Copyright Notice

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.

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.