
even if the information is stored on numerous computers all
around the world.
59. With the exception of point-to-point mail, no
information flows through cyberspace to a particular individual
unless the individual requests the information. Listservs,
newsgroups, chat lines, telnet, ftp, gopher and the World Wide
Web all require an affirmative request by the Internet user prior
to the user receiving information over the Internet. Further-
more, when a user makes such an affirmative request it is usually
clear what type of content will be delivered. Thus, unlike radio
or television, there is no significant risk that a user will be
"assaulted" with unsolicited and undesired content.
60. The vast majority of transmissions of content from
specific sites on the Internet are in response to electronic
requests the user could not have anticipated more than a few
seconds or moments before making the request. Because
information is located on millions of computers around the world,
with no central organization or control, a user cannot possibly
know which computers might have useful information until starting
a search. Instead, the user could access any of dozens of
different search databases, obtain a list of sites that might be
of interest, and then immediately link to one or more of the
sites. Indeed, the very theory of "hyperlinks" and the hypertext
markup language (HTML) (the foundation of the World Wide Web) is
that the user can jump from site to site to site without ever
needing to know where physically in the world the next site is
located. Thus, there is no way for a user to pre-register with
every computer that might contain useful content on a particular
topic. Moreover, when an individual is researching a topic on
the Internet, he or she might access dozens of newsgroups, telnet
computers, and ftp, gopher, and Web sites around the world in a
matter of minutes. If a researcher was required to request
access from content providers prior to actually viewing the
information (and prove to the provider that the researcher was
not a minor), the Internet would be transformed from a dynamic
and instantaneous content searching tool into a cumbersome,
multi-step, much slower, and much less useful research tool. The
vibrancy and immediacy that sparked the Internet's recent
extraordinary expansion and development would be lost.
61. The inability to predict where on the Internet a
user would want to access information is not limited to research,
and applies equally to any attempt by a user to access
information on the Internet when the individual does not know in
advance the precise location of that information. There are
millions of computers on the Internet that contain content, and
it would be practically and economically impossible for the tens
of millions of Internet users to pre-register with each of those
millions of content sites, and equally impossible for those
millions of content sites to maintain and instantaneously update
lists of registered users.
62. For both the speaker and the listener,
communications on the Internet bear virtually no similarity to
communications on television and radio. With radio and
television, the number of speakers is limited by the available
spectrum, the ability to speak is limited by the high cost of
speaking, and listeners are merely passive recipients of the
communications. With the Internet, the number of speakers is
boundless, anyone can speak for pennies a day (or for free at his
or her public library), and listeners can respond and engage the
speaker in an interactive and on-going dialogue. Furthermore,
unlike television and radio, on the Internet viewers and
listeners generally receive only the communications they
affirmatively request, and are not a passive or "captive"
audience. Moreover, unlike with television and radio, on the
Internet a speaker can reach the entire world (at no additional
cost) yet at the same time can direct his or her speech to
individuals who share an interest in a particular subject. In
the twenty-first century, the Internet -- if allowed to flourish
unhindered by government censorship -- can revive the now-little-
used public square and convert it into a global medium of
communication and discourse.
Content on the Internet
63. The diversity of content on the Internet is as
broad as the Internet itself. Content can be found on millions
of computers worldwide, and ranges from academic research to art
to humor to literature to medical information to music to news to
virtually anything else. Moreover, at any one time, the Internet
serves as the communication medium for literally tens of
thousands of global conversations, political debates, and social
dialogues. For example, on the Internet, one can view the full
text of the Bible, all of the works of Shakespeare, and numerous
other classic works of literature. One can browse through
paintings from museums around the world, or view in close-up
detail the ceiling of the Sistine Chapel, or see the latest
photographs transmitted by the Jupiter space probe. One can even
hear pieces of music or view clips of movies and videos over the
Internet.
64. There is a significant amount of content on the
Internet that could be considered "indecent" for minors in some
communities in the United States, but which most people would
consider to be extremely valuable and appropriate for adults, and
which, in any event, is constitutionally protected for adults.
Such content includes, for example, great works of art and
literature (containing depictions and descriptions of nudes and
sexual conduct), examples of modern popular culture (containing
popular music, lyrics, movie images, or literature with sexual
content), medical information (containing depictions and
descriptions relating to child birth, sexually transmitted
diseases, and sexually related medical conditions), and
historical and scientific information (containing, for example,
accounts of historic criminal trials or other historical,
sociological, and anthropological works). Such content, and
other content typically provided by non-commercial providers, is
effectively banned by the Act.
65. The fear that some communities in the United
States would conclude that this type of valuable material is
"indecent" for minors is well founded. Communities across the
country have banned or sought to ban classic works of literature,
such as Of Mice and Men by John Steinbeck, As I Lay Dying by
William Faulkner, The Adventures of Huckleberry Finn by Mark
Twain, The Adventures of Tom Sawyer by Mark Twain, Catcher in the
Rye by J.D. Salinger, and I Know Why The Caged Bird Sings by Maya
Angelou, as "indecent" for minors. Even the American Heritage
Dictionary and parts of the Bible have been attacked as being
"indecent" for minors. All of these works (some of which are
available in whole or in part on the Internet), and works with
similar content, are effectively banned by the Act.
66. In addition to the above type of content that is
banned by the Act, a tremendous amount of common human discourse
is banned by the Act. In the course of conversations,
discussions and debates, many citizens use language and imagery
that in some communities would be viewed as "indecent" for
minors. Vigorous and heated debate often occurs with harsh or
vulgar words. Many people, and many speakers on the Internet,
use in common discourse words that describe "sexual or excretory
activities or organs" in terms that might be deemed to be
"patently offensive" for minors. The use of vulgar words in a
dialog with friends -- which would be perfectly legal over the
telephone or in a letter or on a basketball court -- would be
illegal under the Act if sent over the Internet.
67. There are many examples on the Internet of
valuable content that can be displayed only subject to the threat
of criminal liability and prosecution.
68. For example, a content provider would reasonably
fear prosecution under the Act for the unrestricted display of
written descriptions of sexual intercourse.
69. There are available on the Internet important
works of literature that include descriptions of sexual
intercourse.
70. Similarly, a content provider would reasonably
fear prosecution under the Act for the unrestricted display of
images of nude men and/or women.
71. There are available on the Internet numerous
important works of art -- paintings, drawings and photographs by
great masters and modern artists alike -- that depict nude men
and/or women. An example of such a work of art is Manet's
Olympia.
72. Similarly, content providers would reasonably fear
prosecution under the Act for engaging in a vigorous online
debate in which there is repeated use of the "seven dirty words"
at issue in the decision in Federal Communications Commission v.
Pacifica Foundation, 438 U.S. 726 (1978).
73. There are on the Internet -- on a daily basis --
vigorous political, social, and other dialogues and debates that
include unrestricted use of one or more of the "seven dirty
words."
74. Similarly, a content provider would reasonably
fear prosecution under the Act for the display on a World Wide
Web "home page" of vulgar statements of the type at issue in
Cohen v. California, 403 U.S. 15 (1971).
75. The Supreme Court has specifically held that the
use of the vulgar statement in Cohen is protected expression,
even when displayed in public areas when children are present.
76. Similarly, a content provider would reasonably
fear prosecution under the Act for the display of a parody that
makes explicit assertions about the "sexual or excretory
activities or organs" of a well known public figure, as was at
issue in Hustler Magazine v. Falwell, 485 U.S. 46 (1988).
77. The Supreme Court specifically held in Falwell
that a parody that made explicit assertions about the "sexual or
excretory activities or organs" of a well known public figure is
protected expression.
78. Similarly, a content provider would reasonably
fear prosecution under the Act for the unrestricted display of
detailed information concerning birth control and the
transmission of sexually transmitted diseases.
79. The Supreme Court specifically held in Bolger v.
Youngs Drug Products Corp., 463 U.S. 60 (1983), that such
communications are protected expression and can be mailed,
unsolicited, into homes.
80. There is a tremendous amount of valuable content
on the Internet that is constitutionally protected for adults,
but is nevertheless subject to prosecution under the Act.
The Statutory Language At Issue
81. Signed into law on February 8, 1996, the
Communications Decency Act criminalizes the display and
distribution of constitutionally protected expressive material.
82. The Act contains two primary criminal provisions.
Violation of either provision is a felony, punishable by as much
as two years in prison and substantial fines.
83. Section 502(2) of the Act, to be codified at 47
U.S.C. 223(d), broadly prohibits knowingly using any
"interactive computer service" to send to a specific person or
persons under 18 years of age, or to "display," "in a manner
available to" a person under 18, certain "patently offensive"
communications. Section 502(2) provides, in pertinent part:
(d) Whoever--
(1) in interstate or foreign communications
knowingly--
(A) uses an interactive computer service to
send to a specific person or persons under 18
years of age, or
(B) uses any interactive computer service to
display in a manner available to a person under
18 years of age,
any comment, request, suggestion, proposal, image,
or other communication that, in context, depicts or
describes, in terms patently offensive as measured
by contemporary community standards, sexual or
excretory activities or organs, regardless of
whether the user of such service placed the call or
initiated the communication; or
(2) knowingly permits any telecommunications
facility under such person's control to be used for
an activity prohibited by paragraph (1) with the
intent that it be used for such activity,
shall be fined under title 18, United States Code, or
imprisoned not more than two years, or both.
Act 502(2).
84. "Interactive computer service" is defined as "any
information service, system, or access software provider that
provides or enables computer access by multiple users to a
computer server, including specifically a service or system that
provides access to the Internet and such systems operated or
services offered by libraries or educational institutions." Act
502(2) (to be codified at 47 U.S.C. 223(h)(2)) referring to
Act 509 (to be codified at 47 U.S.C. 230(e)(2)).
85. The terms "patently offensive," "contemporary
community standards," and "display" are nowhere defined in the
Act.
86. Another section of the Act, Section 502(1), to be
codified at 47 U.S.C. 223(a)(1)(B), prohibits and criminalizes
the use of a "telecommunications device" knowingly to make or
create and "initiate[] the transmission of, any comment, request,
suggestion, proposal, image, or other communication which is
. . . indecent, knowing that the recipient of the communication
is under 18 years of age." Another provision of the same section
makes it a crime to "knowingly permit[] any telecommunications
facility under [a person's] control to be used for any activity
prohibited by paragraph (1) with the intent that it be used for
such activity." Act 502(1) (to be codified at 47 U.S.C.
223(a)(2)).
87. "Telecommunications device" is defined to exclude
an "interactive computer service." Act 502(2) (to be codified
at 47 U.S.C. 223(h)(1)(B)).
88. The term "indecent" is not defined.
89. The Act establishes several defenses a defendant
may assert in a criminal prosecution under the Act. First, no
person shall be held to have violated subsection (a) or (d)
solely for providing access or connection to or from a
facility, system, or network not under that person's
control, including transmission, downloading,
intermediate storage, access software, or other related
capabilities that are incidental to providing such
access or connection that does not include the creation
of the content of the communication.
Act 502(2) (to be codified at 47 U.S.C. 223(e)(1)).
90. The phrase "not under that person's control" is
nowhere defined in the Act.
91. This defense is not available "to a person who is
a conspirator with an entity actively involved in the creation or
knowing distribution of communications that violate this section,
or who knowingly advertises the availability of such
communications." Id. (to be codified at 47 U.S.C. 223(e)(2)).
Nor is this defense available to "a person who provides access or
connection to a facility, system, or network engaged in the
violation . . . that is owned or controlled by such person." Id.
(to be codified at 47 U.S.C. 223(e)(3)). The level or nature
of control is not defined.
92. In addition, the Act provides a defense to a
criminal prosecution under (a)(1)(B) or (d), or under (a)(2) for
use of a facility for an activity under (a)(1)(B), if the
defendant
(A) has taken, in good faith, reasonable, effective,
and appropriate actions under the circumstances to
restrict or prevent access by minors to a communication
specified in such subsections, which may involve any
appropriate measures to restrict minors from such
communications, including any method which is feasible
under available technology; or
(B) has restricted access to such communication by
requiring use of a verified credit card, debit account,
adult access code, or adult personal identification
number.
Id. (to be codified at 47 U.S.C. 223(e)(5)). Congress did not
provide any details as to what might be considered a "good faith,
reasonable, effective, and appropriate action[]." Congress did
allow the Federal Communications Commission ("FCC") to promulgate
nonbinding guidelines as to what might be an "appropriate
action," but it now appears that even those guidelines will not
be issued until sometime in 1997 at the earliest, and compliance
with the guidelines will not insulate speakers from prosecution
or conviction under the Act.
93. Congress made no findings in connection with
enacting Section 502 of the Act. Congress made no findings as to
its purpose or interest in criminalizing online communication of
"indecent" or "patently offensive" materials to, or that would be
available to, persons under age 18. In considering the Act,
Congress made no inquiry into or findings regarding the extent to
which such materials were available to persons under 18.
Congress made no inquiry into or findings whether the means
Congress chose to address whatever interest it had would
substantially further that interest. Congress made no inquiry
into or findings whether any less restrictive means would
substantially further its interest.
94. In another section of the Act, however, Congress
did make the following relevant findings:
(1) The rapidly developing array of Internet and
other interactive computer services available to
individual Americans represent an extraordinary advance
in the availability of educational and informational
resources to our citizens.
(2) These services offer users a great degree of
control over the information that they receive, as well
as the potential for even greater control in the future
as technology develops.
(3) The Internet and other interactive computer
services offer a forum for a true diversity of
political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
activity.
(4) The Internet and other interactive computer
services have flourished, to the benefit of all
Americans, with a minimum of government regulation.
(5) Increasingly Americans are relying on
interactive media for a variety of political,
educational, cultural, and entertainment services.
Act 509 (to be codified at 47 U.S.C. 230(a)) (emphasis
added).
The Impact of the Act on the Internet
95. Because of the realities of the Internet, the Act
effects a total ban on certain constitutionally protected speech
to adults. The Act reduces discourse on major portions of the
Internet to that which is appropriate for a young child.
96. Virtually all of the tens of millions of users of
the Internet -- except those who at all times stand mute in the
discourse that occurs on the Internet -- are content providers
who are subject to the terms of the Act. An individual is a
content provider subject to the Act if he sends a single e-mail,
or participates in a listserv discussion, or contributes to a
USENET newsgroup, or responds to a survey on the World Wide Web,
or establishes a personal "home page" on the Web, or converses
with a friend through a real time service, or simply places a
file in a publicly available area of a computer or network.
97. In other words, virtually any use of the Internet
makes someone a content provider subject to the criminal
penalties of the Act. Commercial content providers -- who
typically require a credit card for users' payment -- may be able
to use the credit card defense allowed by the Act. But for non-
commercial content providers, who are responsible for a major
part of communications on the Internet, there is no practical way
the speaker can control who can access the message. Thus, for
the vast majority of speech on the Internet, it is impossible for
the speaker to prevent the speech from being "display[ed] in a
manner available" to a person under 18. Act 502(2).
98. Because of this impossibility, Section 502(2) of
the Act effectively requires that almost all discourse on the
Internet be at a level suitable for young children. This
provision has the effect of a flat ban on an entire category of
constitutionally protected speech between adults.
99. As used by millions of people daily, the primary
methods to access information on the Internet do not permit
individual or non-commercial content providers to control who on
the Internet can access their content. From the perspective of
the content provider, information that is publicly available on
the Internet is available to all users of the Internet, even
users who might be minors.
100. None of the major methods of accessing
information -- including electronic mail, listservs, newsgroups,
chat lines, telnet, ftp, gopher, and the World Wide Web -- has
the ability to track the millions of individuals who access the
Internet and screen out those who are under eighteen years of
age. Although password-required access to content is possible
(and is used in some circumstances), a password-access system
would effectively remove from public access an enormous volume of
valuable content on the Internet, and would reduce the
information available to adults on the Internet to only content
deemed suitable for minors.
101. The vast majority of content providers on the
Internet are individuals who post messages to newsgroups and
listservs, and who create content on the World Wide Web. Those
individual content providers could not possibly create and
maintain a database of specific Internet users who request access
to the content and who prove they are 18 or older. Nor could
individuals or other non-commercial content providers practically
administer or economically afford an instantaneous credit card
verification system. Such a requirement would effectively
preclude any communications by those content providers that could
be deemed "indecent" or "patently offensive" for minors.
102. Even larger organizations that provide content on
the Internet cannot practically or economically track the
millions of Internet users to determine whether those users are
minors or adults.
103. Moreover, even if pre-registration by content
users were practically or economically possible, the value of the
content would be dramatically diminished because so few content
users would anticipate the need to pre-register for a particular
site. A huge percentage of Internet traffic is by users engaged
in spontaneous and unpredictable research or searches for
content, and a pre-registration requirement would effectively end
this type of search.
104. As described above, the World Wide Web is a
spontaneous and serendipitous communications medium, in which a
user can jump from site to site to site depending on what content
looks most useful or interesting, without any pre-registration or
advance request. Requiring pre-registration for all sites that
might contain content arguably covered by the Act (if such pre-
registration were practically possible) would drastically reduce
the usefulness of the World Wide Web.
105. For other methods of providing content on the
Internet, it is flatly impossible for a content provider to
control who can access the content. With USENET newsgroups, for
example, once a content provider posts a message to a newsgroup,
that message is automatically distributed to over 190,000
computers around the world, and the individual content provider
has no ability whatsoever to control who is permitted to access
the content on those 190,000 computers. Under the Act, all
content posted to USENET newsgroups must be reduced to a level
appropriate for young children. Similarly, Internet mailing list
services such as "listserv" also do not allow the speaker to
control who receives the communication, and thus speech via a
mailing list service would also be reduced to the level
appropriate for young children.
Ineffectiveness of the Act and Effectiveness of Alternative Means
106. The overwhelming majority of content on the
Internet is non-sexual in nature, and is not even arguably
"indecent" or "patently offensive," even for minors. However, a
significant amount of the content on the Internet could arguably
be deemed "indecent" or "patently offensive" for minors in some
communities, and the Act bans or burdens all of that content.
107. Although imposing extreme burdens on the
Internet, the Act will in fact have very little impact on the
availability to persons under 18 of "indecent" or "patently
offensive" images or communications on the Internet. At least in
part because Congress held no hearings on the Act, did not
collect information about how the Internet works, and only
haphazardly reviewed the content on the Internet, the Act does
not accomplish or even significantly further the ostensible goal
of limiting access by persons under 18 to "indecent" or "patently
offensive" images. There are at least two reasons why
implementation of the Act will be highly ineffective as a
limitation on such access.
108. First, a high percentage of sexual content on the
Internet originates outside of the United States, and it is not
possible to prevent that content from being "available" in the
United States. To the extent the Act imposes any burdens on
domestic commercial providers of such communications, those
providers will have the option of moving their operations
overseas.
109. Second, the existence of "anonymous remailers"
means that any content -- indecent or otherwise -- can be placed
onto the Internet anonymously, and the government would be unable
to identify the content provider. Anonymous remailer systems --
which often are located overseas -- will automatically receive a
communication and forward it to a destination after having
removed all trace of the origin of the communication.
110. At bottom, therefore, the Act does little to
limit the ability of commercial or non-commercial entities to
provide "indecent" or "patently offensive" images on the
Internet.
111. A critical difference between the Act's attempt
to regulate indecency on the Internet and prior governmental
attempts to regulate indecency (over radio, television, and
telephone sex lines, for example) is that there are tens of
millions of speakers on the Internet, with no bottleneck through
which all of the speech must pass.
112. There are alternative means that are far more
effective in limiting a minor's access to "indecent" or "patently
offensive" communications. The only place where it is
practically possible to screen out commercial indecency, non-
commercial indecency, domestic indecency, overseas indecency,
intentional indecency, inadvertent indecency, and anonymous
indecency is in the computer that is attempting to receive the
speech.
113. The government's legitimate interest in aiding
parental control over the Internet material their children access
may be served by several means that are both less restrictive and
more effective than a blanket ban on "indecent" or "patently
offensive" communications. Parents have control over their
children's access to communications through interactive computer
services. For example, parents can deny their child access to
the computer; parents can supervise their child's use of
interactive computer services; parents can decline to subscribe
to interactive computer services until their child is older;
parents can take advantage of the free screening and blocking
options available at no extra charge from commercial online
services; and parents can obtain software (some of it free, and
most of it for a very modest cost) for their home computers to
screen material they find objectionable.
114. Commercial online services such as America
Online, CompuServe, the Microsoft Network, and Prodigy offer
technologies that allow parents to block their children's access
to certain online forums and areas where children might be
exposed to inappropriate content. These online services, for
example, include a feature that allows parents to prevent their
children from accessing interactive discussion forums (chat
rooms). They also offer parents the ability to block access to
all or portions of the Internet, including the World Wide Web and
USENET newsgroups, based on keywords, subject matter, or specific
newsgroups. These tools can be configured to block access to
groups based on any keyword.
115. In addition, a variety of software providers have
developed applications to use in conjunction with commercial
online services, over and above the parental control features
provided by commercial services, while others are designed
specifically for direct access. SurfWatch, for example, allows
parents to block their child's access to USENET newsgroups, World
Wide Web, gopher, and ftp sites with sexually explicit content.
When activated with a private password held only by a parent,
SurfWatch completely prevents any user from accessing these
areas. The service automatically updates the list of blocked
sites, without any intervention required from the user. NET
NANNY, another example, contains a dictionary in which the parent
can enter the names of sites that contain sexually explicit or
other material. Parents may also enter phrases which if
transmitted or received will automatically disconnect the
network. Among other things, the program also keeps a log of all
activity that occurs on the computer, allowing parents to monitor
their children's use of the computer.
116. Products such as the Netscape Proxy Server and
WEBTrack provide schools and businesses the ability to block
specific sites from access by all users on the network, and to
track and monitor use of the Internet.
117. Because the Internet is a global network with
millions of users, speaker-based content restrictions cannot
effectively control the availability of materials inappropriate
for children. The only effective way to protect children from
inappropriate material on the Internet is to encourage the
continued development and deployment of user-based tools that
empower parents to control their children's online activities
based on the parents' views of what is appropriate for their
children. The products described here, and others like them,
provide parents these tools, and can do so without the need for
criminalizing or banning the distribution to adults of
constitutionally protected communications.
Speech of the Plaintiffs and the Impact of the Act
118. The plaintiffs (and the plaintiffs' members,
subscribers, patrons, and customers) interact with and use the
Internet, and cyberspace generally, in a wide variety of ways,
and they are burdened by the Act in an equally wide variety of
ways. Plaintiffs include content providers on the Internet,
access providers to the Internet, and users of the content on the
Internet. The Act burdens plaintiffs in all of these capacities.
119. Plaintiffs who are content providers (or whose
members or customers are content providers) are expressly subject
to the Act. Under the Act, anyone who speaks on the Internet is
a content provider. These plaintiffs do not understand what
standard for indecency should be used under the Act, how the
standard applies to the plaintiffs' speech, or how numerous other
provisions of the Act are to be understood and applied. These
plaintiffs provide content that would likely or possibly be found
to be indecent as to a young child in some communities.
Accordingly, they are subject to prosecution under the Act.
These plaintiffs will either self-censor their speech or will
continue to speak under the threat of prosecution.
120. Plaintiffs who are, or whose members are, access
providers (including "Internet service providers" or "ISPs") are
expressly subject to the Act. As access providers these
plaintiffs enable their customers and users to use plaintiffs'
facilities to link to the Internet. Although the Act provides
defenses for access providers, access providers reasonably fear
that these defenses will not be construed and applied as broadly
as Congress intended, and they therefore fear they may be
directly subject to prosecution under the Act. These plaintiffs
will continue to provide access under the threat of prosecution.
121. All plaintiffs (and their members and customers)
are users of the Internet. These plaintiffs and other users have
a right to engage in ordinary human discourse free from the
threat of prosecution created by the Act. In particular, these
plaintiffs and other users have a right to receive content that
is criminalized under the Act.
122. Plaintiffs AMERICAN LIBRARY ASSOCIATION ("ALA")
and FREEDOM TO READ FOUNDATION ("FTRF") sue on behalf of
themselves, their members, who are libraries and librarians
across the country, and their members' patrons. These libraries
recognize that the Internet offers their patrons a unique
opportunity to access information, and many libraries provide
their patrons with facilities the patrons can use to access the
Internet. Many libraries also have their own World Wide Web
sites on the Internet. Thus, in addition to providing patrons
with access to the Internet, where they can access information
posted by third parties, libraries post their own material on the
Internet. Many libraries post their card catalogues, post
information about current events, sponsor chat groups, post
textual information or art on the library Web site, or post
licensed online versions of reference and other materials from
their library collections. Patrons could, for example, access
the Web site of a library anywhere in the country to peruse its
card catalogue, review an encyclopedia reference, or check a
definition in the dictionary. These libraries and librarians are
injured by the Act. Because of fear of prosecution, they will be
chilled from posting materials on the Internet that might be
deemed "patently offensive" or "indecent" for minors by some
communities. Given the global and unrestricted nature of the
Internet, the lack of precision in the definition of "indecency,"
and the past attempts by some persons to ban literature and
reference items from library collections, many of ALA's and
FTRF's members may choose not to post a substantial amount of
expressive material at all -- material that many adults might
consider useful for themselves or their own children -- rather
than risk prosecution for posting material that someone in some
other part of the nation might deem "indecent" or "patently
offensive" for minors. As a result of the Act, the library
patrons ALA and FTRF members serve will be limited in the
constitutionally protected information that would otherwise be
available to them on the Internet. These plaintiffs (and their
members) sue in their capacity as content providers, access
providers, and users of the Internet, and on behalf of their
patrons who are content providers and users of interactive
computer services.
123. Plaintiffs AOL, COMPUSERVE, MSN, and PRODIGY sue
on their own behalf and on behalf of their subscribers. As
online service providers, these plaintiffs are content providers
and access providers, and their customers are content providers
and users of the Internet. These plaintiffs create content and
make it available both to their customers and to the entire world
of Internet users. They also allow their customers to create
content on the Internet (including the creation of personal Web
pages). As speakers, these plaintiffs and their customers are
chilled by the Act in what they can say on the Internet and on
their own online services. As access providers, these plaintiffs
fear they may be at risk of prosecution under the Act for what
others say. And as users, these plaintiffs and their customers
are limited by the Act to the ability to access only content that
is suitable for a young child.
124. Plaintiff MICROSOFT CORPORATION ("Microsoft")
sues on its own behalf as a content provider, access software
provider, and user of the Internet. Microsoft provides content
on the Internet through MSN, on its own Web sites, and through
postings, messages, and other contributions to the Internet.
Microsoft's diverse content includes compilations of musical,
artistic, literary and encyclopedic information, news and current
events, and other content. Some of this content might be
considered "indecent" or "patently offensive" in some community
in the nation, exposing Microsoft to the risk of prosecution
under the Act. As an access software provider, Microsoft sells
or plans to sell software for accessing and exploring the
Internet, for establishing and maintaining Internet servers and
related services, and for creating Web sites and other Internet
content. As users, Microsoft and its employees are chilled in
what they can say and the frankness of their discussion in
communications posted to or transmitted over the Internet, and
are exposed to a risk of prosecution under the Act. Microsoft
believes that the defenses provided in Section 502(2) of the Act
are provided only to access providers, not to content providers
and/or users, and that as to access providers, including access
software providers, they are inadequate, incomplete, and expose
Microsoft to potential prosecution under the Act. In addition,
the chilling effect of the Act on other content providers and
users of the Internet will damage Microsoft by reducing the
market for access software, services software, and content-
creation software.
125. Plaintiff APPLE COMPUTER, INC. ("Apple") sues on
its own behalf as a content provider, access software provider
and user of the Internet. Apple provides content on the Internet
through eWorld, on its own Web sites, and through postings,
messages and other contributions to the Internet. Because of the
vagueness of the Act, Apple is uncertain whether some of this
content might be considered "indecent" or "patently offensive" in
some community in the nation, exposing Apple to the risk of
prosecution under the Act. As users, Apple and its employees are
chilled in what they can say and the frankness of their
discussion in communications posted to or transmitted over the
Internet, and are exposed to a risk of prosecution under the Act.
In addition, the chilling effect of the Act on other content
providers and users of the Internet will damage Apple by reducing
the market for Internet software.
126. Plaintiff COMMERCIAL INTERNET EXCHANGE
ASSOCIATION ("CIX") sues on behalf of its member Internet service
providers ("ISPs") and the customers of their members. CIX
members typically serve as passive carriers who offer access or
transmission, and related incidental capabilities, for the
Internet transmissions of others; as such they are clearly
covered by the defense of 223(e)(1). However, because of
ambiguity in this defense, CIX members who operate news servers
that carry USENET content are uncertain whether they may be held
liable for the content of others that resides temporarily on
members' USENET news servers, and is accessed by users from such
servers. In addition, many CIX members also assist content
providers in establishing and operating Web sites. In this
capacity CIX members will often be at risk of prosecution under
the Act for what others say. Due to fear of prosecution, CIX
members are chilled from assisting providers of valuable content
that may be deemed indecent. Furthermore, CIX members have a
strong interest in the continued growth of the Internet as a
means of communication, and in their subscribers' rights to free
expression over the Internet. The Act undermines both interests.
127. Plaintiff NETCOM ON-LINE COMMUNICATION SERVICES,
INC. ("NETCOM") sues on its own behalf and on behalf of its
subscribers. As a provider of Internet access and services,
NETCOM is both a content provider and an access provider.
NETCOM's individual subscribers create content on the Internet,
such as through the posting of personal web pages, and make that
content available both to their own customers and to the entire
world of Internet users. As speakers, NETCOM and its subscribers
are chilled in what they can say on the Internet and on their own
Internet sites. As an access provider, NETCOM cannot control
what others say, yet faces the risk of prosecution under the Act
for the speech of others made available through its systems. As
users of the Internet, NETCOM and its subscribers are limited by
the Act to accessing and producing only content that is suitable
for a young child.
128. Plaintiff OPNET, INC. ("OpNet") sues on its own
behalf and on behalf of its subscribers. As a provider of
Internet access and services to subscribers, OpNet faces
uncertainty as to the applicability of the Act's defenses. OpNet
also fears that it will be construed to have liability for
content posted by third parties through its systems.
129. Plaintiff INTERACTIVE SERVICES ASSOCIATION
("ISA") sues on behalf of its members, who include the major
commercial online services, and other content providers, access
providers, and users of the Internet. As with the online
services, ISA's members risk prosecution for engaging in, or
serving as a conduit for, constitutionally protected speech that
might be deemed indecent. Accordingly, the Act will chill ISA
members from exercising their First Amendment rights.
130. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS
("AAP") sues on behalf of its members, who are content providers
on, and users of, the Internet. Although rooted in print
publishing, AAP's members are very actively involved in the
Internet. AAP's members create electronic products to accompany
and supplement their printed books and journals; create custom
educational material on the Internet, publishing on and to
demand; communicate with authors and others, receiving
manuscripts, and editing, typesetting, and designing books
electronically; transmit finished product to licensed end-user
customers; communicate with bookstores and other wholesale and
retail accounts; and promote authors and titles online. Many of
AAP's members have Web sites and provide content to the world on
the Internet. Some of the content provided by AAP's members
might be considered "indecent" or "patently offensive" for minors
in some communities (as most of the efforts to ban books in
communities have been directed at books published by AAP's
members).
131. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS
("ASNE") sues on behalf of its members, who are editors of daily
newspapers throughout the United States that, in addition to
publications in print form, are now or soon will be published in
electronic formats available to the public on the Internet or
through online service providers. Historically, the First
Amendment guarantee of "freedom of the press" has protected
newspapers from government-imposed content restrictions which,
like those in the Act, prohibit and punish the dissemination of
materials considered "indecent" or "patently offensive" with
respect to non-adult readers. By its terms, however, the Act can
be applied to the press in the same manner that it can be applied
to any other person. ASNE members, who make the editorial
decisions regarding what content will be published in the daily
editions of their newspapers, are concerned that the Act will
require them to censor the online version of their print editions
according to these vague and overbroad statutory standards,
thereby restricting the content of the "electronic" edition of
the daily newspaper in ways that the First Amendment does not
tolerate with respect to the traditional hard-copy print edition.
For this reason, ASNE believes the Act imposes an unprecedented
but very real threat of unconstitutional press censorship which
could throttle the Internet's potential to greatly enhance the
diversity, availability, timeliness, quality, and utility of
daily newspapers by creating a powerful disincentive for
publication through the use of interactive media technologies.
132. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA
("NAA") files this lawsuit on behalf of its members, a majority
of which are daily newspapers in the United States. Approxi-
mately 175 daily newspapers in North America are currently
available on the Internet, via commercial online services or
through local bulletin board services. As content providers,
newspapers have utilized the Internet to provide electronic
versions of their printed product. In fact, many newspapers
provide archives of their print product online. As access
providers, newspapers have established electronic forums for
local communities to communicate and to conduct business. While
the content in newspapers is considered neither indecent nor
patently offensive when published on newsprint, it now may be
when published electronically. The dual standard imposed by the
Act will force newspapers to edit out content from publications
offered on the Internet -- content that is constitutionally
protected and not subject to challenge in printed form. In many
cases, newspaper publishers will be forced to edit content
contained in the archived electronic version of the newspaper
already placed on the Internet long before the Act went into
effect. Thus, the Act will seriously infringe upon the rights of
NAA members to publish constitutionally protected news and
information.
133. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS ("APEW") sues on behalf of its members, who write and
publish in print and online. Members of APEW include the San
Francisco Guardian, the largest and oldest independently owned
alternative newsweekly in the United States; the Internet Press
Guild, an unincorporated association of writers, authors and
journalists who publish their works online; the California First
Amendment Coalition, a nonprofit, public interest corporation
whose membership comprises approximately 700 individuals and
organizations, including most of California's daily newspapers,
many weekly and student newspapers, broadcasters, law firms and
others; and individual writers and editors including Jim Warren,
a columnist and advocate for open government, and owner and
editor of the listserv GovAccess; Professor David Farber of the
University of Pennsylvania; John Quarterman, a columnist and
Secretary of Matrix Information and Directory Services, Inc.; T.
Bruce Tober, a freelance writer who researches and writes about
the Internet for a variety of print and online publications;
Stephanie Stefanac, Editor of MacWorld Online, a monthly trade
publication for users of the Macintosh computer manufactured by
Apple Computer Co.; and Rogier van Bakel, a Contributing Editor
to Wired Magazine. The members of APEW face criminal
prosecutions under the Act for the online publication of works
which some communities might find "indecent" or "patently
offensive." The vagueness of the Act leaves APEW members
uncertain whether the publication of their works over the
Internet would be a crime.
134. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS
sues on its own behalf and on behalf of its members. The
Society's membership produces a tremendous volume of content made
available over the Internet: news stories, special interest
articles, columns, and opinion pieces, among many others. Each
year brings a dramatic increase in the importance of electronic
media as a venue for distributing the news and opinion pieces
produced by professional journalists. The members of the Society
fear that their right and ability, traditionally protected by the
First Amendment, to engage in an unfettered marketplace of ideas
and expression will be severely compromised by the Communications
Decency Act. In addition, the Society operates a listserve
called "SPJ-L," a forum among more than 1,000 Internet users
(both Society members and non-members) from roughly 25 countries
to discuss and debate primarily journalism-related issues.
Though, or perhaps because, it typically addresses topics of the
utmost seriousness and importance for journalists, the language
used in messages posted on SPJ-L can be offensive, harsh, and
vulgar. The Society does not edit these messages for content.
By continuing to provide this forum for discussion and debate,
the Society risks prosecution under the Act. Its members, whose
writings and other speech would be protected by the First
Amendment in the context of other media, will be chilled by the
Act from engaging in constitutionally protected speech over the
Internet.
135. Plaintiff HOTWIRED VENTURES LLC ("HotWired
Ventures") sues on its own behalf and on behalf of its
subscribers. HotWired Ventures operates an online magazine named
Hotwired. Some of HotWired's editorial content might be
considered "indecent" or "patently offensive" for minors in some
communities. HotWired features articles containing facts about
and opinions on popular culture. These articles sometimes
contain vulgar language and references to, inter alia, sexual
acts and sexual organs. One area of HotWired's editorial focus
is cyberspace-related issues, including governmental attempts to
censor and regulate the Internet. These articles sometimes
employ vulgar language in expressing opinions about this topic,
and may contain references to, and discussions of, examples of
material that might be deemed "patently offensive" or "indecent"
under the Act. In addition, HotWired operates a regular section
called Piazza, an interactive discussion area where members can
communicate with each other both through asynchronous postings
called "threads" and in real time "chat rooms," sharing opinions
and engaging in outspoken discourse which can involve vulgar
language and may involve sexually explicit subject matter.
Plaintiff WIRED VENTURES, LTD. ("Wired Ventures") sues on its own
behalf and on behalf of its subscribers. Wired Ventures
publishes Wired Magazine, a print publication. Like HotWired,
Wired publishes articles and short fiction that sometimes contain
vulgar language and references to sexual acts or sexual organs.
Many articles published in Wired are also published online by
HotWired. Thus, some articles that are perfectly legal for
minors or adults in print form are nevertheless banned from the
Internet. The Act creates the anomalous situation that a
publication that is a leading commentator on issues and events
online may not under the Act be able to publish online articles
about the Internet that can be published in print. HotWired
Ventures and Wired Ventures believe that the Act would severely
infringe their right to publish constitutionally protected
material and their readers' right to choose to read such
material.
136. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION
("ABA") sues on behalf of its member bookstores (as content
providers and users) and their patrons (as users of the
Internet). Although ABA's members are not "adult bookstores,"
many of ABA's members sell materials that deal frankly with the
subject of human sexuality. Some member bookstores have their
own Web pages that discuss the content of books the stores sell.
Most member bookstores use the Internet and electronic
communications to obtain information and excerpts of books from
publishers. ABA members' right to learn about, acquire, and
distribute constitutionally protected materials, and their
patrons' right to purchase such constitutionally protected
materials, will be seriously infringed by the Act.
137. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP
("FAIC") is a national organization of parents dedicated to the
proposition that they, not the government, should decide what
their children should be able see or receive. FAIC sues on
behalf of its members. As parents, FAIC's members are deprived
of the opportunity to raise their children as they see fit. As
users of the Internet, the Act violates FAIC's members' rights to
receive material suitable for adults.
138. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION
("CIEC") sues on behalf of its members as content providers,
access providers, and users of the Internet. In particular, CIEC
and its members are injured because the Act deprives parents of
the ability to determine the content their children, including
older teenagers, should have access to on the Internet.
139. Notwithstanding the defenses set forth in the
Act, and the fact that Congress expressly directed courts to
construe those defenses broadly, plaintiffs reasonably fear
prosecution under 47 U.S.C. 223(d)(1)(B), as enacted by Section
502(2), for knowingly permitting their services or computers to
be used to display indecent material in a manner available to
persons under age 18, or to transmit such material to specific
persons under age 18. Unless and until the defendants or the
Courts make clear that these defenses must be broadly construed,
there is nothing to prevent an aggressive prosecutor, in a
particularly intolerant community, from bringing a prosecution
and urging that the defenses be construed more narrowly than
plaintiffs believe Congress intended.
140. For these reasons, plaintiffs reasonably fear
that the defense in 47 U.S.C. 223(e)(1) may not protect online
service providers from criminal conviction for indecent
expression by third parties when that expression is located on
the providers' computers (such as when an individual computer
user posts a vulgar message to an online discussion). Plaintiffs
reasonably fear that the defense may apply only to the extent an
online service acts as a mere conduit to enable its subscribers
to gain access to another network.
141. The speech at issue in this case is fully
protected by the First Amendment. "Indecent" speech or "patently
offensive" communications, while considered by some to be
offensive or sexually suggestive, are not obscene. Such speech
can have serious literary, artistic, political or other merit,
and thus has considerable value to adults and to society as a
whole.
142. The Internet, and cyberspace generally, carries a
significant amount of communications, images and text that might
be deemed inappropriate, "indecent" or "patently offensive" for
younger children (for example, in elementary school), but which
would not, under the same community standards, be deemed
inappropriate, "indecent" or "patently offensive" for older
minors (for example, in high school or early college). The Act
makes no distinction between these age groups, and would
criminalize a university professor's distribution -- using the
university's interactive computer service -- of "indecent" but
classic works of literature to a 17-year-old freshman.
143. Dissemination of many of the same communications
whose dissemination via interactive computer services is made
criminal by the Act would not be unlawful if disseminated by
traditional print media (e.g., newspaper or magazine) or by using
the United States mail. Thus, many of the very same
communications the Act makes it unlawful to make available to
minors through interactive computer services can lawfully be made
available through other media, and are, in fact, so available.
144. Any government regulation of "indecent" or
"patently offensive" speech may withstand constitutional scrutiny
only if it both serves a "compelling interest" and is "the least
restrictive means" to advance that interest, and only if the
benefit gained from the Act outweighs the loss of
constitutionally protected rights.
145. The government has no legitimate, much less
"compelling," interest in preventing adults from sending or
receiving "indecent" or "patently offensive" speech. The
government has no legitimate, much less "compelling," interest in
preventing older children from sending or receiving speech that
would only be deemed "indecent" or "patently offensive" if
communicated to younger children.
146. One legitimate interest the government does have
-- and the only interest articulated in the Act ( 509, to be
codified at 47 U.S.C. 230) -- is to assist parents in
supervising their children's access to expressive materials. The
Act does not, however, further that interest. Indeed, the Act
interferes with that interest because parents who decide their
children, whether 7 or 17, should have access to some materials
that some community might deem "indecent" or "patently offensive"
for those children are prevented from exercising their parental
judgment by the Act's blanket prohibition on all access by all
persons under 18 to all such materials.
147. Even if the government had a legitimate interest,
more broadly, in preventing interactive computer service access
by all persons under 18 to communications that some community
might deem "indecent" or "patently offensive" to them, the Act
would not materially further that interest. Among other things,
communications of foreign origin are freely accessible on the
Internet, and the United States government has no means to
prosecute foreign content-providers for violation of the Act, or
to deter such postings. Furthermore, existing statutes and other
provisions in the Act already prohibit the use of computers to
disseminate obscenity, child pornography, harassing speech,
enticing or luring minors into inappropriate activities, and
other speech that is not protected even for adults.
148. Even if the Act could be viewed as substantially
furthering a compelling governmental interest in protecting
minors from "indecent" or "patently offensive" communications, it
is not the least restrictive means of achieving that interest.
The screening and blocking tools described above achieve that
interest far more effectively than does the Act itself, and with
no adverse impact on the constitutional rights of adults.
Efforts by government to spur the further development of such
tools would further the claimed governmental interest more
directly and materially than does the Act.
149. Even if the Act could be viewed as the least
restrictive means to further a compelling governmental interest
in protecting minors from "indecent" or "patently offensive"
communications, any benefit gained from the Act would be far
outweighed by the loss of constitutionally protected rights of
adults, because only some applications of the Act will in fact
protect minors, but every application of the Act will punish or
deter speech that is constitutionally protected for adults.
CAUSES OF ACTION
COUNT 1
150. Plaintiffs repeat and reallege paragraphs 1-149.
151. With respect to constitutionally protected
communications which might be deemed "indecent" or "patently
offensive" for persons under 18, the Act, in plain terms and
practical effect, bans a substantial amount of speech by and to
adults, including speech by and to plaintiffs, their members, and
their subscribers, patrons and customers, in violation of the
First Amendment of the United States Constitution.
COUNT 2
152. Plaintiffs repeat and reallege paragraphs 1-149.
153. With respect to constitutionally protected
communications which might be deemed "indecent" or "patently
offensive" for persons under 18, the Act, in plain terms and
practical effect, unduly burdens and deters a substantial amount
of speech by and to adults, including speech by and to
plaintiffs, their members, and their subscribers, patrons, and
customers, in violation of the First Amendment of the United
States Constitution.
COUNT 3
154. Plaintiffs repeat and reallege paragraphs 1-149.
155. Sections 502(1) and 502(2) of the Act unduly
chill and compel self-censorship of constitutionally protected
speech of plaintiffs, their members, and their subscribers,
patrons, and customers, in violation of the First Amendment of
the United States Constitution.
COUNT 4
156. Plaintiffs repeat and reallege paragraphs 1-149.
157. Section 502(2) of the Act, 47 U.S.C. 223(d), is
fatally overbroad. In particular, it bans, burdens, and
criminalizes speech that is constitutionally protected for
adults, and for older minors, restricting both adults and 17
year-olds to communications appropriate for 7 year olds. And it
bans, burdens, and criminalizes a much broader range of
constitutionally protected expression than is constitutionally
permissible. Accordingly, the provision violates the First
Amendment.
COUNT 5
158. Plaintiffs repeat and reallege paragraphs 1-149.
159. Any blocking system to be imposed by the content
provider/speaker would require advance identification of those
seeking access to a particular Web site, chat room, discussion
group, or other online forum that might potentially contain
communications that could be deemed "indecent" or "patently
offensive" to persons under 18. See 47 U.S.C. 223(e)(5)(B).
A requirement of advance identification would make it impossible
for users to engage in constitutionally protected anonymous
speech on matters of public and private importance. For many
users, such anonymity is critical to their participation in the
speech.
160. For such users, the Act will require them to
choose between anonymity and losing access to such
communications. As a result, in many cases, their First
Amendment rights to read and view constitutionally protected text
and images will be infringed.
161. Section 502(2) accordingly violates the First
Amendment.
COUNT 6
162. Plaintiffs repeat and reallege paragraphs 1-149.
163. Plaintiffs are unable to determine with
reasonable certainty which constitutionally protected expression
Congress sought to proscribe in 223(a)(1)(B) and (d). In
particular, the terms "indecent" and "patently offensive as
measured by contemporary community standards" are entirely
subjective; as a matter of law depend on the context in which the
communications arise; are undefined and undefinable in the
cyberspace context; have entirely different meanings depending
upon the age of the recipient even though the Act treats all
minors of all ages the same; and give no indication as to which
community governs the inquiry. In these, and other ways, the Act
does not put reasonable persons on notice of what communications
are prohibited. As a consequence, plaintiffs, their members, and
subscribers, patrons, and customers are forced to guess at which
speech on interactive computer services may give rise to criminal
prosecution.
164. The vagueness of the terms "indecent" and
"patently offensive as measured by contemporary community
standards," and of other provisions of the Act, and the draconian
penalties for a wrong guess, will force plaintiffs, their
members, and their subscribers, patrons, and customers, and
substantial numbers of other providers of content to the
Internet, to self-censor far more speech than would in fact be
prohibited in order to comply with their understanding of the
Act's requirements, or to avoid potential criminal prosecution,
and will thus chill constitutionally protected expression.
165. The vagueness of the terms "indecent" and
"patently offensive as measured by contemporary community
standards," and of other provisions of the Act, invites arbitrary
enforcement.
166. The Act is, accordingly, so vague as to violate
the First and Fifth Amendments.
COUNT 7
167. Plaintiffs repeat and reallege paragraphs 1-149.
168. Plaintiffs reasonably fear that the defenses
under the Act will not be construed as broadly as Congress
intended, and will therefore subject their dissemination or
facilitation of constitutionally protected speech to criminal
prosecution and conviction in several significant contexts.
169. The "good faith defense," which is the only
defense even arguably available to non-commercial content-
providers, gives insufficient guidance to content-providers as to
whether their dissemination of constitutionally protected speech
is prohibited. Plaintiff content-providers have no means of
ascertaining whether a jury will determine that they have taken
"reasonable, effective, and appropriate actions under the
circumstances" to restrict minors' access to material that is
"indecent" or "patently offensive as measured by contemporary
community standards." Act 502(2), to be codified at 47 U.S.C.
223(e)(5)(A).
170. Similarly, service providers who host Web sites
or other online sites, without controlling content, but on whose
facilities others' communications reside, reasonably fear an
aggressive prosecutor will argue, contrary to plaintiffs'
understanding of Congressional intent, that such actions will
constitute a "display" of such communications under
223(d)(1)(B), and that such services are not protected by the
"access provider" defense, even though the service providers'
role clearly "does not include the creation of the content of the
communication." 223(e)(1).
171. For similar reasons, plaintiffs cannot with
reasonable certainty rely on the access provider defense,
223(e)(1), to exempt access providers' operation of USENET news
servers that automatically store content posted by users, which
remains on their servers for a number of days and is available to
subscribers.
172. For similar reasons, plaintiffs cannot with
reasonable certainty determine whether the defense, 223(e)(1),
applies to ISPs who assist content providers in establishing or
operating Web pages or other online sites, and who, although
having no control of content, might be deemed to be a
"conspirator" under 223(e)(2) if they knowingly arrange for
access to valuable, constitutionally protected material that may
be deemed "indecent."
173. As a consequence, plaintiffs, their members, and
their subscribers, patrons, and customers, are forced to guess at
whether their activities may give rise to criminal prosecution.
174. The uncertainty of how prosecutors or the courts
will construe the defenses, the fact that they are only defenses,
which must be raised and proved after a defendant has already
been subjected to the humiliation, stigma, and expense of a
criminal prosecution, and the draconian penalties for a wrong
guess, will force plaintiffs, their members, and their
subscribers, patrons, and customers, and a substantial number of
other providers of content to the Internet, to self-censor speech
protected by the First Amendment in order to comply with their
understanding of the Act's requirements, or to avoid potential
criminal prosecution, and will thus chill constitutionally
protected expression.
175. The vagueness of these provisions invites
arbitrary enforcement.
176. Sections 502(1) and (2), accordingly, are so
vague as to violate the First and Fifth Amendments.
COUNT 8
177. Plaintiffs repeat and reallege paragraphs 1-149.
178. Sections 502(1) and (2) of the Act violate the
First Amendment rights of plaintiffs, their members, and their
subscribers, patrons, and customers, insofar as they single out
for special bans or burdens speakers engaged in one class of
constitutionally protected speech by one specific medium, and do
not similarly ban or burden speakers engaged in other classes of
speech, or in the same speech via other mediums, without
sufficient justification.
WHEREFORE, plaintiffs respectfully pray that this Court:
A. Declare that Sections 502(1) and (2) of the
Communications Decency Act of 1996, 47 U.S.C. 223(a)(1)(B),
223(a)(2), and 223(d), are unconstitutional;
B. Preliminarily and permanently enjoin defendants
from enforcing those provisions.
C. Award plaintiffs such costs and fees as are allowed
by law; and
D. Grant plaintiffs such other and further relief as
the Court deems just and proper.
Respectfully submitted,
_____________________________
Bruce J. Ennis, Jr.
Donald B. Verrilli, Jr.
Ann M. Kappler
John B. Morris, Jr.
JENNER & BLOCK
601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6000
____________________________
Ronald P. Schiller
(Atty ID 41357)
David L. Weinreb
(Atty ID 75557)
PIPER & MARBURY, L.L.P.
3400 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
(215) 656-3365
COUNSEL FOR ALL PLAINTIFFS
Ellen M. Kirsh
William W. Burrington
America Online, Inc.
COUNSEL FOR AMERICA ONLINE,
INC.
Richard M. Schmidt, Jr.
Allan R. Adler
Cohn & Marks
COUNSEL FOR AMERICAN SOCIETY
OF NEWSPAPER EDITORS
Bruce Rich
Weil, Gotschal & Manges
COUNSEL FOR ASSOCIATION OF
AMERICAN PUBLISHERS, INC.
James Wheaton
First Amendment Project
COUNSEL FOR ASSOCIATION OF
PUBLISHERS, EDITORS AND
WRITERS
Jerry Berman
Center for Democracy and
Technology
Elliot M. Mincberg
Jill Lesser
People for the American Way
COUNSEL FOR CITIZENS INTERNET
EMPOWERMENT COALITION
Ronald Plesser
Jim Halpert
Piper & Marbury
COUNSEL FOR COMMERCIAL
INTERNET EXCHANGE ASSOCIATION
Steve Heaton
Compuserve Incorporated
COUNSEL FOR COMPUSERVE
INCORPORATED
Thomas W. Burt
Microsoft Corporation
COUNSEL FOR MICROSOFT
CORPORATION AND MICROSOFT
NETWORK
Melissa A. Burke
Pillsbury, Madison & Sutro
COUNSEL FOR NETCOM ONLINE
COMMUNICATIONS SERVICE, INC.
Rene Milam
Newspaper Association of
America
COUNSEL FOR NEWSPAPER
ASSOCIATION OF AMERICA
Marc Jacobson
Prodigy Services Company
Robert J. Butler
Clifford M. Sloan
Wiley, Rein & Fielding
COUNSEL FOR PRODIGY SERVICES
COMPANY
Bruce W. Sanford
Henry S. Hoberman
Robert D. Lystad
Baker & Hostetler
COUNSEL FOR SOCIETY OF
PROFESSIONAL JOURNALISTS
Michael Traynor
John W. Crittenden
Kathryn M. Wheble
Cooley, Godward, Castro,
Huddleson & Tatum
COUNSEL FOR HOTWIRED VENTURES
LLC AND WIRED VENTURES, LTD.
Dated: February 26, 1996