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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
Before: Sloviter, Chief Judge, United States Court of Appeals
for the Third Circuit; Buckwalter and Dalzell, Judges,
United States District Court for the Eastern District
of Pennsylvania
June 11, 1996
ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION
I.
INTRODUCTION
Procedural Background
Before us are motions for a preliminary injunction
filed by plaintiffs who challenge on constitutional grounds
provisions of the Communications Decency Act of 1996 (CDA or "the
Act"), which constitutes Title V of the Telecommunications Act of
1996, signed into law by the President on February 8, 1996.[1]
Telecommunications Act of 1996, Pub. L. No. 104-104, 502, 110
Stat. 56, 133-35. Plaintiffs include various organizations and
individuals who, inter alia, are associated with the computer
and/or communications industries, or who publish or post
materials on the Internet, or belong to various citizen groups.
See ACLU Complaint ( 7-26), ALA First Amended Complaint ( 3,
12-33).
The defendants in these actions are Janet Reno, the
Attorney General of the United States, and the United States
Department of Justice. For convenience, we will refer to these
defendants as the Government. Plaintiffs contend that the two
challenged provisions of the CDA that are directed to
communications over the Internet which might be deemed "indecent"
or "patently offensive" for minors, defined as persons under the
age of eighteen, infringe upon rights protected by the First
Amendment and the Due Process Clause of the Fifth Amendment.
Plaintiffs in Civil Action Number 96-963, in which the
lead plaintiff is the American Civil Liberties Union (the
ACLU),[2] filed their action in the United States District Court
for the Eastern District of Pennsylvania on the day the Act was
signed, and moved for a temporary restraining order to enjoin
enforcement of these two provisions of the CDA. On February 15,
1996, following an evidentiary hearing, Judge Ronald L.
Buckwalter, to whom the case had been assigned, granted a limited
temporary restraining order, finding in a Memorandum that 47
U.S.C. 223(a)(1)(B) ("the indecency provision" of the CDA) was
unconstitutionally vague. On the same day, Chief Judge Dolores
K. Sloviter, Chief Judge of the United States Court of Appeals
for the Third Circuit, having been requested by the parties and
the district court to convene a three-judge court, pursuant to
561(a) of the CDA, appointed such a court consisting of, in
addition to Judge Buckwalter, Judge Stewart Dalzell of the same
district, and herself, as the circuit judge required by 28 U.S.C.
2284.
After a conference with the court, the parties entered
into a stipulation, which the court approved on February 26,
1996, wherein the Attorney General agreed that:
she will not initiate any investigations or
prosecutions for violations of 47 U.S.C.
223(d) for conduct occurring after enactment
of this provision until the three-judge court
hears Plaintiffs' Motion for Preliminary
Injunction . . . and has decided the motion.
The Attorney General's commitment was qualified to the extent
that:
her full authority to investigate or
prosecute any violation of 223(a)(1)(B), as
amended, and 223(d) as to conduct which
occurs or occurred during any period of time
after enactment of these provisions
(including for the period of time to which
this stipulation applies) should the Court
deny plaintiffs' motion or, if the motion is
granted, should these provisions ultimately
be upheld.
Stipulation, 4, in C.A. No. 96-963.
Shortly thereafter, the American Library Association,
Inc. (the ALA) and others[3] filed a similar action at C.A. No.
96-1458. On February 27, 1996, Chief Judge Sloviter, again
pursuant to 561(a) of the CDA and upon request, convened the
same three-judge court pursuant to 28 U.S.C. 2284. The actions
were consolidated pursuant to Fed. R. Civ. P. 42(a), "for all
matters relating to the disposition of motions for preliminary
injunction in these cases, including the hearing on such
motions."
The parties were afforded expedited discovery in
connection with the motions for preliminary injunction, and they
cooperated with Judge Dalzell, who had been assigned the case
management aspects of the litigation. While the discovery was
proceeding, and with the agreement of the parties, the court
began receiving evidence at the consolidated hearings which were
conducted on March 21 and 22, and April 1, 12 and 15, 1996. In
order to expedite the proceedings, the parties worked closely
with Judge Dalzell and arranged to stipulate to many of the
underlying facts and to place much of their cases in chief before
the court by sworn declarations, so that the hearings were
largely devoted to cross-examination of certain of the witnesses
whose declarations had been filed. The parties submitted
proposed findings of fact and post-hearing memoranda on April 29,
and the court heard extensive oral argument on May 10, 1996.[4]
Statutory Provisions at Issue
Plaintiffs focus their challenge on two provisions of
section 502 of the CDA which amend 47 U.S.C. 223(a) and
223(d).
Section 223(a)(1)(B) provides in part that any person
in interstate or foreign communications who, "by means of a
telecommunications device,"[5] "knowingly . . . makes, creates, or
solicits" and "initiates the transmission" of "any comment,
request, suggestion, proposal, image or other communication which
is obscene or indecent, knowing that the recipient of the
communication is under 18 years of age," "shall be criminally
fined or imprisoned." (emphasis added).
Section 223(d)(1) ("the patently offensive provision"),
makes it a crime to use an "interactive computer service"[6] to
"send" or "display in a manner available" to a person under age
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, regardless
of whether the user of such service placed the call or initiated
the communication."
Plaintiffs also challenge on the same grounds the
provisions in 223(a)(2) and 223(d)(2), which make it a crime
for anyone to "knowingly permit[] any telecommunications facility
under [his or her] control to be used for any activity
prohibited" in 223(a)(1)(B) and 223(d)(1). The challenged
provisions impose a punishment of a fine, up to two years
imprisonment, or both for each offense.
Plaintiffs make clear that they do not quarrel with the
statute to the extent that it covers obscenity or child
pornography, which were already proscribed before the CDA's
adoption. See 18 U.S.C. 1464-65 (criminalizing obscene
material); id. 2251-52 (criminalizing child pornography); see
also New York v. Ferber, 458 U.S. 747 (1982); Miller v.
California, 413 U.S. 15 (1973).
Plaintiffs in the ACLU action also challenge the
provision of the CDA that criminalizes speech over the Internet
that transmits information about abortions or abortifacient drugs
and devices, through its amendment of 18 U.S.C. 1462(c). That
section now prohibits the sending and receiving of information
over the Internet by any means regarding "where, how, or of whom,
or by what means any [drug, medicine, article, or thing designed,
adapted, or intended for producing abortion] may be obtained or
made". The Government has stated that it does not contest
plaintiffs' challenge to the enforceability of the provision of
the CDA as it relates to 18 U.S.C. 1462(c).[7]
As part of its argument that the CDA passes
constitutional muster, the Government cites the CDA's "safe
harbor" defenses in new 223(e) of 47 U.S.C., which provides:
(e) Defenses
In addition to any other defenses available
by law:
(1) No person shall be held to have violated
subsection (a) or (d) of this section solely for
providing access or connection to or from a
facility, system, or network not under that
person's control, including transmission,
downloading, intermediate storage, access
software, or other related capabilities that are
incidental to providing such access or connection
that does not include the creation of the content
of the communication.
(2) The defenses provided by paragraph (1)
of this subsection shall not be applicable to a
person who is a conspirator with an entity
actively involved in the creation or knowing
distribution of communications that violate this
section, or who knowingly advertises the
availability of such communications.
(3) The defenses provided in paragraph (1)
of this subsection shall not be applicable to a
person who provides access or connection to a
facility, system, or network engaged in the
violation of this section that is owned or
controlled by such person.
(4) No employer shall be held liable under
this section for the actions of an employee or
agent unless the employee's or agent's conduct is
within the scope of his or her employment or
agency and the employer (A) having knowledge of
such conduct, authorizes or ratifies such conduct,
or (B) recklessly disregards such conduct.
(5) It is a defense to a prosecution under
subsection (a)(1)(B) or (d) of this section, or
under subsection (a)(2) of this section with
respect to the use of a facility for an activity
under subsection (a)(1)(B) that a person --
(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.
(6) The [Federal Communications] Commission
may describe measures which are reasonable,
effective, and appropriate to restrict access to
prohibited communications under subsection (d) of
this section. Nothing in this section authorizes
the Commission to enforce, or is intended to
provide the Commission with the authority to
approve, sanction, or permit, the use of such
measures. The Commission shall have no
enforcement authority over the failure to utilize
such measures. . . .
II.
FINDINGS OF FACT
All parties agree that in order to apprehend the legal
questions at issue in these cases, it is necessary to have a
clear understanding of the exponentially growing, worldwide
medium that is the Internet, which presents unique issues
relating to the application of First Amendment jurisprudence and
due process requirements to this new and evolving method of
communication. For this reason all parties insisted on having
extensive evidentiary hearings before the three-judge court.
The court's Findings of fact are made pursuant to Fed. R. Civ. P.
52(a). The history and basic technology of this medium are not
in dispute, and the first forty-eight paragraphs of the following
Findings of fact are derived from the like-numbered paragraphs of
a stipulation[8] the parties filed with the court.[9]
The Nature of Cyberspace
The Creation of the Internet and the Development of Cyberspace
1. The Internet is not a physical or tangible entity,
but rather a giant network which interconnects innumerable
smaller groups of linked computer networks. It is thus a network
of networks. This is best understood if one considers what a
linked group of computers -- referred to here as a "network" --
is, and what it does. Small networks are now ubiquitous (and are
often called "local area networks"). For example, in many United
States Courthouses, computers are linked to each other for the
purpose of exchanging files and messages (and to share equipment
such as printers). These are networks.
2. Some networks are "closed" networks, not linked to
other computers or networks. Many networks, however, are
connected to other networks, which are in turn connected to other
networks in a manner which permits each computer in any network
to communicate with computers on any other network in the system.
This global Web of linked networks and computers is referred to
as the Internet.
3. The nature of the Internet is such that it is very
difficult, if not impossible, to determine its size at a given
moment. It is indisputable, however, that the Internet has
experienced extraordinary growth in recent years. In 1981, fewer
than 300 computers were linked to the Internet, and by 1989, the
number stood at fewer than 90,000 computers. By 1993, over
1,000,000 computers were linked. Today, over 9,400,000 host
computers worldwide, of which approximately 60 percent located
within the United States, are estimated to be linked to the
Internet. This count does not include the personal computers
people use to access the Internet using modems. In all,
reasonable estimates are that as many as 40 million people around
the world can and do access the enormously flexible communication
Internet medium. That figure is expected to grow to 200 million
Internet users by the year 1999.
4. Some of the computers and computer networks that
make up the Internet are owned by governmental and public
institutions, some are owned by non-profit organizations, and
some are privately owned. The resulting whole is a
decentralized, global medium of communications -- or "cyberspace"
-- that links people, institutions, corporations, and governments
around the world. The Internet is an international system. This
communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange
information. These communications can occur almost
instantaneously, and can be directed either to specific
individuals, to a broader group of people interested in a
particular subject, or to the world as a whole.
5. The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project Agency
("ARPA"), and was called ARPANET. This network linked computers
and computer networks owned by the military, defense contractors,
and university laboratories conducting defense-related research.
The network later allowed researchers across the country to
access directly and to use extremely powerful supercomputers
located at a few key universities and laboratories. As it
evolved far beyond its research origins in the United States to
encompass universities, corporations, and people around the
world, the ARPANET came to be called the "DARPA Internet," and
finally just the "Internet."
6. From its inception, the network was designed to be
a decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human involvement or
control, and with the automatic ability to re-route
communications if one or more individual links were damaged or
otherwise unavailable. Among other goals, this redundant system
of linked computers was designed to allow vital research and
communications to continue even if portions of the network were
damaged, say, in a war.
7. To achieve this resilient nationwide (and
ultimately global) communications medium, the ARPANET encouraged
the creation of multiple links to and from each computer (or
computer network) on the network. Thus, a computer located in
Washington, D.C., might be linked (usually using dedicated
telephone lines) to other computers in neighboring states or on
the Eastern seaboard. Each of those computers could in turn be
linked to other computers, which themselves would be linked to
other computers.
8. A communication sent over this redundant series of
linked computers could travel any of a number of routes to its
destination. Thus, a message sent from a computer in Washington,
D.C., to a computer in Palo Alto, California, might first be sent
to a computer in Philadelphia, and then be forwarded to a
computer in Pittsburgh, and then to Chicago, Denver, and Salt
Lake City, before finally reaching Palo Alto. If the message
could not travel along that path (because of military attack,
simple technical malfunction, or other reason), the message would
automatically (without human intervention or even knowledge) be
re-routed, perhaps, from Washington, D.C. to Richmond, and then
to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto. This type of transmission, and re-routing,
would likely occur in a matter of seconds.
9. Messages between computers on the Internet do not
necessarily travel entirely along the same path. The Internet
uses "packet switching" communication protocols that allow
individual messages to be subdivided into smaller "packets" that
are then sent independently to the destination, and are then
automatically reassembled by the receiving computer. While all
packets of a given message often travel along the same path to
the destination, if computers along the route become overloaded,
then packets can be re-routed to less loaded computers.
10. At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar networks developed to link
universities, research facilities, businesses, and individuals
around the world. These other formal or loose networks included
BITNET, CSNET, FIDONET, and USENET. Eventually, each of these
networks (many of which overlapped) were themselves linked
together, allowing users of any computers linked to any one of
the networks to transmit communications to users of computers on
other networks. It is this series of linked networks (themselves
linking computers and computer networks) that is today commonly
known as the Internet.
11. No single entity -- academic, corporate,
governmental, or non-profit -- administers the Internet. It
exists and functions as a result of the fact that hundreds of
thousands of separate operators of computers and computer
networks independently decided to use common data transfer
protocols to exchange communications and information with other
computers (which in turn exchange communications and information
with still other computers). There is no centralized storage
location, control point, or communications channel for the
Internet, and it would not be technically feasible for a single
entity to control all of the information conveyed on the
Internet.
How Individuals Access the Internet
12. Individuals have a wide variety of avenues to
access cyberspace in general, and the Internet in particular. In
terms of physical access, there are two common methods to
establish an actual link to the Internet. First, one can use a
computer or computer terminal that is directly (and usually
permanently) connected to a computer network that is itself
directly or indirectly connected to the Internet. Second, one
can use a "personal computer" with a "modem" to connect over a
telephone line to a larger computer or computer network that is
itself directly or indirectly connected to the Internet. As
detailed below, both direct and modem connections are made
available to people by a wide variety of academic, governmental,
or commercial entities.
13. Students, faculty, researchers, and others
affiliated with the vast majority of colleges and universities in
the United States can access the Internet through their
educational institutions. Such access is often via direct
connection using computers located in campus libraries, offices,
or computer centers, or may be through telephone access using a
modem from a student's or professor's campus or off-campus
location. Some colleges and universities install "ports" or
outlets for direct network connections in each dormitory room or
provide access via computers located in common areas in
dormitories. Such access enables students and professors to use
information and content provided by the college or university
itself, and to use the vast amount of research resources and
other information available on the Internet worldwide.
14. Similarly, Internet resources and access are
sufficiently important to many corporations and other employers
that those employers link their office computer networks to the
Internet and provide employees with direct or modem access to the
office network (and thus to the Internet). Such access might be
used by, for example, a corporation involved in scientific or
medical research or manufacturing to enable corporate employees
to exchange information and ideas with academic researchers in
their fields.
15. Those who lack access to the Internet through
their schools or employers still have a variety of ways they can
access the Internet. Many communities across the country have
established "free-nets" or community networks to provide their
citizens with a local link to the Internet (and to provide local-
oriented content and discussion groups). The first such
community network, the Cleveland Free-Net Community Computer
System, was established in 1986, and free-nets now exist in
scores of communities as diverse as Richmond, Virginia,
Tallahassee, Florida, Seattle, Washington, and San Diego,
California. Individuals typically can access free-nets at little
or no cost via modem connection or by using computers available
in community buildings. Free-nets are often operated by a local
library, educational institution, or non-profit community group.
16. Individuals can also access the Internet through
many local libraries. Libraries often offer patrons use of
computers that are linked to the Internet. In addition, some
libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet.
Increasingly, patrons now use library services and resources
without ever physically entering the library itself. Libraries
typically provide such direct or modem access at no cost to the
individual user.
17. Individuals can also access the Internet by
patronizing an increasing number of storefront "computer coffee
shops," where customers -- while they drink their coffee -- can
use computers provided by the shop to access the Internet. Such
Internet access is typically provided by the shop for a small
hourly fee.
18. Individuals can also access the Internet through
commercial and non-commercial "Internet service providers" that
typically offer modem telephone access to a computer or computer
network linked to the Internet. Many such providers -- including
the members of plaintiff Commercial Internet Exchange Association
-- are commercial entities offering Internet access for a
monthly or hourly fee. Some Internet service providers, however,
are non-profit organizations that offer free or very low cost
access to the Internet. For example, the International Internet
Association offers free modem access to the Internet upon
request. Also, a number of trade or other non-profit
associations offer Internet access as a service to members.
19. Another common way for individuals to access the
Internet is through one of the major national commercial "online
services" such as America Online, CompuServe, the Microsoft
Network, or Prodigy. These online services offer nationwide
computer networks (so that subscribers can dial-in to a local
telephone number), and the services provide extensive and well
organized content within their own proprietary computer networks.
In addition to allowing access to the extensive content available
within each online service, the services also allow subscribers
to link to the much larger resources of the Internet. Full
access to the online service (including access to the Internet)
can be obtained for modest monthly or hourly fees. The major
commercial online services have almost twelve million individual
subscribers across the United States.
20. In addition to using the national commercial
online services, individuals can also access the Internet using
some (but not all) of the thousands of local dial-in computer
services, often called "bulletin board systems" or "BBSs." With
an investment of as little as $2,000.00 and the cost of a
telephone line, individuals, non-profit organizations, advocacy
groups, and businesses can offer their own dial-in computer
"bulletin board" service where friends, members, subscribers, or
customers can exchange ideas and information. BBSs range from
single computers with only one telephone line into the computer
(allowing only one user at a time), to single computers with many
telephone lines into the computer (allowing multiple simultaneous
users), to multiple linked computers each servicing multiple
dial-in telephone lines (allowing multiple simultaneous users).
Some (but not all) of these BBS systems offer direct or indirect
links to the Internet. Some BBS systems charge users a nominal
fee for access, while many others are free to the individual
users.
21. Although commercial access to the Internet is
growing rapidly, many users of the Internet -- such as college
students and staff -- do not individually pay for access (except
to the extent, for example, that the cost of computer services is
a component of college tuition). These and other Internet users
can access the Internet without paying for such access with a
credit card or other form of payment.
Methods to Communicate Over the Internet
22. Once one has access to the Internet, there are a
wide variety of different methods of communication and
information exchange over the network. These many methods of
communication and information retrieval are constantly evolving
and are therefore difficult to categorize concisely. The most
common methods of communications on the Internet (as well as
within the major online services) can be roughly grouped into six
categories:
(1) one-to-one messaging (such as "e-mail"),
(2) one-to-many messaging (such as "listserv"),
(3) distributed message databases (such as
"USENET newsgroups"),
(4) real time communication (such as "Internet
Relay Chat"),
(5) real time remote computer utilization (such
as "telnet"), and
(6) remote information retrieval (such as "ftp,"
"gopher," and the "World Wide Web").
Most of these methods of communication can be used to transmit
text, data, computer programs, sound, visual images (i.e.,
pictures), and moving video images.
23. One-to-one messaging. One method of communication
on the Internet is via electronic mail, or "e-mail," comparable
in principle to sending a first class letter. One can address
and transmit a message to one or more other people. E-mail on
the Internet is not routed through a central control point, and
can take many and varying paths to the recipients. Unlike postal
mail, simple e-mail generally is not "sealed" or secure, and can
be accessed or viewed on intermediate computers between the
sender and recipient (unless the message is encrypted).
24. One-to-many messaging. The Internet also contains
automatic mailing list services (such as "listservs"), [also
referred to by witnesses as "mail exploders"] that allow
communications about particular subjects of interest to a group
of people. For example, people can subscribe to a "listserv"
mailing list on a particular topic of interest to them. The
subscriber can submit messages on the topic to the listserv that
are forwarded (via e-mail), either automatically or through a
human moderator overseeing the listserv, to anyone who has
subscribed to the mailing list. A recipient of such a message
can reply to the message and have the reply also distributed to
everyone on the mailing list. This service provides the
capability to keep abreast of developments or events in a
particular subject area. Most listserv-type mailing lists
automatically forward all incoming messages to all mailing list
subscribers. There are thousands of such mailing list services
on the Internet, collectively with hundreds of thousands of
subscribers. Users of "open" listservs typically can add or
remove their names from the mailing list automatically, with no
direct human involvement. Listservs may also be "closed," i.e.,
only allowing for one's acceptance into the listserv by a human
moderator.
25. Distributed message databases. Similar in
function to listservs -- but quite different in how
communications are transmitted -- are distributed message
databases such as "USENET newsgroups." User-sponsored newsgroups
are among the most popular and widespread applications of
Internet services, and cover all imaginable topics of interest to
users. Like listservs, newsgroups are open discussions and
exchanges on particular topics. Users, however, need not
subscribe to the discussion mailing list in advance, but can
instead access the database at any time. Some USENET newsgroups
are "moderated" but most are open access. For the moderated
newsgroups,[10] all messages to the newsgroup are forwarded to one
person who can screen them for relevance to the topics under
discussion. USENET newsgroups are disseminated using ad hoc,
peer to peer connections between approximately 200,000 computers
(called USENET "servers") around the world. For unmoderated
newsgroups, when an individual user with access to a USENET
server posts a message to a newsgroup, the message is
automatically forwarded to all adjacent USENET servers that
furnish access to the newsgroup, and it is then propagated to the
servers adjacent to those servers, etc. The messages are
temporarily stored on each receiving server, where they are
available for review and response by individual users. The
messages are automatically and periodically purged from each
system after a time to make room for new messages. Responses to
messages, like the original messages, are automatically
distributed to all other computers receiving the newsgroup or
forwarded to a moderator in the case of a moderated newsgroup.
The dissemination of messages to USENET servers around the world
is an automated process that does not require direct human
intervention or review.
26. There are newsgroups on more than fifteen thousand
different subjects. In 1994, approximately 70,000 messages were
posted to newsgroups each day, and those messages were
distributed to the approximately 190,000 computers or computer
networks that participate in the USENET newsgroup system. Once
the messages reach the approximately 190,000 receiving computers
or computer networks, they are available to individual users of
those computers or computer networks. Collectively, almost
100,000 new messages (or "articles") are posted to newsgroups
each day.
27. Real time communication. In addition to
transmitting messages that can be later read or accessed,
individuals on the Internet can engage in an immediate dialog, in
"real time", with other people on the Internet. In its simplest
forms, "talk" allows one-to-one communications and "Internet
Relay Chat" (or IRC) allows two or more to type messages to each
other that almost immediately appear on the others' computer
screens. IRC is analogous to a telephone party line, using a
computer and keyboard rather than a telephone. With IRC,
however, at any one time there are thousands of different party
lines available, in which collectively tens of thousands of users
are engaging in conversations on a huge range of subjects.
Moreover, one can create a new party line to discuss a different
topic at any time. Some IRC conversations are "moderated" or
include "channel operators."
28. In addition, commercial online services such as
America Online, CompuServe, the Microsoft Network, and Prodigy
have their own "chat" systems allowing their members to converse.
29. Real time remote computer utilization. Another
method to use information on the Internet is to access and
control remote computers in "real time" using "telnet." For
example, using telnet, a researcher at a university would be able
to use the computing power of a supercomputer located at a
different university. A student can use telnet to connect to a
remote library to access the library's online card catalog
program.
30. Remote information retrieval. The final major
category of communication may be the most well known use of the
Internet -- the search for and retrieval of information located
on remote computers. There are three primary methods to locate
and retrieve information on the Internet.
31. A simple method uses "ftp" (or file transfer
protocol) to list the names of computer files available on a
remote computer, and to transfer one or more of those files to an
individual's local computer.
32. Another approach uses a program and format named
"gopher" to guide an individual's search through the resources
available on a remote computer.
The World Wide Web
33. A third approach, and fast becoming the most well-
known on the Internet, is the "World Wide Web." The Web utilizes
a "hypertext" formatting language called hypertext markup
language (HTML), and programs that "browse" the Web can display
HTML documents containing text, images, sound, animation and
moving video. Any HTML document can include links to other types
of information or resources, so that while viewing an HTML
document that, for example, describes resources available on the
Internet, one can "click" using a computer mouse on the
description of the resource and be immediately connected to the
resource itself. Such "hyperlinks" allow information to be
accessed and organized in very flexible ways, and allow people to
locate and efficiently view related information even if the
information is stored on numerous computers all around the world.
34. Purpose. The World Wide Web (W3C) was created to
serve as the platform for a global, online store of knowledge,
containing information from a diversity of sources and accessible
to Internet users around the world. Though information on the
Web is contained in individual computers, the fact that each of
these computers is connected to the Internet through W3C
protocols allows all of the information to become part of a
single body of knowledge. It is currently the most advanced
information system developed on the Internet, and embraces within
its data model most information in previous networked information
systems such as ftp, gopher, wais, and Usenet.
35. History. W3C was originally developed at CERN,
the European Particle Physics Laboratory, and was initially used
to allow information sharing within internationally dispersed
teams of researchers and engineers. Originally aimed at the High
Energy Physics community, it has spread to other areas and
attracted much interest in user support, resource recovery, and
many other areas which depend on collaborative and information
sharing. The Web has extended beyond the scientific and academic
community to include communications by individuals, non-profit
organizations, and businesses.
36. Basic Operation. The World Wide Web is a series
of documents stored in different computers all over the Internet.
Documents contain information stored in a variety of formats,
including text, still images, sounds, and video. An essential
element of the Web is that any document has an address (rather
like a telephone number). Most Web documents contain "links."
These are short sections of text or image which refer to another
document. Typically the linked text is blue or underlined when
displayed, and when selected by the user, the referenced document
is automatically displayed, wherever in the world it actually is
stored. Links for example are used to lead from overview
documents to more detailed documents, from tables of contents to
particular pages, but also as cross-references, footnotes, and
new forms of information structure.
37. Many organizations now have "home pages" on the
Web. These are documents which provide a set of links designed
to represent the organization, and through links from the home
page, guide the user directly or indirectly to information about
or relevant to that organization.
38. As an example of the use of links, if these
Findings were to be put on a World Wide Web site, its home page
might contain links such as those:
*THE NATURE OF CYBERSPACE
*CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE
*HOW PEOPLE ACCESS THE INTERNET
*METHODS TO COMMUNICATE OVER THE INTERNET
39. Each of these links takes the user of the site
from the beginning of the Findings to the appropriate section
within this Adjudication. Links may also take the user from the
original Web site to another Web site on another computer
connected to the Internet. These links from one computer to
another, from one document to another across the Internet, are
what unify the Web into a single body of knowledge, and what
makes the Web unique. The Web was designed with a maximum target
time to follow a link of one tenth of a second.
40. Publishing. The World Wide Web exists
fundamentally as a platform through which people and
organizations can communicate through shared information. When
information is made available, it is said to be "published" on
the Web. Publishing on the Web simply requires that the
"publisher" has a computer connected to the Internet and that the
computer is running W3C server software. The computer can be as
simple as a small personal computer costing less than $1500
dollars or as complex as a multi-million dollar mainframe
computer. Many Web publishers choose instead to lease disk
storage space from someone else who has the necessary computer
facilities, eliminating the need for actually owning any
equipment oneself.
41. The Web, as a universe of network accessible
information, contains a variety of documents prepared with quite
varying degrees of care, from the hastily typed idea, to the
professionally executed corporate profile. The power of the Web
stems from the ability of a link to point to any document,
regardless of its status or physical location.
42. Information to be published on the Web must also
be formatted according to the rules of the Web standards. These
standardized formats assure that all Web users who want to read
the material will be able to view it. Web standards are
sophisticated and flexible enough that they have grown to meet
the publishing needs of many large corporations, banks, brokerage
houses, newspapers and magazines which now publish "online"
editions of their material, as well as government agencies, and
even courts, which use the Web to disseminate information to the
public. At the same time, Web publishing is simple enough that
thousands of individual users and small community organizations
are using the Web to publish their own personal "home pages," the
equivalent of individualized newsletters about that person or
organization, which are available to everyone on the Web.
43. Web publishers have a choice to make their Web
sites open to the general pool of all Internet users, or close
them, thus making the information accessible only to those with
advance authorization. Many publishers choose to keep their
sites open to all in order to give their information the widest
potential audience. In the event that the publishers choose to
maintain restrictions on access, this may be accomplished by
assigning specific user names and passwords as a prerequisite to
access to the site. Or, in the case of Web sites maintained for
internal use of one organization, access will only be allowed
from other computers within that organization's local network.[11]
44. Searching the Web. A variety of systems have
developed that allow users of the Web to search particular
information among all of the public sites that are part of the
Web. Services such as Yahoo, Magellan, Altavista, Webcrawler,
and Lycos are all services known as "search engines" which allow
users to search for Web sites that contain certain categories of
information, or to search for key words. For example, a Web user
looking for the text of Supreme Court opinions would type the
words "Supreme Court" into a search engine, and then be presented
with a list of World Wide Web sites that contain Supreme Court
information. This list would actually be a series of links to
those sites. Having searched out a number of sites that might
contain the desired information, the user would then follow
individual links, browsing through the information on each site,
until the desired material is found. For many content providers
on the Web, the ability to be found by these search engines is
very important.
45. Common standards. The Web links together
disparate information on an ever-growing number of Internet-
linked computers by setting common information storage formats
(HTML) and a common language for the exchange of Web documents
(HTTP). Although the information itself may be in many different
formats, and stored on computers which are not otherwise
compatible, the basic Web standards provide a basic set of
standards which allow communication and exchange of information.
Despite the fact that many types of computers are used on the
Web, and the fact that many of these machines are otherwise
incompatible, those who "publish" information on the Web are able
to communicate with those who seek to access information with
little difficulty because of these basic technical standards.
46. A distributed system with no centralized control.
Running on tens of thousands of individual computers on the
Internet, the Web is what is known as a distributed system. The
Web was designed so that organizations with computers containing
information can become part of the Web simply by attaching their
computers to the Internet and running appropriate World Wide Web
software. No single organization controls any membership in the
Web, nor is there any single centralized point from which
individual Web sites or services can be blocked from the Web.
From a user's perspective, it may appear to be a single,
integrated system, but in reality it has no centralized control
point.
47. Contrast to closed databases. The Web's open,
distributed, decentralized nature stands in sharp contrast to
most information systems that have come before it. Private
information services such as Westlaw, Lexis/Nexis, and Dialog,
have contained large storehouses of knowledge, and can be
accessed from the Internet with the appropriate passwords and
access software. However, these databases are not linked
together into a single whole, as is the World Wide Web.
48. Success of the Web in research, education, and
political activities. The World Wide Web has become so popular
because of its open, distributed, and easy-to-use nature. Rather
than requiring those who seek information to purchase new
software or hardware, and to learn a new kind of system for each
new database of information they seek to access, the Web
environment makes it easy for users to jump from one set of
information to another. By the same token, the open nature of
the Web makes it easy for publishers to reach their intended
audiences without having to know in advance what kind of computer
each potential reader has, and what kind of software they will be
using.
Restricting Access to Unwanted On-Line Material[12]
PICS
49. With the rapid growth of the Internet, the
increasing popularity of the Web, and the existence of material
online that some parents may consider inappropriate for their
children, various entities have begun to build systems intended
to enable parents to control the material which comes into their
homes and may be accessible to their children. The World Wide
Web Consortium launched the PICS ("Platform for Internet Content
Selection") program in order to develop technical standards that
would support parents' ability to filter and screen material that
their children see on the Web.
50. The Consortium intends that PICS will provide the
ability for third parties, as well as individual content
providers, to rate content on the Internet in a variety of ways.
When fully implemented, PICS-compatible World Wide Web browsers,
Usenet News Group readers, and other Internet applications, will
provide parents the ability to choose from a variety of rating
services, or a combination of services.
51. PICS working group [PICS-WG] participants include
many of the major online services providers, commercial internet
access providers, hardware and software companies, major internet
content providers, and consumer organizations. Among active
participants in the PICS effort are:
Adobe Systems, Inc.
Apple Computer
America Online
AT&T
Center for Democracy and Technology
CompuServe
Delphi Internet Services
Digital Equipment Corporation
IBM
First floor
First Virtual Holdings Incorporated
France Telecom
FTP Software
Industrial Technology Research Institute of Taiwan
Information Technology Association of America
Institut National de Recherche en Informatique et
en Automatique (INRIA)
Interactive Services Association
MCI
Microsoft
MIT/LCS/World Wide Web Consortium
NCD
NEC
Netscape Communications Corporation
NewView
O'Reilly and Associates
Open Market
Prodigy Services Company
Progressive Networks
Providence Systems/Parental Guidance
Recreational Software Advisory Council
SafeSurf
SoftQuad, Inc.
Songline Studios
Spyglass
SurfWatch Software
Telequip Corp.
Time Warner Pathfinder
Viacom Nickelodeon[13]
52. Membership in the PICS-WG includes a broad cross-
section of companies from the computer, communications, and
content industries, as well as trade associations and public
interest groups. PICS technical specifications have been agreed
to, allowing the Internet community to begin to deploy products
and services based on the PICS-standards.
53. Until a majority of sites on the Internet have
been rated by a PICS rating service, PICS will initially function
as a "positive" ratings system in which only those sites that
have been rated will be displayed using PICS compatible software.
In other words, PICS will initially function as a site inclusion
list rather than a site exclusion list. The default
configuration for a PICS compatible Internet application will be
to block access to all sites which have not been rated by a PICS
rating service, while allowing access to sites which have a PICS
rating for appropriate content.[14]
Software
54. For over a year, various companies have marketed
stand alone software that is intended to enable parents and other
adults to limit the Internet access of children. Examples of
such software include: Cyber Patrol, CYBERsitter, The Internet
Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy
Server, and WebTrack. The market for this type of software is
growing, and there is increasing competition among software
providers to provide products.
Cyber Patrol
55. As more people, particularly children, began to
use the Internet, Microsystems Software, Inc. decided to develop
and market Internet software intended to empower parents to
exercise individual choice over what material their children
could access. Microsystems' stated intent is to develop a
product which would give parents comfort that their children can
reap the benefits of the Internet while shielding them from
objectionable or otherwise inappropriate materials based on the
parents' own particular tastes and values. Microsystems'
product, Cyber Patrol, was developed to address this need.
56. Cyber Patrol was first introduced in August 1995,
and is currently available in Windows and Macintosh versions.
Cyber Patrol works with both direct Internet Access providers
(ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service
Providers (e.g., America Online, Compuserv, Prodigy, Microsoft).
Cyber Patrol is also compatible with all major World Wide Web
browsers on the market (e.g., Netscape, Navigator, Mosaic,
Prodigy's Legacy and Skimmer browsers, America Online, Netcom's
NetCruiser, etc.). Cyber Patrol was the first parental
empowerment application to be compatible with the PICS standard.
In February of 1996, Microsystems put the first PICS ratings
server on the Internet.
57. The CyberNOT list contains approximately 7000
sites in twelve categories. The software is designed to enable
parents to selectively block access to any or all of the twelve
CyberNOT categories simply by checking boxes in the Cyber Patrol
Headquarters (the Cyber Patrol program manager). These
categories are:
Violence/Profanity: Extreme cruelty, physical or
emotional acts against any animal or person which are
primarily intended to hurt or inflict pain. Obscene
words, phrases, and profanity defined as text that uses
George Carlin's seven censored words more often than
once every fifty messages or pages.
Partial Nudity: Full or partial exposure of the human
anatomy except when exposing genitalia.
Nudity: Any exposure of the human genitalia.
Sexual Acts (graphic or text): Pictures or text
exposing anyone or anything involved in explicit sexual
acts and lewd and lascivious behavior, including
masturbation, copulation, pedophilia, intimacy and
involving nude or partially nude people in
heterosexual, bisexual, lesbian or homosexual
encounters. Also includes phone sex ads, dating
services, adult personals, CD-ROM and videos.
Gross Depictions (graphic or text): Pictures or
descriptive text of anyone or anything which are
crudely vulgar, deficient in civility or behavior, or
showing scatological impropriety. Includes such
depictions as maiming, bloody figures, indecent
depiction of bodily functions.
Racism/Ethnic Impropriety: Prejudice or discrimination
against any race or ethnic culture. Ethnic or racist
jokes and slurs. Any text that elevates one race over
another.
Satanic/Cult: Worship of the devil; affinity for evil,
wickedness. Sects or groups that potentially coerce
individuals to grow, and keep, membership.
Drugs/Drug Culture: Topics dealing with the use of
illegal drugs for entertainment. This would exclude
current illegal drugs used for medicinal purposes
(e.g., drugs used to treat victims of AIDS). Includes
substances used for other than their primary purpose to
alter the individual's state of mind such as glue
sniffing.
Militant/Extremist: Extremely aggressive and combative
behaviors, radicalism, advocacy of extreme political
measures. Topics include extreme political groups that
advocate violence as a means to achieve their goal.
Gambling: Of or relating to lotteries, casinos,
betting, numbers games, on-line sports or financial
betting including non-monetary dares.
Questionable/Illegal: Material or activities of a
dubious nature which may be illegal in any or all
jurisdictions, such as illegal business schemes, chain
letters, software piracy, and copyright infringement.
Alcohol, Beer & Wine: Material pertaining to the sale
or consumption of alcoholic beverages. Also includes
sites and information relating to tobacco products.
58. Microsystems employs people to search the Internet
for sites containing material in these categories. Since new
sites are constantly coming online, Microsystems updates the
CyberNOT list on a weekly basis. Once installed on the home PC,
the copy of Cyber Patrol receives automatic updates to the
CyberNOT list over the Internet every seven days.
59. In February of 1996, Microsystems signed a
licensing arrangement with CompuServe, one of the leading
commercial online services with over 4.3 million subscribers.
CompuServe provides Cyber Patrol free of charge to its
subscribers. Microsystems the same month signed a licensing
arrangement with Prodigy, another leading commercial online
service with over 1.4 million subscribers. Prodigy will provide
Cyber Patrol free of charge of its subscribers.
60. Cyber Patrol is also available directly from
Microsystems for $49.95, which includes a six month subscription
to the CyberNOT blocked sites list (updated automatically once
every seven days). After six months, parents can receive six
months of additional updates for $19.95, or twelve months for
$29.95. Cyber Patrol Home Edition, a limited version of Cyber
Patrol, is available free of charge on the Internet. To obtain
either version, parents download a seven day demonstration
version of the full Cyber Patrol product from the Microsystems
Internet World Wide Web Server. At the end of the seven day
trial period, users are offered the opportunity to purchase the
complete version of Cyber Patrol or provide Microsystems some
basic demographic information in exchange for unlimited use of
the Home Edition. The demographic information is used for
marketing and research purposes. Since January of 1996, over
10,000 demonstration copies of Cyber Patrol have been downloaded
from Microsystems' Web site.
61. Cyber Patrol is also available from Retail outlets
as NetBlocker Plus. NetBlocker Plus sells for $19.95, which
includes five weeks of updates to the CyberNOT list.
62. Microsystems also sells Cyber Patrol into a
growing market in schools. As more classrooms become connected
to the Internet, many teachers want to ensure that their students
can receive the benefit of the Internet without encountering
material they deem educationally inappropriate.
63. Microsystems is working with the Recreational
Software Advisory Council (RSAC), a non-profit corporation which
developed rating systems for video games, to implement the RSAC
rating system for the Internet.
64. The next release of Cyber Patrol, expected in
second quarter of this year, will give parents the ability to use
any PICS rating service, including the RSAC rating service, in
addition to the Microsystems CyberNOT list.
65. In order to speed the implementation of PICS and
encourage the development of PICS-compatible Internet
applications, Microsystems maintains a server on the Internet
which contains its CyberNOT list. The server provides software
developers with access to a PICS rating service, and allows
software developers to test their products' ability to interpret
standard PICS labels. Microsystems is also offering its PICS
client test program for Windows free of charge. The client
program can be used by developers of PICS rating services to test
their services and products.
SurfWatch
66. Another software product, SurfWatch, is also
designed to allow parents and other concerned users to filter
unwanted material on the Internet. SurfWatch is available for
both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95
Operating Systems, and works with direct Internet Access
Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000
other Internet Service Providers).
67. The suggested retail price of SurfWatch Software
is $49.95, with a street price of between $20.00 and $25.00. The
product is also available as part of CompuServe/Spry Inc.'s
Internet in a Box for Kids, which includes access to Spry's Kids
only Internet service and a copy of SurfWatch. Internet in a Box
for Kids retails for approximately $30.00. The subscription
service, which updates the SurfWatch blocked site list
automatically with new sites each month, is available for $5.95
per month or $60.00 per year. The subscription is included as
part of the Internet in a Box for Kids program, and is also
provided as a low-cost option from Internet Service Providers.
68. SurfWatch is available at over 12,000 retail
locations, including National stores such as Comp USA, Egghead
Software, Computer City, and several national mail order outlets.
SurfWatch can also be ordered directly from its own site on the
World Wide Web, and through the Internet Shopping Network.
69. Plaintiffs America Online (AOL), Microsoft
Network, and Prodigy all offer parental control options free of
charge to their members. AOL has established an online area
designed specifically for children. The "Kids Only" parental
control feature allows parents to establish an AOL account for
their children that accesses only the Kids Only channel on
America Online.[15]
70. AOL plans to incorporate PICS-compatible
capability into its standard Web browser software, and to make
available to subscribers other PICS-compatible Web browsers, such
as the Netscape software.
71. Plaintiffs CompuServe and Prodigy give their
subscribers the option of blocking all access to the Internet, or
to particular media within their proprietary online content, such
as bulletin boards and chat rooms.
72. Although parental control software currently can
screen for certain suggestive words or for known sexually
explicit sites, it cannot now screen for sexually explicit images
unaccompanied by suggestive text unless those who configure the
software are aware of the particular site.
73. Despite its limitations, currently available user-
based software suggests that a reasonably effective method by
which parents can prevent their children from accessing sexually
explicit and other material which parents may believe is
inappropriate for their children will soon be widely available.
Content on the Internet
74. The types of content now on the Internet defy easy
classification. The entire card catalogue of the Carnegie
Library is on-line, together with journals, journal abstracts,
popular magazines, and titles of compact discs. The director of
the Carnegie Library, Robert Croneberger, testified that on-line
services are the emerging trend in libraries generally.
Plaintiff Hotwired Ventures LLC organizes its Web site into
information regarding travel, news and commentary, arts and
entertainment, politics, and types of drinks. Plaintiff America
Online, Inc., not only creates chat rooms for a broad variety of
topics, but also allows members to create their own chat rooms to
suit their own tastes. The ACLU uses an America Online chat room
as an unmoderated forum for people to debate civil liberties
issues. Plaintiffs' expert, Scott Bradner,[16] estimated that
15,000 newsgroups exist today, and he described his own interest
in a newsgroup devoted solely to Formula 1 racing cars. America
Online makes 15,000 bulletin boards available to its subscribers,
who post between 200,000 and 250,000 messages each day. Another
plaintiffs' expert, Harold Rheingold, participates in "virtual
communities" that simulate social interaction. It is no
exaggeration to conclude that the content on the Internet is as
diverse as human thought.
75. The Internet is not exclusively, or even
primarily, a means of commercial communication. Many commercial
entities maintain Web sites to inform potential consumers about
their goods and services, or to solicit purchases, but many other
Web sites exist solely for the dissemination of non-commercial
information. The other forms of Internet communication -- e-
mail, bulletin boards, newsgroups, and chat rooms -- frequently
have non-commercial goals. For the economic and technical
reasons set forth in the following paragraphs, the Internet is an
especially attractive means for not-for-profit entities or public
interest groups to reach their desired audiences. There are
examples in the parties' stipulation of some of the non-
commercial uses that the Internet serves. Plaintiff Human Rights
Watch, Inc., offers information on its Internet site regarding
reported human rights abuses around the world. Plaintiff
National Writers Union provides a forum for writers on issues of
concern to them. Plaintiff Stop Prisoner Rape, Inc., posts text,
graphics, and statistics regarding the incidence and prevention
of rape in prisons. Plaintiff Critical Path AIDS Project, Inc.,
offers information on safer sex, the transmission of HIV, and the
treatment of AIDS.
76. Such diversity of content on the Internet is
possible because the Internet provides an easy and inexpensive
way for a speaker to reach a large audience, potentially of
millions. The start-up and operating costs entailed by
communication on the Internet are significantly lower than those
associated with use of other forms of mass communication, such as
television, radio, newspapers, and magazines. This enables
operation of their own Web sites not only by large companies,
such as Microsoft and Time Warner, but also by small, not-for-
profit groups, such as Stop Prisoner Rape and Critical Path AIDS
Project. The Government's expert, Dr. Dan R. Olsen,[17] agreed
that creation of a Web site would cost between $1,000 and
$15,000, with monthly operating costs depending on one's goals
and the Web site's traffic. Commercial online services such as
America Online allow subscribers to create Web pages free of
charge. Any Internet user can communicate by posting a message
to one of the thousands of newsgroups and bulletin boards or by
engaging in an on-line "chat", and thereby reach an audience
worldwide that shares an interest in a particular topic.
77. The ease of communication through the Internet is
facilitated by the use of hypertext markup language (HTML), which
allows for the creation of "hyperlinks" or "links". HTML enables
a user to jump from one source to other related sources by
clicking on the link. A link might take the user from Web site
to Web site, or to other files within a particular Web site.
Similarly, by typing a request into a search engine, a user can
retrieve many different sources of content related to the search
that the creators of the engine have collected.
78. Because of the technology underlying the Internet,
the statutory term "content provider,"[18] which is equivalent to
the traditional "speaker," may actually be a hybrid of speakers.
Through the use of HTML, for example, Critical Path and Stop
Prisoner Rape link their Web sites to several related databases,
and a user can immediately jump from the home pages of these
organizations to the related databases simply by clicking on a
link. America Online creates chat rooms for particular
discussions but also allows subscribers to create their own chat
rooms. Similarly, a newsgroup gathers postings on a particular
topic and distributes them to the newsgroup's subscribers. Users
of the Carnegie Library can read on-line versions of Vanity Fair
and Playboy, and America Online's subscribers can peruse the New
York Times, Boating, and other periodicals. Critical Path, Stop
Prisoner Rape, America Online and the Carnegie Library all make
available content of other speakers over whom they have little or
no editorial control.
79. Because of the different forms of Internet
communication, a user of the Internet may speak or listen
interchangeably, blurring the distinction between "speakers" and
"listeners" on the Internet. Chat rooms, e-mail, and newsgroups
are interactive forms of communication, providing the user with
the opportunity both to speak and to listen.
80. It follows that unlike traditional media, the
barriers to entry as a speaker on the Internet do not differ
significantly from the barriers to entry as a listener. Once one
has entered cyberspace, one may engage in the dialogue that
occurs there. In the argot of the medium, the receiver can and
does become the content provider, and vice-versa.
81. The Internet is therefore a unique and wholly new
medium of worldwide human communication.
Sexually Explicit Material On the Internet
82. The parties agree that sexually explicit material
exists on the Internet. Such material includes text, pictures,
and chat, and includes bulletin boards, newsgroups, and the other
forms of Internet communication, and extends from the modestly
titillating to the hardest-core.
83. There is no evidence that sexually-oriented
material is the primary type of content on this new medium.
Purveyors of such material take advantage of the same ease of
access available to all users of the Internet, including
establishment of a Web site.
84. Sexually explicit material is created, named, and
posted in the same manner as material that is not sexually
explicit. It is possible that a search engine can accidentally
retrieve material of a sexual nature through an imprecise search,
as demonstrated at the hearing. Imprecise searches may also
retrieve irrelevant material that is not of a sexual nature. The
accidental retrieval of sexually explicit material is one
manifestation of the larger phenomenon of irrelevant search
results.
85. Once a provider posts content on the Internet, it
is available to all other Internet users worldwide. Similarly,
once a user posts a message to a newsgroup or bulletin board,
that message becomes available to all subscribers to that
newsgroup or bulletin board. For example, when the
UCR/California Museum of Photography posts to its Web site nudes
by Edward Weston and Robert Mapplethorpe to announce that its new
exhibit will travel to Baltimore and New York City, those images
are available not only in Los Angeles, Baltimore, and New York
City, but also in Cincinnati, Mobile, or Beijing -- wherever
Internet users live. Similarly, the safer sex instructions that
Critical Path posts to its Web site, written in street language
so that the teenage receiver can understand them, are available
not just in Philadelphia, but also in Provo and Prague. A chat
room organized by the ACLU to discuss the United States Supreme
Court's decision in FCC v. Pacifica Foundation would transmit
George Carlin's seven dirty words to anyone who enters. Messages
posted to a newsgroup dedicated to the Oklahoma City bombing
travel to all subscribers to that newsgroup.
86. Once a provider posts its content on the Internet,
it cannot prevent that content from entering any community.
Unlike the newspaper, broadcast station, or cable system,
Internet technology necessarily gives a speaker a potential
worldwide audience. Because the Internet is a network of
networks (as described above in Findings 1 through 4), any
network connected to the Internet has the capacity to send and
receive information to any other network. Hotwired Ventures, for
example, cannot prevent its materials on mixology from entering
communities that have no interest in that topic.
87. Demonstrations at the preliminary injunction
hearings showed that it takes several steps to enter cyberspace.
At the most fundamental level, a user must have access to a
computer with the ability to reach the Internet (typically by way
of a modem). A user must then direct the computer to connect
with the access provider, enter a password, and enter the
appropriate commands to find particular data. On the World Wide
Web, a user must normally use a search engine or enter an
appropriate address. Similarly, accessing newsgroups, bulletin
boards, and chat rooms requires several steps.
88. Communications over the Internet do not "invade"
an individual's home or appear on one's computer screen unbidden.
Users seldom encounter content "by accident." A document's
title or a description of the document will usually appear before
the document itself takes the step needed to view it, and in many
cases the user will receive detailed information about a site's
content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by
warnings as to the content. Even the Government's witness, Agent
Howard Schmidt, Director of the Air Force Office of Special
Investigation, testified that the "odds are slim" that a user
would come across a sexually explicit site by accident.
89. Evidence adduced at the hearing showed significant
differences between Internet communications and communications
received by radio or television. Although content on the
Internet is just a few clicks of a mouse away from the user, the
receipt of information on the Internet requires a series of
affirmative steps more deliberate and directed than merely
turning a dial. A child requires some sophistication and some
ability to read to retrieve material and thereby to use the
Internet unattended.
Obstacles to Age Verification on the Internet
90. There is no effective way to determine the
identity or the age of a user who is accessing material through
e-mail, mail exploders, newsgroups or chat rooms. An e-mail
address provides no authoritative information about the
addressee, who may use an e-mail "alias" or an anonymous
remailer. There is also no universal or reliable listing of e-
mail addresses and corresponding names or telephone numbers, and
any such listing would be or rapidly become incomplete. For
these reasons, there is no reliable way in many instances for a
sender to know if the e-mail recipient is an adult or a minor.
The difficulty of e-mail age verification is compounded for mail
exploders such as listservs, which automatically send information
to all e-mail addresses on a sender's list. Government expert
Dr. Olsen agreed that no current technology could give a speaker
assurance that only adults were listed in a particular mail
exploder's mailing list.
91. Because of similar technological difficulties,
individuals posting a message to a newsgroup or engaging in chat
room discussions cannot ensure that all readers are adults, and
Dr. Olsen agreed. Although some newsgroups are moderated, the
moderator's control is limited to what is posted and the
moderator cannot control who receives the messages.
92. The Government offered no evidence that there is a
reliable way to ensure that recipients and participants in such
fora can be screened for age. The Government presented no
evidence demonstrating the feasibility of its suggestion that
chat rooms, newsgroups and other fora that contain material
deemed indecent could be effectively segregated to "adult" or
"moderated" areas of cyberspace.
93. Even if it were technologically feasible to block
minors' access to newsgroups and similar fora, there is no method
by which the creators of newsgroups which contain discussions of
art, politics or any other subject that could potentially elicit
"indecent" contributions could limit the blocking of access by
minors to such "indecent" material and still allow them access to
the remaining content, even if the overwhelming majority of that
content was not indecent.
94. Likewise, participants in MUDs (Multi-User
Dungeons) and MUSEs (Multi-User Simulation Environments) do not
know whether the other participants are adults or minors.
Although MUDs and MUSEs require a password for permanent
participants, they need not give their real name nor verify their
age, and there is no current technology to enable the
administrator of these fantasy worlds to know if the participant
is an adult or a minor.
95. Unlike other forms of communication on the
Internet, there is technology by which an operator of a World
Wide Web server may interrogate a user of a Web site. An HTML
document can include a fill-in-the-blank "form" to request
information from a visitor to a Web site, and this information
can be transmitted back to the Web server and be processed by a
computer program, usually a Common Gateway Interface (cgi)
script. The Web server could then grant or deny access to the
information sought. The cgi script is the means by which a Web
site can process a fill-in form and thereby screen visitors by
requesting a credit card number or adult password.
96. Content providers who publish on the World Wide
Web via one of the large commercial online services, such as
America Online or CompuServe, could not use an online age
verification system that requires cgi script because the server
software of these online services available to subscribers cannot
process cgi scripts. There is no method currently available for
Web page publishers who lack access to cgi scripts to screen
recipients online for age.
The Practicalities of the Proffered Defenses
Note: The Government contends the CDA makes available
three potential defenses to all content providers on the
Internet: credit card verification, adult verification by
password or adult identification number, and "tagging".
Credit Card Verification
97. Verification[19] of a credit card number over the
Internet is not now technically possible. Witnesses testified
that neither Visa nor Mastercard considers the Internet to be
sufficiently secure under the current technology to process
transactions in that manner. Although users can and do purchase
products over the Internet by transmitting their credit card
number, the seller must then process the transaction with Visa or
Mastercard off-line using phone lines in the traditional way.
There was testimony by several witnesses that Visa and Mastercard
are in the process of developing means of credit card
verification over the Internet.
98. Verification by credit card, if and when
operational, will remain economically and practically unavailable
for many of the non-commercial plaintiffs in these actions. The
Government's expert "suspect[ed]" that verification agencies
would decline to process a card unless it accompanied a
commercial transaction. There was no evidence to the contrary.
99. There was evidence that the fee charged by
verification agencies to process a card, whether for a purchase
or not, will preclude use of the credit-card verification defense
by many non-profit, non-commercial Web sites, and there was no
evidence to the contrary. Plaintiffs' witness Patricia Nell
Warren, an author whose free Web site allows users to purchase
gay and lesbian literature, testified that she must pay $1 per
verification to a verification agency. Her Web site can absorb
this cost because it arises in connection with the sale of books
available there.
100. Using credit card possession as a surrogate for
age, and requiring use of a credit card to enter a site, would
impose a significant economic cost on non-commercial entities.
Critical Path, for example, received 3,300 hits daily from
February 4 through March 4, 1996. If Critical Path must pay a
fee every time a user initially enters its site, then, to provide
free access to its non-commercial site, it would incur a monthly
cost far beyond its modest resources. The ACLU's Barry
Steinhardt testified that maintenance of a credit card
verification system for all visitors to the ACLU's Web site would
require it to shut down its Web site because the projected cost
would exceed its budget.
101. Credit card verification would significantly delay
the retrieval of information on the Internet. Dr. Olsen, the
expert testifying for the Government, agreed that even "a minute
is [an] absolutely unreasonable [delay] . . . [P]eople will not
put up with a minute." Plaintiffs' expert Donna Hoffman
similarly testified that excessive delay disrupts the "flow" on
the Internet and stifles both "hedonistic" and "goal-directed"
browsing.
102. Imposition of a credit card requirement would
completely bar adults who do not have a credit card and lack the
resources to obtain one from accessing any blocked material. At
this time, credit card verification is effectively unavailable to
a substantial number of Internet content providers as a potential
defense to the CDA.
Adult Verification by Password
103. The Government offered very limited evidence
regarding the operation of existing age verification systems, and
the evidence offered was not based on personal knowledge.
AdultCheck and Verify, existing systems which appear to be used
for accessing commercial pornographic sites, charge users for
their services. Dr. Olsen admitted that his knowledge of these
services was derived primarily from reading the advertisements on
their Web pages. He had not interviewed any employees of these
entities, had not personally used these systems, had no idea how
many people are registered with them, and could not testify to
the reliability of their attempt at age verification.
104. At least some, if not almost all, non-commercial
organizations, such as the ACLU, Stop Prisoner Rape or Critical
Path AIDS Project, regard charging listeners to access their
speech as contrary to their goals of making their materials
available to a wide audience free of charge.
105. It would not be feasible for many non-commercial
organizations to design their own adult access code screening
systems because the administrative burden of creating and
maintaining a screening system and the ongoing costs involved is
beyond their reach. There was testimony that the costs would be
prohibitive even for a commercial entity such as HotWired, the
online version of Wired magazine.
106. There is evidence suggesting that adult users,
particularly casual Web browsers, would be discouraged from
retrieving information that required use of a credit card or
password. Andrew Anker testified that HotWired has received many
complaints from its members about HotWired's registration system,
which requires only that a member supply a name, e-mail address
and self-created password. There is concern by commercial
content providers that age verification requirements would
decrease advertising and revenue because advertisers depend on a
demonstration that the sites are widely available and frequently
visited.
107. Even if credit card verification or adult
password verification were implemented, the Government presented
no testimony as to how such systems could ensure that the user of
the password or credit card is in fact over 18. The burdens
imposed by credit card verification and adult password
verification systems make them effectively unavailable to a
substantial number of Internet content providers.
The Government's "Tagging" Proposal
108. The feasibility and effectiveness of "tagging" to
restrict children from accessing "indecent" speech, as proposed
by the Government has not been established. "Tagging" would
require content providers to label all of their "indecent" or
"patently offensive" material by imbedding a string of
characters, such as "XXX," in either the URL or HTML. If a user
could install software on his or her computer to recognize the
"XXX" tag, the user could screen out any content with that tag.
Dr. Olsen proposed a "-L18" tag, an idea he developed for this
hearing in response to Mr. Bradner's earlier testimony that
certain tagging would not be feasible.
109. The parties appear to agree that it is
technologically feasible -- "trivial", in the words of
plaintiffs' expert -- to imbed tags in URLs and HTML, and the
technology of tagging underlies both plaintiffs' PICS proposal
and the Government's "-L18" proposal.
110. The Government's tagging proposal would require
all content providers that post arguably "indecent" material to
review all of their online content, a task that would be
extremely burdensome for organizations that provide large amounts
of material online which cannot afford to pay a large staff to
review all of that material. The Carnegie Library would be
required to hire numerous additional employees to review its on-
line files at an extremely high cost to its limited budget. The
cost and effort would be substantial for the Library and
frequently prohibitive for others. Witness Kiroshi Kuromiya
testified that it would be impossible for his organization,
Critical Path, to review all of its material because it has only
one full and one part-time employee.
111. The task of screening and tagging cannot be done
simply by using software which screens for certain words, as Dr.
Olsen acknowledged, and we find that determinations as to what is
indecent require human judgment.
112. In lieu of reviewing each file individually, a
content provider could tag its entire site but this would prevent
minors from accessing much material that is not "indecent" under
the CDA.
113. To be effective, a scheme such as the -L18
proposal would require a worldwide consensus among speakers to
use the same tag to label "indecent" material. There is
currently no such consensus, and no Internet speaker currently
labels its speech with the -L18 code or with any other widely-
recognized label.
114. Tagging also assumes the existence of software
that recognizes the tags and takes appropriate action when it
notes tagged speech. Neither commercial Web browsers nor user-
based screening software is currently configured to block a -L18
code. Until such software exists, all speech on the Internet
will continue to travel to whomever requests it, without
hindrance. Labelling speech has no effect in itself on the
transmission (or not) of that speech. Neither plaintiffs nor the
Government suggest that tagging alone would shield minors from
speech or insulate a speaker from criminal liability under the
CDA. It follows that all speech on any topic that is available to
adults will also be available to children using the Internet
(unless it is blocked by screening software running on the
computer the child is using).
115. There is no way that a speaker can use current
technology to know if a listener is using screening software.
116. Tags can not currently activate or deactivate
themselves depending on the age or location of the receiver.
Critical Path, which posts on-line safer sex instructions, would
be unable to imbed tags that block its speech only in communities
where it may be regarded as indecent. Critical Path, for
example, must choose either to tag its site (blocking its speech
in all communities) or not to tag, blocking its speech in none.
The Problems of Offshore Content and Caching
117. A large percentage, perhaps 40% or more, of
content on the Internet originates outside the United States. At
the hearing, a witness demonstrated how an Internet user could
access a Web site of London (which presumably is on a server in
England), and then link to other sites of interest in England. A
user can sometimes discern from a URL that content is coming from
overseas, since InterNIC allows a content provider to imbed a
country code in a domain name.[20] Foreign content is otherwise
indistinguishable from domestic content (as long as it is in
English), since foreign speech is created, named, and posted in
the same manner as domestic speech. There is no requirement that
foreign speech contain a country code in its URL. It is
undisputed that some foreign speech that travels over the
Internet is sexually explicit.
118. The use of "caching" makes it difficult to
determine whether the material originated from foreign or
domestic sources. Because of the high cost of using the trans-
Atlantic and trans-Pacific cables, and because the high demand on
those cables leads to bottleneck delays, content is often
"cached", or temporarily stored, on servers in the United States.
Material from a foreign source in Europe can travel over the
trans-Atlantic cable to the receiver in the United States, and
pass through a domestic caching server which then stores a copy
for subsequent retrieval. This domestic caching server, rather
than the original foreign server, will send the material from the
cache to the subsequent receivers, without placing a demand on
the trans-oceanic cables. This shortcut effectively eliminates
most of the distance for both the request and the information
and, hence, most of the delay. The caching server discards the
stored information according to its configuration (e.g., after a
certain time or as the demand for the information diminishes).
Caching therefore advances core Internet values: the cheap and
speedy retrieval of information.
119. Caching is not merely an international phenomenon.
Domestic content providers store popular domestic material on
their caching servers to avoid the delay of successive searches
for the same material and to decrease the demand on their
Internet connection. America Online can cache the home page of
the New York Times on its servers when a subscriber first
requests it, so that subsequent subscribers who make the same
request will receive the same home page, but from America
Online's caching service rather than from the New York Times's
server.[21]
120. Put simply, to follow the example in the prior
paragraph, America Online has no control over the content that
the New York Times posts to its Web site, and the New York Times
has no control over America Online's distribution of that content
from a caching server.
Anonymity
121. Anonymity is important to Internet users who seek
to access sensitive information, such as users of the Critical
Path AIDS Project's Web site, the users, particularly gay youth,
of Queer Resources Directory, and users of Stop Prisoner Rape
(SPR). Many members of SPR's mailing list have asked to remain
anonymous due to the stigma of prisoner rape.
Plaintiffs' Choices Under the CDA
122. Many speakers who display arguably indecent
content on the Internet must choose between silence and the risk
of prosecution. The CDA's defenses -- credit card verification,
adult access codes, and adult personal identification numbers --
are effectively unavailable for non-commercial, not-for-profit
entities.
123. The plaintiffs in this action are businesses,
libraries, non-commercial and not-for-profit organizations, and
educational societies and consortia. Although some of the
material that plaintiffs post online -- such as information
regarding protection from AIDS, birth control or prison rape --
is sexually explicit and may be considered "indecent" or
"patently offensive" in some communities, none of the plaintiffs
is a commercial purveyor of what is commonly termed
"pornography."
III.
CONCLUSIONS OF LAW
Plaintiffs have established a reasonable probability of
eventual success in the litigation by demonstrating that
223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on
their face to the extent that they reach indecency. Sections
223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their
face. Accordingly, plaintiffs have shown irreparable injury, no
party has any interest in the enforcement of an unconstitutional
law, and therefore the public interest will be served by granting
the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74
(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied,
493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,
653 (3d Cir. 1994). The motions for preliminary injunction will
therefore be granted.
The views of the members of the Court in support of
these conclusions follow.
SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:
A.
Statutory Provisions
As noted in Part I, Introduction, the plaintiffs'
motion for a preliminary injunction is confined to portions of
two provisions of the Communications Decency Act of 1996,
223(a) and 223(d), which they contend violate their First
Amendment free speech and Fifth Amendment due process rights. To
facilitate reference, I set forth those provisions in full.
Section 223(a), the "indecency" provision, subjects to criminal
penalties of imprisonment of no more than two years or a fine or
both anyone who:
1) in interstate or foreign communications . . .
(B) by means of a telecommunications device
knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image,
or other communication which is obscene or
indecent, knowing that the recipient of the
communication is under 18 years of age, regardless
of whether the maker of such communication placed
the call or initiated the communication; . . .
(2) knowingly permits any telecommunications facility
under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be
used for such activity.
(emphasis added).
The term "telecommunications device" is specifically
defined not to include "the use of an interactive computer
service," as that is covered by section 223(d)(1).
Section 223(d), the "patently offensive" provision,
subjects to criminal penalties anyone who:
(1) in interstate or foreign communications knowingly--
(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in
a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image or
other communication that, in context, depicts or
describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory
activities or organs, regardless of whether the use of
such service placed the call or initiated the
communication; or
(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be
used for such activity.
(emphasis added).
Two aspects of these provisions stand out. First, we
are dealing with criminal provisions, subjecting violators to
substantial penalties. Second, the provisions on indecent and
patently offensive communications are not parallel.
The government uses the term "indecent" interchangeably
with "patently offensive" and advises that it so construes the
statute in light of the legislative history and the Supreme
Court's analysis of the word "indecent" in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). However, the CDA does not
define "indecent." Notwithstanding Congress' familiarity with
Pacifica, it enacted 223(a), covering "indecent"
communications, without any language confining "indecent" to
descriptions or depictions of "sexual or excretory activities or
organs," language it included in the reference to "patently
offensive" in 223(d)(1)(B). Nor does 223(a) contain the
phrase "in context," which the government believes is relevant.
The failure to define "indecent" in 223(a) is thus
arguably a negative pregnant and subject to "the rule of
construction that an express statutory requirement here,
contrasted with statutory silence there, shows an intent to
confine the requirement to the specified instance." Field v.
Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v.
United States, 498 U.S. 395, 404 (1991) ("'[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion'") (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).
Plaintiffs note the difference but do not press this as
a basis for distinguishing between the two sections in their
preliminary injunction arguments and therefore I will also use
the words interchangeably for this purpose, leaving open the
issue for consideration at the final judgment stage if it becomes
relevant.
B.
Preliminary Injunction Standard
To obtain a preliminary injunction, plaintiffs must
establish that they are likely to prevail on the merits and that
they will suffer irreparable harm if injunctive relief is not
granted. We also must consider whether the potential harm to the
defendant from issuance of a temporary restraining order
outweighs possible harm to the plaintiffs if such relief is
denied, and whether the granting of injunctive relief is in the
public interest. See Campbell Soup Co. v. ConAgra, Inc., 977
F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd. of
Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).
In a case in which the injury alleged is a threat to
First Amendment interests, the finding of irreparable injury is
often tied to the likelihood of success on the merits. In Elrod
v. Burns, 427 U.S. 347 (1976), the Supreme Court emphasized that
"the loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Id. at
373 (citing New York Times Co. v. United States, 403 U.S. 713
(1971)).
Subjecting speakers to criminal penalties for speech
that is constitutionally protected in itself raises the spectre
of irreparable harm. Even if a court were unwilling to draw that
conclusion from the language of the statute itself, plaintiffs
have introduced ample evidence that the challenged provisions, if
not enjoined, will have a chilling effect on their free
expression. Thus, this is not a case in which we are dealing
with a mere incidental inhibition on speech, see Hohe v. Casey,
868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but
with a regulation that directly penalizes speech.
Nor could there be any dispute about the public
interest factor which must be taken into account before a court
grants a preliminary injunction. No long string of citations is
necessary to find that the public interest weighs in favor of
having access to a free flow of constitutionally protected
speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 114
S. Ct. 2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 763-65 (1976).
Thus, if plaintiffs have shown a likelihood of success
on the merits, they will have shown the irreparable injury needed
to entitle them to a preliminary injunction.
C.
Applicable Standard of Review
The CDA is patently a government-imposed content-based
restriction on speech, and the speech at issue, whether
denominated "indecent" or "patently offensive," is entitled to
constitutional protection. See Sable Communications of
California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such, the
regulation is subject to strict scrutiny, and will only be upheld
if it is justified by a compelling government interest and if it
is narrowly tailored to effectuate that interest. Sable, 492
U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459
(1994). "[T]he benefit gained [by a content-based restriction]
must outweigh the loss of constitutionally protected rights."
Elrod v. Burns, 427 U.S. at 363.
The government's position on the applicable standard
has been less than pellucid but, despite some references to a
somewhat lesser burden employed in broadcasting cases, it now
appears to have conceded that it has the burden of proof to show
both a compelling interest and that the statute regulates least
restrictively. Tr. of Preliminary Injunction Hearing at 121 (May
10, 1996). In any event, the evidence and our Findings of Fact
based thereon show that Internet communication, while unique, is
more akin to telephone communication, at issue in Sable, than to
broadcasting, at issue in Pacifica, because, as with the
telephone, an Internet user must act affirmatively and
deliberately to retrieve specific information online. Even if a
broad search will, on occasion, retrieve unwanted materials, the
user virtually always receives some warning of its content,
significantly reducing the element of surprise or "assault"
involved in broadcasting. Therefore, it is highly unlikely that
a very young child will be randomly "surfing" the Web and come
across "indecent" or "patently offensive" material.
Judge Dalzell's separate opinion fully explores the
reasons for the differential treatment of radio and television
broadcasting for First Amendment purposes from that accorded
other means of communication. It follows that to the extent the
Court employed a less than strict scrutiny standard of review in
Pacifica and other broadcasting cases, see, e.g., Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969), there is no reason
to employ a less than strict scrutiny standard of review in this
case.
D.
The Nature of the Government's Interest
The government asserts that shielding minors from
access to indecent materials is the compelling interest
supporting the CDA. It cites in support the statements of the
Supreme Court that "[i]t is evident beyond the need for
elaboration that a State's interest in `safeguarding the physical
and psychological well-being of a minor' is `compelling,'" New
York v. Ferber, 458 U.S. 747, 757 (1982)(quoting Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 607 (1982)), and "there is a
compelling interest in protecting the physical and psychological
well-being of minors. This interest extends to shielding minors
from the influence of literature that is not obscene by adult
standards." Sable, 492 U.S at 126. It also cites the similar
quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania
Public Utility Comm'n, 896 F.2d 780, 787 (3d Cir. 1990).
Those statements were made in cases where the potential
harm to children from the material was evident. Ferber involved
the constitutionality of a statute which prohibited persons from
knowingly promoting sexual performances by children under 16 and
distributing material depicting such performances. Sable and
Fabulous involved the FCC's ban on "dial-a-porn" (dealing by
definition with pornographic telephone messages). In contrast to
the material at issue in those cases, at least some of the
material subject to coverage under the "indecent" and "patently
offensive" provisions of the CDA may contain valuable literary,
artistic or educational information of value to older minors as
well as adults. The Supreme Court has held that "minors are
entitled to a significant measure of First Amendment protection,
and only in relatively narrow and well-defined circumstances may
government bar public dissemination of protected materials to
them." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213
(1975)(citations omitted).
In Erznoznik, the Court rejected an argument that an
ordinance prohibiting the display of films containing nudity at
drive-in movie theatres served a compelling interest in
protecting minor passersby from the influence of such films. The
Court held that the prohibition was unduly broad, and explained
that "[s]peech that is neither obscene as to youths nor subject
to some other legitimate proscription cannot be suppressed solely
to protect the young from ideas or images that a legislative body
thinks unsuitable for them." 422 U.S. at 213-14. As Justice
Scalia noted in Sable, "[t]he more pornographic what is embraced
within the . . . category of `indecency,' the more reasonable it
becomes to insist upon greater assurance of insulation from
minors." Sable, 492 U.S. at 132 (Scalia, J., concurring). It
follows that where non-pornographic, albeit sexually explicit,
material also falls within the sweep of the statute, the interest
will not be as compelling.
In part, our consideration of the government's showing
of a "compelling interest" trenches upon the vagueness issue,
discussed in detail in Judge Buckwalter's opinion but equally
pertinent to First Amendment analysis. Material routinely
acceptable according to the standards of New York City, such as
the Broadway play Angels in America which concerns homosexuality
and AIDS portrayed in graphic language, may be far less
acceptable in smaller, less cosmopolitan communities of the
United States. Yet the play garnered two Tony Awards and a
Pulitzer prize for its author, and some uninhibited parents and
teachers might deem it to be material to be read or assigned to
eleventh and twelfth graders. If available on the Internet
through some libraries, the text of the play would likely be
accessed in that manner by at least some students, and it would
also arguably fall within the scope of the CDA.
There has been recent public interest in the female
genital mutilation routinely practiced and officially condoned in
some countries. News articles have been descriptive, and it is
not stretching to assume that this is a subject that occupies
news groups and chat rooms on the Internet. We have no assurance
that these discussions, of obvious interest and relevance to
older teenage girls, will not be viewed as patently offensive -
even in context - in some communities.
Other illustrations abound of non-obscene material
likely to be available on the Internet but subject to the CDA's
criminal provisions. Photographs appearing in National
Geographic or a travel magazine of the sculptures in India of
couples copulating in numerous positions, a written description
of a brutal prison rape, or Francesco Clemente's painting
"Labirinth," see Def. Exh. 125, all might be considered to
"depict or describe, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities
or organs." 47 U.S.C. 223(d)(1). But the government has made
no showing that it has a compelling interest in preventing a
seventeen-year-old minor from accessing such images.
By contrast, plaintiffs presented testimony that
material that could be considered indecent, such as that offered
by Stop Prisoner Rape or Critical Path AIDS project, may be
critically important for certain older minors. For example,
there was testimony that one quarter of all new HIV infections in
the United States is estimated to occur in young people between
the ages of 13 and 20, an estimate the government made no effort
to rebut. The witnesses believed that graphic material that
their organizations post on the Internet could help save lives,
but were concerned about the CDA's effect on their right to do
so.
The government counters that this court should defer to
legislative conclusions about this matter. However, where First
Amendment rights are at stake, "[d]eference to a legislative
finding cannot limit judicial inquiry." Sable, 492 U.S. at 129
(quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
843 (1978)). "[W]hatever deference is due legislative findings
would not foreclose our independent judgment of the facts bearing
on an issue of constitutional law." Id.
Moreover, it appears that the legislative "findings"
the government cites concern primarily testimony and statements
by legislators about the prevalence of obscenity, child
pornography, and sexual solicitation of children on the Internet.
Similarly, at the hearings before us the government introduced
exhibits of sexually explicit material through the testimony of
Agent Howard Schmidt, which consisted primarily of the same type
of hard-core pornographic materials (even if not technically
obscene) which concerned Congress and which fill the shelves of
"adult" book and magazine stores. Plaintiffs emphasize that they
do not challenge the Act's restrictions on speech not protected
by the First Amendment, such as obscenity, child pornography or
harassment of children. Their suit is based on their assertion,
fully supported by their evidence and our findings, that the CDA
reaches much farther.
I am far less confident than the government that its
quotations from earlier cases in the Supreme Court signify that
it has shown a compelling interest in regulating the vast range
of online material covered or potentially covered by the CDA.
Nonetheless, I acknowledge that there is certainly a compelling
government interest to shield a substantial number of minors from
some of the online material that motivated Congress to enact the
CDA, and do not rest my decision on the inadequacy of the
government's showing in this regard.
E.
The Reach of the Statute
Whatever the strength of the interest the government
has demonstrated in preventing minors from accessing "indecent"
and "patently offensive" material online, if the means it has
chosen sweeps more broadly than necessary and thereby chills the
expression of adults, it has overstepped onto rights protected by
the First Amendment. Sable, 492 U.S. at 131.
The plaintiffs argue that the CDA violates the First
Amendment because it effectively bans a substantial category of
protected speech from most parts of the Internet. The
government responds that the Act does not on its face or in
effect ban indecent material that is constitutionally protected
for adults. Thus one of the factual issues before us was the
likely effect of the CDA on the free availability of
constitutionally protected material. A wealth of persuasive
evidence, referred to in detail in the Findings of Fact, proved
that it is either technologically impossible or economically
prohibitive for many of the plaintiffs to comply with the CDA
without seriously impeding their posting of online material which
adults have a constitutional right to access.
With the possible exception of an e-mail to a known
recipient, most content providers cannot determine the identity
and age of every user accessing their material. Considering
separately content providers that fall roughly into two
categories, we have found that no technology exists which allows
those posting on the category of newsgroups, mail exploders or
chat rooms to screen for age. Speakers using those forms of
communication cannot control who receives the communication, and
in most instances are not aware of the identity of the
recipients. If it is not feasible for speakers who communicate
via these forms of communication to conduct age screening, they
would have to reduce the level of communication to that which is
appropriate for children in order to be protected under the
statute. This would effect a complete ban even for adults of
some expression, albeit "indecent," to which they are
constitutionally entitled, and thus would be unconstitutional
under the holding in Sable, 492 U.S. at 131.
Even as to content providers in the other broad
category, such as the World Wide Web, where efforts at age
verification are technically feasible through the use of Common
Gateway Interface (cgi) scripts (which enable creation of a
document that can process information provided by a Web visitor),
the Findings of Fact show that as a practical matter, non-
commercial organizations and even many commercial organizations
using the Web would find it prohibitively expensive and
burdensome to engage in the methods of age verification proposed
by the government, and that even if they could attempt to age
verify, there is little assurance that they could successfully
filter out minors.
The government attempts to circumvent this problem by
seeking to limit the scope of the statute to those content
providers who are commercial pornographers, and urges that we do
likewise in our obligation to save a congressional enactment from
facial unconstitutionality wherever possible. But in light of
its plain language and its legislative history, the CDA cannot
reasonably be read as limited to commercial pornographers. A
court may not impose a narrowing construction on a statute unless
it is "readily susceptible" to such a construction. Virginia v.
American Booksellers Ass'n, 484 U.S. 383, 397 (1988). The court
may not "rewrite a . . . law to conform it to constitutional
requirements." Id. Although we may prefer an interpretation of
a statute that will preserve the constitutionality of the
statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980),
we do not have license to rewrite a statute to "create
distinctions where none were intended." American Tobacco Co. v.
Patterson, 456 U.S. 63, 72 n.6 (1982); see also Consumer Party v.
Davis, 778 F.2d 140, 147 (3d Cir. 1985). The Court has often
stated that "absent a clearly expressed legislative intention to
the contrary, [statutory] language must ordinarily be regarded as
conclusive." Escondido Mut. Water Co. v. La Jolla Band of
Mission Indians, 466 U.S. 765, 772 (1984)(quoting North Dakota v.
United States, 460 U.S. 300, 312 (1983)).
It is clear from the face of the CDA and from its
legislative history that Congress did not intend to limit its
application to commercial purveyors of pornography. Congress
unquestionably knew how to limit the statute to such entities if
that was its intent, and in fact it did so in provisions relating
to dial-a-porn services. See 47 U.S.C. 223(b)(2)(A)
(criminalizing making any indecent telephone communication "for
commercial purposes"). It placed no similar limitation in the
CDA. Moreover, the Conference Report makes clear that Congress
did not intend to limit the application of the statute to content
providers such as those which make available the commercial
material contained in the government's exhibits, and confirms
that Congress intended "content regulation of both commercial and
non-commercial providers." Conf. Rep. at 191. See also, 141
Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator
Exon).
The scope of the CDA is not confined to material that
has a prurient interest or appeal, one of the hallmarks of
obscenity, because Congress sought to reach farther. Nor did
Congress include language that would define "patently offensive"
or "indecent" to exclude material of serious value. It follows
that to narrow the statute in the manner the government urges
would be an impermissible exercise of our limited judicial
function, which is to review the statute as written for its
compliance with constitutional mandates.
I conclude inexorably from the foregoing that the CDA
reaches speech subject to the full protection of the First
Amendment, at least for adults.[1] In questions of the witnesses
and in colloquy with the government attorneys, it became evident
that even if "indecent" is read as parallel to "patently
offensive," the terms would cover a broad range of material from
contemporary films, plays and books showing or describing sexual
activities (e.g., Leaving Las Vegas) to controversial
contemporary art and photographs showing sexual organs in
positions that the government conceded would be patently
offensive in some communities (e.g., a Robert Mapplethorpe
photograph depicting a man with an erect penis).
We have also found that there is no effective way for
many Internet content providers to limit the effective reach of
the CDA to adults because there is no realistic way for many
providers to ascertain the age of those accessing their
materials. As a consequence, we have found that "[m]any speakers
who display arguably indecent content on the Internet must choose
between silence and the risk of prosecution." Such a choice,
forced by sections 223(a) and (d) of the CDA, strikes at the
heart of speech of adults as well as minors.
F.
Whether CDA is Narrowly Tailored
In the face of such a patent intrusion on a substantial
category of protected speech for adults, there is some irony in
considering whether the statute is narrowly tailored or, as
sometimes put, whether Congress has used the least restrictive
means to achieve a compelling government interest. See Sable,
492 U.S. at 126. It would appear that the extent of the
abridgement of the protected speech of adults that it has been
shown the CDA would effect is too intrusive to be outweighed by
the government's asserted interest, whatever its strength, in
protecting minors from access to indecent material. Nonetheless,
the formulation of the inquiry requires that we consider the
government's assertion that the statute is narrowly drafted, and
I proceed to do so.
In this case, the government relies on the statutory
defenses for its argument of narrow tailoring. There are a
number of reasons why I am not persuaded that the statutory
defenses can save the CDA from a conclusion of facial
unconstitutionality.
First, it is difficult to characterize a criminal
statute that hovers over each content provider, like the
proverbial sword of Damocles, as a narrow tailoring. Criminal
prosecution, which carries with it the risk of public obloquy as
well as the expense of court preparation and attorneys' fees,
could itself cause incalculable harm. No provider, whether an
individual, non-profit corporation, or even large publicly held
corporation, is likely to willingly subject itself to prosecution
for a miscalculation of the prevalent community standards or for
an error in judgment as to what is indecent. A successful
defense to a criminal prosecution would be small solace indeed.
Credit card and adult verification services are
explicitly referred to as defenses in 223(e)(5)(B) of the CDA.
As is set forth fully in the detailed Findings of Fact, these
defenses are not technologically or economically feasible for
most providers.
The government then falls back on the affirmative
defense to prosecution provided in 223(e)(5)(A) for a person
who "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 . . . including any method which is feasible under
available technology." The government emphasizes that
"effective" does not require 100% restriction, and that this
defense is "open-ended" and requires only reasonable efforts
based on current technology.
But, as the evidence made clear, there is no such
technology at this time. The government proffered as one option
that would constitute a valid affirmative defense under
223(e)(5)(A) a "tagging" scheme conceived by Dr. Olsen in
response to this lawsuit whereby a string of characters would be
imbedded in all arguably indecent or patently offensive material.
Our Findings of Fact set forth fully the reasons why we found
that the feasibility and effectiveness of tagging in the manner
proposed by the government has not been established. All parties
agree that tagging alone does nothing to prevent children from
accessing potentially indecent material, because it depends upon
the cooperation of third parties to block the material on which
the tags are embedded. Yet these third parties, over which the
content providers have no control, are not subject to the CDA. I
do not believe a statute is narrowly tailored when it subjects to
potential criminal penalties those who must depend upon third
parties for the effective operation of a statutory defense.
Most important, the government's "tagging" proposal is
purely hypothetical and offers no currently operative defense to
Internet content providers. At this time, there is no agreed-
upon "tag" in existence, and no web browsers or user-based
screening systems are now configured to block tagged material.
Nor, significantly, has the government stipulated that a content
provider could avoid liability simply by tagging its material.
Third, even if the technology catches up, as the
government confidently predicts, there will still be a not
insignificant burden attached to effecting a tagging defense, a
burden one should not have to bear in order to transmit
information protected under the constitution. For example, to
effect tagging content providers must review all of their
material currently published online, as well as all new material
they post in the future, to determine if it could be considered
"patently offensive" in any community nationwide. This would be
burdensome for all providers, but for the many not-for-profit
entities which currently post thousands of Web pages, this burden
would be one impossible to sustain.
Finally, the viability of the defenses is intricately
tied to the clarity of the CDA's scope. Because, like Judge
Buckwalter, and for many of the reasons he gives, I believe that
"indecent" and "patently offensive" are inherently vague,
particularly in light of the government's inability to identify
the relevant community by whose standards the material will be
judged, I am not persuaded by the government that the statutory
defenses in 223(e) provide effective protection from the
unconstitutional reach of the statute.
Minors would not be left without any protection from
exposure to patently unsuitable material on the Internet should
the challenged provisions of the CDA be preliminarily enjoined.
Vigorous enforcement of current obscenity and child pornography
laws should suffice to address the problem the government
identified in court and which concerned Congress. When the CDA
was under consideration by Congress, the Justice Department
itself communicated its view that it was not necessary because it
was prosecuting online obscenity, child pornography and child
solicitation under existing laws, and would continue to do so.[2]
It follows that the CDA is not narrowly tailored, and the
government's attempt to defend it on that ground must fail.
G.
Preliminary Injunction
When Congress decided that material unsuitable for
minors was available on the Internet, it could have chosen to
assist and support the development of technology that would
enable parents, schools, and libraries to screen such material
from their end. It did not do so, and thus did not follow the
example available in the print media where non-obscene but
indecent and patently offensive books and magazines abound.
Those responsible for minors undertake the primary obligation to
prevent their exposure to such material. Instead, in the CDA
Congress chose to place on the speakers the obligation of
screening the material that would possibly offend some
communities.
Whether Congress' decision was a wise one is not at
issue here. It was unquestionably a decision that placed the CDA
in serious conflict with our most cherished protection - the
right to choose the material to which we would have access.
The government makes what I view as an extraordinary
argument in its brief. It argues that blocking technology needed
for effective parental control is not yet widespread but that it
"will imminently be in place." Government's Post-hearing
Memorandum at 66. It then states that if we uphold the CDA, it
"will likely unleash the 'creative genius' of the Internet
community to find a myriad of possible solutions." I can imagine
few arguments less likely to persuade a court to uphold a
criminal statute than one that depends on future technology to
cabin the reach of the statute within constitutional bounds.
The government makes yet another argument that troubles
me. It suggests that the concerns expressed by the plaintiffs
and the questions posed by the court reflect an exaggerated
supposition of how it would apply the law, and that we should, in
effect, trust the Department of Justice to limit the CDA's
application in a reasonable fashion that would avoid prosecution
for placing on the Internet works of serious literary or artistic
merit. That would require a broad trust indeed from a generation
of judges not far removed from the attacks on James Joyce's
Ulysses as obscene. See United States v. One Book Entitled
Ulysses, 72 F.2d 705 (2d Cir. 1934); see also Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of
Mass., 383 U.S. 413 (1966). Even if we were to place confidence
in the reasonable judgment of the representatives of the
Department of Justice who appeared before us, the Department is
not a monolithic structure, and individual U.S. Attorneys in the
various districts of the country have or appear to exercise some
independence, as reflected by the Department's tolerance of
duplicative challenges in this very case.
But the bottom line is that the First Amendment should
not be interpreted to require us to entrust the protection it
affords to the judgment of prosecutors. Prosecutors come and go.
Even federal judges are limited to life tenure. The First
Amendment remains to give protection to future generations as
well. I have no hesitancy in concluding that it is likely that
plaintiffs will prevail on the merits of their argument that the
challenged provisions of the CDA are facially invalid under both
the First and Fifth Amendments.
BUCKWALTER, District Judge
A.
I believe that plaintiffs should prevail in this
litigation.
My conclusion differs in part from my original
memorandum filed in conjunction with the request for a Temporary
Restraining Order. As part of the expedited review (per 561 of
the CDA), and in contrast to the limited documentation available
to me at the time of the T.R.O. hearing, we have now gathered
voluminous evidence presented by way of sworn declarations, live
testimony, demonstrative evidence, and other exhibits.[1] Based
upon our findings of fact derived from careful consideration of
that evidence, I now conclude that this statute is overbroad and
does not meet the strict scrutiny standard in Sable
Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).
More specifically, I now find that current technology
is inadequate to provide a safe harbor to most speakers on the
Internet. On this issue, I concur in Chief Judge Sloviter's
opinion. In addition, I continue to believe that the word
"indecent" is unconstitutionally vague, and I find that the terms
"in context" and "patently offensive" also are so vague as to
violate the First and Fifth Amendments.
It is, of course, correct that statutes that attempt to
regulate the content of speech presumptively violate the First
Amendment. See e.g. R.A.V. v. City of Saint Paul, 505 U.S. 377,
381 (1992). That is as it should be. The prohibition against
Government's regulation of speech cannot be set forth any clearer
than in the language of the First Amendment itself. I suspect,
however, that it may come as a surprise to many people who have
not followed the evolution of constitutional law that, by
implication at least, the First Amendment provides that Congress
shall make no law abridging the freedom of speech unless that law
advances a compelling governmental interest.[2] Our cherished
freedom of speech does not cover as broad a spectrum as one may
have gleaned from a simple reading of the Amendment.[3]
First Amendment jurisprudence has developed into a
study of intertwining standards and applications, perhaps as a
necessary response to our ever-evolving culture and modes of
communication.[4]
Essentially, my concerns are these: above all, I
believe that the challenged provisions are so vague as to violate
both the First and Fifth Amendments, and in particular that
Congress' reliance on Pacifica is misplaced. In addition, I
believe that technology as it currently exists -- and it bears
repeating that we are at the preliminary injunction phase only --
cannot provide a safe harbor for most speakers on the Internet,
thus rendering the statute unconstitutional under a strict
scrutiny analysis. I refer to Chief Judge Sloviter's more
detailed analysis of this issue.
While I believe that our findings of fact clearly show
that as yet no defense is technologically feasible, and while I
also have found the present Act to be unconstitutionally vague, I
believe it is too early in the development of this new medium to
conclude that other attempts to regulate protected speech within
the medium will fail a challenge. That is to say that I
specifically do not find that any and all statutory regulation of
protected speech on the Internet could not survive constitutional
scrutiny. Prior cases have established that government
regulation to prevent access by minors to speech protected for
adults, even in media considered the vanguard of our First
Amendment protections, like print, may withstand a constitutional
challenge. See e.g. Ginsberg v. New York, 390 U.S. 629, 635
(1968) ("`Material which is protected for distribution to adults
is not necessarily constitutionally protected from restriction
upon its dissemination to children.'") (quoting Bookcase Inc. v.
Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952, 218 N.E.2d
668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc. v.
Leary, 385 U.S. 12 (1966)). It should be noted that those
restrictions that have been found constitutional were sensitive
to the unique qualities of the medium at which the restriction
was aimed.
B.
This statute, all parties agree, deals with protected
speech, the preservation of which has been extolled by court
after court in case after case as the keystone, the bulwark, the
very heart of our democracy. What is more, the CDA attempts to
regulate protected speech through criminal sanctions, thus
implicating not only the First but also the Fifth Amendment of
our Constitution. The concept of due process is every bit as
important to our form of government as is free speech. If free
speech is at the heart of our democracy, then surely due process
is the very lifeblood of our body politic; for without it,
democracy could not survive. Distilled to its essence, due
process is, of course, nothing more and nothing less than fair
play. If our citizens cannot rely on fair play in their
relationship with their government, the stature of our government
as a shining example of democracy would be greatly diminished. I
believe that an exacting or strict scrutiny of a statute which
attempts to criminalize protected speech requires a word by word
look at that statute to be sure that it clearly sets forth as
precisely as possible what constitutes a violation of the
statute.
The reason for such an examination is obvious. If the
Government is going to intrude upon the sacred ground of the
First Amendment and tell its citizens that their exercise of
protected speech could land them in jail, the law imposing such a
penalty must clearly define the prohibited speech not only for
the potential offender but also for the potential enforcer.
Kolender, 461 U.S. 352; Hoffman Estates, 455 U.S. 489; Smith v.
Goguen, 415 U.S. 566 (1974); Grayned v. City of Rockford, 408
U.S. 104 (1972); Winters v. New York, 333 U.S. 507 (1948).
In dealing with issues of vagueness and due process
over the years, the Supreme Court has enunciated many notable
principles. One concern with vague laws relates to the issue of
notice. The older cases have used phrases such as "a statute
which either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application violates the first
essential of due process of law," Connally v. General Const.
Co., 269 U.S. 385, 391 (1926) (citations omitted); "it will not
do to hold an average man to the peril of indictment for the
unwise exercise of his . . . knowledge involving so many factors
of varying effect that neither the person to decide in advance
nor the jury to try him after the fact can safely and certainly
judge the result," Cline v. Frink Dairy Co., 274 U.S. 445, 465
(1927); and "[n]o 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," Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).
Second, the Court has said that laws must provide precise
standards for those who apply them to prevent arbitrary and
discriminatory enforcement, because "[w]hen the legislature fails
to provide such minimal guidelines, a criminal statute may permit
`a standardless sweep [that] allows policemen, prosecutors, and
juries to pursue their personal predilections.'" Kolender, 461
U.S. at 358 (citing Goguen, 415 U.S. at 575). Finally, when
First Amendment concerns have been implicated, a stricter
standard of examination for vagueness is imperative. "[T]his
court has intimated that stricter standards of permissible
statutory vagueness may be applied to a statute having a
potentially inhibiting effect on speech; a man may the less be
required to act at his peril here, because the free dissemination
of ideas may be the loser." Smith v. California, 361 U.S. 147,
151 (1959). See also Hoffman Estates, 455 U.S. at 499
("[P]erhaps the most important factor affecting the clarity that
the Constitution demands of a law is whether it threatens to
inhibit the exercise of constitutionally protected rights. If,
for example, the law interferes with the right of free speech . .
. , a more stringent vagueness test should apply.") (citations
omitted).
A case which sums up vagueness as it relates to due
process as succinctly as any other is Grayned v. City of
Rockford. Here the court said:
It is a basic principle of due process
that an enactment is void for vagueness
if its prohibitions are not clearly
defined. Vague laws offend several
important values. First, because we
assume that man is free to steer between
lawful and unlawful conduct, we insist
that laws give the person of ordinary
intelligence a reasonable opportunity to
know what is prohibited, so that he may
act accordingly. Vague laws may trap
the innocent by not providing fair
warning. Second, if arbitrary and
discriminatory enforcement is to be
prevented, laws must provide explicit
standards for those who apply them. A
vague law impermissibly delegates basic
policy matters to policemen, judges, and
juries for resolution on an ad hoc and
subjective basis, with the attendant
dangers of arbitrary and discriminatory
application. Third, but related, where
a vague statute "abut[s] upon sensitive
areas of basic First Amendment
freedoms," it "operates to inhibit the
exercise of [those] freedoms."
Uncertain meanings inevitably lead
citizens to "'steer far wider of the
unlawful zone' . . . than if the
boundaries of the forbidden areas were
clearly marked."
Grayned, 408 U.S. at 108-109 (citations omitted).
At the same time, in considering the vagueness issue,
as the Government correctly points out, "[C]ondemned to the use
of words, we can never expect mathematical certainty from our
language." Grayned, 408 U.S. at 110. See also Hoffman Estates,
455 U.S. 489; Hynes v. Mayor & Council of Oradell, 425 U.S. 610
(1976); Goguen, 415 U.S. 566. In addition, it will always be
true that the fertile legal "imagination can conjure hypothetical
cases in which the meaning of [disputed] terms will be in nice
question." American Communications Assn. v. Douds, 339 U.S. 382,
412 (1950). Thus, as I considered the vagueness issue I have
kept in mind the observation of Justice Holmes, denying a
challenge to vagueness in Nash v. United States, 229 U.S. 373
(1913). To Justice Holmes, "the law is full of instances where a
man's fate depends on his estimating rightly, that is, as the
jury subsequently estimates it, some matter of degree. If his
judgment is wrong, not only may he incur a fine or a short
imprisonment . . ., he may incur the penalty of death." Nash,
229 U.S. at 377. Even more recently the court has stated that
"due process does not require `impossible standards' of clarity."
Kolender, 461 U.S. at 361, (quoting United States v. Petrillo,
332 U.S. 1, 7-8 (1947)). It is with all of these principles in
mind, as they interplay with the unique features of the Internet,
that I have reached my conclusion.
The fundamental constitutional principle that concerns
me is one of simple fairness, and that is absent in the CDA. The
Government initially argues that "indecent" in this statute is
the same as "patently offensive." I do not agree that a facial
reading of this statute supports that conclusion. The CDA does
not define the term "indecent," and the FCC has not promulgated
regulations defining indecency in the medium of cyberspace. If
"indecent" and "patently offensive" were intended to have the
same meaning, surely section (a) could have mirrored section
(d)'s language.[5] Indecent in this statute is an undefined word
which, standing alone, offers no guidelines whatsoever as to its
parameters. Interestingly, another federal crime gives a
definition to indecent entirely different from that proposed in
the present case.[6] While not applicable here, this example
shows the indeterminate nature of the word and the need for clear
definition, particularly in a statute which infringes upon
protected speech. Although the use of different terms in
223(a) and (d) suggests that Congress intended that the terms
have different meanings, the Conference Report indicates an
intention to treat 223(a) as containing the same language as
223(d). Conf. Rep. at 188-89 ("The conferees intend that the
term indecency . . . has the same meaning as established in FCC
v. Pacifica Foundation, 438 U.S. 726 (1978) and [Sable] and "New
section 223(d)(1) codifies the definition of indecency from
[Pacifica] . . . . The precise contours of the definition of
indecency have varied . . . . The essence of the phrase --
patently offensive descriptions of sexual and excretory
activities -- has remained constant, however."). Therefore, I
will acknowledge that the term indecency is "reasonably
susceptible" to the definition offered in the Conference Report
and might therefore adopt such a narrowing construction if it
would thereby preserve the constitutionality of the statute. See
Virginia v. American Booksellers Association, 484 U.S. 383, 397
(1988); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).
Accepting these terms as synonymous, however, provides
no greater help to a speaker attempting to comply with the CDA.
Contrary to the Government's suggestion, Pacifica does not answer
the question of whether the terms pass constitutional muster in
the present case. In Pacifica, the Court did not consider a
vagueness challenge to the term "indecent," but considered only
whether the Government had the authority to regulate the
particular broadcast at issue -- George Carlin's Monologue
entitled "Filthy Words." In finding in the affirmative, the
Court emphasized that its narrow holding applied only to
broadcasting, which is "uniquely accessible to children, even
those too young to read." 438 U.S. at 749. Thus, while the
Court sanctioned the FCC's time restrictions on a radio program
that repeatedly used vulgar language, the Supreme Court did not
hold that use of the term "indecent" in a statute applied to
other media, particularly a criminal statute, would be on safe
constitutional ground.
The Supreme Court more recently had occasion to
consider a statute banning "indecent" material in the dial-a-porn
context in Sable, 492 U.S. 115, and found that a complete ban on
such programming violated the First Amendment because it was not
narrowly tailored to serve the purpose of limiting children's
access to commercial pornographic telephone messages. Once
again, the Court did not consider a challenge to the term
"indecent" on vagueness grounds, and indeed has never directly
ruled on this issue.
Several other courts have, however, upheld the use of
the term in statutes regulating different media. For example, in
Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir.
1991), the Ninth Circuit Court of Appeals considered whether the
term "indecent" in the 1989 Amendment to the Communications Act
regulating access to telephone dial-a-porn services and the FCC's
implementing regulations was void for vagueness. The FCC had
defined "indecent" as "the description or depiction of sexual or
excretory activities or organs in a patently offensive manner as
measured by contemporary community standards for the telephone
medium." 928 F.2d at 874. Although recognizing that the Supreme
Court had never explicitly ruled on a vagueness challenge to the
term, the court read Sable and Pacifica as having implicitly
accepted the use of this definition of "indecent." The court
further stated that the FCC's definition of "indecent" was no
less imprecise than was the definition of "obscenity" as
announced in Miller v. California, 413 U.S. 15, 25 (1973), and
thus concluded that "indecent" as pertained to dial-a-porn
regulations must survive a vagueness challenge. See also Dial
Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991),
(upholding the use of "indecent" in the same amendment to the
Communications Act and FCC regulations.); Action for Children's
Television v. FCC, 932 F.2d 1504, 1508 (D.C.Cir. 1991) (rejecting
vagueness challenge to "indecency" provision in broadcast
television regulations).[7]
Notably, however, in these telephone and cable
television cases the FCC had defined indecent as patently
offensive by reference to contemporary community standards for
that particular medium. See, e.g., Pacifica, 438 U.S. at 732
(defining "indecent" by reference to terms "patently offensive as
measured by contemporary community standards for the broadcast
medium"); Dial Information Services, 938 F.2d at 1540 (defining
indecency by reference to contemporary community standards for
the telephone medium). Here, the provision is not so limited.
In fact, there is no effort to conform the restricting terms to
the medium of cyberspace, as is required under Pacifica and its
progeny.
The Government attempts to save the "indecency" and
"patently offensive" provisions by claiming that the provisions
would only be used to prosecute pornographic works which, when
considered "in context" as the statute requires, would be
considered "indecent" or "patently offensive" in any community.
The Government thus contends that plaintiffs' fears of
prosecution for publishing material about matters of health, art,
literature or civil liberties are exaggerated and unjustified.
The Government's argument raises two issues: first is the
question of which "community standards" apply in cyberspace,
under the CDA; and second is the proposition that citizens should
simply rely upon prosecutors to apply the statute
constitutionally.
Are the contemporary community standards to be applied
those of the vast world of cyberspace, in accordance with the
Act's apparent intent to establish a uniform national standard of
content regulation? The Government offered no evidence of any
such national standard or nationwide consensus as to what would
be considered "patently offensive". On the contrary, in
supporting the use of the term "indecent" in the CDA, the
Government suggests that, in part, this term was chosen as a
means of insulating children from material not restricted under
current obscenity laws. This additional term is necessary, the
Government states, because "whether something rises to the level
of obscene is a legal conclusion that, by definition, may vary
from community to community." Govt. Brief at 31. In support of
its argument, the Government points to the Second Circuit's
decision in United States v. Various Articles of Obscene
Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir.
1983), which upheld the district court's conclusion that
"detailed portrayals of genitalia, sexual intercourse, fellatio,
and masturbation" including the film "Deep Throat" and other
pornographic films and magazines, are not obscene in light of the
community standards prevailing in New York City." What this
argument indicates is that as interpretations of obscenity ebb
and flow throughout various communities, restrictions on indecent
material are meant to cover a greater or lesser quantity of
material not reached by each community's obscenity standard. It
follows that to do this, what constitutes indecency must be as
open to fluctuation as the obscenity standard and cannot be
rigidly constructed as a single national standard if it is meant
to function as the Government has suggested. As Justice Scalia
stated, "[t]he more narrow the understanding of what is
`obscene,' . . . the more pornographic what is embraced within
the residual category of `indecency.'" Sable, 492 U.S. at 132
(Scalia, J. concurring). This understanding is consistent with
the case law, in which the Supreme Court has explained that the
relevant community is the one where the information is accessed
and where the local jury sits. See Sable, 492 U.S. at 125;
Hamling v. United States, 418 U.S. 87 (1974); Miller, 413 U.S. at
30 ("[O]ur nation is simply too big and too diverse for this
Court to reasonably expect that such standards [of what is
patently offensive] could be articulated for all 50 states in a
single formulation."). However, the Conference Report with
regard to the CDA states that the Act is "intended to establish a
uniform national standard of content regulation." Conf. Rep. at
191. This conflict inevitably leaves the reader of the CDA
unable to discern the relevant "community standard," and will
undoubtedly cause Internet users to "steer far wider of the
unlawful zone" than if the community standard to be applied were
clearly defined. The chilling effect on the Internet users'
exercise of free speech is obvious. See Baggett v. Bullitt, 377
U.S. 360, 372 (1964). This is precisely the vice of vagueness.
In addition, the Government's argument that the
challenged provisions will be applied only to "pornographic"
materials, and will not be applied to works with serious value is
without support in the CDA itself. Unlike in the obscenity
context, indecency has not been defined to exclude works of
serious literary, artistic, political or scientific value, and
therefore the Government's suggestion that it will not be used to
prosecute publishers of such material is without foundation in
the law itself. The Government's claim that the work must be
considered patently offensive "in context" does nothing to
clarify the provision, for it fails to explain which context is
relevant. "Context" may refer to, among other things, the nature
of the communication as a whole, the time of day it was conveyed,
the medium used, the identity of the speaker, or whether or not
it is accompanied by appropriate warnings. See e.g., Pacifica,
438 U.S. at 741 n.16, n.17 (referring to "the context of the
whole book," and to the unique interpretation of the First
Amendment "in the broadcasting context").
The thrust of the Government's argument is that the
court should trust prosecutors to prosecute only a small segment
of those speakers subject to the CDA's restrictions, and whose
works would reasonably be considered "patently offensive" in
every community. Such unfettered discretion to prosecutors,
however, is precisely what due process does not allow. "It will
not do to say that a prosecutor's sense of fairness and the
Constitution would prevent a successful . . . prosecution for
some of the activities seemingly embraced within the sweeping
statutory definitions. The hazard of being prosecuted . . .
nevertheless remains . . . . Well-intentioned prosecutors and
judicial safeguards do not neutralize the vice of a vague law."
Baggett, 377 U.S. at 373-74; see also Keyishian v. Board of
Regents, 385 U.S. 589, 599 (1967)("[i]t is no answer" to a vague
law for the Government "to say that the statute would not be
applied in such a case."). And we cannot overlook the vagaries
of politics. What may be, figuratively speaking, one
administration's pen may be another's sword.
The evidence and arguments presented by the Government
illustrate the possibility of arbitrary enforcement of the Act.
For example, one Government expert opined that any of the so-
called "seven dirty words" used in the Carlin monologue would be
subject to the CDA and therefore should be "tagged," as should
paintings of nudes displayed on a museum's web site. The
Government has suggested in its brief, however, that the Act
should not be so applied. See Govt. Brief at 37 (suggesting that
"seven dirty words" if used "in the context of serious
discussions" would not be subject to the Act). Even Government
counsel was unable to define "indecency" with specificity. The
Justice Department attorney could not respond to numerous
questions from the court regarding whether, for example, artistic
photographs of a nude man with an erect penis, depictions of
Indian statues portraying different methods of copulation, or the
transcript of a scene from a contemporary play about AIDS could
be considered "indecent" under the Act.
Plaintiffs also argue that section 223(e)(5)(A) of the
CDA, offering a defense for speakers who take "good faith,
reasonable, effective and appropriate actions under the
circumstances to restrict or prevent access by minors to a
communication" covered by the Act, is unconstitutionally vague
because it fails to specify what would constitute an effective
defense to prosecution. The plain language of the safe harbor
provision indicates an effort to ensure that the statute limits
speech in the least restrictive means possible by taking into
account emerging technologies in allowing for any and all
"reasonable, effective and appropriate" approaches to restricting
minors' access to the proscribed material. But, the statute
itself does not contain any description of what, other than
credit card verification and adult identification codes -- which
we have established remain unavailable to most content providers
-- will protect a speaker from prosecution. Significantly,
although the FCC is authorized to specify measures that might
satisfy this defense, the FCC's views will not be definitive but
will only "be admitted as evidence of good faith efforts" that
the defendant has met the requirements of the defense. 47 U.S.C.
223(e)(6). Thus, individuals attempting to comply with the
statute presently have no clear indication of what actions will
ensure that they will be insulated from criminal sanctions under
the CDA.
C.
The consequences of posting indecent content are
severe.[8] I recognize that people must make judgments each and
every day, many times in the most intimate of relationships and
that an error in judgment can have serious consequences. It is
also true that where those consequences involve penal sanctions,
a criminal law or statute has more often than not carefully
defined the proscribed conduct. It is not so much that the
accused needs these precise definitions, as it has been said he
or she rarely reads the law in advance. What is more important
is that the enforcer of statutes must be guided by clear and
precise standards. In statutes that break into relatively new
areas, such as this one, the need for definition of terms is
greater, because even commonly understood terms may have
different connotations or parameters in this new context.[9]
Words cannot define conduct with mathematical certainty, and
lawyers, like the bright and intelligent ones now before us, will
most certainly continue to devise ways by which to challenge
them. This rationale, however, can neither support a finding of
constitutionality nor relieve legislators from the very difficult
task of carefully drafting legislation tailored to its goal and
sensitive to the unique characteristics of, in this instance,
cyberspace.
DALZELL, District Judge
A. Introduction
I begin with first principles: As a general rule, the
Constitution forbids the Government from silencing speakers
because of their particular message. R.A.V. v. City of Saint
Paul, 112 S. Ct. 2538, 2542 (1992). "Our political system and
cultural life rest upon this ideal." Turner Broadcasting Sys. v.
FCC, 114 S. Ct. 2445, 2458 (1994). This general rule is subject
only to "narrow and well-understood exceptions". Id. A law
that, as here, regulates speech on the basis of its content, is
"presumptively invalid". R.A.V., 112 S. Ct. at 2542.
Two of the exceptions to this general rule deal with
obscenity (commonly understood to include so-called hardcore
pornography), Miller v. California, 413 U.S. 15 (1973), and child
pornography, New York v. Ferber, 458 U.S. 747 (1982). The
Government can and does punish with criminal sanction people who
engage in these forms of speech. 18 U.S.C. 1464-65
(criminalizing obscene material); id. 2251-52 (criminalizing
child pornography). Indeed, the Government could punish these
forms of speech on the Internet even without the CDA. E.g.,
United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995)
(affirming obscenity convictions for the operation of a computer
bulletin board).
The Government could also completely ban obscenity and
child pornography from the Internet. No Internet speaker has a
right to engage in these forms of speech, and no Internet
listener has a right to receive them. Child pornography and
obscenity have "no constitutional protection, and the government
may ban [them] outright in certain media, or in all." Alliance
for Community Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995)
(citing R.A.V., 112 S. Ct. at 2545), cert. granted sub nom.
Denver Area Educ. Telecommunications Consortium, 116 S. Ct. 471
(1996); see also Ferber, 458 U.S. at 756. As R.A.V. notes, "'the
freedom of speech' referred to by the First Amendment does not
include a freedom to disregard these traditional limitations."
R.A.V., 112 S. Ct. at 2543.
The cases before us, however, are not about obscenity
or child pornography. Plaintiffs in these actions claim no right
to engage in these forms of speech in the future, nor does the
Government intimate that plaintiffs have engaged in these forms
of speech in the past.
This case is about "indecency", as that word has come
to be understood since the Supreme Court's decisions in FCC v.
Pacifica Foundation, 438 U.S. 726 (1976), and Sable
Communications v. FCC, 492 U.S. 115 (1989). The legal
difficulties in these actions arise because of the special place
that indecency occupies in the Supreme Court's First Amendment
jurisprudence. While adults have a First Amendment right to
engage in indecent speech, Sable, 492 U.S. at 126; see also
Pacifica, 438 U.S. at 747-48, the Supreme Court has also held
that the Government may, consistent with the Constitution,
regulate indecency on radio and television, and in the "dial-a-
porn" context, as long as the regulation does not operate as a
complete ban. Thus, any regulation of indecency in these areas
must give adults access to indecent speech, which is their right.
The Government may only regulate indecent speech for a
compelling reason, and in the least restrictive manner. Sable,
492 U.S. at 126. "It is not enough to show that the Government's
ends are compelling; the means must be carefully tailored to
achieve those ends." Id. This "most exacting scrutiny", Turner,
114 S. Ct. at 2459, requires the Government to "demonstrate that
the recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and
material way." United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1017 (1995) (citing Turner, 114 S. Ct. at
1017). Thus, although our analysis here must balance ends and
means, the scales tip at the outset in plaintiffs' favor. This
is so because "[r]egulations which permit the Government to
discriminate on the basis of the content of the message cannot be
tolerated under the First Amendment." Simon & Schuster, Inc. v.
Members of the New York State Crime Victims Board, 502 U.S. 105,
116 (1991) (citation omitted).
The Government argues that this case is really about
pornography on the Internet. Apart from hardcore and child
pornography, however, the word pornography does not have a fixed
legal meaning. When I use the word pornography in my analysis
below, I refer to for-profit purveyors of sexually explicit,
"adult" material similar to that at issue in Sable. See 492 U.S.
at 118. Pornography is normally either obscene or indecent, as
Justice Scalia noted in his concurrence in Sable. Id. at 132. I
would avoid using such an imprecise (and overbroad) word, but I
feel compelled to do so here, since Congress undoubtedly had such
material in mind when it passed the CDA. See S. Rep. No. 230,
104th Cong., 2d Sess. 187-91 (1996), reprinted in 1996
U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report]. Moreover,
the Government has defended the Act before this court by arguing
that the Act could be constitutionally applied to such material.
Plaintiffs have, as noted, moved for a preliminary
injunction. The standards for such relief are well-settled.
Plaintiffs seeking preliminary injunctive relief must show (1)
"[a] reasonable probability of eventual success in the
litigation" and (2) "irreparabl[e] injur[y] pendente lite" if
relief is not granted. Acierno v. New Castle County, 40 F.2d
645, 653 (3d Cir. 1994). We must also consider, if appropriate,
(3) "the possibility of harm to other interested persons from the
grant or denial of the injunction", and (4) "the public
interest". Id.; see also Opticians Ass'n v. Independent
Opticians, 920 F.2d 187, 192 (3d Cir. 1990).
In a First Amendment challenge, a plaintiff who meets
the first prong of the test for a preliminary injunction will
almost certainly meet the second, since irreparable injury
normally arises out of the deprivation of speech rights, "for
even minimal periods of time". Elrod v. Burns, 427 U.S. 347,
373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert.
denied, 493 U.S. 848 (1989). Of course, neither the Government
nor the public generally can claim an interest in the enforcement
of an unconstitutional law. Thus, I focus my legal analysis
today primarily on whether plaintiffs have shown a likelihood of
success on their claim that the CDA is unconstitutional. The
issues of irreparable harm to plaintiffs, harm to third parties,
and the public interest all flow from that determination.[1]
Plaintiffs' challenge here is a "facial" one. A law
that regulates the content of speech is facially invalid if it
does not pass the "most exacting scrutiny" that we have described
above, or if it would "penalize a substantial amount of speech
that is constitutionally protected". Forsyth County v.
Nationalist Movement, 112 S. Ct. 2395, 2401 (1992). This is so
even if some applications would be "constitutionally
unobjectionable". Id.; see also National Treasury Employees
Union v. United States, 990 F.2d 1271, 1279-80 (D.C. Cir. 1993)
(Randolph, J., concurring), aff'd, 115 S. Ct. 1003 (1995).
Sometimes facial challenges require an inquiry into a party's
"standing" (i.e., whether a party may properly challenge a law as
facially invalid). See, e.g., Ferber, 458 U.S. at 767-79. At
other times a facial challenge requires only an inquiry into the
law's reach. See, e.g., R.A.V., 112 S. Ct. at 2547.[2] As I
describe it in part C below, I have no question that plaintiffs
here have standing to challenge the validity of the CDA, and,
indeed, the Government has not seriously challenged plaintiffs'
standing to do so. See, e.g., Virginia v. American Booksellers
Assoc., 484 U.S. 383, 392 (1988). Thus, the focus is squarely on
the merits of plaintiffs' facial challenge.[3]
I divide my legal analysis below into three parts. In
Part B, I examine the traditional definition of indecency and
relate it to the provisions of the CDA at issue in this action.
From this analysis I conclude that 223(a) and 223(d) of the
CDA reach the same kind of speech. My analysis also convinces me
that plaintiffs are unlikely to succeed in their claim that the
CDA is unconstitutionally vague. In Part C, I address the
Government's argument that plaintiffs are not the CDA's target,
nor would they likely face prosecution under the Act. Here, I
conclude that plaintiffs could reasonably fear prosecution under
the Act, even if some of their fears border on the farfetched.
In Part D, I consider the legal implications of the special
attributes of Internet communication, as well as the effect that
the CDA would have on these attributes. In this Part I conclude
that the disruptive effect of the CDA on Internet communication,
as well as the CDA's broad reach into protected speech, not only
render the Act unconstitutional but also would render
unconstitutional any regulation of protected speech on this new
medium.
B. Defining Indecency
Although no court of appeals has ever to my knowledge
upheld a vagueness challenge to the meaning of "indecency",
several recent cases have grappled with the elusive meaning of
that word in the context of cable television and "dial-a-porn".
Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir.
1995), cert. granted, 116 S. Ct. 471 (1996); Dial Information
Serv. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert.
denied, 502 U.S. 1072 (1992); Information Providers Coalition for
Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir.
1991).
In Alliance for Community Media, 56 F.3d at 123-25, for
example, the District of Columbia Court of Appeals addressed
prohibitions on indecent programming on certain cable television
channels. That court noted that the FCC has codified the meaning
of "'indecent' programming" on cable television as "programming
that describes or depicts sexual or excretory activities or
organs in a patently offensive manner as measured by contemporary
community standards for the cable medium." Id. at 112 (citing
what is now 47 C.F.R. 76.701(g)).
The FCC took a similar approach to the definition of
"indecency" in the "dial-a-porn" medium.[4] In Dial Information
Services, 938 F.2d at 1540, the Second Circuit quoted the FCC's
definition of indecent telephone communications in that context:
[I]n the dial-a-porn context, we
believe it is appropriate to define
indecency as the description or
depiction of sexual or excretory
activities or organs in a patently
offensive manner as measured by
contemporary community standards
for the telephone medium.
Id. at 1540 (citation omitted); see also Information Providers'
Coalition for Defense of the First Amendment v. FCC, 928 F.2d
866, 876 (9th Cir. 1991).
These three cases recognize that the FCC did not define
"indecency" for cable and dial-a-porn in a vacuum. Rather, it
borrowed from the Supreme Court's decision in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). In that case (which I describe
in greater detail below), the Supreme Court established the rough
outline from which the FCC fashioned its three-part definition.
For the first two parts of the test, the Supreme Court emphasized
the "importance of context" in examining arguably indecent
material. Id. at 747 n.25. "Context" in the Pacifica opinion
includes consideration of both the particular medium from which
the material originates and the particular community that
receives the material. Id. at 746 (assuming that the Carlin
monologue "would be protected in other contexts"); id. at 748-51
(discussing the attributes of broadcast); see also Information
Providers' Coalition, 928 F.2d at 876 (discussing the
"content/context dichotomy"). Second, the opinion limits its
discussion to "patently offensive sexual and excretory language",
Pacifica, 438 U.S. at 747, and this type of content has remained
the FCC's touchstone. See, e.g., Alliance for Community Media,
56 F.3d at 112.[5]
We have quoted from the CDA extensively above and I
will only briefly rehearse that discussion here. Section 223(a)
of the CDA criminalizes "indecent" speech on the Internet. This
is the "indecency" provision. Section 223(d) of the CDA
addresses speech that, "in context, depicts or describes, in
terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs". This is
the "patently offensive" provision. The foregoing discussion
leads me to conclude that these two provisions describe the same
kind of speech. That is, the use of "indecent" in 223(a) is
shorthand for the longer description in 223(d). Conversely,
the longer description in 223(d) is itself the definition of
"indecent" speech. I believe Congress could have used the word
"indecent" in both 223(a) and 223(d), or it could have used
the "patently offensive" description of 223(d) in 223(a),
without a change in the meaning of the Act. I do not believe
that Congress intended that this distinction alone would change
the reach of either section of the CDA.[6]
The CDA's legislative history confirms this conclusion.
There, the conference committee explicitly noted that 223(d)
"codifies the definition of indecency from FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). . . . The conferees intend that
the term indecency (and the rendition of the definition of that
term in new section 502) has the same meaning as established in
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Sable
Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)."
Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02.
The legislative history makes clear that Congress did not intend
to create a distinction in meaning when it used the generic term
"indecency" in 223(a) and the definition of that term in
223(d).[7]
There is no doubt that the CDA requires the most
stringent review for vagueness, since it is a criminal statute
that "threatens to inhibit the exercise of constitutionally
protected rights". Colautti v. Franklin, 439 U.S 379, 391
(1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8
(1983); Grayned, 408 U.S. at 108-09. My analysis here
nevertheless leads ineluctably to the conclusion that the
definition of indecency is not unconstitutionally vague. The
Miller definition of obscenity has survived such challenges, see,
e.g., Hamling v. United States, 418 U.S. 87, 118-19 (1974); Fort
Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57 (1989), and the
definition of indecency contains a subset of the elements of
obscenity. If the Miller test "give[s] the person of ordinary
intelligence a reasonable opportunity to know what is prohibited,
so that he may act accordingly", Grayned v. City of Rockford, 408
U.S. 104, 108 (1972), the omission of parts of that test does not
warrant a contrary conclusion. See Dial Information Services,
938 F.2d at 1541-42. Similarly, since the definition of
indecency arose from the Supreme Court itself in Pacifica, we may
fairly imply that the Court did not believe its own
interpretation to invite "arbitrary and discriminatory
enforcement" or "abut upon sensitive areas of basic First
Amendment freedoms". Grayned, 408 U.S. at 108-109 (citations and
alterations omitted). Sable, while not explicitly addressing the
issue of vagueness, reinforces this conclusion. See Information
Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S.
at 126-27). It follows, then, that plaintiffs' vagueness
challenge is not likely to succeed on the merits and does not
support preliminary injunctive relief.
The possible interpretations of the defenses in
223(e) do not alter this conclusion. As a matter of statutory
construction, 223(e)(5)(B) could not be clearer. This section,
which imports the dial-a-porn defenses into the CDA, creates
"specific and objective" methods to avoid liability. See Roberts
v. United States Jaycees, 468 U.S. 609, 629 (1984). Section
223(e)(5)(A) is more suspect, since it arguably "fail[s] to
describe with sufficient particularity what a suspect must do in
order to satisfy" it. Kolender 461 U.S. at 361.[8] Yet even
though the defenses in both sections are unavailable to many
Internet users, their unavailability does not render the
liability provisions vague. Rather, their unavailability just
transforms 223(a) and 223(d) into a total ban, in violation
of Butler v. Michigan, 352 U.S. 380, 383 (1957), and Sable, 492
U.S. at 127, 131. I am sensitive to plaintiffs' arguments that
the statute, as written, does not create safe harbors through
which all Internet users may shield themselves from liability.
Transcript of May 10, 1996, at 37-38. Here again, however, the
absence of safe harbors relates to the (over)breadth of a
statute, and not its vagueness. See Sable, 492 U.S. at 127, 131.
C. Plaintiffs' Likelihood of Prosecution Under the Act
The Government has consistently argued that the speech
of many of the plaintiffs here is almost certainly not indecent.
They point, for example, to the educational and political content
of plaintiffs' speech, and they also suggest that the occasional
curse word in a card catalogue will probably not result in
prosecution. See Senate Report at 189, reprinted in 1996
U.S.C.C.A.N. at 203 ("Material with serious redeeming value is
quite obviously intended to edify and educate, not to offend.").
In this section I address that argument.
I agree with the Government that some of plaintiffs'
claims are somewhat exaggerated, but hyperbolic claims do not in
themselves weigh in the Government's favor. In recent First
Amendment challenges, the Supreme Court has itself paid close
attention to extreme applications of content-based laws.
In Simon & Schuster, Inc. v. Members of the New York
State Crimes Victim Board, 502 U.S. 105 (1991), the Court
addressed the constitutionality of a law that required criminals
to turn over to their victims any income derived from books,
movies, or other commercial exploitation of their crimes. Id. at
504-05. In its opinion, the Court evaluated the argument of an
amicus curiae that the law's reach could include books such as
The Autobiography of Malcolm X, Civil Disobedience, and
Confessions of Saint Augustine, and authors such as Emma Goldman,
Martin Luther King, Jr., Sir Walter Raleigh, Jesse Jackson, and
Bertrand Russell. Id. at 121-22. The Court credited the
argument even while recognizing that it was laced with
"hyperbole":
The argument that [the] statute . .
. would prevent publication of all
of these works is hyperbole -- some
would have been written without
compensation -- but the . . . law
clearly reaches a wide range of
literature that does not enable a
criminal to profit from his crime
while a victim remains
uncompensated.
Id. at 122. If a content-based law "can produce such an
outcome", id. at 123 (emphasis added), then Simon & Schuster
allows us to consider those outcomes in our analysis.
Even more recently, in United States v. National
Treasury Employees Union, 115 S. Ct. 1003 (1995), the Court
addressed the constitutionality of a law that banned federal
employees from accepting honoraria for publications unrelated to
their work. Id. at 1008. The Court noted that the law would
reach "literary giants like Nathaniel Hawthorne and Herman
Melville, . . . Walt Whitman, . . . and Bret Harte". Id. at
1012. This concern resurfaced later in the opinion, see id. at
1015 ("[W]e cannot ignore the risk that [the ban] might deprive
us of the work of a future Melville or Hawthorne."), even though
a footnote immediately renders this concern at least hyperbolic:
These authors' familiar masterworks
would survive the honoraria ban as
currently administered. Besides
exempting all books, the
[regulations implementing the ban]
protect fiction and poetry from the
ban's coverage, although the
statute's language is not so clear.
But some great artists deal in fact
as well as fiction, and some deal
in both.
Id. n.16 (citations omitted).
Here, even though it is perhaps unlikely that the
Carnegie Library will ever stand in the dock for putting its card
catalogue online, or that the Government will hale the ACLU into
court for its online quiz of the seven dirty words, we cannot
ignore that the Act could reach these activities. The definition
of indecency, like the definition of obscenity, is not a rigid
formula. Rather, it confers a large degree of autonomy to
individual communities to set the bounds of decency for
themselves. Cf. Sable, 492 U.S. at 125-26. This is as it should
be, since this flexibility recognizes that ours is a country with
diverse cultural and historical roots. See, e.g., Hamling, 418
U.S. at 104 ("A juror is entitled to draw on his own knowledge of
the views of the average person in the community or vicinage from
which he comes for making the required determination, just as he
is entitled to draw on his knowledge of the propensities of a
'reasonable' person in other areas of the law.").
Putting aside hyperbolic application, I also have
little doubt that some communities could well consider
plaintiffs' speech indecent, and these plaintiffs could --
perhaps should -- have a legitimate fear of prosecution. In
Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir.
1995), the District of Columbia Court of Appeals summarized three
broadcasts that the FCC found indecent in the late 1980s:
The offending morning broadcast . .
. contained "explicit references to
masturbation, ejaculation, breast
size, penis size, sexual
intercourse, nudity, urination,
oral-genital contact, erections,
sodomy, bestiality, menstruation
and testicles." The remaining two
were similarly objectionable.
Id. at 657 (citing In re Infinity Broadcasting Corp., 3 FCC R.
930, 932 (1987)). In Infinity Broadcasting, one of the
broadcasts that the FCC found indecent was an excerpt of a play
about AIDS, finding that the excerpts "contained the concentrated
and repeated use of vulgar and shocking language to portray
graphic and lewd depictions of excretion, anal intercourse,
ejaculation, masturbation, and oral-genital sex". 3 FCC R. at
934.[9] To the FCC, even broadcasts with "public value . . .
addressing the serious problems posed by AIDS" can be indecent if
"that material is presented in a manner that is patently
offensive". Id. (emphasis in original).[10]
Yet, this is precisely the kind of speech that occurs,
for example, on Critical Path AIDS Project's Web site, which
includes safer sex instructions written in street language for
easy comprehension. The Web site also describes the risk of HIV
transmission for particular sexual practices. The FCC's
implication in In the Matter of King Broadcasting Co., 5 FCC R.
2971 (1990), that a "candid discussion[] of sexual topics" on
television was decent in part because it was "not presented in a
pandering, titillating or vulgar manner" would be unavailing to
Critical Path, other plaintiffs, and some amici. These
organizations want to pander and titillate on their Web sites, at
least to a degree, to attract a teen audience and deliver their
message in an engaging and coherent way.[11]
In In re letter to Merrell Hansen, 6 FCC R. 3689
(1990), the FCC found indecent a morning discussion between two
announcers regarding Jim Bakker's alleged rape of Jessica Hahn.
Id. Here, too, the FCC recognized that the broadcast had public
value. Id. (noting that the broadcast concerned "an incident
that was at the time 'in the news'"). Yet, under the FCC's
interpretation of Pacifica, "the merit of a work is 'simply one
of the many variables' that make up a work's context". Id.
(citation omitted).
One of the plaintiffs here, Stop Prisoner Rape, Inc.,
has as its core purpose the issue of prison rape. The
organization creates chat rooms in which members can discuss
their experiences. Some amici have also organized Web sites
dedicated to survivors of rape, incest, and other sexual abuse.
These Web sites provide fora for the discussion and contemplation
of shared experiences. The operators of these sites, and their
participants, could legitimately fear prosecution under the CDA.
With respect to vulgarity, the Government is in a
similarly weak position. In Pacifica, the Supreme Court held
that multiple repetition of expletives could be indecent.
Pacifica, 438 U.S. at 750. Although the FCC did not follow this
rationale with respect to a broadcast of "a bona fide news story"
on National Public Radio, Letter to Mr. Peter Branton, 6 FCC R.
610 (1991), aff'd on other grounds sub nom. Branton v. FCC, 993
F.2d 906, 908 (D.C. Cir. 1993), the ACLU, a plaintiff here, could
take little comfort from that administrative decision. It would
need to discern, for example, whether a chat room that it
organized to discuss the meaning of the word fuck was more like
the Carlin monologue or more like a National Public Radio
broadcast.[12] Plaintiffs' expert would have found expletives
indecent in a community consisting only of himself,[13] and his
views undoubtedly -- and reasonably -- reflect the view of many
people.
In sum, I am less confident than the Government that
societal mores have changed so drastically since Pacifica that an
online equivalent of the Carlin monologue, or the Carlin
monologue itself online, would pass muster under the CDA. Under
existing precedent, plaintiffs' fear of prosecution under the Act
is legitimate, even though they are not the pornographers
Congress had in mind when it passed the CDA.[14] Cf. City of
Houston v. Hill, 482 U.S. 451, 459 (1987). My discussion of the
effect and reach of the CDA, therefore, applies both to
plaintiffs' hyperbolic concerns and to their very real ones.
D. A Medium-Specific Analysis
The Internet is a new medium of mass communication.[15]
As such, the Supreme Court's First Amendment jurisprudence
compels us to consider the special qualities of this new medium
in determining whether the CDA is a constitutional exercise of
governmental power. Relying on these special qualities, which we
have described at length in our Findings of fact above, I
conclude that the CDA is unconstitutional and that the First
Amendment denies Congress the power to regulate protected speech
on the Internet. This analysis and conclusions are consistent
with Congress's intent to avoid tortuous and piecemeal review of
the CDA by authorizing expedited, direct review in the Supreme
Court "as a matter of right" of interlocutory, and not merely
final, orders upholding facial challenges to the Act. See
561(b) of the Telecommunications Act of 1996.[16]
1. The Differential Treatment of Mass Communication
Media
Nearly fifty years ago, Justice Jackson recognized that
"[t]he moving picture screen, the radio, the newspaper, the
handbill, the sound truck and the street corner orator have
differing natures, values, abuses and dangers. Each . . . is a
law unto itself". Kovacs v. Cooper, 336 U.S. 77, 97 (1949)
(Jackson, J., concurring). The Supreme Court has expressed this
sentiment time and again since that date, and differential
treatment of the mass media has become established First
Amendment doctrine. See, e.g., Turner Broadcasting Sys., Inc. v.
FCC, 114 S. Ct. 2445, 2456 (1994) ("It is true that our cases
have permitted more intrusive regulation of broadcast speakers
than of speakers in other media."); Pacifica, 438 U.S. at 748
("We have long recognized that each medium of expression presents
special First Amendment problems."); City of Los Angeles v.
Preferred Communications, Inc., 476 U.S. 488, 496 (1974)
("Different communications media are treated differently for
First Amendment purposes.") (Blackmun, J., concurring);
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500-01
(1981) (plurality opinion) ("This Court has often faced the
problem of applying the broad principles of the First Amendment
to unique forums of expression."). Thus, the Supreme Court has
established different rules for print, Miami Herald Publishing
Co. v. Tornillo, 418 U.S. 241 (1974), broadcast radio and
television, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S.
367 (1969), cable television, Turner, 114 S. Ct. at 2456-57, and
even billboards, Metromedia, 453 U.S. at 501, and drive-in movie
theaters, Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975).
This medium-specific approach to mass communication
examines the underlying technology of the communication to find
the proper fit between First Amendment values and competing
interests. In print media, for example, the proper fit generally
forbids governmental regulation of content, however minimal.
Tornillo, 418 U.S. at 258. In other media (billboards, for
example), the proper fit may allow for some regulation of both
content and of the underlying technology (such as it is) of the
communication. Metromedia, 453 U.S. at 502.
Radio and television broadcasting present the most
expansive approach to medium-specific regulation of mass
communication. As a result of the scarcity of band widths on the
electromagnetic spectrum, the Government holds broad authority
both to parcel out the frequencies and to prohibit others from
speaking on the same frequency:
As a general matter, there are more
would-be broadcasters than
frequencies available in the
electromagnetic spectrum. And if
two broadcasters were to attempt to
transmit over the same frequency in
the same locale, they would
interfere with one another's
signals, so that neither could be
heard at all. The scarcity of
broadcast frequencies thus required
the establishment of some
regulatory mechanism to divide the
electromagnetic spectrum and assign
specific frequencies to particular
broadcasters.
Turner, 114 S. Ct. at 2456 (citing FCC v. League of Women Voters,
468 U.S. 364 (1984)).
This scarcity also allows the Government to regulate
content even after it assigns a license:
In addition, the inherent physical
limitation on the number of
speakers who may use the broadcast
medium has been thought to require
some adjustment in traditional
First Amendment analysis to permit
the Government to place limited
content restraints, and impose
certain affirmative obligations, on
broadcast licensees.
Id. at 2457 (citing Red Lion, 395 U.S. at 390-95; National
Broadcasting Co. v. United States, 319 U.S. 190 (1943)).
The broadcasting cases firmly establish that the
Government may force a licensee to offer content to the public
that the licensee would otherwise not offer, thereby assuring
that radio and television audiences have a diversity of content.
In broadcasting, "[i]t is the right of the public to receive
suitable access to social, political, esthetic, moral, and other
ideas and experiences which is crucial". Red Lion, 395 U.S. at
390; see also CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A
licensed broadcaster is 'granted the free and exclusive use of a
limited and valuable part of the public domain; when he accepts
that franchise it is burdened by enforceable public
obligations.'") (citation omitted); Columbia Broadcasting Sys.,
Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1973).
These content restrictions include punishing licensees who
broadcast inappropriate but protected speech at an impermissible
time. Pacifica, 438 U.S. at 750-51.
In this case, the Government relies on the Pacifica
decision in arguing that the CDA is a constitutional exercise of
governmental power. Since the CDA regulates indecent speech, and
since Pacifica authorizes governmental regulation of indecent
speech (so the Government's argument goes), it must follow that
the CDA is a valid exercise of governmental power. That
argument, however, ignores Pacifica's roots as a decision
addressing the proper fit between broadcasting and the First
Amendment. The argument also assumes that what is good for
broadcasting is good for the Internet.
2. The Scope of the Pacifica Decision
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the
Supreme Court first decided whether the Government had the power
to regulate indecent speech. Id. at 729. In Pacifica, a radio
listener complained about the broadcast of George Carlin's
"Filthy Words" monologue at 2:00 p.m. on a Tuesday afternoon.
Id. at 729-30. The Carlin monologue was replete with "the words
you couldn't say on the public . . . airwaves . . . , ever", and
the listener had tuned in while driving with his young son in New
York. Id. The FCC issued a declaratory order, holding that it
could have subjected the Pacifica Foundation (owner of the radio
station) to an administrative sanction. Id. at 730. In its
order the FCC also described the standards that it would use in
the future to regulate indecency in the broadcast medium. Id. at
731. The Supreme Court upheld the FCC's decision and confirmed
the power of that agency to regulate indecent speech. Id. at
750-51.
The rationale of Pacifica rested on three overlapping
considerations. First, using as its example the Carlin monologue
before it, the Court weighed the value of indecent speech and
concluded that such speech "lie[s] at the periphery of First
Amendment concerns." Id. at 743. Although the Court recognized
that the FCC had threatened to punish Pacifica based on the
content of the Carlin monologue, id. at 742, it found that the
punishment would have been permissible because four-letter words
"offend for the same reasons that obscenity offends." Id. at 746
(footnote omitted). The Court then described the place of four-
letter words "in the hierarchy of first amendment values":
Such utterances are no essential
part of any exposition of ideas,
and are of such slight social value
as a step to truth that any benefit
that may be derived from them is
clearly outweighed by the social
interest in order and morality.
Id. at 746 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942)).
Second, the Court recognized that "broadcasting . . .
has received the most limited First Amendment protection." Id.
at 748. The Government may regulate broadcast consistent with
the Constitution, even though the same regulation would run afoul
of the First Amendment in the print medium. Id. (comparing Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) with Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)). This is
so because broadcasting has a "uniquely pervasive presence in the
lives of all Americans" and "is uniquely accessible to children,
even those too young to read." Pacifica, 438 U.S. at 748-49.
Third, the Court found the FCC's sanction -- an
administrative sanction -- to be an appropriate means of
regulating indecent speech. At the outset of the opinion, the
Court disclaimed that its holding was a "consider[ation of] any
question relating to the possible application of 1464 as a
criminal statute." Id. at 739 n.13. Later in the opinion, the
Court "emphasize[d] the narrowness of [its] holding", and
explicitly recognized that it had not held that the Carlin
monologue would justify a criminal prosecution. Id. at 750.
Instead, the Court allowed the FCC to regulate indecent speech
with administrative penalties under a "nuisance" rationale --
"like a pig in the parlor instead of the barnyard." Id. at 750
(citation omitted).
Time has not been kind to the Pacifica decision. Later
cases have eroded its reach, and the Supreme Court has repeatedly
instructed against overreading the rationale of its holding.
First, in Bolger v. Young Drug Products Corp., 463 U.S.
60 (1983), the Supreme Court refused to extend Pacifica to a law
unrelated to broadcasting. In that case, a federal law
prohibited the unsolicited mailing of contraceptive
advertisements. Id. at 61. The Government defended the law by
claiming an interest in protecting children from the
advertisements. The Court rejected this argument as overbroad:
In [Pacifica], this Court did
recognize that the Government's
interest in protecting the young
justified special treatment of an
afternoon broadcast heard by adults
as well as children. At the same
time, the majority "emphasize[d]
the narrowness of our holding",
explaining that broadcasting is
"uniquely pervasive" and that it is
"uniquely accessible to children,
even those too young to read." The
receipt of mail is far less
intrusive and uncontrollable. Our
decisions have recognized that the
special interest of the Federal
Government in regulation of the
broadcast media does not readily
translate into a justification for
regulation of other means of
communication.
Id. at 74 (citations and footnotes omitted) (emphasis in
original) see also id. at 72 ("[T]he 'short, though regular,
journey from mail box to trash can . . . is an acceptable burden,
at least so far as the Constitution is concerned.'") (citation
omitted) (alterations in original).
Second, in Sable Communications v. FCC, 492 U.S. 115
(1989), the Supreme Court again limited Pacifica. In that case,
the Court considered the validity of a ban on indecent "dial-a-
porn" communications. Id. at 117-18.[17] As in Bolger, the
Government argued that Pacifica justified a complete ban of that
form of speech. The Supreme Court disagreed, holding instead
that Pacifica's "emphatically narrow" holding arose out of the
"unique attributes of broadcasting". Id. at 127. The Court held
that the ban was unconstitutional. Id. at 131.
Sable narrowed Pacifica in two ways. First, the Court
implicitly rejected Pacifica's nuisance rationale for dial-a-
porn, holding instead that the Government could only regulate the
medium "by narrowly drawn regulations designed to serve those
interests without unnecessarily interfering with First Amendment
freedoms". Id. at 126 (citation omitted). Under this strict
scrutiny, "[i]t is not enough to show that the Government's ends
are compelling; the means must be carefully tailored to achieve
those ends." Id.; see also Fabulous Assoc. v. Pennsylvania Pub.
Util. Comm., 896 F.2d 780, 784-85 (3d Cir. 1990).
Second, the Court concluded that the law, like a law it
had struck down in 1957, "denied adults their free speech rights
by allowing them to read only what was acceptable for children".
Sable, 492 U.S. at 126 (citing Butler v. Michigan, 352 U.S. 380
(1957)). Thus, any regulation of dial-a-porn would have to give
adults the opportunity to partake of that medium. Id. This
conclusion echoes Bolger. See Bolger, 463 U.S. at 74 ("The level
of discourse reaching a mailbox simply cannot be limited to that
which would be suitable for a sandbox.").[18]
Finally, in Turner Broadcasting System, Inc. v. FCC,
114 S. Ct. 2445 (1994), the Supreme Court implicitly limited
Pacifica once again when it declined to adopt the broadcast
rationale for the medium of cable television. The Court
concluded that the rules for broadcast were "inapt" for cable
because of the "fundamental technological differences between
broadcast and cable transmission". Id. at 2457.
The legal significance to this case of Turner's refusal
to apply the broadcast rules to cable television cannot be
overstated. Turner's holding confirms beyond doubt that the
holding in Pacifica arose out of the scarcity rationale unique to
the underlying technology of broadcasting, and not out of the end
product that the viewer watches. That is, cable television has
no less of a "uniquely pervasive presence" than broadcast
television, nor is cable television more "uniquely accessible to
children" than broadcast. See Pacifica, 438 U.S. at 748-49.
From the viewer's perspective, cable and broadcast television are
identical: moving pictures with sound from a box in the home.
Whether one receives a signal through an antenna or through a
dedicated wire, the end result is just television in either case.
In declining to extend broadcast's scarcity rationale for cable,
the Supreme Court also implicitly limited Pacifica, the holding
of which flows directly from that rationale.[19]
Turner thus confirms that the analysis of a particular
medium of mass communication must focus on the underlying
technology that brings the information to the user. In
broadcast, courts focus on the limited number of band widths and
the risk of interference with those frequencies. See, e.g.,
Turner, 114 S. Ct. at 2456-57. In cable, courts focus on the
number of channels, the different kinds of cable operators, and
the cost to the consumer. Id. at 2452.
I draw two conclusions from the foregoing analysis.
First, from the Supreme Court's many decisions regulating
different media differently, I conclude that we cannot simply
assume that the Government has the power to regulate protected
speech over the Internet, devoting our attention solely to the
issue of whether the CDA is a constitutional exercise of that
power. Rather, we must also decide the validity of the
underlying assumption as well, to wit, whether the Government has
the power to regulate protected speech at all. That decision
must take into account the underlying technology, and the actual
and potential reach, of that medium. Second, I conclude that
Pacifica's holding is not persuasive authority here, since
plaintiffs and the Government agree that Internet communication
is an abundant and growing resource. Nor is Sable persuasive
authority, since the Supreme Court's holding in that case
addressed only one particular type of communication (dial-a-
porn), and reached no conclusions about the proper fit between
the First Amendment and telephone communications generally.
Again, plaintiffs and the Government here agree that the Internet
provides content as broad as the imagination.
3. The Effect of the CDA and the Novel Characteristics
of Internet Communication
Over the course of five days of hearings and many
hundreds of pages of declarations, deposition transcripts, and
exhibits, we have learned about the special attributes of
Internet communication. Our Findings of fact -- many of them
undisputed -- express our understanding of the Internet. These
Findings lead to the conclusion that Congress may not regulate
indecency on the Internet at all.
Four related characteristics of Internet communication
have a transcendent importance to our shared holding that the CDA
is unconstitutional on its face. We explain these
characteristics in our Findings of fact above, and I only
rehearse them briefly here. First, the Internet presents very
low barriers to entry. Second, these barriers to entry are
identical for both speakers and listeners. Third, as a result of
these low barriers, astoundingly diverse content is available on
the Internet. Fourth, the Internet provides significant access
to all who wish to speak in the medium, and even creates a
relative parity among speakers.
To understand how disruptive the CDA is to Internet
communication, it must be remembered that the Internet evolved
free of content-based considerations. Before the CDA, it only
mattered how, and how quickly, a particular packet of data
travelled from one point on the Internet to another. In its
earliest incarnation as the ARPANET, the Internet was for many
years a private means of access among the military, defense
contractors, and defense-related researchers. The developers of
the technology focused on creating a medium designed for the
rapid transmittal of the information through overlapping and
redundant connections, and without direct human involvement. Out
of these considerations evolved the common transfer protocols,
packet switching, and the other technology in which today's
Internet users flourish. The content of the data was, before the
CDA, an irrelevant consideration.
It is fair, then, to conclude that the benefits of the
Internet to private speakers arose out of the serendipitous
development of its underlying technology. As more networks
joined the "network of networks" that is the Internet, private
speakers have begun to take advantage of the medium. This should
not be surprising, since participation in the medium requires
only that networks (and the individual users associated with
them) agree to use the common data transfer protocols and other
medium-specific technology. Participation does not require, and
has never required, approval of a user's or network's content.
After the CDA, however, the content of a user's speech
will determine the extent of participation in the new medium. If
a speaker's content is even arguably indecent in some
communities, he must assess, inter alia, the risk of prosecution
and the cost of compliance with the CDA. Because the creation
and posting of a Web site allows users anywhere in the country to
see that site, many speakers will no doubt censor their speech so
that it is palatable in every community. Other speakers will
decline to enter the medium at all. Unlike other media, there is
no technologically feasible way for an Internet speaker to limit
the geographical scope of his speech (even if he wanted to), or
to "implement[] a system for screening the locale of incoming"
requests. Sable 492 U.S. at 125.
The CDA will, without doubt, undermine the substantive,
speech-enhancing benefits that have flowed from the Internet.
Barriers to entry to those speakers affected by the Act would
skyrocket, especially for non-commercial and not-for-profit
information providers. Such costs include those attributable to
age or credit card verification (if possible), tagging (if
tagging is even a defense under the Act[20]), and monitoring or
review of one's content.
The diversity of the content will necessarily diminish
as a result. The economic costs associated with compliance with
the Act will drive from the Internet speakers whose content falls
within the zone of possible prosecution. Many Web sites,
newsgroups, and chat rooms will shut down, since users cannot
discern the age of other participants. In this respect, the
Internet would ultimately come to mirror broadcasting and print,
with messages tailored to a mainstream society from speakers who
could be sure that their message was likely decent in every
community in the country.
The CDA will also skew the relative parity among
speakers that currently exists on the Internet. Commercial
entities who can afford the costs of verification, or who would
charge a user to enter their sites, or whose content has mass
appeal, will remain unaffected by the Act. Other users, such as
Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web
sites before the CDA were as equally accessible as the most
popular Web sites, will be profoundly affected by the Act. This
change would result in an Internet that mirrors broadcasting and
print, where economic power has become relatively coterminous
with influence.
Perversely, commercial pornographers would remain
relatively unaffected by the Act, since we learned that most of
them already use credit card or adult verification anyway.
Commercial pornographers normally provide a few free pictures to
entice a user into proceeding further into the Web site. To
proceed beyond these teasers, users must provide a credit card
number or adult verification number. The CDA will force these
businesses to remove the teasers (or cover the most salacious
content with cgi scripts), but the core, commercial product of
these businesses will remain in place.
The CDA's wholesale disruption on the Internet will
necessarily affect adult participation in the medium. As some
speakers leave or refuse to enter the medium, and others
bowdlerize their speech or erect the barriers that the Act
envisions, and still others remove bulletin boards, Web sites,
and newsgroups, adults will face a shrinking ability to
participate in the medium. Since much of the communication on
the Internet is participatory, i.e., is a form of dialogue, a
decrease in the number of speakers, speech fora, and permissible
topics will diminish the worldwide dialogue that is the strength
and signal achievement of the medium.
It is no answer to say that the defenses and exclusions
of 223(e) mitigate the disruptive forces of the Act. We have
already found as facts that the defenses either are not available
to plaintiffs here or would impose excessive costs on them.
These defenses are also unavailable to participants in specific
forms of Internet communication.
I am equally dubious that the exclusions of 223(e)
would provide significant relief from the Act. The "common
carrier" exclusion of 223(e)(1), for example, would not
insulate America Online from liability for the content it
provides to its subscribers. It is also a tricky question
whether an America Online chat room devoted to, say, women's
reproductive health, is or is not speech of the service itself,
since America Online, at least to some extent, "creat[es] the
content of the communication" simply by making the room available
and assigning it a topic. Even if America Online has no
liability under this example, the service might legitimately
choose not to provide fora that led to the prosecution of its
subscribers. Similarly, it is unclear whether many caching
servers are devoted "solely" to the task of "intermediate
storage". The "vicarious liability" exclusion of 223(e)(4)
would not, for example, insulate either a college professor or
her employer from liability for posting an indecent online
reading assignment for her freshman sociology class.
We must of course give appropriate deference to the
legislative judgments of Congress. See Sable, 492 U.S. at 129;
Turner, 114 S. Ct. at 2472-73 (Blackmun, J., concurring). After
hearing the parties' testimony and reviewing the exhibits,
declarations, and transcripts, we simply cannot in my view defer
to Congress's judgment that the CDA will have only a minimal
impact on the technology of the Internet, or on adult
participation in the medium. As in Sable, "[d]eference to a
legislative finding cannot limit judicial inquiry when First
Amendment rights are at stake." Sable, 492 U.S. at 129 (citation
omitted). Indeed, the Government has not revealed Congress's
"extensive record" in addressing this issue, Turner, 114 S. Ct.
at 2472 (Blackmun, J., concurring), or otherwise convinced me
that the record here is somehow factually deficient to the record
before Congress when it passed the Act.
4. Diversity and Access on the Internet
Nearly eighty years ago, Justice Holmes, in dissent,
wrote of the ultimate constitutional importance of the "free
trade in ideas":
[W]hen men have realized that time
has upset many fighting faiths,
they may come to believe even more
than they believe the very
foundations of their own conduct
that the ultimate good desired is
better reached by free trade in
ideas -- that the best test of
truth is the power of the thought
to get itself accepted in the
competition of the market . . . .
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,
dissenting).
For nearly as long, critics have attacked this much-
maligned "marketplace" theory of First Amendment jurisprudence as
inconsistent with economic and practical reality. Most
marketplaces of mass speech, they charge, are dominated by a few
wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241, 248-50 (1974). These voices dominate -- and to an
extent, create -- the national debate. Id. Individual citizens'
participation is, for the most part, passive. Id. at 251.
Because most people lack the money and time to buy a broadcast
station or create a newspaper, they are limited to the role of
listeners, i.e., as watchers of television or subscribers to
newspapers. Id.
Economic realities limit the number of speakers even
further. Newspapers competing with each other and with (free)
broadcast tend toward extinction, as fixed costs drive
competitors either to consolidate or leave the marketplace. Id.
at 249-50. As a result, people receive information from
relatively few sources:
The elimination of competing
newspapers in most of our large
cities, and the concentration of
control of media that results from
the only newspaper's being owned by
the same interests which own a
television station and a radio
station, are important components
of this trend toward concentration
of control of outlets to inform the
public.
The result of these vast
changes has been to place in a few
hands the power to inform the
American people and shape public
opinion.
Id. at 249.
The Supreme Court has also recognized that the advent
of cable television has not offered significant relief from this
problem. Although the number of cable channels is exponentially
greater than broadcast, Turner, 114 S. Ct. at 2452, cable imposes
relatively high entry costs, id. at 2451-52 (noting that the
creation of a cable system requires "[t]he construction of [a]
physical infrastructure").
Nevertheless, the Supreme Court has resisted
governmental efforts to alleviate these market dysfunctions. In
Tornillo, the Supreme Court held that market failure simply could
not justify the regulation of print, 418 U.S. at 258, regardless
of the validity of the criticisms of that medium, id. at 251.
Tornillo invalidated a state "right-of-reply" statute, which
required a newspaper critical of a political candidate to give
that candidate equal time to reply to the charges. Id. at 244.
The Court held that the statute would be invalid even if it
imposed no cost on a newspaper, because of the statute's
intrusion into editorial discretion:
A newspaper is more than a passive
receptacle or conduit for news,
comment, and advertising. The
choice of material to go into a
newspaper, and the decisions made
as to limitations on the size and
content of the paper, and treatment
of public issues and public
officials -- whether fair or unfair
-- constitute the exercise of
editorial control and judgment.
Id. at 258.
Similarly, in Turner, the Supreme Court rejected the
Government's argument that market dysfunction justified
deferential review of speech regulations for cable television.
Even recognizing that the cable market "suffers certain
structural impediments", Turner, 114 S. Ct. at 2457, the Court
could not accept the Government's conclusion that this
dysfunction justified broadcast-type standards of review, since
"the mere assertion of dysfunction or failure in a speech market,
without more, is not sufficient to shield a speech regulation
from the First Amendment standards applicable to nonbroadcast
media." Id. at 2458. "[L]aws that single out the press, or
certain elements thereof, for special treatment 'pose a
particular danger of abuse by the State,' and so are always
subject to at least some degree of heightened First Amendment
scrutiny." Id. (citation omitted).[21] The Court then eloquently
reiterated that government-imposed, content-based speech
regulations are generally inconsistent with "[o]ur political
system and cultural life":
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. Government action that
stifles speech on account of its
message, or that requires the
utterance of a particular message
favored by the Government,
contravenes this essential right.
Laws of this sort pose the inherent
risk that the Government seeks not
to advance a legitimate regulatory
goal, but to suppress unpopular
ideas or information or manipulate
the public debate through coercion
rather than persuasion. These
restrictions "rais[e] the specter
that the Government may effectively
drive certain ideas or viewpoints
from the marketplace."
Id. (citation omitted).
Both Tornillo and Turner recognize, in essence, that
the cure for market dysfunction (government-imposed, content-
based speech restrictions) will almost always be worse than the
disease. Here, however, I am hard-pressed even to identify the
disease. It is no exaggeration to conclude that the Internet has
achieved, and continues to achieve, the most participatory
marketplace of mass speech that this country -- and indeed the
world -- has yet seen. The plaintiffs in these actions correctly
describe the "democratizing" effects of Internet communication:
individual citizens of limited means can speak to a worldwide
audience on issues of concern to them. Federalists and Anti-
Federalists may debate the structure of their government nightly,
but these debates occur in newsgroups or chat rooms rather than
in pamphlets. Modern-day Luthers still post their theses, but to
electronic bulletin boards rather than the door of the Wittenberg
Schlosskirche. More mundane (but from a constitutional
perspective, equally important) dialogue occurs between aspiring
artists, or French cooks, or dog lovers, or fly fishermen.
Indeed, the Government's asserted "failure" of the
Internet rests on the implicit premise that too much speech
occurs in that medium, and that speech there is too available to
the participants. This is exactly the benefit of Internet
communication, however. The Government, therefore, implicitly
asks this court to limit both the amount of speech on the
Internet and the availability of that speech. This argument is
profoundly repugnant to First Amendment principles.
My examination of the special characteristics of
Internet communication, and review of the Supreme Court's medium-
specific First Amendment jurisprudence, lead me to conclude that
the Internet deserves the broadest possible protection from
government-imposed, content-based regulation. If "the First
Amendment erects a virtually insurmountable barrier between
government and the print media", Tornillo, 418 U.S. at 259
(White, J., concurring), even though the print medium fails to
achieve the hoped-for diversity in the marketplace of ideas, then
that "insurmountable barrier" must also exist for a medium that
succeeds in achieving that diversity. If our Constitution
"prefer[s] 'the power of reason as applied through public
discussion'", id. (citation omitted), "[r]egardless of how
beneficent-sounding the purposes of controlling the press might
be", id., even though "occasionally debate on vital matters will
not be comprehensive and . . . all viewpoints may not be
expressed", id. at 260, a medium that does capture comprehensive
debate and does allow for the expression of all viewpoints should
receive at least the same protection from intrusion.
Finally, if the goal of our First Amendment
jurisprudence is the "individual dignity and choice" that arises
from "putting the decision as to what views shall be voiced
largely into the hands of each of us", Leathers v. Medlock, 499
U.S. 439, 448-49 (1991) (citing Cohen v. California, 403 U.S. 15,
24 (1971)), then we should be especially vigilant in preventing
content-based regulation of a medium that every minute allows
individual citizens actually to make those decisions. Any
content-based regulation of the Internet, no matter how benign
the purpose, could burn the global village to roast the pig. Cf.
Butler, 352 U.S. at 383.
5. Protection of Children from Pornography
I accept without reservation that the Government has a
compelling interest in protecting children from pornography. The
proposition finds one of its clearest expressions in Mill, who
recognized that his exposition regarding liberty itself "is meant
to apply only to human beings in the maturity of their
faculties":
We are not speaking of children or
of young persons below the age
which the law may fix as that of
manhood or womanhood. Those who
are still in a state to require
being taken care of by others must
be protected against their own
actions as well as against external
injury.
John Stuart Mill, On Liberty 69 (Gertrude Himmelfarb ed., Penguin
Books 1982) (1859), cited in Harry Kalven Jr., A Worthy Tradition
54 (Jamie Kalven ed. 1988).
This rationale, however, is as dangerous as it is
compelling. Laws regulating speech for the protection of
children have no limiting principle, and a well-intentioned law
restricting protected speech on the basis of its content is,
nevertheless, state-sponsored censorship. Regulations that
"drive certain ideas or viewpoints from the marketplace" for
children's benefit, Simon & Schuster, 502 U.S. at 116, risk
destroying the very "political system and cultural life", Turner,
114 S. Ct. at 2458, that they will inherit when they come of age.
I therefore have no doubt that a Newspaper Decency Act,
passed because Congress discovered that young girls had read a
front page article in the New York Times on female genital
mutilation in Africa, would be unconstitutional. Tornillo, 418
U.S. at 258. Nor would a Novel Decency Act, adopted after
legislators had seen too many pot-boilers in convenience store
book racks, pass constitutional muster. Butler, 352 U.S. at 383.
There is no question that a Village Green Decency Act, the fruit
of a Senator's overhearing of a ribald conversation between two
adolescent boys on a park bench, would be unconstitutional.
Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37, 45 (1983). A Postal Decency Act, passed because of
constituent complaints about unsolicited lingerie catalogues,
would also be unconstitutional. Bolger, 463 U.S. at 73. In
these forms of communication, regulations on the basis of decency
simply would not survive First Amendment scrutiny.
The Internet is a far more speech-enhancing medium than
print, the village green, or the mails. Because it would
necessarily affect the Internet itself, the CDA would necessarily
reduce the speech available for adults on the medium. This is a
constitutionally intolerable result.
Some of the dialogue on the Internet surely tests the
limits of conventional discourse. Speech on the Internet can be
unfiltered, unpolished, and unconventional, even emotionally
charged, sexually explicit, and vulgar -- in a word, "indecent"
in many communities. But we should expect such speech to occur
in a medium in which citizens from all walks of life have a
voice. We should also protect the autonomy that such a medium
confers to ordinary people as well as media magnates.
Moreover, the CDA will almost certainly fail to
accomplish the Government's interest in shielding children from
pornography on the Internet. Nearly half of Internet
communications originate outside the United States, and some
percentage of that figure represents pornography. Pornography
from, say, Amsterdam will be no less appealing to a child on the
Internet than pornography from New York City, and residents of
Amsterdam have little incentive to comply with the CDA.[22]
My analysis does not deprive the Government of all
means of protecting children from the dangers of Internet
communication. The Government can continue to protect children
from pornography on the Internet through vigorous enforcement of
existing laws criminalizing obscenity and child pornography. See
United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995). As
we learned at the hearing, there is also a compelling need for
public education about the benefits and dangers of this new
medium, and the Government can fill that role as well. In my
view, our action today should only mean that the Government's
permissible supervision of Internet content stops at the
traditional line of unprotected speech.
Parents, too, have options available to them. As we
learned at the hearing, parents can install blocking software on
their home computers, or they can subscribe to commercial online
services that provide parental controls. It is quite clear that
powerful market forces are at work to expand parental options to
deal with these legitimate concerns. More fundamentally, parents
can supervise their children's use of the Internet or deny their
children the opportunity to participate in the medium until they
reach an appropriate age. See Fabulous, 896 F.2d at 788-89
(noting that "our society has traditionally placed" these
decisions "on the shoulders of the parent").
E. Conclusion
Cutting through the acronyms and argot that littered
the hearing testimony, the Internet may fairly be regarded as a
never-ending worldwide conversation. The Government may not,
through the CDA, interrupt that conversation. As the most
participatory form of mass speech yet developed, the Internet
deserves the highest protection from governmental intrusion.
True it is that many find some of the speech on the
Internet to be offensive, and amid the din of cyberspace many
hear discordant voices that they regard as indecent. The absence
of governmental regulation of Internet content has unquestionably
produced a kind of chaos, but as one of plaintiffs' experts put
it with such resonance at the hearing:
What achieved success was the very
chaos that the Internet is. The
strength of the Internet is that
chaos.[23]
Just as the strength of the Internet is chaos, so the strength of
our liberty depends upon the chaos and cacophony of the
unfettered speech the First Amendment protects.
For these reasons, I without hesitation hold that the
CDA is unconstitutional on its face.
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 ASSOC., : CIVIL ACTION
INC., et al. :
:
v. :
:
UNITED STATES DEP'T OF :
JUSTICE, et al. : NO. 96-1458
ORDER
AND NOW, this 11th day of June, 1996, upon
consideration of plaintiffs' motions for preliminary injunction,
and the memoranda of the parties and amici curiae in support and
opposition thereto, and after hearing, and upon the findings of
fact and conclusions of law set forth in the accompanying
Adjudication, it is hereby ORDERED that:
1. The motions are GRANTED;
2. Defendant Attorney General Janet Reno, and all
acting under her direction and control, are PRELIMINARILY
ENJOINED from enforcing, prosecuting, investigating or reviewing
any matter premised upon:
(a) Sections 223(a)(1)(B) and 223(a)(2) of the
Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104-
104, 502, 110 Stat. 133, 133-36, to the extent such
enforcement, prosecution, investigation, or review are based upon
allegations other than obscenity or child pornography; and
(b) Sections 223(d)(1) and 223(d)(2) of the CDA;
3. Pursuant to Fed. R. Civ. P. 65(c), plaintiffs need
not post a bond for this injunction, see Temple Univ. v. White,
941 F.2d 201, 220 (3d Cir. 1991), cert. denied sub nom. Snider v.
Temple Univ., 502 U.S. 1032 (1992); and
4. The parties shall advise the Court, in writing, as
to their views regarding the need for further proceedings on the
later of (a) thirty days from the date of this Order, or (b) ten
days after final appellate review of this Order.
BY THE COURT:
______________________________
Dolores K. Sloviter, C.J.
U.S. Court of Appeals
For the Third Circuit
______________________________
Ronald L. Buckwalter, J.
______________________________
Stewart Dalzell, J.
1. The CDA will be codified at 47 U.S.C. 223(a) to (h). In
the body of this Adjudication, we refer to the provisions of the
CDA as they will ultimately be codified in the United States
Code.
2. The plaintiffs in this action are the American Civil
Liberties Union; Human Rights Watch; Electronic Privacy
Information Center; Electronic Frontier Foundation; Journalism
Education Association; Computer Professionals for Social
Responsibility; National Writers Union; Clarinet Communications
Corp.; Institute for Global Communications; Stop Prisoner Rape;
AIDS Education Global Information System; Bibliobytes; Queer
Resources Directory; Critical Path AIDS Project, Inc.; Wildcat
Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks
dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page;
Jonathan Wallace dba The Ethical Spectacle; and Planned
Parenthood Federation of America, Inc. We refer to these
plaintiffs collectively as the ACLU.
3. The plaintiffs in the second action, in addition to the ALA,
are: American 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.; Health Sciences Libraries Consortium;
Hotwired Ventures LLC; Interactive Digital Software Association;
Interactive Services Association; Magazine Publishers of America;
Microsoft Corporation; The Microsoft Network, L.L.C.; National
Press Photographers Association; Netcom On-Line Communication
Services, Inc.; Newspaper Association of America; Opnet, Inc.;
Prodigy Services Company; Society of Professional Journalists;
Wired Ventures, Ltd. We refer to these plaintiffs collectively
as the ALA.
The eight counts of the amended complaint in this action
focus on the CDA's amendment to 47 U.S.C. 223, and do not
challenge the CDA's amendment of 18 U.S.C. 1462(c).
4. In addition, we have received briefs of amici curiae
supporting and opposing plaintiffs' contentions. Arguing in
favor of our granting the motions for preliminary injunction are
Authors Guild, American Society of Journalists and Authors, Ed
Carp, Coalition for Positive Sexuality, CONNECTnet, Creative
Coalition on AOL, Tri Dang Do, Feminists for Free Expression,
Margarita Lacabe, Maggie LaNoue, LoD Communications, Peter
Ludlow, Palmer Museum of Art, Chuck More, Rod Morgan, PEN
American Center, Philadelphia Magazine, PSINet, Inc., Eric S.
Raymond, Reporters Committee for Freedom of the Press, Don
Rittner, The Sexuality Information and Education Council of the
United States, Lloyd K. Stires, Peter J. Swanson, Kirsti Thomas,
Web Communications, and Miryam Ehrlich Williamson. Opposing the
motion are the Family Life Project of the American Center for Law
and Justice and a group consisting of The National Law Center for
Children and Families, Family Research Council, "Enough Is
Enough!" Campaign, National Coalition for the Protection of
Children and Families, and Morality in Media.
5. The Act does not define "telecommunications device". By
Order dated February 27, 1996, we asked the parties to address
whether a modem is a "telecommunications device". Plaintiffs and
the Government answered in the affirmative, and we agree that the
plain meaning of the phrase and the legislative history of the
Act strongly support their conclusion. "Telecommunications"
under 47 U.S.C. 153(48) means "the transmission, between or
among points specified by the user, of information of the user's
choosing, without change in the form of content of the
information as sent and received." The plain meaning of "device"
is "something that is formed or formulated by design and
usu[ally] with consideration of possible alternatives,
experiment, and testing." Webster's Third New International
Dictionary, 618 (1986). Clearly, the sponsors of the CDA thought
it would reach individual Internet users, many of whom still
connect through modems. See, e.g., 141 Cong. Rec. S8329-46
(daily ed. June 14, 1995) (statements of Sen. Exon and Sen.
Coats).
The resolution of the tension between the scope of
"telecommunications device" and the scope of "interactive
computer service" as defined in 47 U.S.C. 230(a)(2), see infra
note 6, must await another day. It is sufficient for us to
conclude that the exclusion of 223(h)(1)(B) is probably a
narrow one (as the Government has argued), insulating an
interactive computer service from criminal liability under the
CDA but not insulating users who traffic in indecent and patently
offensive materials on the Internet through those services.
6. The statute at 509 amends 47 U.S.C. to add 230(e)(2),
which defines such a service 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."
7. In the Government's Opposition to plaintiffs' motion for a
temporary restraining order in C.A. No. 96-963, it notes "the
Department has a longstanding policy that previous such
provisions are unconstitutional and will not be enforced", and
that both President Clinton and General Reno "have made th[e]
point clear" that no one will be prosecuted under "the abortion-
related provision of newly-amended 18 U.S.C. 1462(c)."
Opposition at 19, n.11 (February 14, 1996). In view of this
"longstanding policy", the Government contends there is no
realistic fear of prosecution and, so the argument goes, no need
for equitable relief. Id. In their post-hearing brief, the ACLU
plaintiffs inform us that in view of the Government's statement,
"they do not seek a preliminary injunction against the
enforcement of 1462(c)." Post-Trial Brief of ACLU Plaintiffs
at 2 n.2.
8. The court again expresses its appreciation to the parties for
their cooperative attitude in evolving the stipulation.
9. The Government has not by motion challenged the standing of
any plaintiff in either case, and we harbor no doubts of our own
on that point, notwithstanding the Government's suggestion in a
footnote of its post-hearing brief. See Defendants' Post-Hearing
Memorandum at 37 n.46 ("Plaintiffs' assertions as to the speech
at issue are so off-point as to raise standing concerns.").
Descriptions of these plaintiffs, as well as of the nature and
content of the speech they contend is or may be affected by the
CDA, are set forth in paragraphs 70 through 356 at pages 30
through 103 of the parties' stipulation filed in these actions.
These paragraphs will not be reproduced here, but will be deemed
adopted as Findings of the court.
10. It became clear from the testimony that moderated newsgroups
are the exception and unmoderated newsgroups are the rule.
11. The evidence adduced at the hearings provided detail to this
paragraph of the parties' stipulation. See Findings 95 to 107.
12. Testimony adduced at the hearing suggests that market forces
exist to limit the availability of material on-line that parents
consider inappropriate for their children. Although the parties
sharply dispute the efficacy of so-called "parental empowerment"
software, there is a sufficiently wide zone of agreement on what
is available to restrict access to unwanted sites that the
parties were able to enter into twenty-one paragraphs of
stipulated facts on the subject, which form the basis of
paragraphs 49 through 69 of our Findings of fact. Because of the
rapidity of developments in this field, some of the technological
facts we have found may become partially obsolete by the time of
publication of these Findings.
13. This membership is constantly growing, according to the
testimony of Albert Vezza, Chairman of the World Wide Web
Consortium. See also Defendants' Ex. D-167.
14. See also Defendants' Ex. D-174 and the testimony of Mr.
Vezza.
15. From this point, our Findings are, unless noted, no longer
based upon the parties' stipulation, but upon the record adduced
at the hearings.
16. Mr. Bradner is a member of the Internet Engineering Task
Force, the group primarily responsible for Internet technical
standards, as well as other Internet-related associations
responsible for, among other things, the prevailing Internet
Protocols. He is also associated with Harvard University.
17. Dr. Olsen chairs the Computer Science Department at Brigham
Young University in Provo, Utah, and is the recently-appointed
Director of the Human Computer Interaction Institute at Carnegie-
Mellon University in Pittsburgh, Pennsylvania.
18. The term "information content provider" is defined in 509
of the CDA, at the new 47 U.S.C. 230(e)(3), as "any person or
entity that is responsible, in whole or in part, for the creation
or development of information provided through the Internet or
any other interactive computer service."
19. By "verification", we mean the method by which a user types
in his or her credit card number, and the Web site ensures that
the credit card is valid before it allows the user to enter the
site.
20. InterNIC is a naming organization, not a regulator of
content. InterNIC and two other European organizations maintain
a master list of domain names to ensure that no duplication
occurs. Creators of Web sites must register their domain name
with InterNIC, and the agency will instruct the creator to choose
another name if the new Web site has the name of an already-
existing site. InterNIC has no control over content on a site
after registration.
21. This paragraph and the preceding paragraph also illustrate
that a content provider might store its own material or someone
else's on a caching server. The goal -- saving money and time --
is the same in both cases.
1. It also probably covers speech protected by the First
Amendment for some minors a well, because it fails to limit its
reach to that which is harmful for minors, an issue which it is
not necessary to decide in light of the other conclusions
reached.
2. See 141 Cong. Rec. S8342 (daily ed. June 14, 1995) (letter
from Kent Markus, Acting Assistant Attorney General, U.S.
Department of Justice, to Senator Leahy).
1. If by virtue of the statute's authorization of expedited
review of its constitutionality, "on its face," 47 U.S.C.
561(a), we were strictly limited to looking at the words of the
statute, I would stand by my T.R.O. opinion. However, in light
of the procedures which are required by 47 U.S.C. 561(a) and 28
U.S.C. 2284, and were followed by this court in establishing an
extensive record in this case, to ignore the evidence presented
would be to ignore what an action for injunctive relief is all
about.
Section 561 reads as follows:
561. EXPEDITED REVIEW.
(a) THREE-JUDGE DISTRICT COURT HEARING --
Notwithstanding any other provision of law, any civil
action challenging the constitutionality, on its face,
of this title or any amendment made by this title, or
any provision thereof, shall be heard by a district
court of 3 judges convened pursuant to the provisions
of section 2284 of title 28, United States Code.
Section 2284 states, in relevant part:
2284. Three-judge court; when required;
composition; procedure
(b) In any action required to be heard and
determined by a district court of three judges under
subsection (a) of this section, the composition and
procedure of the court shall be as follows: . . .
(3) A single judge may conduct all
proceedings except the trial . . . . He may
grant a temporary restraining order on a
specific finding, based on evidence
submitted, that specified irreparable damages
will result if the order is not granted,
which order, unless previously revoked by the
district judge, shall remain in force only
until the hearing and determination by the
district court of three judges of an
application for a preliminary injunction. . .
.
2. Justice Kennedy argues in his opinion in Simon & Schuster v.
New York Crime Victims Bd., 502 U.S. 105, 120 (1991), that "[t]he
regulated content has the full protection of the First Amendment
and this, I submit, is itself a full and sufficient reason for
holding the statute unconstitutional. In my view it is both
unnecessary and incorrect to ask whether the state can show that
the statute 'is necessary to serve a compelling state interest
and is narrowly drawn to achieve that end.'" In the present
case, there is no disagreement that indecent and patently
offensive speech have the full protection of the First Amendment.
3. Not only has speech been divided up and given values -- with
some types of speech given little or no protection (obscenity,
fighting words, possibly commercial speech) -- but also, by court
decisions over the years, it has been decided that the content of
speech can indeed be regulated provided that the regulation will
directly and materially advance a compelling government interest,
and that it is narrowly tailored to accomplish that interest in
the least restrictive manner. However, any content-based
restriction must survive this most exacting scrutiny. Sable, 492
U.S. 115; Texas v. Johnson, 491 U.S. 397 (1989).
4. The plaintiffs have made facial challenges to the disputed
provisions of the CDA on grounds of both vagueness and
overbreadth. The approach taken and language used in evaluating
a statute under each of these doctrines commingles, and
frequently is treated as a single approach. "We have
traditionally viewed vagueness and overbreadth as logically
related and similar doctrines." Kolender v. Lawson, 461 U.S.
352, 358 n.8 (1983) (citing Keyishian v. Board of Regents, 385
U.S. 589, 609, (1967); NAACP v. Button, 371 U.S. 415, 433
(1963)). Even in cases where the court attempts to distinguish
these two doctrines, it acknowledges some interplay between them.
See e.g. Village of Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 494, and n. 6 (1982).
In addition, when discussing overbreadth, one cannot
avoid reference to the same language used to describe and apply
the strict scrutiny standard to constitutionally protected
activities. See e.g. Sable, 492 U.S. at 131; Roberts v. Jaycees,
468 U.S. 609, 623 (1984). While there are occasional attempts to
argue for clear distinctions among these doctrines, see e.g.
Kolender, 461 U.S. at 369 (White, J., Rehnquist, J. dissenting),
such bright lines simply have not been, and most likely cannot
be, drawn in this area.
5. Comparing a different portion of each of these two provisions
suggests that different terms are not to be read to mean the same
thing. As written, section (a) pertains to telecommunications
devices, and section (d) to interactive computer services. While
we have not entirely resolved the tension between these
definitions at this stage, it has been established that these
terms are not synonymous, but are in fact intended to denote
different technologies. This, together with the rule of
statutory construction set forth in Chief Judge Sloviter's
opinion, seems to suggest on the face of the statute that
indecent and patently offensive also are not to be read as
synonymous.
6. 18 U.S.C. 1461 states, "The term `indecent' as used in this
section includes matter of a character tending to incite arson,
murder or assassination."
7. Although the Supreme Court may rule on the vagueness question
in the context of cable television regulation in Alliance for
Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), currently
pending on certiorari before the Court, we will not defer
adjudication of this issue as the constitutionality of the term
in the cable context may not be determinative of its use in
cyberspace.
8. Each intentional act of posting indecent content for display
shall be considered a separate violation of this subsection and
carries with it a fine, a prison term of up to two years, or
both. 47 U.S.C. 223(a),(d) and Conf. Rep. at 189.
9. As I have noted, the unique nature of the medium cannot be
overemphasized in discussing and determining the vagueness issue.
This is not to suggest that new technology should drive
constitutional law. To the contrary, I remain of the belief that
our fundamental constitutional principles can accommodate any
technological achievements, even those which, presently seem to
many to be in the nature of a miracle such as the Internet.
1. By Order dated March 13, 1996, we asked the parties to submit
their views on questions regarding allocation of the burdens of
proof in these cases. Since I believe that the outcome of these
cases is clear regardless of the allocation of proof between the
parties, none of my conclusions in this opinion requires me to
choose between the arguments that the parties have presented to
us.
2. Although I do not believe the statue is unconstitutionally
vague, I agree with Judge Buckwalter that the Government's
promise not to enforce the plain reach of the law cannot salvage
its overbreadth. Even accepting the Government's argument that
prosecution of non-obscene pornography would be a "legitimate
application" of the CDA, City of Houston v. Hill, 482 U.S. 451,
459 (1987), it is clear that the Act would "make unlawful a
substantial amount of constitutionally protected conduct", id.
As in Hill, the Government's circular reasoning -- that the law
is constitutional because prosecutors would only apply it to
those against whom it could constitutionally be applied -- must
fail. See id. at 464-67.
3. Plaintiffs have argued that we may consider their challenge
under the standards governing both "facial" and "as-applied"
challenges. That is, they suggest that we may pass judgment on
the decency of the plaintiffs' speech, even if we are unable to
conclude that the act is facially unconstitutional. Surely this
procedural confusion arises out of the three opinions of the D.C.
Circuit in National Treasury Employees Union v. United States,
990 F.3d 1271, 1279-80 (D.C. Cir. 1993), aff'd, 115 S. Ct. 1003.
I doubt that we could undertake an as-applied inquiry,
since we do not know the exact content of plaintiffs' speech.
Indeed, it is impossible to know the exact content of some
plaintiffs' speech, since plaintiffs themselves cannot know that
content. America Online, for example, cannot know what its
subscribers will spontaneously say in chat rooms or post to
bulletin boards. In any event, I need not address this issue, in
the light of our disposition today.
4."Dial-a-porn" is a shorthand description of "sexually
oriented prerecorded telephone messages". Sable, 492 U.S. at
117-18.
5. In turn, Pacifica's definition of indecency has its roots in
the Supreme Court's obscenity jurisprudence. Indecency includes
some but not all of the elements of obscenity. See, e.g.,
Alliance for Community Media, 56 F.3d at 113-14 n.4.
6. The reach of the two provisions is not coterminous, however.
As we explain in the introduction to this Adjudication, 223(a)
reaches the making, creation, transmission, and initiation of
indecent speech. Section 223(d) arguably reaches more broadly to
the "display" of indecent speech. I conclude here only that both
sections refer to the identical type of proscribed speech.
7. At oral argument, counsel for the Government candidly
recognized that "there's nothing quite like this statute before",
and that the CDA's novelty raised some "legislative craftsmanship
problem[s]". Transcript of May 10, 1996, at 81-82. I believe
that my analysis here makes sense in the light of the legislative
history and the jurisprudence on which Congress relied in
enacting the CDA. See Senate Report at 188, reprinted in 1996
U.S.C.C.A.N. at 201-02.
8. The counterargument is that 223(e)(5)(A), when read
together with 223(e)(6), merely confers jurisdiction on the FCC
to prescribe the "reasonable, effective, and appropriate actions"
that count as defenses. Congress employed a similar scheme for
dial-a-porn. See Dial Information Servs., 938 F.2d at 1539
(citing 47 U.S.C. 223(b)(3)); Information Providers' Coalition,
928 F.2d at 871.
9. The play was "critically acclaimed and long-running in Los
Angeles area theaters". Infinity Broadcasting, 3 FCC R. at 932.
10. Analytically, it makes sense that indecent speech has public
value. After all, indecent speech is nevertheless protected
speech, see, e.g., Sable, 492 U.S. at 126, and it must therefore
have some public value that underlies the need for protection.
Obscenity, by contrast, has no public value, id. at 124, and thus
has no protection from proscription.
11. Internet technology undercuts the Government's argument that
the "in context" element of 223(a) and 223(d) would insulate
plaintiffs such as Critical Path from liability. See, e.g.,
Transcript of May 10, 1996, at 89-91. A user who clicks on a
link in the Critical Path database (see Findings 33, 77-78) might
travel to a highly graphic page in a larger HTML document. The
social value of that page, in context, might be debatable, but
the use of links effectively excerpts that document by
eliminating content unrelated to the link.
12. Moreover, because of the technology of Internet relay chat,
it would need to make this determination before it organized the
chat room, since it could not pre-screen the discussion among the
participants. Thus, it would need to predict, in advance, what
the participants were likely to say. The participants would need
to make a similar determination, unaided (I expect) by First
Amendment lawyers.
13. Testimony of April 12, 1996, at 235-36.
14. In this section I do not imply that the FCC has jurisdiction
to process Internet complaints in the same manner as it does for
broadcast. The extent of the FCC's jurisdiction under the CDA is
a sticky question not relevant here. See Senate Report at 190-
91, reprinted in 1996 U.S.C.C.A.N. at 204. Because the
administrative decisions cited above arose out of citizens'
complaints to the FCC, however, they provide a kind of surrogate
insight into the kinds of speech that citizens have charged as
indecent in the past.
15. See Finding of fact 81. See also Symposium, Emerging Media:
Technology and the First Amendment, 104 Yale L.J. 1613 (1995).
16. A narrow holding for this new medium also will not eliminate
the chill to plaintiffs, who could well stifle the extent of
their participation in this new medium while awaiting a future
iteration of the CDA. Such a holding would also lead Congress to
believe that a rewritten CDA (using, for example, a "harmful to
minors" standard, see Senate Report at 189, reprinted in 1996
U.S.C.C.A.N. at 202) would pass constitutional muster. In my
view, a holding consistent with the novel qualities of this
medium provides Congress with prompt and clear answers to the
questions that the CDA asks.
17. The history of dial-a-porn regulation both before and after
Sable is tortuous, and involves the intervention of all three
branches of government. I will not rehearse that history here,
deferring instead to the other courts that have recounted it.
See, e.g., Sable, 492 U.S. at 118-23; Dial Information Serv., 938
F.2d at 1537-40; Information Providers Coalition, 928 F.2d at
870-73.
18. Sable is arguably not a decision about mass communication.
Unlike Red Lion, Tornillo, or Turner, the Court in Sable reached
no conclusions about the proper fit between the First Amendment
and governmental regulation of the telephone. The case also
includes no discussion of the technology of the telephone
generally. The plaintiff in that case, a purveyor of dial-a-
porn, challenged the statute only with respect to that type of
content. Sable, 492 U.S. at 117-18. Thus, the Court's opinion
discussed only the "dial-in services". Id. at 128. Since every
telephone call at issue was, by definition, dial-a-porn, every
telephone call was, by definition, either obscene or indecent.
Id. at 132 (Scalia, J., concurring).
Here, however, plaintiffs represent forty-seven
different speakers (including educational associations and
consortia) who provide content to the Internet on a broad range
of topics. The limited reach of the Sable holding renders it
inapt to the Internet communications of the plaintiffs in these
actions.
19. I note here, too, that we have found as a fact that
operation of a computer is not as simple as turning on a
television, and that the assaultive nature of television, see
Pacifica, 438 U.S. at 748-49, is quite absent in Internet use.
See Findings 87-89. The use of warnings and headings, for
example, will normally shield users from immediate entry into a
sexually explicit Web site or newsgroup message. See Finding 88.
The Government may well be right that sexually explicit content
is just a few clicks of a mouse away from the user, but there is
an immense legal significance to those few clicks.
20. In a May 3, 1996 letter to a three-judge court in the
Southern District of New York, John C. Keeney, Acting Assistant
Attorney General in the Criminal Division of the Department of
Justice, has advised that tagging would be "substantial evidence"
in support of a 223(e)(5)(A) defense:
Under present technology, non-commercial
content providers can take steps to list
their site[s] in URL registries of covered
sites, register their site[s] with the
marketplace of browsers and blocking software
(including listing an IP address), place
their material in a directory blocked by
screening software, or take other similarly
effective affirmative steps to make their
site[s] known to the world to allow the
site[s] to be blocked. Under present
technology, it is the position of the
Department of Justice that, absent
extraordinary circumstances, such efforts
would constitute substantial evidence that a
content provider had taken good faith,
reasonable, effective, and appropriate
actions under the circumstances to restrict
or prevent access by minors to the covered
material. The same would be true for tagging
by content providers coupled with evidence
that the tag would be screened by the
marketplace of browsers and blocking
software.
Letter of May 3, 1996 from Acting Assistant Attorney General John
C. Keeney to Hons. Denise L. Cote, Leonard B. Sand, and Jose A.
Cabranes, attached to Defendants' Motion for Leave to File
Supplemental Statement. On May 8, 1996, the Government moved to
file the Kenney letter in this action, and we granted the motion
as unopposed the next day.
The letter certainly raises more questions than it
answers. I wonder, for example, whether it is consistent with
the plain language of the Act simply for content providers to
"make their site[s] known to the world" and thereby "to allow
[them] to be blocked", even though this form of notice alone
would not reduce the availability of indecent content. Cf.
Senate Report at 178, 1996 U.S.C.C.A.N. at 201 (noting that
223(d) "applies to content providers who post indecent material
for online display without taking precautions that shield that
material from minors"). It is also an unanswered question
whether the Keeney letter would eliminate any of the CDA's chill,
since the Government acknowledged that the letter would not
prohibit a United States Attorney from taking a contrary position
in a particular prosecution. See Defendants' May 9, 1996
Response to the May 8, 1996 Order of Court. The letter also
fails to mention how users who participate in chat rooms,
newsgroups, listservs, and e-mail might take advantage of
223(e)(5)(A). Finally, it is undisputed that neither PICS nor
the hypothetical "-L18" tag are available to speakers using the
World Wide Web today, whom the Government has explicitly reserved
its right to prosecute should the CDA ultimately be found
constitutional. See Stipulation and Order of February 26, 1996,
quoted supra.
21. Turner examined certain "must-carry" provisions under an
intermediate scrutiny, since those laws imposed incidental
burdens on speech but did not directly regulate content. Turner,
114 S. Ct. at 2469. The Court remanded the case to the district
court without passing on the constitutionality of the must-carry
provisions. Id. at 2472.
22. Arguably, a valid CDA would create an incentive for overseas
pornographers not to label their speech. If we upheld the CDA,
foreign pornographers could reap the benefit of unfettered access
to American audiences. A valid CDA might also encourage American
pornographers to relocate in foreign countries or at least use
anonymous remailers from foreign servers.
23. Testimony of March 22, 1996, at 167.