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 --