Copyright Notice

SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:

A.
Statutory Provisions

As noted in Part I, Introduction, the plaintiffs'
motion for a preliminary injunction is confined to portions of
two provisions of the Communications Decency Act of 1996,
223(a) and 223(d), which they contend violate their First
Amendment free speech and Fifth Amendment due process rights. To
facilitate reference, I set forth those provisions in full.
Section 223(a), the "indecency" provision, subjects to criminal
penalties of imprisonment of no more than two years or a fine or
both anyone who:
1) in interstate or foreign communications . . .
(B) by means of a telecommunications device
knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image,
or other communication which is obscene or
indecent, knowing that the recipient of the
communication is under 18 years of age, regardless
of whether the maker of such communication placed
the call or initiated the communication; . . .

(2) knowingly permits any telecommunications facility
under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be
used for such activity.

(emphasis added).
The term "telecommunications device" is specifically
defined not to include "the use of an interactive computer
service," as that is covered by section 223(d)(1).
Section 223(d), the "patently offensive" provision,
subjects to criminal penalties anyone who:
(1) in interstate or foreign communications knowingly--

(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in
a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image or
other communication that, in context, depicts or
describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory
activities or organs, regardless of whether the use of
such service placed the call or initiated the
communication; or

(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be
used for such activity.


(emphasis added).
Two aspects of these provisions stand out. First, we
are dealing with criminal provisions, subjecting violators to
substantial penalties. Second, the provisions on indecent and
patently offensive communications are not parallel.
The government uses the term "indecent" interchangeably
with "patently offensive" and advises that it so construes the
statute in light of the legislative history and the Supreme
Court's analysis of the word "indecent" in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). However, the CDA does not
define "indecent." Notwithstanding Congress' familiarity with
Pacifica, it enacted 223(a), covering "indecent"
communications, without any language confining "indecent" to
descriptions or depictions of "sexual or excretory activities or
organs," language it included in the reference to "patently
offensive" in 223(d)(1)(B). Nor does 223(a) contain the
phrase "in context," which the government believes is relevant.
The failure to define "indecent" in 223(a) is thus
arguably a negative pregnant and subject to "the rule of
construction that an express statutory requirement here,
contrasted with statutory silence there, shows an intent to
confine the requirement to the specified instance." Field v.
Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v.
United States, 498 U.S. 395, 404 (1991) ("'[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion'") (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).
Plaintiffs note the difference but do not press this as
a basis for distinguishing between the two sections in their
preliminary injunction arguments and therefore I will also use
the words interchangeably for this purpose, leaving open the
issue for consideration at the final judgment stage if it becomes
relevant.
B.
Preliminary Injunction Standard
To obtain a preliminary injunction, plaintiffs must
establish that they are likely to prevail on the merits and that
they will suffer irreparable harm if injunctive relief is not
granted. We also must consider whether the potential harm to the
defendant from issuance of a temporary restraining order
outweighs possible harm to the plaintiffs if such relief is
denied, and whether the granting of injunctive relief is in the
public interest. See Campbell Soup Co. v. ConAgra, Inc., 977
F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd. of
Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).
In a case in which the injury alleged is a threat to
First Amendment interests, the finding of irreparable injury is
often tied to the likelihood of success on the merits. In Elrod
v. Burns, 427 U.S. 347 (1976), the Supreme Court emphasized that
"the loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Id. at
373 (citing New York Times Co. v. United States, 403 U.S. 713
(1971)).
Subjecting speakers to criminal penalties for speech
that is constitutionally protected in itself raises the spectre
of irreparable harm. Even if a court were unwilling to draw that
conclusion from the language of the statute itself, plaintiffs
have introduced ample evidence that the challenged provisions, if
not enjoined, will have a chilling effect on their free
expression. Thus, this is not a case in which we are dealing
with a mere incidental inhibition on speech, see Hohe v. Casey,
868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but
with a regulation that directly penalizes speech.
Nor could there be any dispute about the public
interest factor which must be taken into account before a court
grants a preliminary injunction. No long string of citations is
necessary to find that the public interest weighs in favor of
having access to a free flow of constitutionally protected
speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 114
S. Ct. 2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 763-65 (1976).
Thus, if plaintiffs have shown a likelihood of success
on the merits, they will have shown the irreparable injury needed
to entitle them to a preliminary injunction.

C.
Applicable Standard of Review
The CDA is patently a government-imposed content-based
restriction on speech, and the speech at issue, whether
denominated "indecent" or "patently offensive," is entitled to
constitutional protection. See Sable Communications of
California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such, the
regulation is subject to strict scrutiny, and will only be upheld
if it is justified by a compelling government interest and if it
is narrowly tailored to effectuate that interest. Sable, 492
U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459
(1994). "[T]he benefit gained [by a content-based restriction]
must outweigh the loss of constitutionally protected rights."
Elrod v. Burns, 427 U.S. at 363.
The government's position on the applicable standard
has been less than pellucid but, despite some references to a
somewhat lesser burden employed in broadcasting cases, it now
appears to have conceded that it has the burden of proof to show
both a compelling interest and that the statute regulates least
restrictively. Tr. of Preliminary Injunction Hearing at 121 (May
10, 1996). In any event, the evidence and our Findings of Fact
based thereon show that Internet communication, while unique, is
more akin to telephone communication, at issue in Sable, than to
broadcasting, at issue in Pacifica, because, as with the
telephone, an Internet user must act affirmatively and
deliberately to retrieve specific information online. Even if a
broad search will, on occasion, retrieve unwanted materials, the
user virtually always receives some warning of its content,
significantly reducing the element of surprise or "assault"
involved in broadcasting. Therefore, it is highly unlikely that
a very young child will be randomly "surfing" the Web and come
across "indecent" or "patently offensive" material.
Judge Dalzell's separate opinion fully explores the
reasons for the differential treatment of radio and television
broadcasting for First Amendment purposes from that accorded
other means of communication. It follows that to the extent the
Court employed a less than strict scrutiny standard of review in
Pacifica and other broadcasting cases, see, e.g., Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367 (1969), there is no reason
to employ a less than strict scrutiny standard of review in this
case.
D.
The Nature of the Government's Interest
The government asserts that shielding minors from
access to indecent materials is the compelling interest
supporting the CDA. It cites in support the statements of the
Supreme Court that "[i]t is evident beyond the need for
elaboration that a State's interest in `safeguarding the physical
and psychological well-being of a minor' is `compelling,'" New
York v. Ferber, 458 U.S. 747, 757 (1982)(quoting Globe Newspaper
Co. v. Superior Court, 457 U.S. 596, 607 (1982)), and "there is a
compelling interest in protecting the physical and psychological
well-being of minors. This interest extends to shielding minors
from the influence of literature that is not obscene by adult
standards." Sable, 492 U.S at 126. It also cites the similar
quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania
Public Utility Comm'n, 896 F.2d 780, 787 (3d Cir. 1990).
Those statements were made in cases where the potential
harm to children from the material was evident. Ferber involved
the constitutionality of a statute which prohibited persons from
knowingly promoting sexual performances by children under 16 and
distributing material depicting such performances. Sable and
Fabulous involved the FCC's ban on "dial-a-porn" (dealing by
definition with pornographic telephone messages). In contrast to
the material at issue in those cases, at least some of the
material subject to coverage under the "indecent" and "patently
offensive" provisions of the CDA may contain valuable literary,
artistic or educational information of value to older minors as
well as adults. The Supreme Court has held that "minors are
entitled to a significant measure of First Amendment protection,
and only in relatively narrow and well-defined circumstances may
government bar public dissemination of protected materials to
them." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213
(1975)(citations omitted).
In Erznoznik, the Court rejected an argument that an
ordinance prohibiting the display of films containing nudity at
drive-in movie theatres served a compelling interest in
protecting minor passersby from the influence of such films. The
Court held that the prohibition was unduly broad, and explained
that "[s]peech that is neither obscene as to youths nor subject
to some other legitimate proscription cannot be suppressed solely
to protect the young from ideas or images that a legislative body
thinks unsuitable for them." 422 U.S. at 213-14. As Justice
Scalia noted in Sable, "[t]he more pornographic what is embraced
within the . . . category of `indecency,' the more reasonable it
becomes to insist upon greater assurance of insulation from
minors." Sable, 492 U.S. at 132 (Scalia, J., concurring). It
follows that where non-pornographic, albeit sexually explicit,
material also falls within the sweep of the statute, the interest
will not be as compelling.
In part, our consideration of the government's showing
of a "compelling interest" trenches upon the vagueness issue,
discussed in detail in Judge Buckwalter's opinion but equally
pertinent to First Amendment analysis. Material routinely
acceptable according to the standards of New York City, such as
the Broadway play Angels in America which concerns homosexuality
and AIDS portrayed in graphic language, may be far less
acceptable in smaller, less cosmopolitan communities of the
United States. Yet the play garnered two Tony Awards and a
Pulitzer prize for its author, and some uninhibited parents and
teachers might deem it to be material to be read or assigned to
eleventh and twelfth graders. If available on the Internet
through some libraries, the text of the play would likely be
accessed in that manner by at least some students, and it would
also arguably fall within the scope of the CDA.
There has been recent public interest in the female
genital mutilation routinely practiced and officially condoned in
some countries. News articles have been descriptive, and it is
not stretching to assume that this is a subject that occupies
news groups and chat rooms on the Internet. We have no assurance
that these discussions, of obvious interest and relevance to
older teenage girls, will not be viewed as patently offensive -
even in context - in some communities.
Other illustrations abound of non-obscene material
likely to be available on the Internet but subject to the CDA's
criminal provisions. Photographs appearing in National
Geographic or a travel magazine of the sculptures in India of
couples copulating in numerous positions, a written description
of a brutal prison rape, or Francesco Clemente's painting
"Labirinth," see Def. Exh. 125, all might be considered to
"depict or describe, in terms patently offensive as measured by
contemporary community standards, sexual or excretory activities
or organs." 47 U.S.C. 223(d)(1). But the government has made
no showing that it has a compelling interest in preventing a
seventeen-year-old minor from accessing such images.
By contrast, plaintiffs presented testimony that
material that could be considered indecent, such as that offered
by Stop Prisoner Rape or Critical Path AIDS project, may be
critically important for certain older minors. For example,
there was testimony that one quarter of all new HIV infections in
the United States is estimated to occur in young people between
the ages of 13 and 20, an estimate the government made no effort
to rebut. The witnesses believed that graphic material that
their organizations post on the Internet could help save lives,
but were concerned about the CDA's effect on their right to do
so.
The government counters that this court should defer to
legislative conclusions about this matter. However, where First
Amendment rights are at stake, "[d]eference to a legislative
finding cannot limit judicial inquiry." Sable, 492 U.S. at 129
(quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
843 (1978)). "[W]hatever deference is due legislative findings
would not foreclose our independent judgment of the facts bearing
on an issue of constitutional law." Id.
Moreover, it appears that the legislative "findings"
the government cites concern primarily testimony and statements
by legislators about the prevalence of obscenity, child
pornography, and sexual solicitation of children on the Internet.
Similarly, at the hearings before us the government introduced
exhibits of sexually explicit material through the testimony of
Agent Howard Schmidt, which consisted primarily of the same type
of hard-core pornographic materials (even if not technically
obscene) which concerned Congress and which fill the shelves of
"adult" book and magazine stores. Plaintiffs emphasize that they
do not challenge the Act's restrictions on speech not protected
by the First Amendment, such as obscenity, child pornography or
harassment of children. Their suit is based on their assertion,
fully supported by their evidence and our findings, that the CDA
reaches much farther.
I am far less confident than the government that its
quotations from earlier cases in the Supreme Court signify that
it has shown a compelling interest in regulating the vast range
of online material covered or potentially covered by the CDA.
Nonetheless, I acknowledge that there is certainly a compelling
government interest to shield a substantial number of minors from
some of the online material that motivated Congress to enact the
CDA, and do not rest my decision on the inadequacy of the
government's showing in this regard.

E.
The Reach of the Statute
Whatever the strength of the interest the government
has demonstrated in preventing minors from accessing "indecent"
and "patently offensive" material online, if the means it has
chosen sweeps more broadly than necessary and thereby chills the
expression of adults, it has overstepped onto rights protected by
the First Amendment. Sable, 492 U.S. at 131.
The plaintiffs argue that the CDA violates the First
Amendment because it effectively bans a substantial category of
protected speech from most parts of the Internet. The
government responds that the Act does not on its face or in
effect ban indecent material that is constitutionally protected
for adults. Thus one of the factual issues before us was the
likely effect of the CDA on the free availability of
constitutionally protected material. A wealth of persuasive
evidence, referred to in detail in the Findings of Fact, proved
that it is either technologically impossible or economically
prohibitive for many of the plaintiffs to comply with the CDA
without seriously impeding their posting of online material which
adults have a constitutional right to access.
With the possible exception of an e-mail to a known
recipient, most content providers cannot determine the identity
and age of every user accessing their material. Considering
separately content providers that fall roughly into two
categories, we have found that no technology exists which allows
those posting on the category of newsgroups, mail exploders or
chat rooms to screen for age. Speakers using those forms of
communication cannot control who receives the communication, and
in most instances are not aware of the identity of the
recipients. If it is not feasible for speakers who communicate
via these forms of communication to conduct age screening, they
would have to reduce the level of communication to that which is
appropriate for children in order to be protected under the
statute. This would effect a complete ban even for adults of
some expression, albeit "indecent," to which they are
constitutionally entitled, and thus would be unconstitutional
under the holding in Sable, 492 U.S. at 131.
Even as to content providers in the other broad
category, such as the World Wide Web, where efforts at age
verification are technically feasible through the use of Common
Gateway Interface (cgi) scripts (which enable creation of a
document that can process information provided by a Web visitor),
the Findings of Fact show that as a practical matter, non-
commercial organizations and even many commercial organizations
using the Web would find it prohibitively expensive and
burdensome to engage in the methods of age verification proposed
by the government, and that even if they could attempt to age
verify, there is little assurance that they could successfully
filter out minors.
The government attempts to circumvent this problem by
seeking to limit the scope of the statute to those content
providers who are commercial pornographers, and urges that we do
likewise in our obligation to save a congressional enactment from
facial unconstitutionality wherever possible. But in light of
its plain language and its legislative history, the CDA cannot
reasonably be read as limited to commercial pornographers. A
court may not impose a narrowing construction on a statute unless
it is "readily susceptible" to such a construction. Virginia v.
American Booksellers Ass'n, 484 U.S. 383, 397 (1988). The court
may not "rewrite a . . . law to conform it to constitutional
requirements." Id. Although we may prefer an interpretation of
a statute that will preserve the constitutionality of the
statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980),
we do not have license to rewrite a statute to "create
distinctions where none were intended." American Tobacco Co. v.
Patterson, 456 U.S. 63, 72 n.6 (1982); see also Consumer Party v.
Davis, 778 F.2d 140, 147 (3d Cir. 1985). The Court has often
stated that "absent a clearly expressed legislative intention to
the contrary, [statutory] language must ordinarily be regarded as
conclusive." Escondido Mut. Water Co. v. La Jolla Band of
Mission Indians, 466 U.S. 765, 772 (1984)(quoting North Dakota v.
United States, 460 U.S. 300, 312 (1983)).
It is clear from the face of the CDA and from its
legislative history that Congress did not intend to limit its
application to commercial purveyors of pornography. Congress
unquestionably knew how to limit the statute to such entities if
that was its intent, and in fact it did so in provisions relating
to dial-a-porn services. See 47 U.S.C. 223(b)(2)(A)
(criminalizing making any indecent telephone communication "for
commercial purposes"). It placed no similar limitation in the
CDA. Moreover, the Conference Report makes clear that Congress
did not intend to limit the application of the statute to content
providers such as those which make available the commercial
material contained in the government's exhibits, and confirms
that Congress intended "content regulation of both commercial and
non-commercial providers." Conf. Rep. at 191. See also, 141
Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator
Exon).
The scope of the CDA is not confined to material that
has a prurient interest or appeal, one of the hallmarks of
obscenity, because Congress sought to reach farther. Nor did
Congress include language that would define "patently offensive"
or "indecent" to exclude material of serious value. It follows
that to narrow the statute in the manner the government urges
would be an impermissible exercise of our limited judicial
function, which is to review the statute as written for its
compliance with constitutional mandates.
I conclude inexorably from the foregoing that the CDA
reaches speech subject to the full protection of the First
Amendment, at least for adults. [1] In questions of the witnesses
and in colloquy with the government attorneys, it became evident
that even if "indecent" is read as parallel to "patently
offensive," the terms would cover a broad range of material from
contemporary films, plays and books showing or describing sexual
activities (e.g., Leaving Las Vegas) to controversial
contemporary art and photographs showing sexual organs in
positions that the government conceded would be patently
offensive in some communities (e.g., a Robert Mapplethorpe
photograph depicting a man with an erect penis).
We have also found that there is no effective way for
many Internet content providers to limit the effective reach of
the CDA to adults because there is no realistic way for many
providers to ascertain the age of those accessing their
materials. As a consequence, we have found that "[m]any speakers
who display arguably indecent content on the Internet must choose
between silence and the risk of prosecution." Such a choice,
forced by sections 223(a) and (d) of the CDA, strikes at the
heart of speech of adults as well as minors.

F.
Whether CDA is Narrowly Tailored
In the face of such a patent intrusion on a substantial
category of protected speech for adults, there is some irony in
considering whether the statute is narrowly tailored or, as
sometimes put, whether Congress has used the least restrictive
means to achieve a compelling government interest. See Sable,
492 U.S. at 126. It would appear that the extent of the
abridgement of the protected speech of adults that it has been
shown the CDA would effect is too intrusive to be outweighed by
the government's asserted interest, whatever its strength, in
protecting minors from access to indecent material. Nonetheless,
the formulation of the inquiry requires that we consider the
government's assertion that the statute is narrowly drafted, and
I proceed to do so.
In this case, the government relies on the statutory
defenses for its argument of narrow tailoring. There are a
number of reasons why I am not persuaded that the statutory
defenses can save the CDA from a conclusion of facial
unconstitutionality.
First, it is difficult to characterize a criminal
statute that hovers over each content provider, like the
proverbial sword of Damocles, as a narrow tailoring. Criminal
prosecution, which carries with it the risk of public obloquy as
well as the expense of court preparation and attorneys' fees,
could itself cause incalculable harm. No provider, whether an
individual, non-profit corporation, or even large publicly held
corporation, is likely to willingly subject itself to prosecution
for a miscalculation of the prevalent community standards or for
an error in judgment as to what is indecent. A successful
defense to a criminal prosecution would be small solace indeed.
Credit card and adult verification services are
explicitly referred to as defenses in 223(e)(5)(B) of the CDA.
As is set forth fully in the detailed Findings of Fact, these
defenses are not technologically or economically feasible for
most providers.
The government then falls back on the affirmative
defense to prosecution provided in 223(e)(5)(A) for a person
who "has taken, in good faith, reasonable, effective, and
appropriate actions under the circumstances to restrict or
prevent access by minors to a communication specified in such
subsections . . . including any method which is feasible under
available technology." The government emphasizes that
"effective" does not require 100% restriction, and that this
defense is "open-ended" and requires only reasonable efforts
based on current technology.
But, as the evidence made clear, there is no such
technology at this time. The government proffered as one option
that would constitute a valid affirmative defense under
223(e)(5)(A) a "tagging" scheme conceived by Dr. Olsen in
response to this lawsuit whereby a string of characters would be
imbedded in all arguably indecent or patently offensive material.
Our Findings of Fact set forth fully the reasons why we found
that the feasibility and effectiveness of tagging in the manner
proposed by the government has not been established. All parties
agree that tagging alone does nothing to prevent children from
accessing potentially indecent material, because it depends upon
the cooperation of third parties to block the material on which
the tags are embedded. Yet these third parties, over which the
content providers have no control, are not subject to the CDA. I
do not believe a statute is narrowly tailored when it subjects to
potential criminal penalties those who must depend upon third
parties for the effective operation of a statutory defense.
Most important, the government's "tagging" proposal is
purely hypothetical and offers no currently operative defense to
Internet content providers. At this time, there is no agreed-
upon "tag" in existence, and no web browsers or user-based
screening systems are now configured to block tagged material.
Nor, significantly, has the government stipulated that a content
provider could avoid liability simply by tagging its material.
Third, even if the technology catches up, as the
government confidently predicts, there will still be a not
insignificant burden attached to effecting a tagging defense, a
burden one should not have to bear in order to transmit
information protected under the constitution. For example, to
effect tagging content providers must review all of their
material currently published online, as well as all new material
they post in the future, to determine if it could be considered
"patently offensive" in any community nationwide. This would be
burdensome for all providers, but for the many not-for-profit
entities which currently post thousands of Web pages, this burden
would be one impossible to sustain.
Finally, the viability of the defenses is intricately
tied to the clarity of the CDA's scope. Because, like Judge
Buckwalter, and for many of the reasons he gives, I believe that
"indecent" and "patently offensive" are inherently vague,
particularly in light of the government's inability to identify
the relevant community by whose standards the material will be
judged, I am not persuaded by the government that the statutory
defenses in 223(e) provide effective protection from the
unconstitutional reach of the statute.
Minors would not be left without any protection from
exposure to patently unsuitable material on the Internet should
the challenged provisions of the CDA be preliminarily enjoined.
Vigorous enforcement of current obscenity and child pornography
laws should suffice to address the problem the government
identified in court and which concerned Congress. When the CDA
was under consideration by Congress, the Justice Department
itself communicated its view that it was not necessary because it
was prosecuting online obscenity, child pornography and child
solicitation under existing laws, and would continue to do so. [2]
It follows that the CDA is not narrowly tailored, and the
government's attempt to defend it on that ground must fail.
G.
Preliminary Injunction
When Congress decided that material unsuitable for
minors was available on the Internet, it could have chosen to
assist and support the development of technology that would
enable parents, schools, and libraries to screen such material
from their end. It did not do so, and thus did not follow the
example available in the print media where non-obscene but
indecent and patently offensive books and magazines abound.
Those responsible for minors undertake the primary obligation to
prevent their exposure to such material. Instead, in the CDA
Congress chose to place on the speakers the obligation of
screening the material that would possibly offend some
communities.
Whether Congress' decision was a wise one is not at
issue here. It was unquestionably a decision that placed the CDA
in serious conflict with our most cherished protection - the
right to choose the material to which we would have access.
The government makes what I view as an extraordinary
argument in its brief. It argues that blocking technology needed
for effective parental control is not yet widespread but that it
"will imminently be in place." Government's Post-hearing
Memorandum at 66. It then states that if we uphold the CDA, it
"will likely unleash the 'creative genius' of the Internet
community to find a myriad of possible solutions." I can imagine
few arguments less likely to persuade a court to uphold a
criminal statute than one that depends on future technology to
cabin the reach of the statute within constitutional bounds.
The government makes yet another argument that troubles
me. It suggests that the concerns expressed by the plaintiffs
and the questions posed by the court reflect an exaggerated
supposition of how it would apply the law, and that we should, in
effect, trust the Department of Justice to limit the CDA's
application in a reasonable fashion that would avoid prosecution
for placing on the Internet works of serious literary or artistic
merit. That would require a broad trust indeed from a generation
of judges not far removed from the attacks on James Joyce's
Ulysses as obscene. See United States v. One Book Entitled
Ulysses, 72 F.2d 705 (2d Cir. 1934); see also Book Named "John
Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of
Mass., 383 U.S. 413 (1966). Even if we were to place confidence
in the reasonable judgment of the representatives of the
Department of Justice who appeared before us, the Department is
not a monolithic structure, and individual U.S. Attorneys in the
various districts of the country have or appear to exercise some
independence, as reflected by the Department's tolerance of
duplicative challenges in this very case.
But the bottom line is that the First Amendment should
not be interpreted to require us to entrust the protection it
affords to the judgment of prosecutors. Prosecutors come and go.
Even federal judges are limited to life tenure. The First
Amendment remains to give protection to future generations as
well. I have no hesitancy in concluding that it is likely that
plaintiffs will prevail on the merits of their argument that the
challenged provisions of the CDA are facially invalid under both
the First and Fifth Amendments.