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' MEMORANDUM OF LAW IN SUPPORT OF
THEIR MOTION FOR A PRELIMINARY INJUNCTION
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
TABLE OF CONTENTS
Page
Introduction.........................................
STATEMENT OF THE CASE................................
A. The Internet, And "Cyberspace" Generally,
Is A Unique Medium of Communication........
Creation of the Internet and the
Development of Cyberspace..................
How Individuals Access the Internet........
Methods to Communicate Over the Internet...
B. The Act Applies To A Very Broad Category
Of Protected Speech, And To A Diverse
Range Of Speakers And Communicative
Activities.................................
C. The Defenses Provided In The Act Do Not
Provide A Technologically or Economically
Feasible Means For Most Internet Speakers
To Shield Themselves From Liability........
D. There Are Existing Ways To Protect Minors
From Speech That Would Be Inappropriate
For Them, That Do Not Ban Or Burden
Speech To Adults...........................
ARGUMENT.............................................
I. THE ACT EFFECTIVELY BANS AN ENORMOUS QUANTITY
OF SPEECH THAT IS CONSTITUTIONALLY PROTECTED
FOR ADULTS, AND THE SUPREME COURT HAS REPEATEDLY
HELD THAT GOVERNMENT CANNOT REDUCE THE ADULT
POPULATION TO READING AND VIEWING ONLY WHAT IS
APPROPRIATE FOR CHILDREN........................
A. The Act's Content-Based Restrictions On
Indecent Speech Are Subject To Strict
Scrutiny, And Cannot Be Upheld Unless the
Government Proves That the Restrictions
Materially Advance a Compelling Interest
In the Least Restrictive Way, And Proves
That the Benefit To Be Gained From the
Restrictions Outweighs And Does Not Unduly
Burden the First Amendment Rights of
Adults.....................................
B. The Challenged Provisions Of The Act
Violate The Principles Established In
Butler, Bolger And Sable That Adults
Cannot Be Reduced To Reading And Viewing
Only What Is Appropriate For Children......
C. The Act Also Violates The First Amendment
Because The Government Cannot Prove That
It Materially Advances A Compelling
Interest In The Least Restrictive Manner...
II. THE ACT IS SUBSTANTIALLY AND FATALLY OVERBROAD..
A. The Subsection (d) "Display" Prohibition
Is Grossly Overbroad Because in Nearly
Every Application, It Bans or Severely
Burdens Speech That Is Constitutionally
Protected for Adults.......................
B. The Act Is Also Overbroad Because It
Prohibits Speech to All Persons Under
18 Years of Age on the Basis of What
Is Inappropriate for Young Children........
III. THE SWEEPING PROHIBITION OF PROTECTED SPEECH
ON THE INTERNET CANNOT BE SAVED BY ANALOGY TO
CASES IN WHICH COURTS HAVE UPHELD LIMITED
INDECENCY RESTRICTIONS SHORT OF A BAN, OR BY
INVOKING THE STANDARDS OF FIRST AMENDMENT
REVIEW GOVERNING BROADCAST MEDIA................
A. Judicial Decisions Upholding Narrow
Indecency Restriction for "Dial-a-Porn,"
Broadcast Media, and Leased Access Cable
Television--None of Which Involved a
Total Ban--Are Entirely Inapposite.........
B. The Unique First Amendment Standards
Governing the Broadcast Media Do Not
Apply to Cyberspace........................
C. The Internet's Unmatched Capacity for
Furthering the Core Policies of the
First Amendment Requires That This Court
Apply the Rigorous Standards of Scrutiny
Normally Applicable to Content-Based
Restrictions...............................
IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM
THAT THE ACT IS UNCONSTITUTIONALLY VAGUE........
A. The Terms "Indecent" and "Patently Offensive
As Measured By Contemporary Community
Standards" Are Unconstitutionally Vague....
B. The Act's Defenses Are Unconstitutionally
Vague......................................
V. THE IRREPARABLE HARM TO PLAINTIFFS, THEIR
MEMBERS, AND THEIR SUBSCRIBERS, PATRONS, AND
CUSTOMERS FAR OUTWEIGHS ANY HARM TO THE
GOVERNMENT IF AN INJUNCTION ISSUES, AND THE
PUBLIC INTEREST FAVORS INJUNCTIVE RELIEF........
CONCLUSION...........................................
Introduction
Plaintiffs represent a broad range of individuals
and entities from the computer and communications industries
and the general public who provide most of the access to the
Internet, and a substantial volume of the communications
carried on the Internet and other interactive computer
systems./*1 Plaintiffs challenge provisions of the
Communications Decency Act of 1996 (the "CDA" or "Act")/*2
that criminalize constitutionally protected communications
among the adult population whenever those communications
might be deemed "indecent" or "patently offensive" for
minors. The challenged provisions violate the bedrock First
Amendment principle that government cannot "reduce the adult
population . . . to reading only what is fit for children."
Butler v. Michigan, 352 U.S. 380, 383 (1957).
STATEMENT OF THE CASE
Four points are critical in this case. First, the
Internet, and "cyberspace" generally, is an entirely new
communications medium that differs from other media in
crucial respects: it is global, it is decentralized, it
gives ordinary citizens unparalleled ability to communicate
to and with others on a scale never before possible, and it
is unobtrusive, because users access only the communications
they affirmatively request. It therefore merits the highest
level of First Amendment protection. Second, the provisions
of the Act that are the subject of this challenge -- Section
502(2), 47 U.S.C. 223(d), and Section 502(1), 47 U.S.C.
223(a)(1)(B) -- criminalize an enormous quantity of speech,
all of which is constitutionally protected for adults, and
apply to a vast and diverse range of speakers and speech
activities. Third, because of the way the Internet works,
the Act effectively bans the vast majority of that speech,
and severely burdens the rest. Thus, in nearly every
application, the challenged provisions abridge the First
Amendment rights of adults. Fourth, effective methods exist
to protect minors from online speech that is inappropriate
for them, methods that do not deny adult access to that
speech.
A. The Internet, And "Cyberspace" Generally, Is
A Unique Medium Of Communication./*3
Creation of the Internet and the Development of
Cyberspace
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./*4 This amalgam of computers and computer
networks is a decentralized, unrestricted global medium of
communications -- or "cyberspace" -- linking individuals,
institutions, corporations, and governments around the world.
Anyone with access to the Internet can use it to exchange
ideas, research, software, poetry, images, literature, sound,
or electronic mail. Communication can occur virtually
instantaneously, and can be directed to specific individuals,
broader groups, or the world as a whole.
No entity -- academic, corporate, governmental, or
non-profit -- controls the Internet./*5 It exists and
functions solely because hundreds of thousands of computer
operators and computer networks independently decided to use
a common data transfer protocol to exchange information with
other computers (which in turn exchange information with
still other computers). Although the nature of the Internet
makes it impossible to determine its size, it is estimated
that over 5,000,000 host computers worldwide are linked to
the Internet, and that over 50 million individuals around the
world access this medium. Two hundred million users are
expected by the year 1999./*6 There is no centralized
storage location, control point, or communications channel
for the Internet. It would be impossible for any single
entity to regulate the information conveyed on the
Internet./*7
How Individuals Access the Internet
There are two common methods to establish an actual
physical link to the Internet. First, individuals can use a
computer or computer terminal that is directly connected to a
computer network that is itself connected to the Internet.
Second, individuals can use "personal computers" with
"modems" to connect over a telephone line to a larger
computer or computer network that is itself connected to the
Internet./*8
Students, faculty, researchers, and others
affiliated with most of colleges and universities in the
United States can access the Internet through computers
located in campus libraries, offices, computer centers and
dormitories. Such access, considered vital to the
educational process, enables students and professors to use
information and content provided by the college or university
itself, and to reach the vast research resources available on
the Internet worldwide./*9 Similarly, many employers link
their office computer networks, and provide their employees
access to the Internet, to enable them to exchange
information and ideas with others in their fields. Many
communities have established "free-nets" or community
networks to provide citizens a free or low-cost local
Internet link (and provide local-oriented content and
discussion groups) using computers available in community
buildings. Libraries also often offer computers linked to
the Internet at no cost to the individual user./*10 A
growing number of "computer coffee shops" offer connection to
the Internet at a modest fee.
Individuals can also access the Internet through
"Internet service providers." Some providers (including the
members of plaintiff Commercial Internet Exchange
Association) are commercial entities who charge a modest
monthly or hourly fee./*11 Others (such as the
International Internet Association) are non-profit
organizations offering free or low-cost access.
Access is also available through 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). In
addition to allowing access to extensive and well-organized
content within each proprietary network, the services allow
subscribers to link to the much larger Internet resources.
Full access to the online service (including the Internet)
can be obtained for modest fees. The major commercial online
services have almost twelve million individual subscribers
across the United States./*12
Finally, 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 systems" or
"BBSs" to exchange ideas and information. BBSs range from
single computers allowing only one user at a time to multiple
linked computers allowing multiple simultaneous users. Some
BBS systems charge a nominal fee, while many others are free.
In part because the Internet is an unregulated "network of
networks" with literally millions of access points and tens
of millions of users, many users access the Internet
anonymously or through a method that does not allow for clear
identification by a remote content provider./*13
Methods to Communicate Over the Internet
Once an individual has access to the Internet,
there are a wide variety of different methods of
communication and information exchange over the network.
Most networks can be used to transmit text, data, computer
programs, sound, or visual images.
One-to-one messaging. The simplest method of
communication is via "e-mail," which allows an
individual to transmit a message to specific
individuals./*14
One-to-many messaging. The Internet also
contains thousands of automatic mailing list services
(such as "listserv"), which allow a subscriber to
transmit messages on a given topic that the listserv
automatically forwards (via e-mail) to every other
subscriber. This service enables subscribers to keep
abreast of developments or events in a particular
subject area./*15
Distributed message databases. Distributed
message databases, such as "USENET newsgroups," are open
discussions on particular topics. Users need not
subscribe in advance. A message posted to a newsgroup
is automatically forwarded to all computers that furnish
access to the newsgroups (but not to any individual
users). Messages are temporarily stored on each
receiving computer where they are available for review
and response. There are newsgroups on more than 1,500
subjects. In 1994, approximately 70,000 messages were
posted to newsgroups daily, and were distributed to
approximately 190,000 participating computers./*16
Real time communication. Individuals 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 an individual to send a
message that almost immediately appears on other
individuals' computer screens. Commercial online
services such as America Online, CompuServe, eWorld, the
Microsoft Network, and Prodigy have their own "chat"
systems allowing their members to converse./*17
Real time remote computer utilization.
"Telnet" can be used to access remote computers.
Students can use telnet to connect to a remote library's
online card catalog. Individuals can link via telnet to
a computer to interact directly with other users linked
to the same computer. Content accessed via telnet is
often created only at the time of the communication and
occurs in "real time."/*18
Remote information retrieval. The final major
category is the search for and retrieval of information
located on remote computers, through means such as the
"World Wide Web."/*19 Programs that "browse" the
Web can display documents containing text, images, and
sound, as well as "links" to other types of information
or resources. Using these "hyperlinks," an individual
can "click" using a computer mouse on the description of
the resource and be immediately connected to the
resource itself./*20
With all of these methods of communicating in
cyberspace (except point-to-point mail), no information flows
through cyberspace to a particular individual unless the
individual requests the information./*21 Listservs,
newsgroups, chat lines, telnet, ftp, gopher and the World
Wide Web all require an affirmative request prior to an
individual's receiving online information./*22 When an
individual makes such a request, it is usually clear what
type of content will be delivered.
Most transmissions of content from specific sites
on the Internet are in response to recipients' requests that
could not have been anticipated more than a few moments
earlier. 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, and while
searching may have no knowledge of where the computers
accessed are physically located./*23 Thus, there is no
way for a user to pre-register with every computer that
potentially might contain useful content on a particular
topic (and equally impossible for those content sites to
maintain and continually update lists of registered users).
Moreover, when exploring a topic, an individual might access
dozens of newsgroups, telnet computers, and ftp, gopher, and
Web sites around the world in a matter of minutes. If a user
must request access from content providers (and prove he or
she is not a minor) prior to actually viewing the
information, as the Act requires, the Internet would lose
much of its value as a dynamic and instantaneous research
tool./*24
B. The Act Applies To A Very Broad Category Of
Protected Speech, And To A Diverse Range Of
Speakers And Communicative Activities.
Plaintiffs are not challenging the Act to the
extent it prohibits speech that is unprotected by the First
Amendment -- including obscenity, see Miller v. California,
413 U.S. 15 (1973), and child pornography, New York v.
Ferber, 458 U.S. 747 (1982)./*25 Nor do plaintiffs
challenge the Act's prohibition of communications made with
the intent to annoy, abuse, threaten, or harass the
recipient, or provisions that prohibit communications
designed to entice or lure minors into illegal activity.
See, e.g., 47 U.S.C. 223(a)(1)(A),(C),(D),(E). Those
communications are not constitutionally protected even for
adults. But subsections 223(a) and (d) enact sweeping
restrictions on speech that is constitutionally protected for
adults. Indeed, the Act directly affects an extraordinarily
broad category of speech, a massive volume of speech, and an
extremely diverse range of speakers and speech activities.
Subsection (a). The Act makes it a felony,
punishable by two years in prison, for a person to knowingly
transmit by "telecommunications device"/*26 "any comment,
request, suggestion, proposal, image, or other communication
which is . . . indecent" to a person whom the transmitter
knows is under 18. 47 U.S.C. 223(a)(1)(B)./*27 This
provision on its face prohibits any communications containing
any indecent material whenever one participant knows another
participant is under 18, and would make it illegal for a
University library to transmit the text of Lady Chatterly's
Lover or George Carlin's satirical "Seven Dirty Words"
monologue to a portion of the University's freshman class,
because those works have been judged "indecent."/*28
Subsection (d). Subsection (d) is even more
sweeping. The provision makes it a felony, punishable by two
years in prison, for anyone to knowingly use an "interactive
computer service"/*29 to "display in a manner available
to" a person under 18:
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[.]
223(d)(1)(B) (emphasis added)./*30
This "display" prohibition is truly breathtaking in
scope. Unlike the standard for obscenity, the Act's
prohibition of "indecent" or "patently offensive" material is
not restricted to materials with "prurient appeal." See
Miller v. California, 413 U.S. 15, 24, (1973). To the
contrary, while "[p]rurient appeal is an element of the
obscene, . . . the normal definition of `indecent' merely
refers to nonconformance with accepted standards of
morality." FCC v. Pacifica Found., 438 U.S. 726, 740 (1978)
(footnote omitted). Nor are subsections (a) or (d) limited
to material that lacks serious literary, artistic, political
or scientific value./*31 The Act plainly covers the
so-called "seven dirty words," for those very words have been
found "indecent" and "patently offensive" by the Supreme
Court in Pacifica,/*32 and the Conference Report makes
clear that Congress was adopting Pacifica./*33
Similarly, Senator Exon, the Act's principal sponsor,
confirmed that the prohibition would apply to Playboy
magazine. 141 Cong. Rec. S8330 (June 14, 1995) (Sen.
Exon)./*34
Not surprisingly given the enormous quantity and
diversity of information it carries, cyberspace contains a
substantial amount of expression that might be deemed
"indecent" or "patently offensive" for younger
children./*35 This material includes serious works of
fiction (containing descriptions of sexual conduct or vulgar
language),/*36 use of profanity in casual conversations
via e-mail, reproductions of artwork containing nudity or
sexually explicit images, medical treatises (containing
depictions or descriptions relating to sexually transmitted
diseases and medical conditions), robust political or public
policy debates containing vulgar language or expletives, and
serious discussions of sexuality and relationships. See
Action for Children's Television v. FCC, 852 F.2d 1332, 1340
(D.C. Cir. 1988)("ACT I"); Action for Children's Television
v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) ("ACT II"),
cert. denied, 503 U.S. 913 (1992). This type of information
is an important part of the Internet materials accessible by
researchers, members of the academic community and the
public./*37
Indeed, in this litigation the government has cited
and relied upon the "Rimm" study to illustrate the types of
materials with which the Act is concerned./*38 That
study, which was published in the Georgetown Law Journal,
itself contains descriptions that could be deemed indecent or
patently offensive within the meaning of the Act. See Deft
ACLU Br. Ex. 9 at pp. 1880-1882. The text of that study is
maintained online by the Carnegie Library of Pittsburgh,
whose Director is understandably concerned with the "risk of
criminal prosecution under the Act."/*39 It may now be a
felony to post or maintain online the very materials the
government has relied on in this litigation./*40
In addition to criminalizing a broad category of
speech, the Act subjects an unusually broad category of
speakers to the risk of imprisonment and substantial fines.
Nearly every online user and service provider will of
necessity employ either a "telecommunications device" or an
"interactive computer service," or both. Almost all of the
tens of millions of users of the Internet are "content
providers." By the very nature of the Internet, most
material that is stored in a database or made part of a
bulletin board can be accessed by everyone, and is ipso facto
"display[ed] in a manner available to" persons under
18./*41 Thus, the Act regulates the activity of
virtually everyone who uses the Internet or cyberspace.
C. The Defenses Provided In The Act Do Not Provide A
Technologically or Economically Feasible Means For
Most Internet Speakers To Shield Themselves From
Liability.
Recognizing that the First Amendment forbids a flat
prohibition of indecency on the scale imposed by subsections
(a) and (d),/*42 Congress sought to narrow the sweeping
effect of the Act by providing 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.
47 U.S.C. 223(e)(5)).
These "defenses," which the Act's sponsors borrowed
directly from "dial-a-porn" legislation, were intended to
provide a means to preserve access for adults while denying
access to minors. Thus, the clear premise of the Act was the
assumption that the "defenses" that worked in the dial-a-porn
context would work in cyberspace, and that, for that reason,
the Act would not effectively ban constitutionally protected
indecent speech between adults.
That premise is flatly incorrect. Fee-based
content providers -- who typically require credit card
payment for users' access to their speech -- may be able to
avail themselves of the "verified credit card" defense
allowed by the Act./*43 But for content providers who
speak to the public at large, and do not charge for access to
their speech, there is no practical way the speaker can
control who can access the message. Thus, for a huge
quantity 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." 47 U.S.C.
223(2)(d)(1)(B)./*44
The primary methods used to access information on
the Internet simply do not permit individual or non-
commercial content providers to control access to their
speech. None of the major methods of accessing information
-- including electronic mail, listservs, newsgroups, chat
lines, telnet, and the World Wide Web -- have the ability to
track the millions of individuals who access the Internet and
screen out those that are under 18./*45 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
computers./*46 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./*47 Such a requirement
would effectively compel these content providers to refrain
completely from posting any material that could be deemed
"indecent" or "patently offensive" for minors./*48
Although password-required access to content is
possible (and is used in some circumstances),/*49 the
password system envisioned by the Act would effectively
remove from public access an enormous volume of valuable
content on the Internet, and would, in large part, reduce the
information available to adults on the Internet to that
deemed suitable for minors./*50
Because of the infeasibility of the statutory
defenses, the Act effectively bans an entire category of
constitutionally protected speech among adults. For this
reason, the Act will actually frustrate, rather than further,
the Congressional policy goals. The Act specifies that "[i]t
is the policy of the United States . . . to promote the
continued development of the Internet and other interactive
computer services . . . 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." 47 U.S.C. 230. Instead
of a free, vibrant and unfettered market, cyberspace will be
a cramped and highly regulated market, where all speakers
will have to choose their words with great care.
D. There Are Existing Ways To Protect Minors
From Speech That Would Be Inappropriate For
Them, That Do Not Ban Or Burden Speech To
Adults.
The online medium offers the recipients of
information a degree of control unmatched in any other
medium. Not only can users affirmatively select the content
of materials they view based on the subject matter of the
particular service or the information contained in the
headline or subject line, but there are also numerous -- and
expanding -- methods for users to screen and block incoming
materials they choose not to receive.
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 inappropriate content./*51 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 some or all of the Internet
(including the World Wide Web and USENET newsgroups) based on
keywords, subject matter, or specific newsgroups.
A variety of software providers have developed
applications to use in conjunction with commercial online
services, while others are designed for direct Internet
access. SurfWatch, for example, allows parents to block
access to USENET newsgroups, World Wide Web, gopher, and ftp
sites with sexually explicit content./*52 The service
automatically updates the list of blocked sites, without any
intervention required from the user./*53 Similarly,
Cyber Patrol blocks access to locations and content on the
Internet based both on a list of identified sites and on a
scan for certain key words suggesting sexual content./*54
Certain of these screening programs can be set to keep a log
of all activity that occurs on the computer, allowing parents
to monitor a child's use. All of these programs contain
safeguards to prevent children from circumventing the
blocking software./*55
User-based content control programs provide parents
and others flexibility to select the kinds of content to be
screened. For example, Cyber Patrol allows parents to choose
to screen out some or all of 12 separate categories of
content./*56 Moreover, these programs allow parents to
modify the screening criteria as their young children mature
into teenagers and young adults.
This screening technology is available at little or
no cost to parents and other computer users. Online services
make their internal parental control systems, as well as
Cyber Patrol, Surfwatch, and similar software, available to
parents at no additional charge./*57 Microsystems
Software, Inc. offers a version of Cyber Patrol that anyone
can obtain for free over the Internet./*58 Retail
versions of this type of blocking software costs between
$20.00 and $50.00./*59
Additionally, the World Wide Web Consortium/*60
has promulgated a communications standard to facilitate this
type of user-based blocking. The Platform for Internet
Content Selection ("PICS") defines the precise method by
which content ratings can be transmitted to user-based
blocking software./*61 The PICS standard allows all
user-based blocking software to be compatible, and to utilize
common databases of content ratings. Under the PICS
standard, any third party organization (such as a church,
parents' organization, or pediatric association) can rate
Internet content according to that organization's own values,
and those ratings can be accessed by user-based blocking
software. The PICS standard has been implemented in blocking
software such as Surfwatch and Cyber Patrol,/*62 and
Cyber Patrol has made its ratings available on the Internet
in a PICS-compatible database. With PICS, parents will be
able to further tailor the content available to their
children according to the parents' own values.
ARGUMENT
The requirements for issuance of a preliminary
injunction are likelihood of success on the merits and
irreparable injury if an injunction does not issue. Bradley
v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir.
1990). The court must also consider the public interest.
Id. This test is easily met here. As the accompanying
declarations show, the Act is currently causing irreparable
injury to the First Amendment rights of plaintiffs, their
members, and their subscribers, patrons, and customers, while
also causing irreparable injury to the public interest in
free expression, and particularly to the First Amendment
right of adults to receive expression that is indisputably
protected for them. Plaintiffs will now show that governing
Supreme Court precedent virtually assures their ultimate
success on the merits.
I. THE ACT EFFECTIVELY BANS AN ENORMOUS QUANTITY OF SPEECH
THAT IS CONSTITUTIONALLY PROTECTED FOR ADULTS, AND THE
SUPREME COURT HAS REPEATEDLY HELD THAT GOVERNMENT CANNOT
REDUCE THE ADULT POPULATION TO READING AND VIEWING ONLY
WHAT IS APPROPRIATE FOR CHILDREN.
A. The Act's Content-Based Restrictions On Indecent
Speech Are Subject To Strict Scrutiny, And Cannot
Be Upheld Unless the Government Proves That the
Restrictions Materially Advance a Compelling
Interest In the Least Restrictive Way, And Proves
That the Benefit To Be Gained From the Restrictions
Outweighs And Does Not Unduly Burden the First
Amendment Rights Of Adults.
"At the heart of the First Amendment lies the
principle that each person should decide for him or herself
the ideas and beliefs deserving of expression, consideration,
and adherence. Our political system and cultural life rest
upon this ideal." Turner Broadcasting System, Inc. v. FCC,
114 S.Ct. 2445, 2458 (1994). For this reason, "the First
Amendment . . . does not countenance governmental control
over the content of messages expressed by private
individuals," and courts must "apply the most exacting
scrutiny to regulations that suppress, disadvantage, or
impose differential burdens upon speech because of its
content." Id. at 2458-59. Accord Simon & Schuster v. New
York Crime Victims Bd., 502 U.S. 105, 117 (1991).
The Act is such a law. It singles out for
suppression words and images that describe or depict sexual
or excretory activity in a manner deemed "indecent" or
"patently offensive" for persons under 18. Thus, the Act is
subject to the most exacting First Amendment scrutiny. It
must be struck down unless the government demonstrates it
serves a compelling interest, and that it does so "by
narrowly drawn regulations designed to serve those interests
without unnecessarily interfering with First Amendment
freedoms." Sable Communications v. FCC, 492 U.S. 115, 126
(1989).
The Supreme Court has foreclosed any argument that
so-called "indecent" expression should be subject to a less
exacting standard of review. Sable, 492 U.S. at 126. Noting
that "[s]exual expression which is indecent but not obscene
is protected by the First Amendment," the Court unanimously
held that an act of Congress prohibiting the transmission of
indecent messages over telephone lines for commercial
purposes was subject to, and could not survive, strict
scrutiny. Id. This Circuit has likewise held that laws
regulating so-called "indecent" expression must receive the
most exacting First Amendment scrutiny. Fabulous Assoc.
Inc., v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784-85
(3d Cir. 1990).
Strict scrutiny is amply justified because the
category of "indecency" sweeps in vast quantities of valuable
-- though often controversial or unsettling -- expression.
The Act prohibits the transmission of serious works of
fiction or drama that treat sexual themes with any degree of
explicitness. It likewise prohibits constitutionally
protected profanity, whether in robust political debate, e.g.
Cohen v. California, 403 U.S. 15 (1971) ("Fuck the draft"),
in biting social criticism, e.g. Hustler Magazine v. Falwell,
485 U.S. 46, 48 (1988) (vulgar satire of religious figure
depicting "drunken incestuous rendezvous with his mother in
an outhouse"), or in casual, private conversations. And the
Act also encompasses works of science and medicine, or public
health information dealing with sex.
It is precisely because such expression may be
provocative, or even offensive, that full First Amendment
protection is necessary. "[P]ersons who voice acceptable
viewpoints or who are able to articulate their goals and
interests in terms which are either shared or accepted as
legitimate by those who shape official policy are seldom in
need of the [First] Amendment's support. It is when we must
face the unpopular or distasteful expression that the concept
of free speech needs its most vigilant protection." Aiello
v. City of Wilmington, Del., 623 F.2d 845, 859 (3d Cir. 1980)
(Sloviter, J., concurring in part); see also Abrams v. United
States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting,
joined by Brandeis, J.).
Application of strict First Amendment scrutiny to
"indecency" regulations poses a particular challenge because
such expression is simultaneously valuable (and protected)
for an adult audience and potentially harmful (and thus
regulable) for children. But one thing is clear: government
may not resolve this tension by simply suppressing indecent
speech altogether in order to protect children. Indeed, it
is bedrock First Amendment law that "government may not
`reduce the adult population . . . to . . . only what is fit
for children.'"/-63--/"The level of discourse reaching a
mailbox simply cannot be limited to that which would be
suitable for a sandbox," and this is so "regardless of the
strength of the government's interest" in protecting
children. Bolger v. Youngs Drug Products Corp., 463 U.S. 60,
74-75 (1983) (emphasis added). It is settled that government
may not constitutionally "quarantin[e] the general reading
public against books not too rugged for grown men and women
in order to shield juvenile innocence." Butler, 352 U.S. at
383. A federal statute is unconstitutional if it has the
"effect of limiting the content of adult [communications] to
that which is suitable for children." Sable, 492 U.S. at 131
(emphasis added)./*64
Thus, in the "indecency" context it is particularly
important that strict scrutiny not be reduced to a
mechanical, formalistic inquiry into whether government's
posited interest is compelling, and its chosen means are
narrowly tailored. Rather, strict scrutiny demands that "the
benefit gained [by a content-based restriction] must outweigh
the loss of constitutionally protected rights." Elrod v.
Burns, 427 U.S. 347, 363 (1976). Accord Burns v. County of
Cambria, Pa., 971 F.2d 1015, 1021 (3d Cir. 1992), cert.
denied, 506 U.S. 1081 (1993). A reviewing court must
undertake a "balancing process," Sable, 492 U.S. at 127
(Scalia, J., concurring), to determine whether the benefits
to children of a restriction on indecency are sufficient to
outweigh the loss of adults' constitutional rights. Accord
Fabulous Assoc., 896 F.2d at 787-88. See also Bolger 463
U.S. at 73./*65 Simply put, government may not "burn the
house to roast the pig." Butler, 352 U.S. at 383; Sable, 492
U.S. at 127.
Applying these principles, no court has ever upheld
an indecency regulation that on its face, or in its practical
application, banned "indecency" from any medium. In Sable, a
unanimous Supreme Court struck down a ban on telephone
indecency, notwithstanding that "enterprising youngsters
could and would evade" less restrictive regulatory mechanisms
which would have better protected adults' rights. Sable 492
U.S. at 128. In Bolger, the Court struck down a ban on mail
advertisements for contraceptives for the same reason. 463
U.S. at 73. In Butler, the Court invalidated a conviction
for distributing indecent publications for the same reason.
352 U.S. at 381. Indecency regulations have been upheld only
when government has proven that the regulation will provide
substantial protection for children, while ensuring that
adults have continued access to expression that is
constitutionally protected for them. See Ginsberg v. New
York, 390 U.S. 629, 634-35 (1968) (upholding prohibition or
sale of material harmful to minors under 17 because
prohibition did not bar sale to persons over 17).
As we will show, a straightforward application of
these settled principles invalidates the Act, for two
reasons. First, the burden imposed by the Act's restrictions
on indecency is so severe in relation to the marginal gains
in protecting minors achieved by the law that it must be
struck down. Second, the government cannot meet its heavy
burden of proving that the Act directly advances a compelling
interest in the least restrictive way.
B. The Challenged Provisions Of The Act Violate The
Principles Established In Butler, Bolger And Sable
That Adults Cannot Be Reduced To Reading And
Viewing Only What Is Appropriate For Children.
Like the laws struck down in Butler, Bolger, Sable
and Fabulous Assoc., the Act must be invalidated because it
denies the millions of adults who use the Internet access to
constitutionally protected expression in order to ensure that
minors are not exposed to indecency. Subsection (d) in
particular criminalizes dissemination of "indecency" on the
Internet in any manner that will result in its being
"available" to minors. Almost all "indecent" communication
disseminated on the Internet will be "available" to minors
because there is no feasible way for most speakers in most
formats to limit who has access to communications they
disseminate./*66
The only way for those speakers to ensure
compliance with the Act is to undertake the enormous effort
and expense of maintaining either a database that allows them
to screen requests for access, or individually verifying
requesters' age each time a request is received. Individuals
and other noncommercial content providers such as libraries
and universities could not possibly afford such an
expense./*67 Furthermore, even apart from their cost,
such "screening" methods simply cannot work with respect to
several ways of communicating on the Internet, including
listservs and newsgroups./*68 Thus, the Act leaves the
majority of Internet content providers with only one choice:
to avoid the risk of criminal prosecution and incarceration,
they must self-censor all expression that might be deemed
"indecent" or "patently offensive." This is, for all
practical purposes, a ban of "indecency" on the Internet.
The suppressive effect of this ban is truly
staggering. As demonstrated, the Act's prohibitions sweep in
a vast quantity of valuable, fully protected expression. And
those prohibitions apply to tens of millions of Internet
users. Thus, the Act is entirely unlike prior indecency
laws, which targeted narrow and well-defined types of speech
and particular forms of communication (such as dial-a-porn).
Congress has, in effect, prohibited the public communication
of indecency. It is as if Congress had banned indecent
speech in public parks or squares, or had banned the
circulation of publications containing indecency. At bottom,
the Act seems to contemplate an entirely restructured, indeed
bifurcated, Internet -- one Internet accessible to adults,
which will contain indecent materials, and an entirely
separate Internet accessible to children, which will be
scrubbed of indecent material. It postulates an entirely
imaginary world that does not exist and cannot be created.
It is no answer that the Act provides "defenses" to
criminal prosecution for those who make good faith,
reasonable efforts to block access by minors. The plain fact
is that those defenses cannot be utilized by the vast
majority of speakers to whom the Act applies. Only a small
subset of Internet speakers -- those who sell information
through credit cards or other mechanisms, or who can
otherwise afford the enormous cost of screening users
requesting access -- will have even the potential to take
advantage of the defenses. And the Act would severely burden
the speech of those speakers.
Even if these "defenses" were available to most
content providers -- and they are not -- they would not begin
to cure the Act's constitutional infirmity. The Act does no
more than provide Internet speakers the opportunity to
convince a jury in a criminal case that they have acted
"reasonably" and in "good faith" and have taken "effective"
actions to prevent minors from accessing "indecent" or
"patently offensive" communications. That hardly provides a
meaningful check on the risk that speakers will self-censor
valuable expression. By their nature, these defenses provide
no guidance as to the line between lawful and unlawful
expression; they invite -- indeed they require -- ad hoc,
case-by-case judgments. "It is fictional to believe that
anything less than extensive adjudications, under the impact
of a variety of factual situations, will be required to
clarify their meaning." Baggett v. Bullitt, 377 U.S. 360,
378 (1964). "[T]hose affected by a statute are entitled to
be free of the burdens of defending prosecutions, however
expeditious, aimed at hammering out the structure of the
statute piecemeal." Dombrowski v. Pfister, 380 U.S. 479, 491
(1965). The Act will certainly deter would-be speakers from
disseminating potentially indecent speech "because of doubt
whether [the defense] can be proved in court or fear of the
expense of having to do so." New York Times Co. v. Sullivan,
376 U.S. 254, 279 (1964) (fear of civil liability). Such a
risk is even more chilling here because potential speakers
face not merely civil liability but the stigma of criminal
conviction and severe criminal sanctions.
Thus, the Act contains precisely the fatal flaw
that led to invalidation of the indecency regulations at
issue in Sable, Bolger, and Butler: in an attempt to
preclude minors from access to indecent speech, Congress has
effectively denied adults access to that speech as well.
Upholding the Act's suppression of adult dissemination and
receipt of "indecent" or "patently offensive" speech would be
unprecedented. No court has ever held, in the context of any
medium, that a ban on the transmission of indecent
communications to adults satisfies this exacting standard.
This Court should not endorse such an unprecedented intrusion
on First Amendment rights.
C. The Act Also Violates The First Amendment Because
The Government Cannot Prove That It Materially
Advances A Compelling Interest In The Least
Restrictive Manner.
The Act also violates the First Amendment
irrespective of whether, in practical effect, it is a ban of
the kind struck down in Sable. There is no doubt the Act
will cause self-censorship of vast quantities of speech by
those who simply cannot bring themselves within the Act's
defenses, and will impose heavy financial burdens on speakers
who can. These burdens will certainly inhibit speech, and
thus drastically alter the content of expression on the
Internet. Faced with the substantial cost and ongoing
administrative burdens imposed by the Act's "defenses," most
speakers will simply choose not to communicate anything
arguably "indecent."/*69 The Supreme Court has made
clear that "[a] law is presumptively inconsistent with the
First Amendment if it imposes a financial burden on speakers
because of the content of their speech." Simon & Schuster,
502 U.S. at 115 (emphasis added)./*70 The government
must thus demonstrate a compelling need for imposing those
burdens, and show that its interests could not be served by
less drastic alternatives. It cannot make that showing here.
In the abstract, the government has a compelling
interest in protecting minors from communications harmful to
their psychological and moral development. The government
cannot, however, simply "posit the existence of" a problem to
be cured; it "must demonstrate that the recited harms [here
none were recited] are real, not merely conjectural, and that
the regulation will in fact alleviate these harms in a direct
and material way." Turner, 114 S. Ct. at 2470 (emphasis
added). And the government also "bears the burden of showing
that the remedy it has adopted does not 'burden substantially
more speech than is necessary to further the government's
legitimate interests.'" Id. (quoting Ward, 491 U.S. at 799).
That showing cannot be made on the basis of the
legislative record here. Congress made no findings regarding
the provisions at issue, and compiled no empirical record
demonstrating either their necessity or the basis for their
constitutionality./*71 Leahy Dec. 9, 19, 28, Tab 24.
Just as in Sable,/*72 Congress failed to examine how
difficult it is for minors to access the indecent material
restricted by the Act; how many minors, and of what ages,
actually have accessed such material; the likely
effectiveness of the measures Congress adopted in preventing
access; the impact of those measures on speech protected by
the First Amendment; the effectiveness of alternatives to the
challenged provisions; and, in general, the extent to which
the challenged provisions will materially further Congress'
goal without abridging the First Amendment rights of adults.
Cf. Sable, 492 U.S. at 129-30. The novelty and complexity of
cyberspace makes the absence of careful factual inquiry
particularly egregious. Congress appears not to have
examined how online communications work; which types of
online communications present a substantial risk for minors,
and whether the communications about which Congress was
concerned are primarily obscene or nonobscene, commercial or
noncommercial, text or visual images; whether the "defenses"
Congress established could, as a practical matter, be
utilized; the ease or difficulty with which parents can
control their children's online access; and the possibility
that existing legal prohibitions suffice to address the
concerns underlying the challenged provisions. Instead, as
the government concedes, "Congress [did] no more than
incorporate the standards for blocking access to 'dial-a-
porn' messages'" (see Deft ACLU Br. at 29-30), without even
considering whether those standards can be grafted on to the
dramatically different, infinitely more complex, online
computer medium.
This failure to make a considered judgment as to
the need, efficacy, and ramifications of the law has a direct
impact on this Court's examination of the Act's
constitutionality. Without findings, for example, the Court
can have no clear sense of what Congress perceived as the
precise harm to be remedied or of the precise goals Congress
had in mind in enacting the challenged provisions. Thus,
there is nothing to which the government can point in the
record before Congress to meet its burden.
Furthermore, far from advancing the government's
interest "in a direct and material way," the Act "provides
only the most limited incremental support for the interest
asserted." See Bolger, 463 U.S. at 73. That is so for
several reasons. First, there is no reason to think the
government's interest will be inadequately served by
"vigorously enforc[ing]" laws already on the books, which ban
obscenity, child pornography, enticement of minors, and
harassment. Riley v. National Fed'n. of the Blind, 487 U.S.
781, 800 (1988); accord FCC v. League of Women Voters, 468
U.S. 364, 398 (1984) (law is not narrowly tailored if
government's goal is already served by "other regulatory
means that intrude far less drastically upon [First
Amendment] rights"); Village of Schaumburg v. Citizens For a
Better Environment, 444 U.S. 620, 637 & n.11 (1980)
(enforcement of existing laws against fraud would
sufficiently serve purported governmental objective,
therefore new law is not narrowly tailored). The expression
prohibited by these other laws was plainly Congress' core
concern, and that expression can be fully regulated without
extending the Act's prohibition to "indecent" communications.
Second, there are existing methods that are far
more effective in limiting a minor's access to "indecent" or
"patently offensive" online communications, without impeding
adult access to expression that is fully protected as to
them. Because the Internet is a global network with millions
of users, speaker-based content restrictions cannot
effectively control the availability of materials. The only
effective way to protect children from inappropriate online
material is through recipient-based strategies . . . by
encouraging 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./*73 The
products we have described, and others like them (see
Statement of the Case, Point D), provide parents these tools,
and do so without the need for criminalizing the distribution
to adults of constitutionally protected communications.
These approaches are most consistent with the fundamental
principle of our democracy that parents are responsible for
the well-being and upbringing of their children. "It is
cardinal . . . that the custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder." Prince v. Commonwealth of
Massachusetts, 321 U.S. 158, 166 (1944). These technologies
put the responsibility for making choices about minors'
access to communications that might be deemed harmful or
offensive to them precisely "where our society has
traditionally placed it--on the shoulders of the parent."
Fabulous Assoc., 896 F.2d at 788 (citing Bolger, 462 U.S. at
73-74).
That these screening alternatives are not entirely
foolproof does not diminish their value. As the Court held
in Sable, "the desire to prevent 'a few of the most
enterprising and disobedient young people,'" from securing
access to such messages [is not] adequate justification for a
statutory provision that ha[s] 'the invalid effect of
limiting the content of adult telephone conversations to that
which is suitable for children.'" Fabulous Assoc., 896 F.2d
at 788 (quoting Sable, 492 U.S. at 131.) Parental discretion
and control is the "preferred method of dealing with such
[offensive] material." Id. (citing Bolger, 463 U.S. at 73-
74).
Even with regard to broadcast, which both the Court
and Congress have acknowledged has "a uniquely pervasive
presence in the lives of American children," Congress
recognized that parental screening and blocking technologies
can protect children from inappropriate broadcast
programming, including "sexual video programming" or other
"indecent material," without a government ban on content.
See Act, 551. There, Congress required manufacturers to
install a so-called "V-Chip" in televisions to allow reading
of a rating system that will enable parents "easily to block
violent, sexual or other programming that they believe
harmful to their children," and authorized the FCC to develop
a recommended rating system. Id. Plaintiffs are not
suggesting that particular provision is constitutional. But
in view of the fact that Congress contemporaneously
determined that parental empowerment technologies would be an
adequate and "narrowly tailored means" to protect children
even from broadcast indecency, id., the government cannot
possibly carry its burden of showing why parental empowerment
technologies would not be adequate to protect children from
indecency in cyberspace.
Third, even if government had a compelling interest
in banning indecent (but not obscene) visual images from the
Internet -- and no such showing has been made -- the Act goes
much farther, and needlessly embraces messages and files
containing nothing but (electronically) written words. The
sponsor of the Act used as his principal justification for
the Act a compilation of graphic sexually oriented visual
images. But the Act is not so focused. In covering a broad
range of purely "textual" indecency, the Act is apparently
unique among indecency laws. Indeed, even in the obscenity
context, there have been few, if any, prosecutions in the
last four decades for distributing purely written material.
See Final Report, Attorney General's Commission on
Pornography at 84 (1986). Notwithstanding the attenuated
relationship between written words and the concerns
underlying the Act's indecency provisions, the Act's
inclusion of written words accounts for a large portion of
the protected speech that is prohibited, restricted or
chilled by the Act's sweeping restrictions.
Fourth, at least in part because Congress did not
collect information about how online communications work 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. 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 by imposing a
source ban. Foreign content providers may not know of, or
care about, the Act's prohibitions, and the legal and
practical ability of the U.S. Department of Justice to
enforce the Act outside the United States is questionable.
As to the most egregious materials -- obscenity and child
pornography -- those posting such materials online are
already violating other criminal laws, and it is unlikely the
"indecency" prohibitions will deter them any more.
All this boils down to a simple conclusion: the
infringement on First Amendment rights imposed by the Act far
outweighs any marginal advancement of the government's
legitimate interest. See Elrod, 427 U.S. at 361, 363. As in
Bolger, "a restriction of this scope is more extensive than
the Constitution permits." 463 U.S. at 73.
II. THE ACT IS SUBSTANTIALLY AND FATALLY OVERBROAD.
A. The Subsection (d) "Display" Prohibition Is Grossly
Overbroad Because, in Nearly Every Application, It
Bans or Severely Burdens Speech That Is
Constitutionally Protected for Adults.
As explained in Point I, the challenged provisions of
the Act cannot withstand strict scrutiny. Those provisions
effectively ban a broad category of speech that is
constitutionally protected for adults, because there is no
practical way of communicating that speech via cyberspace to
adults without also making it "available to" persons under
18, in violation of the subsection (d) "display" provision,
and because the means of segregating "adult" materials
contemplated in the Act's defenses are simply impossible for
most content providers and online services. Where the
subsection (e)(5) defenses for providers could be implemented
at all, those measures would substantially burden protected
speech by, among other things, making it practically
impossible for adult users to explore areas of the Internet
containing constitutionally protected material (and hence
impossible for content providers to reach an otherwise
willing adult audience).
In many and perhaps most cases, the combination of
the Act's broad "display" prohibition and the infeasibility
of the statutory defenses will result in the complete removal
of constitutionally protected material from
cyberspace./*74 In the comparatively few cases in which
adult access codes or similar measures might be feasible, the
statute will result in many adult users' having reduced
access to material they would otherwise have had the ability
and desire to see.
A statute that restricts this much protected speech
is, among other constitutional defects, substantially
overbroad. "Far from providing the `breathing space' that
`First Amendment freedoms need . . . to survive,'" City of
Houston v. Hill, 482 U.S. 451, 466 (1987) (quoting NAACP v.
Button, 371 U.S. 415, 433 (1963)), the Act indiscriminately
stifles protected speech. Like the laws that were struck
down as overbroad in Board of Airport Comm'rs of Los Angeles
v. Jews for Jesus, Inc., 482 U.S. 569 (1987) (invalidating
ordinance banning "First Amendment activity" within airport),
and Schad v. Mount Ephraim, 452 U.S. 61 (1981) (striking down
ban on all live entertainment within town as overbroad), the
subsection (d) "display" prohibition is invalid on its face.
This case differs from the standard overbreadth
challenge, but for reasons that make it unusually obvious
that the Act is unconstitutional. In most overbreadth cases,
the court must balance the constitutionally permissible
applications of the statute against the impermissible ones,
in order to judge whether the claimed "`overbreadth [is] not
only [] real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep.'" Massachusetts v.
Oakes, 491 U.S. 576, 595 (1989) (quoting Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973)). Here, it is a striking
understatement to say that subsection (d) reaches a
"substantial amount of constitutionally protected conduct,"
City of Houston v. Hill, 482 U.S. at 458 (quoting Hoffman
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489,
494 (1982) and Kolender v. Lawson, 461 U.S. 352, 359 n.8
(1983)), for all the speech the provision covers is
constitutionally protected for adults./*75 The Act is
not only "susceptible of regular application to protected
expression," Hill, 482 U.S. at 467 (emphasis added); it is
certain to be so applied. A fortiori, it is fatally
overbroad, and therefore "facially invalid." Id./*76
B. The Act Is Also Overbroad Because It Prohibits
Speech to All Persons Under 18 Years of Age on the
Basis of What Is Inappropriate for Young Children
The Act is also substantially overbroad because it
bans and restricts speech that is sent or made "available" to
persons under 18, see 47 U.S.C. 223(a)(1)(B), (d)(1),
without accounting in any way for relevant differences among
the different age groups within the prohibited under-18
class. Rather than acknowledging the vast intellectual and
emotional differences between seven-year-olds and seventeen-
year-olds, the Act erects a total prohibition based on what
"community standards" deem inappropriate for very young
children. The constitutional defect in this "one-size-fits-
all" prohibition is particularly pronounced because of the
absence in the Act of any exemption for material with serious
literary, political, scientific, or other educational
value./*77 Because a great deal of material that might
be deemed objectionable for young children would nonetheless
be appropriate (indeed, highly valuable) for older
minors,/*78 the Act's procrustean age restrictions are
substantially overbroad. Just as the Act indiscriminately
bans speech appropriate for adults in the name of protecting
children, it also bans speech appropriate for high school
seniors and college freshmen in the name of protecting
elementary schoolchildren./*79 This prohibition most
palpably infringes the First Amendment rights of older
minors, but it also infringes the rights of persons who would
otherwise communicate with them via the Internet./*80
This is not a statute dealing with a narrow type of
"adult" speech (such as the "dial-a-porn" services at issue
in Sable)./*81 Such material is arguably harmful for all
minors (albeit perhaps more harmful for young children than
for teenagers). But the open-endedness of the Act's
prohibitions of "indecent" and "patently offensive" material,
combined with the immense diversity of material on the
Internet, ensure that the Act applies to a great deal of
material that is arguably harmful for 7-year-olds but is not
even arguably harmful for 17-year-olds.
Courts interpreting state harmful to minors
statutes have recognized the inappropriateness of banning
material for all minors merely because it is deemed harmful
for younger minors. In American Booksellers v. Webb, 919
F.2d 1493, 1504 (11th Cir. 1990), cert. denied, 500 U.S. 942
(1991), the court of appeals construed a Georgia statute
restricting the display of books that on its face made no
distinctions among different age groups, to apply only to
material that lacked value for older minors. The court
concluded that "if any reasonable minor, including a
seventeen-year-old, would find serious value," the material
was not "`harmful to minors'" for purposes of the statute.
Id. at 1504-05; see also American Booksellers Ass'n v.
Virginia, 882 F.2d at 127 ("`[I]f a work is found to have
serious literary, artistic, political or scientific value for
a legitimate minority of normal, older adolescents, then it
cannot be said to lack such value for the entire class of
juveniles taken as a whole.'") (quoting Commonwealth v.
American Booksellers Ass'n, 236 Va. 168, 372 S.E.2d 618, 624
(1988)). Congress's failure here to account for relevant
distinctions among minors of different ages--a defect that,
because Internet usage by older minors is much greater than
by younger minors, mars the Act in a high proportion of its
potential applications -- renders the Act substantially
overbroad.
III. THE SWEEPING PROHIBITION OF PROTECTED SPEECH ON THE
INTERNET CANNOT BE SAVED BY ANALOGY TO CASES IN WHICH
COURTS HAVE UPHELD LIMITED INDECENCY RESTRICTIONS SHORT
OF A BAN, OR BY INVOKING THE STANDARDS OF FIRST
AMENDMENT REVIEW GOVERNING BROADCAST MEDIA.
As demonstrated in Point I, the Act plainly fails
strict scrutiny. The government, however, has sought to
defend the Act as nothing more than a simple extension of
narrow indecency restrictions courts have approved to other
media, and perhaps as sustainable under the more relaxed
First Amendment standard applied to the broadcast medium in
FCC v. Pacifica. See Deft ACLU Br. at 20-22, 26-27, 30-39.
These arguments fail because the Act's restrictions differ
dispositively from the indecency restrictions at issue in
prior cases, and the Pacifica standard has no application to
content regulation of interactive computer services.
A. Judicial Decisions Upholding Narrow Indecency
Restriction for "Dial-a-Porn," Broadcast Media,
and Leased Access Cable Television--None of Which
Involved a Total Ban--Are Entirely Inapposite.
The decisions cited by the government upholding
indecency restrictions for dial-a-porn, leased access cable
television, and the broadcast media, provide no support for
the Act. None of those cases approved an effective ban on
indecent speech. In Pacifica, the Court affirmed an
administrative sanction against the broadcaster of "indecent"
language imposed pursuant to an FCC rule that was not "`an
absolute prohibition'" on use of such language, but "'rather
sought to channel it to times of day when children most
likely would not be exposed to it.'" Pacifica, 438 U.S. at
733 (quoting 59 F.C.C.2d 892 (1976)). See Sable, 492 U.S. at
127 (observing that Pacifica did not involve a ban); see also
Action for Children's Television v. FCC, 58 F.3d 654, 666
(D.C. Cir. 1995) (en banc) (by allowing indecent material to
be broadcast during nighttime hours, Congress had adequately
"taken into account the First Amendment rights of the very
large numbers of adults who wish to view or listen to
indecent broadcasts"). Similarly, the post-Sable dial-a-
porn restrictions upheld in Dial Information Services Corp.
v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied,
502 U.S. 1072 (1992), and Information Providers Coalition v.
FCC, 928 F.2d 866 (9th Cir. 1991), do not ban indecent speech
to adults; they simply require providers to restrict their
services to adults who request access. See also Alliance for
Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995)
(upholding similar requirement for cable leased access
programming), cert. granted, 116 S.Ct. 471 (1995).
Thus, none of the cases on which the government
relies implicated the core First Amendment principle the Act
contravenes: the government may not ban speech that is
protected for adults in the name of keeping it away from
children. Instead, these decisions hold that government may
impose carefully crafted measures to protect children from
exposure to indecent speech, provided those measures do not
ban or unduly burden adult access to that speech./*82
Although the Act contains a gesture towards the
First Amendment by including the subsection (e)(5) defenses,
those defenses are impossible to implement in many important
areas of online communications. Even where some of the
defenses might be implemented, they will substantially burden
and dramatically restrict the availability to adults of
constitutionally protected material. In the case of
broadcast, dial-a-porn, and cable television, the relatively
small number of service providers all indisputably had the
capacity to comply with the indecency restrictions at issue
without also blocking adults from receiving desired
communications. See, e.g., Fabulous Assoc., 896 F.2d at 787-
88. As shown above, that approach does not work in
cyberspace. The fact that, as the government observes, the
Act's defenses would in theory operate something like the
dial-a-porn blocking mechanisms does not change the fact
that, given the realities of the Internet, the Act is "[i]n
effect" a ban. See Virginia v. American Booksellers Ass'n,
484 U.S. 383, 389 (1988)(citing Bolger and Butler). For this
reason, the Act's broad prohibitions are unconstitutional for
the same reason the commercial dial-a-porn ban at issue in
Sable was unconstitutional.
B. The Unique First Amendment Standards Governing
the Broadcast Media Do Not Apply to
Cyberspace.
Without seriously disputing that the Act's content-
based prohibitions require strict First Amendment scrutiny,
the government nonetheless suggests that the Internet should
be governed by an unspecified but comparatively relaxed
standard of First Amendment review similar to the standard
Pacifica adopted for FCC regulation of broadcast indecency.
Deft ACLU Br. at 22-23, 26. In Pacifica, the Court upheld
the FCC's administrative reprimand of a radio station that
aired a satiric monologue entitled "Filthy Words" at two
o'clock in the afternoon. The Court based its holding on the
"uniquely pervasive" quality of broadcast which, like an
"intruder," "confronts the citizen," who cannot protect
himself from "unexpected program content" because he is
"constantly tuning in and out," and because of the "uniquely
accessible" nature of broadcasting to children. Pacifica,
438 U.S. at 748-50. In contrast to a "written message" such
as the "Fuck the Draft" jacket in Cohen v. California, 403
U.S. 15 (1971), the monologue as broadcast "could have
enlarged a child's vocabulary in an instant." Pacifica, 438
U.S. at 749. This ease of access even to very young children
justified a degree of restriction on indecent broadcast
expression not permitted on "[o]ther forms of offensive
expression" such as books and motions pictures, which "may be
withheld from the young without restricting the expression at
its source." Id. The Pacifica Court "emphasize[d] the
narrowness of [its] holding," noting, among other
qualifications, that the Constitution might preclude a
"criminal prosecution" even for broadcasting the "Filthy
Words" monologue, and that different considerations might
apply in the case of a "two-way radio conversation between a
cab driver and a dispatcher, or a telecast of an Elizabethan
comedy." Id. at 750./*83
In the 18 years since Pacifica was decided, the
Supreme Court has declined repeated invitations to extend the
relaxed broadcast standard to any other media. In Bolger,
the Court invalidated a ban on mailing unsolicited
contraceptive advertisements, distinguishing Pacifica on the
ground that "[t]he receipt of mail is far less intrusive and
uncontrollable" than broadcast. Id. at 74. Bolger
emphasized that "[t]he First Amendment `does not permit the
government to prohibit speech as intrusive unless the
"captive" audience cannot avoid objectionable speech.'" Id.
at 72 (quoting Consolidated Edison Co. v. Public Service
Comm'n, 447 U.S. 530, 542 (1980)). See also Erznoznik, 422
U.S. at 209; Kovacs v. Cooper, 336 U.S. 77, 86-87 (1949).
In Sable, the Court held that the Pacifica
rationale should not be extended to commercial telephone
communications, noting that Pacifica "relied on the `unique'
attributes of broadcasting." Sable, 492 U.S. at 127 (quoting
Pacifica). The Court observed that in contrast to "means of
expression which the recipient has no meaningful opportunity
to avoid, the [telephone] medium requires the listener to
take affirmative steps to receive the communication." Id. at
127-28. Unlike broadcasting, "dial-a-porn" communications
did not present a captive audience problem: "the message
received by one who places a call to a dial-a-porn service is
not so invasive or surprising that it prevents an unwilling
listener from avoiding exposure to it." Id. at 128; see also
Fabulous Assoc., 896 F.2d at 784. Even more recently, the
Court firmly and unanimously declined to extend the
comparatively lenient First Amendment standards governing
broadcasting to cable television. See Turner, 114 S. Ct. at
2456-57.
As with other media that have been asserted to
resemble broadcast in relevant respects, see, e.g., Turner,
114 S.Ct. at 2457, it is possible to argue that some aspects
of online communication resemble some aspects of
broadcasting. See Deft ACLU Br. at 26. But a comprehensive
appraisal of the technical capabilities and communicative
possibilities of cyberspace demonstrates that in relevant
respects cyberspace is not like radio or broadcast
television. The marked differences between the Internet and
the broadcast media, coupled with the Supreme Court's
steadfast unwillingness to extend the "sliding scale"
approach to reviewing content regulation of any other non-
broadcast media, leave no doubt that pleas to extend Pacifica
to cyberspace should be rejected.
First, the Internet is emphatically not a medium on
which individuals lack the power to choose the communications
they wish to receive or to protect themselves or their
children from unwanted or unexpected speech. Compare
Pacifica, 438 U.S. at 748-51. To the contrary, recipients of
online communications enjoy a degree of individual control
over incoming material that is attainable in few, if any,
other media. With the exception of point-to-point e-mail, no
information travels online to a particular individual unless
the individual requests it./*84 Listservs, newsgroups,
chat lines, telnet, ftp, gopher and the World Wide Web all
require an affirmative request by the online user prior to
the user receiving information on his or her computer
screen./*85 Furthermore, when a user makes such an
affirmative request it is usually clear what type of content
will be delivered. The online medium offers users the
ability to exercise control over precisely what information
they access. Thus, unlike radio or television, and even more
so than with telephone, there is no significant risk that a
user will be assaulted with totally unsolicited and undesired
content. The expression does not intrude upon the recipient;
rather, to an even greater extent than telephone, in
cyberspace a recipient must "take affirmative steps to
receive the communication." Sable, 492 U.S. at 127-28.
Second, online communications require a level of
sophistication that militates against fashioning a special,
lenient standard of review. Unlike radio and television,
online communications are not easily accessible to very young
children. At a minimum, recipients need to be able to read
in order to execute the commands necessary to access
communications. Cf. Pacifica, 438 U.S. at 749-50. Moreover,
parents can control their children's access to online
expression through a variety of means, including the many
user-end screening options discussed above. Given the far
greater degree of user control relative to broadcast, and
given the relative lack of accessibility to young children,
here, as in Bolger, there is no justification for regulating
online expression "at its source." See Pacifica, 438 U.S. at
749.
Third, unlike broadcasting, cyberspace presents no
problem of scarcity./*86 To the contrary, one of its
most valuable features is open accessibility to millions of
new users at low cost. Cyberspace is not a physical or
tangible entity. It is a giant network which interconnects
innumerable groups of linked computer networks and personal
computers used by individuals. Accordingly, there is no need
for government regulation to allow speakers to be heard or to
ensure diversity. Compare, e.g., Turner, 114 S.Ct. at 2456-
57. Indeed, these important policy goals are imperilled, not
furthered, by content regulation such as that imposed by the
Act./*87
In short, cyberspace does not share the "unique"
characteristics of broadcast media that have been thought to
justify greater-than-usual tolerance for content regulation.
C. The Internet's Unmatched Capacity for Furthering
the Core Policies of the First Amendment Requires
That This Court Apply the Rigorous Standards of
Scrutiny Normally Applicable to Content-Based
Restrictions.
The Supreme Court has frequently observed that,
although "the basic principles of freedom of speech and the
press . . . do not vary," each medium of communication
presents "its own peculiar problems" for purposes of First
Amendment analysis. Joseph Burstyn, Inc. v. Wilson, 343 U.S.
495, 503 (1952) (motion pictures). See also, e.g., Turner,
114 S.Ct. at 2456-57, 2466 (cable TV); Southeastern
Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) (live
entertainment). This observation was critical to the Court's
approval of relatively lenient First Amendment standards for
broadcasting in Red Lion Broadcasting Co. v. FCC, 395 U.S. at
386-87. But the Court's attention to the unique
characteristics of certain media has often led it to reaffirm
the importance of adhering to the usual rule of rigorous
review of speech restrictions. E.g., City of Ladue v. Gilleo,
114 S. Ct. 2038, 2046 (1994) (observing, in the course of
striking down an assumedly content-neutral prohibition, that
"[r]esidential signs are an unusually cheap and convenient
form of communication," "[e]specially for persons of modest
means or limited mobility"); Martin v. Struthers, 319 U.S.
141, 146 (1943) ("[d]oor to door distribution of circulars is
essential to the poorly financed causes of little people").
Acknowledgement of the already enormous and rapidly
growing social importance of interactive computer services
requires a similar response here. Indeed, cyberspace's
unique and revolutionary capability to facilitate ordinary
citizens' ability to communicate and learn is a major reason
why online communications should receive the highest level of
First Amendment protection./*88
The Free Speech and Press Clauses are based on the
simple but important belief "that the ultimate good desired
is better reached by free trade in ideas." Abrams v. United
States, 250 U.S. at 630 (Holmes, J., dissenting, joined by
Brandeis, J.). See Turner, 114 S.Ct. at 2458. Cyberspace
has the capacity to further this fundamental constitutional
commitment more effectively than any previous medium of
communication. By means unforeseeable to the First
Amendment's authors, cyberspace offers individual citizens
unprecedented opportunities to enjoy in a direct, personal
way the freedoms of "speech," "press," "assembl[y]," and
"petition." The Internet makes speaking and listening to a
wide variety of others cheaper and easier than ever before.
Through cyberspace, an individual citizen from her keyboard
can reach more people than can any conventional newspaper.
Thousands of new personal, professional, political and
avocational associations are forged on the Internet every
day, many of which link people who would never have had
opportunities to communicate before./*89 Many
politicians in the United States have already established
online links with their constituents, and the process is sure
to continue./*90 Cyberspace has already eliminated
wealth or political power as the prerequisites to mass
communications, and the implications of this historic
development will be felt for decades. See generally Owen
Fiss, "Symposium: In Search of a New Paradigm," 104 Yale
L.J. 1613 (1995). Cyberspace is truly a global electronic
marketplace of ideas.
Because access is so inexpensive and easy,
virtually everyone in the United States has or soon will have
access to the Internet and other interactive computer
services, making this, by far, the most democratic means of
communication ever devised./*91 All that is needed to
"enter" cyberspace is a computer, a "modem" or other
connection, and simple software. For a relatively modest
investment--far less than the cost of purchasing a printing
press, newspaper, broadcast station, or cable system --
individuals can make their message available to more people
than they could reach if they owned the printing press,
newspaper, broadcast station, or cable system. They can
electronically communicate their messages to thousands in a
fraction of the time and for a fraction of the cost required
to leaflet a single city block. It is not even necessary to
own a computer to have regular and meaningful access to the
Internet./*92 Persons of very modest means now have the
ability both to send and to receive information on a scale
that until now would have been unattainable even for the
wealthy.
The Internet has given citizens of modest means
power even William Randolph Hearst would have envied. The
new interactive computer medium has the power to democratize
and diversify the marketplace of ideas. As Congress found,
"[t]he 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." Act, 509. More so than any
other medium, the interactive computer medium "today stands
at the center of an ongoing telecommunications revolution
with still undefined potential to affect the way we
communicate and develop our intellectual resources." Turner,
114 S.Ct. at 2451. It serves the interests protected and
fostered by the First Amendment like no other medium. First
Amendment analysis must respect its awesome potential.
In sum, this Court should accord to the interactive
computer medium the most vigilant protection from government
censorship and overreaching. The unparalleled potential of
cyberspace to effectuate the core policies of the First
Amendment calls for a reaffirmance of our "profound national
commitment" to public discourse that is "uninhibited, robust,
and wide-open." New York Times v. Sullivan, 376 U.S. at 270.
The challenged provisions of the Act, however,
represent an indiscriminate and damaging retreat from that
commitment, one that reflects an as-yet poor legislative
understanding even of the basic operating methods of
cyberspace. Those provisions are facially invalid because
they abridge far too much protected speech while affording
little incremental protection for minors, and threaten to
disrupt the rapidly unfolding development of a salutary
communications revolution that until now has flourished with
a minimum of governmental interference.
IV. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIM THAT THE
ACT IS UNCONSTITUTIONALLY VAGUE.
Even if the Act could otherwise survive
constitutional scrutiny under the First Amendment -- and it
cannot -- this Court should nevertheless enjoin its
enforcement because it is unconstitutionally vague under the
Fifth Amendment. "No one may be required at peril of life,
liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the
State commands or forbids." Bouie v. City of Columbia, 378
U.S. 347, 351 (1964) (quotations omitted). The Due Process
Clause of the Fifth Amendment "requires that a penal statute
define the criminal offense with sufficient definiteness that
ordinary people can understand what conduct is prohibited and
in a manner that does not encourage arbitrary and
discriminatory enforcement." Kolender v. Lawson, 461 U.S.
352, 357 (1983) (holding criminal statute facially invalid as
unconstitutionally vague)./*93 And where -- as here --
the enactment threatens expression protected by the First
Amendment, the enactment must provide more notice and allow
less discretion than for other activities. "Where a
statute's literal scope . . . is capable of reaching
expression sheltered by the First Amendment, the doctrine
demands a greater degree of specificity than in other
contexts." Smith v. Goguen, 415 U.S. 566, 573 (1974). The
particular evil of vague criminal prohibitions applied to
expressive activity is that the uncertainty causes
individuals to "steer far wider of the unlawful zone,"
Speiser v. Randall, 357 U.S. 513, 526 (1958), than if the
boundaries were "clearly marked." Baggett v. Bullit, 377
U.S. 360, 371 (1964). "Free speech may not be so inhibited."
Id. (citing cases)./*94
The Act is unconstitutionally vague in at least two
fundamental respects. First, no ordinary person could
determine with reasonable certainty which communications
Congress sought to proscribe in the Act. The terms
"indecent" and "patently offensive as measured by
contemporary community standards" are hopelessly
vague./*95 Second, the defenses established by the Act,
especially as applied to content providers who do not charge
for access to their speech and those who host Web pages and
other online sites, are also fatally vague. Plaintiffs,
their members, and their subscribers, patrons, and customers
are forced to guess at whether their online expressive
activities may give rise to criminal prosecution. These law-
abiding citizens take the duty to obey the law, and the
prospect of criminal penalties, seriously. They will self-
censor a great deal of protected speech in order to avoid
potential criminal prosecution. The Act thus impermissibly
chills constitutionally protected expression.
A. The Terms "Indecent" and "Patently Offensive As
Measured By Contemporary Community Standards" Are
Unconstitutionally Vague.
Both "indecent" and "patently offensive" are
entirely subjective terms; there is therefore no objective
yardstick for measuring the boundaries of the Act's
proscriptions./*96 As the Supreme Court observed in
striking down a California statute that outlawed "offensive
conduct" as applied to an individual who wore a jacket
displaying the words "Fuck the Draft":
How is one to distinguish this from any other
offensive word? Surely the State has no right to
cleanse public debate to the point where it is
grammatically palatable to the most squeamish among
us. Yet no readily ascertainable general principle
exists for stopping short of that result were we to
affirm the judgment below. For, while the
particular four-letter word being litigated here is
perhaps more distasteful than most others of its
genre, it is nevertheless often true that one man's
vulgarity is another's lyric. Indeed, we think it
is largely because governmental officials cannot
make principled distinctions in this area that the
Constitution leaves matters of taste and style so
largely to the individual.
Cohen, 403 U.S. at 25 (emphasis added). The government
maintains that the Act's only design is to control children's
access to "what is colloquially referred to as pornography."
Deft ACLU Br. at 21. That design certainly cannot be gleaned
from the text of the Act, or from its legislative history.
Congress expressly stated that it intended to adopt the FCC
"patently offensive" standard applied in Pacifica to censure
George Carlin's "Seven Dirty Words" monologue. Conf. Rep. at
188-89. Although that monologue could be described as
"'vulgar,' 'offensive,' and 'shocking,'" Pacifica, 438 U.S.
at 747, it could not be described as "pornography." The
obvious disconnect between the government's attempt to
describe the Act as applying only to "pornography," on the
one hand, and the much broader text of the Act and Congress's
much broader explanation of its understanding, highlights the
fatal vagueness of the key statutory terms.
Even if a person of "common intelligence" could
reasonably discern what Congress meant by "indecent" and
"patently offensive" in the abstract, that understanding is
of little use because "indecency is largely a function of
context," Pacifica, 438 U.S. at 742, and the "patently
offensive" standard of 233(d)(1)(B), by its terms, demands
that offensiveness be judged "in context."/*97 The
context is, in turn, a function of the medium. See Pacifica,
438 U.S. at 748; Sable, 492 U.S. at 127-28. Congress clearly
understood and intended to adopt this principle in
establishing those standards, noting that the meaning of
indecency may vary "depending on the communications medium to
which it has been applied." Conf. Report at 188.
But the Act provides no guidance as to whether a
particular communication is "indecent" or "patently
offensive" in the "context" of the online computer medium.
The Internet bears no resemblance to broadcast television or
telephone communications -- the only other contexts in which
the FCC has applied the terms./*98 The online medium is
not thrust upon unwilling listeners, as with broadcast.
Moreover, the immensely broad and diverse range of
communications available over the online medium is totally
different from other mediums. In addition, there is no
bottleneck control over content and no significant barrier to
entry into the marketplace of ideas, and unlike broadcast,
cable and telephone, the online computer medium has been
virtually unregulated. As a result, what might be viewed as
"intolerable" in other mediums could well be viewed as
tolerable in the cyberspace medium. Cf. Pacifica, 438 U.S.
at 747 (noting that "[w]ords that are commonplace in one
setting are shocking in another"). However, the cyberspace
medium is so new, the average person cannot know the
boundaries of what will or will not be deemed "indecent" or
"patently offensive" in this new medium.
Making the "patent offensiveness" of the
communication depend upon "contemporary community standards"
exacerbates the vagueness of this critical statutory term.
Both of the FCC tests from which the Act's language was
borrowed expressly tied the community standard to the medium
at issue. Although the legislative history states that
Congress intended for the Act to incorporate those tests, the
text of the Act (unlike the text of the FCC tests for those
other mediums) does not expressly tie the community standard
to the cyberspace medium, leaving the ordinary person to
guess as to what standards of "offensiveness" will be applied
-- what is tolerated and deemed appropriate in the
"cyberspace community" or in the community at large?/*99
Even if an ordinary person could determine whether
the "cyberspace community" or the larger community's
standards would govern, the statutory text fails to specify
which geographic aspect of that community is relevant. In
the "obscenity" context, it is settled that the relevant
community is the local community in which the jury sits.
See, e.g., Hamling v. United States, 418 U.S. 87 (1974)
(obscenity); United States v. Thomas, 1996 U.S. App. LEXIS
1069 (6th Cir. Jan. 29, 1996) (obscenity in computer
context). See also, e.g., American Booksellers v. Webb, 919
F.2d 1493 (11th Cir. 1990) (state "harmful to minors"
statute). The Act uses the terms "obscene" and "indecent" in
the same prohibitory clause, which would lead an ordinary
person to understand that the same community standard applied
to both terms. See 223(a)(1)(B). But the Conference Report
expressly states that the Act is "intended to establish a
uniform national standard of content regulation." Conf.
Report at 191 (emphasis added). This apparent inconsistency
between text and current caselaw, on the one hand, and
legislative history on the other, alone creates a fatal
ambiguity in the Act: how can a reasonable person be expected
to determine which community standard, local or national,
will apply when judging the appropriateness of the
communications he or she is disseminating?
Furthermore, even if it could be determined whether
Congress intended a "local" or "national" standard, either
approach would involve ambiguities, when applied to this new
medium, that would make it impossible for "ordinary people
[to] understand what conduct is prohibited." Kolender, 461
U.S. at 357. If a local community standard applies, it is
impossible for the vast majority of online speakers to
determine what standard will govern the lawfulness of their
speech because they do not know, and cannot control, who
receives the speech or the geographical location it reaches.
Communications posted anywhere on the Internet are available
throughout the United States. A speaker cannot possibly have
knowledge (or reason to know) the local standards of
offensiveness in each of the local communities in which his
or her speech will be available. Unlike in Sable, where the
Court found that dial-a-porn services could limit their
messages to the communities they chose to serve, 492 U.S. at
125, local community standards imposed on computer online
communications would "place message senders in a 'double
bind' by compelling them to tailor all their messages to the
least tolerant community." Id. at 124./*100 Cf.
Thomas, supra, at *23-*26 (leaving open question whether
First Amendment requires new definition of "community" in
context of obscenity prosecution involving computer
transmissions).
If, on the other hand, Congress intended to apply a
"national" community standard -- a standard nowhere indicated
in the text of the Act -- it would be impossible for any
speaker to determine with reasonable certainty what that
standard is. The FCC, in interpreting and applying indecency
in the broadcast medium according to a "nonlocal" standard,
has stated that its definition of indecency "does not address
a particular geographic area, but relies instead on the
expertise of Commissioners drawing on their knowledge of the
views of the average viewer or listener as well as their
general expertise in broadcast matters." In re Sagittarius
Broadcasting Corp., 7 F.C.C.R. at 6876. There is no
"expertise" that can be brought to bear here; the FCC has no
enforcement authority, so even if it could develop a common
and consistent view of "offensiveness" in the national
cyberspace community, it would not, even over time, provide
meaningful guidelines for speakers. The Act will be enforced
on an ad hoc basis by prosecutors and juries throughout the
country. It is difficult to comprehend how a local jury
could meaningfully apply a "national community" standard of
"offensiveness," or how speakers could know what local juries
might deem "patently offensive" nationally.
Congress created more confusion with regard to
another fundamental issue -- scienter. The Conference Report
suggests that Congress understood the "patently offensiveness
inquiry" to require "the intention to be patently offensive."
Conf. Report at 189 (emphasis added). But it is entirely
unclear what that "intention" would entail, since much of the
material Congress sought to suppress is certainly not
intended to offend the viewer, but rather to titillate. No
such scienter requirement is found in the text of the Act or
in the FCC standard Congress adopted. Again, a speaker is
left to guess whether an "intent" requirement is or is not
sub silentio imbedded in the statutory terms, and what
exactly that requirement might be. This also creates a
serious problem for plaintiffs and other speakers./*101
The inevitable result of these ambiguities,
particularly given the severe criminal penalties for a wrong
guess, is that speakers will "steer far wider of the unlawful
zone," Speiser v. Randall, 357 U.S. at 526, and much
constitutionally protected expression will be suppressed.
The uncertainty of the coverage of the Act, and its
attendant chilling effect, is forcefully evidenced in the
accompanying declarations. The declarants -- libraries,
booksellers, publishers, universities, writers, editors and
other content providers -- post material of serious artistic,
literary, scientific, educational and informational value.
The declarants provide information about medical, literary,
artistic, cultural, political and scientific issues. Given
the ambiguity in the Act, the University of Pennsylvania
Libraries risks criminal prosecution for posting academic
material directly related, and essential, to courses in
abnormal psychology, sexuality, history and literature./*102
The Fort Vancouver Regional Library in Washington State fears
prosecution for providing patrons access to full text
articles in such mainstream publications as
Cosmopolitan./*103 Booksellers throughout the country who
offer links to the World Wide Web site of Random House and an
excerpt from the national best-seller, Primary Colors, face
criminal prosecution./*104 Members of the Health
Sciences Libraries Consortium fear criminal prosecution for
providing detailed, comprehensive information about the AIDS
virus./*105 Public interest groups such as Media Access
Project and Center for Democracy and Technology cannot post
information educating the public about their mission without
risk of prosecution./*106 If the Act is not enjoined,
these materials may have to be removed from the Internet.
Contrary to the government's suggestion, and
Congress' apparent belief, see Conf. Report at 189, the
Supreme Court has never upheld the term "indecency" or the
phrase "patently offensive as measured by contemporary
community standards" against a vagueness attack. That
question was not addressed in either Pacifica or Sable, the
two cases relied upon by the government. In Sable, the Court
struck down Congress's ban on indecent dial-a-porn telephone
communications on First Amendment grounds, without intimating
any view on the constitutionality of the standard applied by
the FCC under the Fifth Amendment. 492 U.S. at 131. Whether
that standard was vague was irrelevant to its determination.
Nor did the Court uphold the "indecency" standard
against a vagueness challenge in Pacifica. The Court
stressed that it was examining only "whether the [FCC] has
the authority to proscribe this particular broadcast." 438
U.S. at 742 (emphasis added). The Court ruled only as to the
legitimacy of the FCC's determination of the "indecency" of
that single broadcast, not the legitimacy of the standard in
general. Thus, the Court declined to address the plaintiff's
First Amendment overbreadth argument. Id. at 743.
Even if the Court's ruling in Pacifica were misread
as having ruled that the FCC broadcast indecency standard is
not vague, the decision would not govern here. As the Court
repeatedly stressed, the indecency standard before the Court
applied solely to the broadcast medium, a medium with
"unique" characteristics. Id. at 749, 750. The Court's view
of the agency's construction of that term thus has no
relevance to an uninterpreted, unguided use of the term as
applied to an entirely different medium. More importantly,
the Pacifica Court expressly disavowed any suggestion that
its ruling would apply in the context of a criminal sanction.
438 U.S. at 750. To the contrary, the Court has consistently
held that, "where a statute imposes criminal penalties, the
standard of certainty is higher." Kolender, 461 U.S. at 358
n.8. Accord, e.g., Winters v. New York, 333 U.S. 507, 515
(1948) ("The standards of certainty in statutes punishing for
offenses is higher than in those depending primarily upon
civil sanction for enforcement."). Thus, even if Pacifica
could be understood to rule that the indecency standard is
not vague in the civil context -- which it cannot -- that
holding would not apply in this criminal context.
The government's defense of "indecent" and
"patently offensive by contemporary community standards"
essentially boils down to an admonition that plaintiffs
should trust government prosecutors. It is precisely for
this reason that the Act is unconstitutionally vague: the
Fifth Amendment protects speakers from being subjected to the
unguided discretion of criminal prosecutors. The Act does
not provide explicit standards for enforcement authorities,
and the ambiguity of the critical terms "encourages arbitrary
and erratic arrests and convictions." Papachristou v.
Jacksonville, 405 U.S. at 162. Local prosecutors are free to
define the category of prohibited speech as they see fit,
which would permit selective application against disfavored
speakers. In the case of Internet communications, every local
prosecutor has jurisdiction to prosecute any speaker, no
matter where that speaker is located, because of the ubiquity
of the communications links. Cf. Thomas, supra, at *16-*19.
Consequently, the most aggressive prosecutor in the least
tolerant community could prosecute virtually anything on the
Internet. The Act thus "'furnishes a convenient tool for
harsh and discriminatory enforcement by local prosecuting
officials, against particular groups deemed to merit their
displeasure.'" Kolender v. Lawson, 461 U.S. at 360 (quoting
Papachristou, 405 U.S. at 170 (internal quotes omitted)).
For these reasons, plaintiffs are likely to succeed on the
merits of their claim that the challenged provisions of the
Act are unconstitutionally vague in violation of the Fifth
Amendment.
B. The Act's Defenses Are Unconstitutionally Vague.
As noted above, for content-providers who do not
charge for their speech -- the individual or library, for
example -- the verified credit card/ID defenses (47 U.S.C.
223(e)(5)(B)) are irrelevant because, as a practical
matter, they cannot be utilized. For these speakers, the
only possible defense is the vaguely worded "good faith"
defense. Congress has provided no guidance whatsoever
regarding what might or might not constitute "good faith,
reasonable, effective, and appropriate actions under the
circumstances to restrict or prevent access by minors." Id.
223(e)(5)(A)./*107 To the contrary, while permitting
the FCC to opine as to what measures "might" satisfy that
defense, Congress expressly and emphatically stated that the
FCC's views would constitute nothing more than "evidence of
good faith efforts." Id.; Conf. Rep. at 190-91. If Congress
did not anticipate that the FCC could definitively articulate
measures that would satisfy the defense, persons "of common
intelligence must necessarily guess at [the defense's]
meaning and differ as to its application." Roberts v. United
States Jaycees, 468 U.S. at 629 (internal quotation omitted).
The inevitable result is that speakers who do not charge a
fee for access to their speech cannot have reasonable
assurance that the steps they take will constitute a
defense./*108 As a result of the patent ambiguities in
the Act, and the draconian penalties for a wrong guess, these
speakers will "steer far wider of the unlawful zone," Speiser
v. Randall, 357 U.S. at 526, than if the boundaries were
"clearly marked." Baggett v. Bullit, 377 U.S. at 371./*109
Even as to those defenses theoretically available
to fee-charging content-providers, there are significant
ambiguities. For example, the Act establishes an absolute
defense to posting indecent material "in a manner available
to a person under 18 years of age," 47 U.S.C. 223(d)(1)(B),
if the defendant "restricted access . . . by requiring use of
a verified credit card." Id. 223(e)(5)(B). But nowhere is
the nature of the required "verification"
described./*110 Plaintiffs believe the provision must
be construed to require no more than the type of
"verification" performed by any retail store. But plaintiffs
and their members have a legitimate concern that individual
prosecutors (or juries) may construe the defense to require a
"verification" somehow tied to the cardholder's age (or, even
worse, to the card user's age)./*111 Such a requirement
would place an impossible burden on content providers, since
there is no face-to-face contact between the provider and the
recipient of the message and, typically, no papers or ID
documents are exchanged.
Another implacable ambiguity in the Act arises for
those services that host Web pages or other online sites for
content-providers, without exercising any control over
content, but nonetheless providing the computer facility at
which the content physically resides and from which a
recipient obtains access to the content. Online service
providers, such as plaintiffs AOL and Prodigy, and Internet
service providers, such as plaintiffs Netcom and OpNet, offer
extensive services of this kind. It is entirely unclear
whether such services might themselves be deemed to "display"
-- in the sense of "post" -- content from the hosted Web
sites under 223(d)(1)(B) because the communications reside
on their computers./*112 And, if they are so deemed, it
is equally unclear whether such services can invoke the
"access provider" defenses. The ambiguity arises, in part,
because while the services may not be considered to "solely .
. . . provid[e] access or connection to or from a facility .
. . not under [their] control," their role clearly "does not
include the creation of the content of the communication."
223(e)(1). The Conference Report indicates that the access
provider defenses must be "construed broadly to avoid . . . a
regime of vicarious liability" and are "designed to target
the criminal penalties of new sections 223(a) and (d) at
content providers, rather than entities that simply offer
general access to the Internet and other online content."
Conf. Rep. at 190. But unless and until the access provider
defenses are broadly and definitively construed, the
uncertainty regarding the scope of those defenses is another
reason for preliminarily enjoining enforcement of the
Act./*113
V. THE IRREPARABLE HARM TO PLAINTIFFS, THEIR MEMBERS, AND
THEIR SUBSCRIBERS, PATRONS, AND CUSTOMERS FAR OUTWEIGHS
ANY HARM TO THE GOVERNMENT IF AN INJUNCTION ISSUES, AND
THE PUBLIC INTEREST FAVORS INJUNCTIVE RELIEF.
Deprivation of First Amendment freedoms, even for
minimal periods of time, necessarily and always constitutes
irreparable injury. Elrod v. Burns, 427 U.S. 347, 373
(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert.
denied, 493 U.S. 848 (1989) (quoting Elrod and noting that
this principle is "well-established")./*114 "'[A]
chilling effect on free expression'" is a such a deprivation,
and is all that plaintiffs must show to establish irreparable
harm. Hohe, 868 F.2d at 73 (quoting Dombrowski v. Pfister,
380 U.S. 479, 487 (1965)). Plaintiffs, their members, and
their subscribers, patrons, and customers regularly engage in
constitutionally protected expressive activities that they
reasonably fear subject them to criminal liability under the
Act. See, e.g., Croneberger Dec., Tab 13, Ex. B (research
study on Pornography located on web site of Carnegie Library
of Pittsburgh); Hammer Dec., Tab 20, Ex. A, B (Cosmopolitan
article summarizing research on sexual orgasms located on web
site of Fort Vancouver Regional Library); Krug Dec., Tab 23,
Ex. C, D, E (examples of art, medical and cultural
information located on Internet sites of libraries); Mitchell
Dec., Tab 25, Ex. C, D (examples of articles located on
Internet site of HotWired magazine); Mosher Dec., Tab 26, Ex.
A, B, C, D (examples of academic materials on sexuality,
psychological disorders, and history located on Internet site
of University of Pennsylvania libraries); Scorza Dec., Tab
28, Ex. A, B (examples of medical information located on
Internet site of Health Sciences Library Consortium); Teicher
Dec., Tab 33, Ex. B, C (examples of book excerpts located on
Internet sites of bookstores and publishers); Wolf Dec., Tab
39, Ex. B, C (examples of magazine articles on Internet site
of HotWired). This reasonable fear of criminal liability,
and the consequent threat of criminal prosecution, is
currently chilling the exercise of their First Amendment
rights. See, e.g., Hammer Dec. 7, Tab 20 (stating that
"[b]ecause of the passage of the Communications Decency Act
of 1996, the library has decided to refrain, at least
temporarily, from making its web site available directly to
the public"); Krug Dec. 15, Tab 23 (stating that "[a]t
least one library that I am aware of has removed forty titles
from its card catalog in direct response to the Act");
Wheaton Dec., Tab 38, Ex. A 11 ("I have now had my web
space taken away by its owner provider due to his fear of
ramifications of the CDA")./*115
The public has a substantial, constitutionally
protected interest in having access to a robust, uninhibited
flow of constitutionally protected speech. Virginia Bd. of
Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976).
This interest is severely damaged by the Act. Although the
public's interest in protecting children from communications
that would be inappropriate for them is also substantial,
that interest is -- at best -- only marginally advanced by
the provisions plaintiffs ask this Court to enjoin.
The damage to constitutionally protected expression
that has already occurred, and the further damage that will
occur if defendants are not enjoined, is incalculable.
Substantial quantities of constitutionally protected speech
are being and will continue to be suppressed across the
Nation. The concomitant negative impact on the burgeoning
medium for interactive computer services will be substantial.
Entry of the relief requested, pending final
resolution of the merits, will cause defendants no
significant harm, especially because there are other criminal
statutes (including this Act's application to "obscene"
communications) that prohibit the communications they claim
are the principal focus of the Act. Any delay in entry of
relief, however, perpetuates and compounds the damage to
plaintiffs' First Amendment rights and the First Amendment
rights of millions of adults to send and receive
communications that are indisputably constitutionally
protected for them.
CONCLUSION
For the foregoing reasons, preliminary injunctive
relief against enforcement of 223(a)(1)(B)(ii), 223(a)(2)
and 223(d) of the Act is essential and amply justified.
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
Date: March 1, 1996
Ellen M. Kirsh
William W. Burrington
America Online, Inc.
COUNSEL FOR AMERICA ONLINE, INC.
Richard M. Schmidt, Jr.
Allan R. Adler
Cohn and 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
Andrew J. Schwartzman
Media Access Project
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 THE MICROSOFT NETWORK, L.L.C.
Robert P. Taylor
Megan W. Pierson
Melissa A. Burke
Pillsbury, Madison & Sutro
COUNSEL FOR NETCOM ON-LINE 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.
FOOTNOTES
1. Plaintiffs include American Library Association, Inc.,
America Online, Inc., American Booksellers Association, Inc.,
American Booksellers Foundation for Free Expression, American
Society of Newspaper Editors, Apple Computer, Inc.,
Association of American Publishers, Inc., Association of
Publishers, Editors and Writers, Citizens Internet
Empowerment Coalition, Commercial Internet eXchange
Association, CompuServe Incorporated, Families Against
Internet Censorship, Freedom to Read Foundation, Inc.,
Hotwired Ventures LLC, Interactive Services Association,
Microsoft Corporation, The Microsoft Network, L.L.C., NETCOM
On-line Communications Service, Inc., Newspaper Association
of America, OpNet, Inc., Prodigy Services Company, Society of
Professional Journalists, and Wired Ventures, Ltd.
2. Title V of the Telecommunications Act of 1996.
Provisions of the Act that are to be codified will usually be
cited only by their future U.S. Code citation.
3. A more comprehensive description of the Internet and
other interactive computer services, the way they function,
and how they are utilized, can be found in paragraphs 31
through 62 of the Complaint, and in the Declaration of Vinton
G. Cerf, Tab 11, Ex. A (detailing history and development of
the Internet). Cerf, who has been called the "father of the
Internet," co-designed the communications protocols on which
the Internet is based.
Declarations, statements and affidavits are exhibits to
ALA Plaintiffs' Motion for a Preliminary Injunction, Tabs 1-
39. The declarations and affidavits have been arranged
alphabetically by the last name of the declarant. Each
declaration also may include exhibits, labeled Exhibits A, B,
C, etc. A complete list of the declarations and affidavits
is included in the Motion and in an Appendix to this
Memorandum Of Law. Thus, a citation to Doe Dec. 3, Tab 4,
Ex. A would be a citation to Exhibit A of the declaration of
John Doe, located at Tab 4 of the exhibits to the Motion for
Preliminary Injunction.
4. Technically, the "Internet" is only the largest of this
network of interconnected networks, but popularly the term
"Internet" is now used to refer to all of these networks
collectively. This brief uses the term "Internet" in the
broader, popular manner to refer to all of the interconnected
networks. In addition to these networks, there are other
computer services, networks, and networks-of-networks that
are not interconnected to the Internet. Although the bulk of
analysis in this brief focuses on the Internet, the
Communications Decency Act equally applies to these other
services and networks, and most of the same constitutional
concerns are raised for those services and networks.
5. Berners-Lee Dec. 11, Tab 4; Cady Dec. 11, Tab 10.
6. Collet Dec. 4, Tab 12.
7. Berners-Lee Dec. 11, Tab 4; Duvall Dec. 6, Tab 14;
Smith Dec. 5, Tab 30; Butterworth Dec. 3, Tab 9.
8. Francis Dec. 2, Tab 16.
9. Mosher Dec. 4-5, Tab 26; Boiss Dec. 5, 8, Tab
6.
10. Krug Dec. 4, Tab 23.
11. Weisberg Dec. 4, Tab 36; Collet Dec. 3, Tab 12;
Francis Dec. 2, Tab 16.
12. Burke Dec. 3-4, Tab 8; Butterworth Dec. 2-4, Tab
9; Stonesifer Dec. 2-3, Tab 32; Jacobson Dec. 2-3, Tab
21.
13. Bradner Dec. 5, 7, 9, Tab 7; Collet Dec. 10, Tab
12; Cady Dec. 12, 23, 29, Tab 10.
14. Cady Dec. 6-8, Tab 10; Francis Dec. 5, Tab 16.
15. Bradner Dec. 6, Tab 7; Cady Dec. 14, Tab 10.
16. Bradner Dec. 3-4, Tab 7; Collet Dec. 6-11, Tab
12; Cady Dec. 15-20, Tab 10; Francis Dec. 5, Tab 16.
17. Bradner Dec. 8, Tab 7; Cady Dec. 12, 22-26, Tab
10; Burke Dec. 8, Tab 8; Butterworth Dec. 6, Tab 9;
Jacobson Dec. 2, Tab 21.
18. Cady Dec. 3, Tab 10.
19. The World Wide Web is discussed extensively by Timothy
Berners-Lee, who co-invented the Web and who heads the World
Wide Web Consortium. Berners-Lee Dec. 1-18, Tab 7. Other
methods use "ftp" (or file transfer protocol) or a program
and format named "gopher."
20. Berners-Lee Dec. 4, 6, 9, 13, Tab 4; Cady Dec.
34-36, Tab 10.
21. Cady Dec. 6, 7, 12, 14, 15, 31, 35, 39, Tab 10;
Stonesifer Dec. 7, Tab 32.
22. Berners-Lee Dec. 4, 9, Tab 4; Cady Dec. 14-15,
34-39, Tab 10.
23. Berners-Lee Dec. 4, 9, 11, Tab 4.
24. Cady Dec. 36, 38, 39, Tab 10.
25. Sending obscenity and child pornography by computer is
prohibited by federal criminal statutes. See 18 U.S.C.
2251-52, 2256-57; 28 U.S.C. 1464-65; United States v.
Thomas, 1996 U.S. App. LEXIS 1069 (6th Cir. Jan. 29, 1996)
(upholding convictions under 1464 and 1465 for
transporting obscene materials by means of computer bulletin
board service). See also Act, Section 507 (amending
obscenity laws to apply to interactive computer services).
Plaintiffs do not challenge the constitutionality of 47
U.S.C. 223(a)(1)(B)(ii), 223(a)(2), and 223(d) to the
extent they prohibit the transmission of communications that
are obscene or constitute child pornography.
26. "Telecommunications device" is defined to exclude an
"interactive computer service," 47 U.S.C. 223(h)(1)(B), but
would apparently include a modem used for private e-mail
communications.
27. Pursuant to 223(a)(2), it is also a crime knowingly
to provide use of a "telecommunications facility" that is
used to violate 223(a)(1)(B).
28. See FCC v. Pacifica Found., 438 U.S. 726, 741 n.16
(1978). That is a significant problem for some plaintiffs,
including universities with freshmen under the age of
eighteen. See Mosher Dec. 6, 10, Tab 26; Boiss Dec. 8,
Tab 6.
29. "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." 47 U.S.C. 223(h)(2) referring to 47 U.S.C.
230(e)(2).
30. It is a separate criminal offense knowingly to make
available a facility that is used to violate 223(d)(1).
223(d)(2).
31. Cf. Miller, 413 U.S. at 24. State "harmful to minors"
statutes -- which the Conference Committee specifically
rejected as a model, see Joint Explanatory Statement of the
Committee of Conference for Title V, Communications Decency
Act of 1996 at 189 (hereinafter "Conf. Rep."), attached as
Exhibit 2 to Defendant's Opposition to Plaintiffs' Motion for
a Temporary Restraining Order in the ACLU case, No. 96-963
("Deft ACLU Br."), do typically exempt materials with serious
value.
32. 438 U.S. at 745 (plurality op. of Stevens, J.)
(describing the words at issue in the Carlin monologue as
"patently offensive words dealing with sex and excretion").
33. Conf. Rep. at 188.
34. See also, e.g., 141 Cong. Rec. S8341 (June 14, 1995)
(Sen. Leahy) ("works of fiction, ranging from `Lady
Chatterly's Lover' to Newt Gingrich's science fiction novel
`1945,' which contains some steamy scenes, could not be put
out on the Internet because of the risk that a minor might
download it"). In fact, titles and excerpts of popular
articles or books located on the Internet do contain the
"seven dirty words." See Croneberger Dec. 5, Tab 13
(titles containing expletives); Hammer Dec. 5, Tab 20
(same); Krug Dec. 8, 13, Tab 23 (same); Teicher Dec., Tab
33, Ex. B (excerpt from number one bestseller Primary Colors,
including expletives); Shelkrot Dec. 4, Tab 29.
35. For a description of content on the Internet that
could be deemed "indecent" or "patently offensive" for
minors, see Complaint, 64-79.
36. 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 and The Adventures of Tom
Sawyer by Mark Twain, Catcher in the Rye by J.D. Salinger,
I Know Why The Caged Bird Sings by Maya Angelou, as
"indecent" for minors. See Krug Dec. 7, Tab 23; see also
Guttenberg Dec. 11 and Ex. Q, Tab 19 (detailing the list of
books published by Bantam Doubleday Dell Publishing Group
that have been banned somewhere in the United States in the
last three years, including Silas Marner by George Eliot, Are
You There, God? It's Me, Margaret by Judy Blume, The Great
Santini by Pat Conroy and The Black Marble by Joseph
Wambaugh). See Also Action for Children's Television v. FCC,
852 F.2d 1332, 1340 n.13 (D.C. Cir. 1988) (noting that
portions of the works of James Joyce, D.H. Lawrence, James
Baldwin, and Frank Harris could be deemed "indecent"). Even
the American Heritage Dictionary and parts of the Bible have
been attacked as being "indecent" for minors. Krug Dec. 7,
Tab 23; Hammer Dec. 4, Tab 20; Guttenberg Dec., Tab 19, Ex.
Q.
37. See Hammer Dec., Tab 20, Ex. A, B (Cosmopolitan
article summarizing research on sexual orgasms located on web
site of Fort Vancouver Regional Library); Krug Dec., Tab 23,
Ex. C, D, E (examples of art, medical and cultural
information located on Internet sites of libraries); Mitchell
Dec., Tab 25, Ex. C, D (examples of articles located on
Internet site of HotWired magazine); Mosher Dec., Tab 26, Ex.
A, B, C, D (examples of academic materials on sexuality,
psychological disorders, and history located on Internet site
of University of Pennsylvania libraries); Scorza Dec., Tab
28, Ex. A, B (examples of medical information located on
Internet site of Health Sciences Library Consortium); Teicher
Dec., Tab 33, Ex. B, C (examples of book excerpts located on
Internet sites of bookstores and publishers); Wolf Dec., Tab
39, Ex. B, C (examples of magazine articles on Internet site
of HotWired).
38. See Deft. ACLU Br. at 11 n.7, and Exhibit 9 thereto.
39. Croneberger Dec. 3, 6, and Ex. B, at Tab 13.
40. The government also relies on the Final Report of the
Attorney General's Commission On Pornography (1986). See
Deft ACLU Br. at 28 n.14. That report itself contains page
after page of descriptions of graphic sexual acts that could
be deemed indecent or patently offensive. Apparently, it
would be a felony to put that government report online.
41. Bradner Dec. 5, 7, 9, Tab 7; Berners-Lee Dec. 8,
13, Tab 4.
42. Both sponsors of the Act expressly acknowledged as
much. See 141 Cong. Rec. S8090 (June 9, 1995), 141 Cong.
Rec. S8330, S8333 (June 14, 1995); id. at S9771 (July 12,
1995) (Senator Exon); 141 Cong. Rec. S8333 (June 14, 1995)
(Senator Coats). The Department of Justice shared that view,
and expressed serious reservations about the
constitutionality of the bill precisely because it threatened
to deprive adults of access to speech that is
constitutionally protected for them. See Leahy Dec. 11,
17, Tab 24.
43. If "verified" means only verification that a card
bearing the number given was issued and is still valid, most
speakers who charge for their speech could probably rely on
the "verified credit card" defense. However, if "verified"
means verification that the card was issued to a person who
was 18 or older when the card was issued, or who would be 18
at the time the card was used, or verification that the
person using the card, as opposed to the cardholder, was 18
or older, it would in many cases be impossible, and in all
cases extremely burdensome and expensive, to obtain the
requisite verification. Berners-Lee Dec. 15, 16, Tab 4.
The ambiguity concerning the meaning of "verified" is another
reason why the Act is unconstitutionally vague. See Point
IV, infra.
44. See Bradner Dec. 5, 7, 9, 10, Tab 7; Cady Dec.
3, 14, 20, 29, Tab 10; Collet Dec. 10, Tab 12; Croneberger
Dec. 8, Tab 13; Geiman Dec. 6, Tab 17; Grenquist Dec.
11, Tab 18; Hammer Dec. 8, Tab 20; Krug Dec. 14, Tab
23; Mitchell Dec. 8, Tab 25; Teicher Dec. 10, Tab 33;
Wolf Dec. 7, Tab 39.
45. Bradner Dec. 5, 7, 9, Tab 7; Collet Dec. 10, Tab
12; Cady Dec. 3, 7-8, 14, 20, 23, 27, 29, 39, Tab 10. The
communications protocols underlying the Web lack any
provision to track and screen individuals who access the Web.
Berners-Lee Dec. 16, Tab 4. Using additional programming,
it would be possible for an individual web publisher to
screen access using a credit card or other identification
requirement, but such a screening process would be
prohibitively expensive and time consuming for non-fee
charging speakers. Id.; Cady Dec. 36, Tab 10. The same
constraints apply to ftp and gopher sites. Cady Dec. 39,
Tab 10.
46. Bradner Dec. 3-5, Tab 7; Collet Dec. 10, Tab 12;
Cady Dec. 20, Tab 10.
47. See Bradner Dec. 10, Tab 7; Croneberger Dec. 8,
Tab 13; Geiman Dec. 6, Tab 17; Grenquist Dec. 11, Tab 18;
Hammer Dec. 8, Tab 20; Krug Dec. 14, Tab 20; Mitchell
Dec. 8, Tab 25; Teicher Dec. 10, Tab 33; Wolf Dec. 7,
Tab 39.
48. Moreover, even if pre-registration by content users
were practically or economically feasible (which it is not),
users' ability to find and utilize material would be
drastically diminished because few of them could anticipate
the need to pre-register for a particular site. A huge
percentage of Internet traffic consists of users engaged in
spontaneous unpredictable research (often aided by the
extraordinary search potential of the hypertext language that
drives the World Wide Web). A pre-registration requirement
would effectively make this type of search impossible as to
files or Web Sites containing any material deemed "patently
offensive." The attendant decline in adult users' visits to
information sites that had pre-registration requirements
could be expected, in turn, to diminish content providers'
willingness to place arguably offensive material online.
49. There are legitimate reasons why speakers may want to
voluntarily restrict access to their communications -- to
protect intellectual property or privacy interests, for
example. The Act, however, imposes this duty upon speakers
who will either be unable, or find it extremely burdensome,
to implement an access control system they would not
otherwise establish. The critical distinction is between
speaker-chosen and government-imposed restrictions.
50. Cady Dec. 7, 8, 11, Tab 10; Butterworth Dec. 8-
9, Tab 9; Stonesifer Dec. 5-6, Tab 32.
51. Burke Dec. 10-12, Tab 8; Butterworth Dec. 7, Tab
9; Jacobson Dec. 7-12, Tab 21; Stonesifer Dec. 7, Tab
32.
52. Duvall Dec. 13-14, Tab 14.
53. Duvall Dec. 16, Tab 14.
54. Spicer Dec. 8-9, Tab 31.
55. Duvall Dec. 12, Tab 14; Spicer Dec. 10, Tab 31.
56. The categories are Violence/Profanity, Partial Nudity,
Nudity, Sexual Acts, Gross Depictions, Racism/Ethnic
Impropriety, Satanic/Cult, Drugs/Drug Culture,
Militant/Extremist, Gambling, Questionable/Illegal, and
Alcohol, Beer & Wine. Spicer Dec. 12-23, Tab 31.
57. Burke Dec. 10-13, Tab 8; Butterworth Dec. 7, Tab
9; Jacobson Dec. 7-8, Tab 21.
58. Spicer Dec. 32, Tab 31.
59. Duvall Dec. 18, Tab 14; Spicer Dec. 31, Tab 31.
In addition to these technologies that allow individual
parents to control what their children can access, 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.
60. The World Wide Web Consortium is one of a number of
organizations of computer scientists and engineers who confer
to agree upon technical protocols and standards to be used
within the Internet. These defined standards and protocols
are what allow the diverse and otherwise incompatible
computers across the world to "internetwork" with each other.
61. See generally Vezza Dec., Tab 35 (detailing PICS
standard and operations).
62. Duvall Dec. 29, Tab 14; Spicer Dec. 37-41, Tab
31.
63. Sable 492 U.S. at 128; accord Bolger v. Youngs Drug
Products Corp. 463 U.S. 60, 73 (1983).
64. Thus, this bedrock principle has already been applied
in the context of sale or distribution of books and other
printed materials (Butler), use of the postal service to mail
unsolicited commercial advertisements to homes (Bolger), and
use of the telephone to sell prerecorded commercial telephone
messages (Sable).
65. The Supreme Court has stressed that in applying this
test it is important to consider whether other private or
governmental alternatives, short of a ban -- already serve to
protect children. If so, the advancement of the governmental
interest served by the ban will be marginal. See Sable, 492
U.S. at 129 (no showing that other means do not afford
similar protection without such infringement); Bolger, 463
U.S. at 73 (ban "provides only the most limited incremental
support" because parents can exercise substantial control
without any governmental involvement, and other laws afford
control over unwanted receipt of materials); Butler, 352 U.S.
at 383 n.* (noting other criminal laws covering same topic
short of ban).
66. See Statement Of The Case, Point C, supra. See
Geimann Dec. 6, Tab 17; Grenquist Dec. 11, Tab 18; Hammer
Dec. 8, Tab 20; Ketter Dec. 8, Tab 22; Krug Dec. 14,
Tab 23; Mitchell Dec. 8, Tab 25; Shelkrot Dec. 6, Tab 29;
Weitzner Dec. 8, Tab 37; Wheaton Dec., Tab 38, Ex. B 10;
Wolf Dec. 6, Tab 39; Berners-Lee Dec. 8, 15, 16, Tab 4;
Bradner Dec. 5, 7, 9, Tab 7.
67. Barrett Dec. 6, Tab 1; Bennett Dec. 8, Tab 3; Blum
Dec. 9, Tab 5; Croneberger Dec. 8, Tab 13; Hammer Dec.
8, Tab 20; Ketter Dec. 8, Tab 22; Mosher Dec. 10, Tab
26; Scorza Dec. 11, Tab 28; Teicher Dec. 10, Tab 33; Wolf
Dec. 6, Tab 39.
68. Bradner Dec. 5, 7, 9, Tab 7; Francis Dec. 9, Tab
16; Collet Dec. 10, Tab 12.
69. Jacobson Dec. 13, Tab 21; Stonesifer Dec. 5-6,
Tab 32.
70. Accord United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1014 (1995); Fabulous Assoc., 896
F.2d at 785 ("The First Amendment protects against government
inhibition as well as prohibition.") (quotation omitted).
71. Of course, Congress is not required to make findings
or hold hearings, and the absence of findings or hearings is
not, by itself, sufficient reason to hold an Act of Congress
unconstitutional. But it is the government's burden to
justify any law that abridges interests protected by the
First Amendment, and as the Supreme Court has noted, the
absence of findings of fact or hearings decreases the
likelihood the government will be able to meet that burden.
See Sable, 492 U.S. at 129-30.
72. In Sable, the Court unanimously struck down 47 U.S.C.
223(b), which banned all "indecent" commercial telephone
messages. The Court found that "the congressional record
presented to us contains no evidence as to how effective or
ineffective the FCC's most recent regulations [permitting
technological defenses to liability for generating indecent
messages] were or might prove to be" with respect to
indecency. Sable, 492 U.S. at 130 (emphasis in original).
Instead, the record contained only
conclusory statements during the debates by proponents
of the bill . . . that under the FCC regulations minors
could still have access to dial-a-porn messages . . . .
No Congressman or Senator purported to present a
considered judgment with respect to how often or to what
extent minors could or would circumvent the rules and
have access to dial-a-porn messages.
Id. at 129-30. Because a lesser burden on speech may have
been available, Congress' lack of findings doomed the
indecency ban: "For all we know from this record, the FCC's
technological approach to restricting dial-a-porn messages to
adults who seek them would be extremely effective . . . if
this is the case, it seems to us that 223(b) is not a
narrowly tailored effort . . . ." Id. at 130-31.
73. Berners-Lee Dec. 14-15, Tab 4; Bradner Dec. 11,
Tab 7.
74. Bradner Dec. 5, 7, 9, Tab 7; Cady Dec. 7, 8, 11,
Tab 10; Francis Dec. 9, Tab 16.
75. Except insofar as it applies to obscenity and child
pornography (and hence is redundant of existing obscenity and
child pornography laws), subsection (d) "`simply has no core'
of constitutionally unprotected expression to which it might
be limited." City of Houston v. Hill, 482 U.S. 451, 468
(1987) (quoting Smith v. Goguen, 415 U.S 566, 578 (1974)).
76. In many overbreadth cases, the First Amendment
plaintiff (often a criminal defendant) relies exclusively
upon the challenged law's effects upon the free speech rights
of persons not before the court. See, e.g., Massachusetts v.
Oakes, 491 U.S. 576, 581 (1989). Here, although the Act
directly violates plaintiffs' own First Amendment rights in a
variety of ways, the certainty that the Act's "very
existence" will "cause others not before the court to refrain
from constitutionally protected speech or expression,"
Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973), underlines
the need to invalidate subsection (d) on its face.
77. Notwithstanding the government's power to restrict
distribution to minors of non-obscene materials with prurient
appeal, see Ginsberg v. New York, 390 U.S. 629 (1968), and to
regulate the use of profane language that could disrupt the
educational environment, see Bethel School District No. 403
v. Fraser, 478 U.S. 675 (1986), it is extremely doubtful
whether the government could flatly ban -- as the Act
purports to do -- the distribution of sexually oriented but
truthful scientific or educational matter (e.g., information
on "safer sex" or AIDS) from children (particularly older
minors). Statutes that restrict "`the free flow of truthful
information,'" suffer from "a `basic' constitutional defect
regardless of the strength of the government's interest.'"
Bolger, 463 U.S. at 75 (quoting Linmark v. Willingboro, 431
U.S. 85, 95-96 (1977)) (emphasis added). Nor are we aware of
any modern precedent holding that the government can withhold
even from minors works of serious literary value on the
ground that they are indecent.
78. "In assessing whether a minor has the requisite
capacity for individual choice the age of the minor is a
significant factor." Ernoznik v. City of Jacksonville, 422
U.S. 205, 214 n.11 (1975) (citing Rowan v. Post Office Dep't,
397 U.S. 728, 741 (1970)). For example, Web sites or
discussion groups on the subjects of sexually transmitted
diseases, "safe sex," or contemporary novels that would be
inappropriate for a 7-year-old Internet user might well be
entirely appropriate for high school or college students who
are 17. The Act, however, prohibits anyone from making such
resources available to anyone under 18. It also makes
sexual candor or vulgarity in a private e-mail exchange
between 17-year-olds -- an exchange that would be entitled to
complete First Amendment protection if conducted through the
United States mail -- a series of felonies. See
223(a)(1)(B), (d).
79. The constitutional difficulties with the Act's
undifferentiating age line would be present even if the
subsection (e)(5) blocking provisions were feasible.
80. Mosher Dec. 6, 10, Tab 26; Boiss Dec. 8, Tab 6.
81. The Act's sweep is far broader than that of the state
"harmful to minors" statute upheld in Ginsberg v. New York,
390 U.S. 629 (1968). That statute banned the sale to persons
under 17 of sex-related pictures of which the predominant
appeal was to the "prurient, shameful or morbid interest of
minors," that was "patently offensive" according to adults'
community standards about what was inappropriate for
children, and that was "utterly without redeeming social
importance for minors." Id. at 646. The instant Act, in
contrast, contains no "prurient appeal" or "redeeming
importance" requirements.
82. See Ginsberg v. New York, 390 U.S. 629 (1968)
(upholding ban on sale to persons under 17 of material
obscene as to minors; statute imposed no restrictions on
sales to adults); Butler v. Michigan, 352 U.S. 380 (1957)
(statute banning sale of materials tending to corrupt youth
invalid because it prevented adult access); American
Booksellers v. Webb, 919 F.2d 1493, 1502 (11th Cir. 1990) (in
evaluating constitutionality of state law forbidding open
display of material harmful to minors "the crucial inquiry .
. . is whether the restriction on adults' access to protected
speech is unnecessarily burdensome, or `significant,' or,
stated differently, whether alternate modes of adult access
are unduly restricted."); Upper Midwest Booksellers v. City
of Minneapolis, 780 F.2d 1389, 1395 (8th Cir. 1985)
(bookstore display restrictions designed to restrict
children's access to sexually oriented material upheld
because it did not "unduly burden the First Amendment rights
of adults"); M.S. News Co. v. Casado, 721 F.2d 1281, 1288
(10th Cir. 1983) (upholding law requiring bookstores to
employ "blinder racks" for adult materials because it "does
not unreasonably restrict adults' access to material which is
not obscene as to them").
83. Pacifica is one of a series of Supreme Court decisions
holding that unique characteristics of the broadcast medium
justify a degree of government content regulation that would
not be permitted elsewhere. See id. 438 U.S. at 748. Thus,
for example, the Court has permitted federal regulators to
override broadcasters' programming preferences to ensure that
listeners and viewers "receive suitable access to social,
political, esthetic, moral, and other ideas and experiences."
Red Lion Broadcasting Co. v FCC, 395 U.S. 367, 390 (1969).
The Court has explained the special First Amendment standard
by reference to four special characteristics of broadcast
media: scarcity of frequencies, intrusiveness, easy
accessibility for children, including "even those too young
to read," and difficulty of viewer control. See Pacifica,
438 U.S. at 748-50; Red Lion, 395 U.S. at 388; National
Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943).
None of these characteristics applies to cyberspace.
84. Even in the e-mail setting, recipients must
affirmatively "open" their mail in order to read the full
message.
85. Berners-Lee Dec. 9, Tab 4; Bradner Dec. 3, 6, 8,
Tab 7.
86. As one scholar has commented, the Turner Court's
refusal to extend the scarcity rationale to cable television,
see 114 S. Ct. at 2456-58, "suggests that new technologies
will generally be subject to ordinary free speech standards,
not to the more lenient standards applied to broadcasting."
Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale
L.J. 1757, 1769 (1995).
87. Moreover, online content providers, like publishers in
the print medium, have no control over an individual's access
to expression in cyberspace. See Turner 114 S.Ct. at 2466.
Cyberspace, including the Internet, is owned by no one and
controlled by no one and there exists no bottleneck or
gatekeeper through which the expression must pass. Although
services such as AOL, Compuserve, the Microsoft Network, and
Prodigy provide subscribers both content and access to the
Internet, once the subscribers access the Internet, these
services have no control over the content that is available.
Moreover, the subscribers have a wide variety of avenues to
access expression on the Internet and other interactive
computer services; unlike with cable, they are not limited to
one physical connection running into their home. Cf. Turner,
114 S.Ct. at 2466. In cyberspace, there is no "potential for
abuse of . . . private power" over "the free flow of
information and ideas." Id.
88. See Jerry Berman and Daniel J. Weitzner, "Abundance
And User Control: Renewing the Democratic Heart Of The First
Amendment In The Age Of Interactive Media," 104 Yale L.J.
1619 (1995).
89. See generally Lawrence Lessig, "The Path of Cyberlaw,"
104 L.J. 1743 (1995) (discussing nature and importance of
associational interests in cyberspace).
90. Leahy Dec. 3-6, Tab 24. See Cass R. Sunstein, "The
First Amendment in Cyberspace," 104 Yale L.J. 1757, 1784.
(canvassing these and other existing uses of interactive
computer services to enhance political deliberation, and
observing that cyberspace offers new possibilities for
political candidates of modest means to compete for the minds
of the citizenry).
91. See generally Eugene Volokh, "Cheap Speech and What It
Will Do," 104 Yale L.J. 1805 (1995).
92. "Computer coffee shops" are rapidly proliferating,
where for less than it would cost to xerox 50 copies of a
paper message, an individual could make that same message
available through the Internet to 40 million people.
Moreover, most universities now provide free access to the
Internet for their students. And public libraries across the
country provide free access to the Internet for library
patrons. See, e.g., Barrett Dec. 4, Tab 1; Boiss Dec.
4, Tab 6; Vaughn Dec. 5, Tab 34.
93. See, e.g., Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982); Smith v. Goguen, 415 U.S.
566 (1974); Grayned v. City of Rockford, 408 U.S. 104 (1972);
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).
94. The government is wrong in asserting plaintiffs must
demonstrate that "'no set of circumstances exists under which
the Act would be valid.'" Deft ACLU Br. at 40 (quoting Rust
v. Sullivan, 500 U.S. 173, 183 (1991)). The Supreme Court
has explained that the higher certainty requirement permits
the Court "to invalidate [for vagueness] a criminal statute
on its face even when it could conceivably have had some
valid applications." Kolender, 461 U.S. at 358 n.8 (emphasis
added).
95. See Barret Dec. 6, Tab 1; Bendall Dec. 4, Tab 2;
Bennett Dec. 11, Tab 3; Boiss Dec. 7, Tab 6; Croneberger
Dec. 4, Tab 13; Fagin Dec. at 1, Tab 15; Geiman Dec. 9,
Tab 17; Grenquist Dec. 12, Tab 18; Guttenberg Dec. 12,
Tab 19; Hammer Dec. 3, Tab 20; Ketter Dec. 9, Tab 22;
Krug Dec. 6, Tab 23; Mitchell Dec. 9, Tab 25; Mosher Dec.
2, Tab 26; Schwartzman Dec. 8, Tab 27; Scorza Dec. 5,
Tab 28; Shelkrot Dec. 3, Tab 29; Teicher Dec. 6, Tab 33;
Weisberg Dec. 10, Tab 36; Wheaton Dec., Tab 38, Ex. A, B;
Wolf Dec. 8, Tab 39;
96. In contrast to obscenity law, where expression must
pertain to statutorily specified "sexual conduct" in order to
be "obscene," Miller, 413 U.S. at 24 & n.6, the Act refers
obliquely, and more broadly, to "sexual or excretory
activities," without further explanation or specificity. See
223(d)(1)(B). The vagueness of these terms is another
basis for finding the Act violative of the Fifth Amendment.
97. Although to any ordinary person the terms might be
understood to have different meanings, Congress apparently
intended that the "indecent" standard of subsection (a) and
the "patently offensive" standard of subsection (d) have the
same meaning. See Conf. Report at 188 (noting that "section
223(d)(1) codifies the definition of indecency from
[Pacifica].").
98. In Pacifica, the Court examined the FCC's enforcement
of an "indecency" standard which the FCC had interpreted to
mean "language that describes, in terms patently offensive as
measured by contemporary community standards for the
broadcast medium, sexual or excretory activities and organs
at times of the day when there is a reasonable risk that
children may be in the audience." 438 U.S. at 732 (emphasis
added) (internal quotations omitted). The Court stressed it
was upholding the FCC's determination that the "language as
broadcast was indecent." Id. (emphasis added); accord id. at
734 (confining holding to review of FCC's judgment as to "the
monologue 'as broadcast'"); id. at 735 ("the focus of our
review must be on the Commission's determination that the
Carlin monologue was indecent as broadcast"). See also In re
Regulations Governing Indecent Communications by Telephone,
Gen. Dkt. No. 90-64, 12 (rel. June 29, 1990) (FCC "dial-a-
porn" indecency standard refers to contemporary community
standards "for the telephone medium").
99. The FCC has argued that its standard for broadcast is
valid because it has "general expertise in broadcast matters"
and therefore can adjudicate whether a particular broadcast
is "indecent" under the broadcast test. In re Sagittarius
Broadcasting Corp., 7 F.C.C.R. 6873, 6876 (1992). However,
neither the FCC, nor any other federal agency, has any
comparable "expertise in [computer] matters," and the Act
expressly denies the FCC the authority to enforce its
provisions. See 47 U.S.C. 223(d)(6).
100. Indeed, a speaker would have to consider whether the
"least common denominator" is the least tolerant local
community in the world, since, as Congress recognized, this
is "a global, medium." Conf. Report at 191. Communications
entirely appropriate for New York City may be deemed
inappropriate for Salt Lake City, and grossly inappropriate
for Saudi Arabia.
101. See, e.g., Croneberger Dec. 4, Tab 13; Geimann Dec.
10, Tab 17; Hammer Dec. 3, Tab 20; Jacobson Dec. 9, Tab
21; Krug Dec. 6, Tab 23; Mosher Dec. 2, Tab 26; Scorza
Dec. 7, Tab 28; Shelkrot Dec. 3, Tab 29; Teicher Dec.
6, Tab 33.
102. Mosher Dec. 4-8, Tab 26.
103. Hammer Dec. 6, Tab 20.
104. Teicher Dec. 7, Tab 33.
105. Scorza Dec. 8, Tab 28.
106. Schwartzman Dec. 4-7, Tab 27; Weitzner Dec. 10-
12, Tab 37.
107. The Conference Report unhelpfully states nothing more
than that the methods need not be "100%" effective. But it
gives no indication of what level of "ineffectiveness" the
jury should tolerate. See Conf. Rep. at 190.
108. This is particularly so because this defense, and all
of the Act's defenses, are only defenses which must be raised
and proved after the speaker has already been subjected to
prosecution. Even speakers who believe their actions will
ultimately be found to constitute a defense may be deterred
from speaking in order to avoid the humiliation, stigma, and
expense of defending a criminal prosecution.
109. If the Act is not enjoined, many content providers
will remove speech from the Internet in order to avoid
criminal prosecution. See, e.g., Bendall Dec. 4, Tab 2;
Bennett Dec. 13, Tab 3; Blum Dec. 8, Tab 5; Croneberger
Dec. 7, Tab 13; Gieman Dec. 8, Tab 17; Guttenberg Dec.
14, Tab 19; Ketter Dec. 10, Tab 22; Krug Dec. 13-15,
Tab 23; Mosher Dec. 9, Tab 26; Scorza Dec. 10, Tab 28;
Stonesifer Dec. 5, Tab 32; Teicher Dec. 9, Tab 33;
Weisberg Dec. 10, Tab 36; Weitzner Dec. 12, Tab 37.
110. There is no discussion of this defense in the
Conference Report.
111. See supra n.43.
112. The Act fails to specify whether there can be more
than one "content provider" of, or person who "displays" or
"posts," any particular communication.
113. The government agrees the access provider defenses
should be broadly construed, so the only question before the
Court is how broadly. See Deft ACLU Br. at 49, n.35.
114. Defendants erroneously rely on Hohe for the
proposition that denial of First Amendment rights does not
necessarily constitute irreparable harm. See Deft ACLU Br.
at 20. Hohe involved a challenge by nonunion members to the
union's procedures for collection of a fee charged for acting
as the collective bargaining representative. Hohe, 868 F.2d
at 71 & n.1. Although the Hohe plaintiffs raised a claim
grounded on the First Amendment, the court held that, because
the alleged injury was merely a monetary one, it was fully
remediable at law and thus not irreparable. Id. at 72-73.
That is clearly not the case here.
115. Defendants, in an effort to contend that the Act's
chilling effect on plaintiffs' freedom of expression does not
amount to irreparable harm, quote (out of context) cases
involving the jurisdictional "case or controversy"
requirement. See Deft ACLU Br. at 19 (citing Younger v.
Harris, 401 U.S. 37, 42 (1971) and Babbitt v. United Farm
Workers National Union, 442 U.S. 289, 298 (1979)). There is
no question, however, that plaintiffs have standing to bring
this pre-enforcement facial challenge to the Act. See
Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383,
392 (1988) (concluding bookstores have standing to challenge
law criminalizing display of books harmful to minors because
"the law is aimed directly at plaintiffs, who, if their
interpretation of the statute is correct, will have to take
significant and costly compliance measures or risk criminal
prosecution.").
APPENDIX
Declarations, Statements and Affidavits referred to in the
foregoing Memorandum of Law are contained in two volumes
accompanying ALA Plaintiffs' Motion for a Preliminary
Injunction. The following is an index of those declarations:
No. Declarant Affiliation
VOLUME 1:
1. Barrett, Jaia Association of Research
Libraries
2. Bendall, Jennifer Recording Industry Association
of America
3. Bennett, Randy Newspaper Association of
America
4. Berners-Lee, Timothy J. Professor, Massachusetts
Institute of Technology;
Director, World Wide Web
Consortium
5. Blum, Carol People for the American Way
6. Boisse, Dr. Joseph University of California, Santa
Barbara Library
7. Bradner, Scott O. Office of Information
Technology, Harvard University
8. Burke, Sheila A. America Online, Inc.
9. Butterworth, Mark CompuServe Incorporated
10. Cady, Glee Harrah NETCOM On-Line Communications
Services, Inc.
11. Cerf, Vinton G. MCI Telecommunications
Corporation
12. Collet, Robert D. Commercial Internet eXchange
Association
13. Croneberger, Robert Carnegie Library of Pittsburgh
14. Duvall, Bill Surfwatch, Inc.
15. Fagin, Barry & Michelle Families Against Internet
Censorship
16. Francis, Rick NETCOM On-Line Communications
Services, Inc.
17. Geimann, Steve Society of Professional
Journalists
18. Grenquist, Peter Association of American
University Presses, Inc.
19. Guttenberg, Jonathon Bantam Doubleday Dell
Publishing Group, Inc.
20. Hammer, Sharon Fort Vancouver Regional Library
21. Jacobson, Marc Prodigy Services Company
22. Ketter, William B. American Society of Newspaper
Editors
23. Krug, Judith F. American Library Association;
Freedom to Read Foundation
VOLUME 2:
24. Leahy, Patrick J. United States Senator
25. Mitchell, Russ Wired Ventures, Ltd.
26. Mosher, Paul University of Pennsylvania
Libraries
27. Schwartzman, Andrew J. Media Access Project
28. Scorza, Joseph C. Health Sciences Libraries
Consortium
29. Shelkrot, Elliot L Free Library of Philadelphia
30. Smith, Robert L., Jr. Interactive Services
Association
31. Spicer, Nigel R. Microsystems Software, Inc.
32. Stonesifer, Patty Microsoft Corp.; Microsoft
Network, L.L.C.
33. Teicher, Oren American Booksellers
Association; American
Booksellers Foundation for Free
Expression
34. Vaughn, John C. Association of American
Universities
35. Vezza, Albert MIT Professor
36. Weisberg, Jeff OpNet Inc.
37. Weitzner, Daniel J. Center for Democracy and
Technology
38. Wheaton, Jim Association of Publisher,
Editors and Writers
39. Wolf, Gary HotWired Ventures, LLC
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