ALA/CIEC/ACLU response to the NLC Brief
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION
et al., :
:
v. :
:
JANET RENO, Attorney General of :
the United States : No. 96-963
_____________________________________________________________
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION
INC., et al., :
:
v. :
:
UNITED STATES DEP'T OF JUSTICE :
et al. : No. 96-1458
_____________________________________________________________
ALA PLAINTIFFS' RESPONSE TO THE BRIEF AMICUS CURIAE OF
THE NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES, ET AL.
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 ALA PLAINTIFFS
Amici National Law Center for Children and Families, et al. ("NLCCF")
avowedly
played a "central role in the development and passage" of the
Communications Decency Act
("CDA"). NLCCF Mot. for Leave to File at II. It is particularly
significant, therefore, that
amici effectively concede that the challenged provisions are unconstitutional
as written, and
devote much of their 83-page amicus brief to urging the Court to construct
a much different
statute. Their arguments are unpersuasive.
1. Statutory Reconstruction. Like the Government, amici urge
the Court to
interpret the CDA to focus narrowly (if not exclusively) on "pornography."
See, e.g., NLCCF
Br. at 4, 21, 22, 39, 53, 83. As we have shown, this is not a plausible
reading of the CDA's
text and legislative history.[1] Indeed, amici implicitly acknowledge that
the CDA as written
applies to much more than "pornography," and that as written it
would suppress and chill
a great deal of constitutionally protected speech, for amici urge this Court
to engage in "hard
construction work" to save the CDA. NLCCF Br. at 23; see id. at 18
(observing that
"statutory construction can sometimes take on a substantial scope").[2]
The "hard construction work" amici ask this Court to perform
is not the work of
interpreting a statute; it is "constructing" a new regulatory
regime quite different from the
one Congress enacted. For example, although Congress considered and rejected
a "harmful
to minors" standard, see Conf. Rep. at 189, some amici now ask the
court to confine the
CDA to material that is "harmful for minors," see, e.g., NLCCF
Br. at 16; but cf. id. at 73
at 73 (amicus Morality in Media disavowing that standard). And amici spend
many pages
arguing (unsuccessfully) that the CDA should be understood to contain an
implicit "prurient
appeal" element and an implicit "serious value" exemption
-- elements clearly not part of the
FCC standard Congress adopted. See ALCU Resp. to NLCCF at 6-8 (discussing
FCC
precedent on which amici rely).
Amici contend that courts have engaged in similarly ambitious "construction
work."
See NLCCF Br. at 9-10, 18-20, but the cases they cite only reaffirm the
impossibility of a
"saving construction" here. In each of those cases, there was
a principled way to draw a line
between the portion of the statute that was invalid and the portion that
could be "saved" --
whether by reference to the statutory text itself or to rules of constitutional
law established
in prior judicial decisions, or both. Thus, in Hamling v. United States,
418 U.S. 87 (1974),
the Court construed a federal prohibition against mailing "obscene,
lewd, lascivious, indecent,
filthy, or vile" matter narrowly to comport with the obscenity test
laid down in Miller v.
California, 413 U.S. 15 (1973). See also United States v. 12 200-ft. Reels
of Film, 413 U.S.
123, 130 n.7 (1973). Similarly, in United States v. 37 Photographs, 402
U.S. 363 (1971), the
Court construed a statute authorizing forfeiture of obscene materials to
include procedural
safeguards (time limits for access to judicial review) articulated in Freedman
v. Maryland,
380 U.S. 51 (1965) -- and did so only after concluding that the Freedman
time limits were
fully consistent with congressional intent and would not embroil the Court
in "issues of policy
appropriately left to the Congress." 37 Photographs, 402 U.S. at 371-72.
And in Brockett
v. Spokane Arcades, Inc., 472 U.S. 491 (1985), the Court excised a single
overreaching word -
- "lust" -- from an obscenity statute that was otherwise completely
consistent with Miller.
See id. at 505-06.
Amici do not advocate the only "saving construction" these
Supreme Court decisions
arguably do support -- confining the CDA to communications that are obscene
under Miller.
See ALA PH Br. at 51 n.56. They contend, instead, that this Court has a
license to do
whatever "construction work" is necessary to ensure that the CDA
remains in effect as a
sanction for online "pornography." But a "limiting construction"
is appropriate only if the
statute is "subject to," and "readily susceptible of,"
such a construction, New York v. Ferber,
458 U.S. 747, 769 n.24 (1982); Virginia v. American Booksellers Ass'n, 484
U.S. 383, 397
(1988). That is emphatically not the case here.
Amici cannot identify any basis in the CDA's text for their proposed
"construction"
project. The "hard construction work" amici urge would require
this Court to "rewrite [the]
statutory scheme and `create distinctions where none were intended.'"
Consumer Party v.
Davis, 778 F.2d 140, 146-47 (3d Cir. 1985) (citation omitted). See also
Blount v. Rizzi, 400
U.S. 410, 419 (1971). Although child pornography is a recognized juridical
category, see
Ferber, 458 U.S. 747; 18 U.S.C. 2252, "pornography" simpliciter
is not. This Court would
have to invent any such category from whole cloth, and amici themselves
cannot articulate
a coherent formulation for the "narrowing construction" they urge.[3]
Transforming the CDA into a "pornography" statute would
require the Court to
resolve such fundamental questions as how to define "pornography,"
whether to include a
"pandering" element, see NLCCF Br. at 40, 43 n.21, 46 & n.23,
81, and how to frame the
"serious value" exemption which amici describe in only the vaguest
terms, e.g., id. at 16, 51.
But such "issues of policy," 37 Photographs, 402 U.S. at 372,
are for Congress to resolve.
"[D]rawing one or more lines between categories of speech covered by
an overly broad
statute, when Congress has sent inconsistent signals as to where the new
line or lines should
be drawn, involves a . . . serious invasion of the legislative domain."
United States v.
National Treasury Employees Union, 115 S. Ct. 1003, 1019 n.26 (1995) ("NTEU").[4]
This
is not the case in which to invent a new First Amendment category called
"pornography."[5]
Finally, even limiting the CDA to "pornography" would not
save the statute, because
(among other reasons) "pornography" is constitutionally protected
for adults, and the statute
would still operate as a complete ban of such speech for many speakers.
Amici appear to
recognize that the compliance measures they enumerate, see NLCCF Br. 50-51,
are not now
available for noncommercial speakers. Indeed, they ultimately rest on a
plainly incorrect
argument the Government has not endorsed, i.e., that even a ban on online
"pornography"
would be constitutional. See id. at 23; ACLU Resp. to NLCCF 1-5. In short,
this Court
should reject amici's request to "redraft the statute," NTEU,
115 S. Ct. at 1003.
2. Least Restrictive Means. Amici misinterpret the "least
restrictive means" prong
of the strict scrutiny standard and, in so doing, misstate plaintiffs' position.
NLCCF Br. at
24-37. Plaintiffs' position is that Congress could select less restrictive
alternatives than those
enacted by the sweeping provisions of the CDA.[6] Congress could subsidize
or otherwise
support the further development and availability of user-based blocking
systems. See ALA
PI Mem. at 40-41; ALA PH Br. at 32-33. Congress could enact a more carefully
constructed
law that -- without the need for "hard construction work" by the
judiciary -- does not
effectively ban vast quantities of clearly protected speech for a wide range
of speakers. See
ALA PI Mem. at 41; ALA PH Br. at 33. And the Government could vigorously
enforce
existing obscenity and child pornography laws. See ALA PI Mem. at 38; ALA
PH Br.. at
25-26 & n.29.[7]
Amici assert that "[a] less restrictive means must be just as
effective as the means at
issue in accomplishing the asserted interest." NLCCF Br. at 24. As
this court recognized
in rejecting an identical argument in Fabulous Assocs. v. Public Utility
Comm'n, 896 F.2d
780, 788 (3d Cir. 1990), this is clearly not the law in strict scrutiny
cases. If it were, any ban
on speech that served a compelling governmental interest would be constitutional,
because
any more narrowly tailored alternative would almost always be less "effective."
Yet the
Supreme Court in Sable Communications, Inc. v. FCC, 492 U.S. 115, 130-31
(1989), struck
down such a ban because of the mere possibility that less restrictive alternatives
might exist,
even though it acknowledged that these alternatives would likely be less
effective than the
challenged ban. See Fabulous Assocs, 896 F.2d at 788.
The Court has frequently invalidated content-based laws because less
restrictive
alternatives existed, without finding that the alternatives were "just
as effective" as the
challenged speech restriction. For example, in striking down portions of
a state statute
regulating charitable solicitations in Riley v. National Federation of the
Blind, 487 U.S. 781
(1988), the Court noted the availability of less restrictive alternatives
-- including the State's
pre-existing law requiring disclosure of information to it, see id. at 795,
publication of that
information by the State, see id. at 800, or vigorous enforcement of the
State's pre-existing
antifraud laws, see id. at 795, 800 -- without finding that those alternatives
would be equally
effective. To the contrary, the Court stated that even if the alternatives
are "not the most
efficient means of preventing fraud, we reaffirm simply and emphatically
that the First
Amendment does not permit the State to sacrifice speech for efficiency."
Id. at 795 (citing
Village of Schaumburg v. Citizens For a Better Environment, 444 U.S. 620,
639 (1980);
Schneider v. State, 308 U.S. 147, 164 (1939)). In short, under strict scrutiny,
there is no
requirement that alternatives be "just as effective" as the challenged
law.[8]
In any event, as plaintiffs have demonstrated, the use of parental
control methods is
more effective than the CDA in preventing minors from gaining access to
"indecent" or
"patently offensive" online communications, and those methods
do not interfere with adult
access to such communications. See ALA PH Br. at 26-32; ALA PI Mem. at
38-41. Amici
assert, however, that plaintiffs "should agree" that the combination
of the CDA's content-
provider restrictions with user blocking would be more effective than "either
alone." NLCCF
Br. at 37. But this too is not the law, for it will almost always be true
that the combination
of a speech restriction with its less restrictive alternative would be more
effective than "either
alone."[9] Surely, for example, the combination of the challenged
statute regulating charitable
solicitations in Riley and the state's pre-existing antifraud law would
have been more effective
in combatting fraud in charitable solicitations than either alone, see 487
U.S. at 795, 800,
yet the Court did not count this "combination" as a separate "least
restrictive alternative."
3. Foreign Postings. In response to one of the most glaring
flaws in the CDA,
amici can point only to a 1911 treaty committing the United States to share
information with
other signatory nations to aid in the enforcement of their respective obscenity
laws and
statutes forbidding the importation of obscenity and child pornography,
NLCCF Br. at 65-67
& n.56. The existence of these measures does nothing to change the
fact that the CDA will
be completely ineffective at reaching the very large proportion of "indecent"
or "patently
offensive" material posted on the Internet overseas. The Government,
whose burden it is
to show that the CDA will directly and materially advance its asserted interest,
has not
suggested that the CDA will in fact reduce the amount of such material posted
overseas and
available in the United States.[10] Neither it nor amici can point to any
content-based
restriction of speech that has survived strict scrutiny in the face of undisputed
evidence that
it will have such a marginal effect on the problem to be addressed.[11]
4. "Tagging". Amici have a sharply different view
from the Government of the
role of "tagging" as a "potential mechanism of compliance"
under the CDA. See NLCCF
Br. at 50; id. at 51 (proprietor of a sexually explicit site could comply
by "add[ing] an
appropriate tag ("-L18"), and requir[ing] some form of adult verification")
(emphasis added).
Indeed, amici admit that tagging alone "is a magnet that attracts,
rather than repels, children."
Id. at 51. The disagreement between amici, who played a "central role"
in the CDA's
enactment, and the Department of Justice, charged with enforcing it, over
whether tagging
alone would be a defense, illustrates the intolerable vagueness of the 47
U.S.C. 223(e)(5)
defense for ordinary speakers who are at risk of imprisonment, see ALA PH
Br. at 13-14,
and counsels against judicial "construction" of a tagging defense.
5. The Cigarette Advertising Analogy. Amici are far off the
mark when they
compare the CDA to restrictions on cigarette advertising directed to children.
See NLCCF
Br. 60-61 & n.48. Here again, amici seek to redraft and then defend
a statute altogether
different from the one before the Court. Although the Government has relied
upon "teaser"
ads by commercial sellers of sexually explicit material,[12] the CDA is
clearly not a
"commercial speech" restriction and the Government has not defended
it as one. Restrictions
on online advertisements would also raise serious constitutional issues,
see Virginia State
Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762
(1976), but those
issues would be entirely distinct from those posed by the far more sweeping
CDA.
6. Time, Place, and Manner. In a desperate attempt to escape
strict scrutiny,
amici argue that the CDA is merely a time, place, and manner restriction.
See NLCCF Br.
at 58-62. That argument is clearly wrong. Time, place, and manner restrictions
must be
content-neutral, see Consolidated Edison Co. v. Public Serv. Comm'n, 447
U.S. 530, 536
(1980); Erznoznik v. Jacksonville, 422 U.S. 205, 209 (1975). The CDA by
its terms is content-
based. Nor can amici resort to the "secondary effects" rationale
of Renton v. Playtime
Theatres, Inc., 475 U.S. 41, 47-49 (1986). Amici's own description of the
purpose of the
statute -- restricting minors' access to material that is "harmful"
for them, NLCCF Br. at 16
-- makes clear that the CDA is justified by the alleged effects on recipients
of the content
of the speech itself, not by any "secondary effect." Such a statute
is content-based, and
therefore subject to strict scrutiny, which the CDA cannot survive.[13]
In conclusion, plaintiffs respectfully submit that the challenged
provisions are
unconstitutional and request the Court to grant their motion for a preliminary
injunction.
Respectfully submitted,
_____________________________
Ronald P. Schiller (Atty ID 41357) Bruce J. Ennis, Jr.
David L. Weinreb (Atty ID 75557) Donald B. Verrilli, Jr.
PIPER & MARBURY, L.L.P. Ann M. Kappler
3400 Two Logan Square John B. Morris, Jr.
18th & Arch Streets JENNER & BLOCK
Philadelphia, PA 19103 601 Thirteenth Street, N.W.
(215) 656-3365 Washington, D.C. 20005
(202) 639-6000
Date: May 7, 1996 Counsel for ALA Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that on May 7, 1996, a copy of ALA Plaintiffs'
Response to the Brief Amicus Curiae of The National Law Center
For Children and Families, et al. was served by Federal Express
to the following:
Theodore C. Hirt
Anthony J. Coppolino
Jason R. Baron
UNITED STATES DEPARTMENT OF JUSTICE
Civil Division
Federal Programs Branch
901 E. Street NW - Room 1084
Washington, DC 20530
Stefan Presser
Legal Director
AMERICAN CIVIL LIBERTIES UNION ON PENNSYLVANIA
125 South Ninth Street, Suite 701
Philadelphia, PA 19107
Christopher Hansen
Senior Staff Counsel
National Legal Department
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.
132 West 43rd Street
New York, NY 10036
__________________________
Sean H. Donahue
FOOTNOTES
1. See ALA Post-Hearing ("PH") Br. 19-24. Amici's argument that
the CDA focuses
narrowly on "pornography" is undercut by their apparent recognition
that the CDA covers
the non-"pornographic" use of profanity. See NLCCF Br. at 39
(Americans already know
"what types of words and pictures are `indecent' in such mass communications
media" as radio
and TV); id. at 69 n. 63 ("`The man who swears in a street car is as
much of a nuisance as
the man who smokes there.'") (citation and quotation omitted; emphasis
added by amicus
Morality in Media). Amici have an amorphous yet very broad understanding
of the term
"pornography." See ALCU Resp. to NLCCF at 6-8.
2. Although the Government and amici both attempt to make the CDA seem narrower
than
it is, their views of what the CDA provides are often inconsistent. For
example, amici
contend that, for liability under the CDA, a CDA violator must "act
`knowingly' by knowing
of the indecent character of the communication and know that it is going
to or is available
to children." NLCCF Br. at 7 (emphasis added). The cases amici cite
do not support their
apparent view that the CDA requires proof that a content provider knew his
communication
was legally "indecent" or "patently offensive." E.g.,
Hamling v. United States, 418 U.S. 87,
123 (1974) (knowledge of content of material is enough). The Government
has not taken
this position, just as it also has not relied on the Conference Committee's
statement that
Subsection (d) liability requires "intention to be offensive,"
H.R. Conf. Rep. No. 458, 104th
Cong., 2d Sess., at 189 ("Conf. Rep."). See ALA Preliminary Injunction
("PI") Mem. at 70-71.
These inconsistencies between the CDA's creators and its enforcers with
regard to the
essential elements of the offense vividly illustrate that the CDA is hopelessly
vague. See
ALA PH Br. at 37-44.
3. Amici propose a standard that merely begs the question, except insofar
as it incorporates
the "harmful to minors" standard Congress specifically rejected;
they say the Court should
"narrow the scope of the CDA to reach only the type of patently offensive,
indecently
pornographic sexual exploitation that is unprotected and harmful for minors."
NLCCF Br.
at 15-16 (emphasis added). They alternatively refer to their newly coined
indecency standard
as reaching only "hard-core pornography" or "soft-core pornographic
indecency," id. at 21-22,
never defining either. At other times they suggest mere "nudity"
is indecent. Id. at 39.
4. This Court would face weighty constitutional problems as well, see NTEU,
115 S. Ct. at
1019, including how to avoid vagueness problems. The entire statutory repair
project amici
urge is constitutionally dubious because it would diminish Congress's "incentive
to draft a
narrowly tailored law in the first place," Osborne v. Ohio, 495 U.S.
103, 121 (1990)
(paraphrasing Massachusetts v. Oakes, 491 U.S. 576, 586 (1989)), and "substitute
the Judicial
for the Legislative Department." United States v. Reese, 92 U.S. 214,
221 (1876).
5. Amici rely extensively on Sections IV.A. and IV.B. of Pacifica (NLCCF
Br. at 14-15, 77,
79 n.11), which were joined by only three justices, express a view that
has never commanded
a majority, and do not espouse the "pornography" standard amici
urge.
6. Although plaintiffs have posited several alternatives, the Government
must show that
the CDA is the least restrictive means. See Pltfs. Joint Burden of Proof
Mem. Even if the
CDA did embody the least restrictive means, the Government would still have
to show that
the "benefit gained outweigh[ed] the loss of constitutionally protected
rights." Elrod v. Burns,
427 U.S. 347, 363 (1976).
7. As amici's own example shows, see NLCCF Br. at 29 n.11 (citing United
States v.
Thomas, 74 F.2d 701 (6th Cir. 1996)), these laws apply to online communications.
8. Dial Information Services, upon which amici rely for the contrary proposition,
see NLCCF
Br. at 24, cites no case in support of its statement, see Dial Info. Servs.
v. Thornburgh, 938
F.2d 1535, 1541 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992). If
it is based on Sable,
its reliance is misplaced. See Fabulous Assocs., 896 F.2d at 788.
9. Here, however, the CDA is unlikely to cause any actual reduction in minors'
access to
"indecent" and "patently offensive" material beyond
what the unregulated market for
screening technologies would produce. The factual premise for amici's "combination"
theory
is flawed because there is no reason to assume (and the Government certainly
has not
shown) that parents will obtain and deploy user blocking systems as often
if they know a
system of government content-provider regulation is in place as they would
in an unregulated
world where parents clearly understand they have primary responsibility
(indeed, it is far
more reasonable to assume the contrary). And to the extent the CDA's existence
reduces
demand for user blocking options, the statute will be counter-productive,
because user-based
blocking is undisputedly the only effective means of reducing minors' access
to the very ample
store of "indecent" and "patently offensive" material
that is posted overseas.
10. See Olsen Test. Tr. Vol. V, at 44:14-16 ("we would have to rely
on SurfWatch or Net
Nanny technology for foreign speakers"). Nations ordinarily will not
extradite a person unless
the charged offense constitutes a serious crime in both the requesting and
requested nation,
see 1 Restatement (3d) of the Foreign Relations Law of the United States
476. See also
Schmidt Test., Tr. Vol. IV, at 131:14-24 (other nations have more lenient
standards).
11. Indeed, laws with such a marginal effect are struck down even under
intermediate
scrutiny. See Bolger v. Youngs Drug Products Co., 463 U.S. 60, 73 (1983)
(law prohibiting
unsolicited mailing of contraceptive advertisements "provides only
the most limited
incremental support" for the government interest because "parents
already exercise substantial
control over the disposition of mail once it enters their mailboxes.").
12. See US Resp. to ACLU TRO/PI Mem. at 11 (quoting Senator Exon's comments,
141
Cong. Rec. S8340 (June 14, 1995)). Most of the photographs located and
described by the
Government's witness Howard Schmidt consisted of such "teaser"
photographs offered as
advertisements by commercial providers. See Schmidt Test. Decl. 8-10,
15-23, 25, 31, 32,
34, 38 and exhibits referenced therein.
13. See, e.g., Forsyth County v. The Nationalist Movement, 505 U.S. 123,
134-35 (1992).
The portion of Young v. American Mini-Theatres, Inc., 427 U.S. 50 (1976),
quoted by amici
did not command a majority of the Court. See NLCCF Br. at 61 (quoting Young,
427 U.S.
at 70, 71). And amici cite two pre-Forsyth County Court of Appeals decisions,
both of which
relied on Young. See NLCCF Br. at 60-61 (citing M.S. News v. Casado, 721
F.2d 1281, 1288-
89 (10th Cir. 1983); Upper Midwest Booksellers Assocs. v. Minneapolis, 780
F.2d 1389, 1395
(8th Cir. 1985)).
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