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.
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.
