School of Journalism and Communication
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs.
v. Civ. A. No. 96-963
JANET RENO, in her official capacity as
Attorney General of the United States.
Defendant.
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION
FOR A TEMPORARY RESTRAINING ORDER
FRANK W. HUNGER
Assistant Attorney General
Civil Division
MICHAEL R. STILES
United States Attorney
MARK R. KMETZ
Assistant United States Attorney
DENNIS G. LINDER
Director, Federal Programs Branch
THEODORE C. HIRT
Assistant Branch Director
ANTHONY J. COPPOLINO
JASON R. BARON
MARY E. KOSTEL
JAMES E. GILLIGAN
Trial Attorneys
United States Department of Justice
Civil Division
Federal Programs Branch
901 E. Street N.W.
Washington, D.C. 2O530
Tel: (202) 514-4782
Date: February 14, 1996
TABLE OF CONTENTS
INTRODUCTION
FACTUAL BACKGROUND
A. Congress Has Regulated Access by Minors to Indecent
Materials in Several Communications Media
B. Interactive Computer Services and the Internet
C. Children "Surfing the Net"
D. Availability of Obscene and Indecent Materials Online
STATUTORY BACKGROUND
ARGUMENT
I. AN ACT OF CONGRESS MAY NOT BE ENJOINED ABSENT A SHOWING OF
COMPELLING CIRCUMSTANCES
II. PLAINTIFFS' ALLEGATIONS OF IRREPARABLE HARM ARE INSUFFICIENT
AND DO NOT OUTWEIGH THE GOVERNMENTAL INTERESTS AT STAKE
III. DEFENDANTS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS
A. Congress Has Acted Permissibly Under The First
Amendment In Restricting The Availability To Minors Of
Online Indecency
1. Congress Has A Compelling Interest In Preventing
Minors From Obtaining Access To Online Indecency
2. Congress Has Provided For The "Least Restrictive
Means" By Which Online Indecency May Continue To
Be Made Available To Adults Although Inaccessible
To Minors
a. The Defenses To Criminal Liability Provided
For In Section 223(e)(5)(B) Incorporate Valid
Restrictions Which Have Been Upheld in the
"Dial-A-Porn" Context
b. Section 223(e)(5)(A) Provides For Additional
"Safe Harbors" From Liability For Providers
Of Online Indecency
c. The Availability to Parents of Voluntary
Measures Does Not Constitute a Least
Restrictive Alternative
B. The Indecency Standard is Not Void-for-Vagueness
1. It is Settled Law That the CDA's Indecency
Standard is Not Unconstitutionally Vague
2. The Patent Offensiveness Standard is Not
Unconstitutionally Vague
C. The Indecency Standard is Not Unconstitutionally
Overbroad
D. The Act is Not Impermissibly Underinclusive
E. The Act Violates No Right to Privacy in Private
"E-mail"
F. The Act Violates No Right of Anonymity
IV. HARM TO DEFENDANT AND THE PUBLIC INTEREST OUTWEIGHS
PLAINTIFFS' SPECULATIVE HARM
V. SHOULD THE COURT DECIDE TO ENTER A TRO, PLAINTIFFS' PROPOSED
INJUNCTION IS FLAWED AS A MATTER OF LAW
CONCLUSION
INTRODUCTION
This case, concerns whether Congress may, consistent with the
First Amendment, protect children from access to patently
offensive "indecent" sexual material easily available to them
through online computer services.
On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996. Title V, Section 502 of the Act
includes the provisions of the Communications Decency Act of
1996 (the "Act" or "CDA") (to be codified at 47 U.S.C. Section
223(a) to (h)). (1) This legislation, inter alia, regulates the
transmission of indecent material over an "interactive computer
service," including materials available on the Internet. 47
U.S.C. Section 223(d).
The core of plaintiffs' challenge is to the provisions of the
CDA that establish criminal penalties for anyone who knowingly
uses an interactive computer service to send to a specific
person under 18 years of age, or to display in a manner
available to a person under 18, any comment, request,
suggestion, proposal, image, or other communication that is
"indecent" -- that is, which "in context, depicts or describes,
in terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs." 47 U.S.C.
Section 223(d). Plaintiffs' attack on the CDA concerns its
speculative application to communications that have educational,
political, medical, artistic, literary, and social value
concerning issues such as sexuality, reproduction, human rights,
and civil liberties.
The narrow question presented at the outset of this important
case is whether the plaintiffs have satisfied the standards for
obtaining the extraordinary injunctive relief of a temporary
restraining order against an Act of Congress. The answer, we
submit, is "no."
First, like other Acts of Congress, this statute is
presumptively constitutional and should not be enjoined
preliminarily. This is especially the case here because both
the government (and the Court) should have a reasonable
opportunity for a more plenary consideration of the statute's
constitutionality.
Second, plaintiffs' claims of irreparable injury based on how
the indecency standard of the CDA might conceivably be applied
(e.g., to speech that generally relates to sexual matters, such
as in a health- or policy-related context), is wholly
speculative. Plaintiffs fail to show a realistic threat of
suppression of their speech. The clear purpose of the Act is to
restrict access by minors to "patently offensive depictions of
sexual or excretory activities," that is to widely available
pornographic images and materials online.
Moreover, the government is likely to succeed on the merits of
the plaintiffs' First Amendment claim. The government's
interest in safeguarding the well-being of children has
consistently been recognized as compelling. Ginsberg v. New
York, 390 U.S. 629, 639-640 (1968). The CDA establishes a broad
"safe harbor" whereby those who make patently offensive sexual
material available online may seek to block access by minors by
such means as requiring a credit card or other means of
identification by adults, measures which have been upheld in the
context of regulating indecent "dial-a-porn." See 47 U.S.C.
Section 223(e)(5)(B). Similarly, the Act exempts from liability
those who utilize "reasonable, effective, and appropriate
actions" to prevent access by minors to indecent material,
including "any appropriate measure [or] method" which is
"feasible under available technology." Id. Section 223(e)(5)(A).
Before a TRO can issue, it is plaintiffs' burden to demonstrate
that this "safe harbor" cannot be utilized in any manner to
preclude access by minors to indecent materials while preserving
access by adults.
Finally, the indecency standard has been upheld in three
circuits against challenges that it is void-for-vagueness. The
Supreme Court itself has made clear that indecency must be
assessed in the context of the communication. The standard has
been construed to apply to communications concerning sexual or
excretory activities that, in context, are made in a patently
offensive way. Since plaintiffs' challenge to the indecency
standard is a facial one, they must show that there is no set of
circumstances under which the Act could be validly applied to
the indecent pornographic images online that Congress had in
mind when it enacted the CDA.
Given plaintiffs' failure to present sufficient allegations of
irreparable harm or a likelihood of success on the merits, the
Court should not enjoin a provision of law which would obligate
those who place indecent pornographic images and textual
materials online to take reasonable steps to block access by
minors, steps which plaintiffs acknowledge are already within
the technical ability of many such providers. The Attorney
General's ability to protect children and serve the public
interest through this additional measure should not be deferred.
FACTUAL BACKGROUND
A. Congress Has Regulated Access by Minors to Indecent
Materials in Several Communications Media.
The Communications Decency Act is the latest in a long line
of congressional efforts to protect children from exposure to
indecent material. Congress has acted to regulate the exposure
to children of indecent material in the broadcast medium. See
18 U.S.C. Section 1464. This includes broadcast of indecent
material on the radio, see FCC v. Pacifica Foundation, 438 U.S.
726 (1978), as well as on television. Action for Children's
Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) ("ACT III"),
cert. denied, 116 S. Ct. 701 (1996) (upholding ban on television
broadcast of indecent materials from 10 p.m. to 6 a.m.).
Congress has also regulated access by minors to indecent
"dial-a-porn" telephone messages. 47 U.S.C. Section 223(c); see
Dial Information Services v. Thornburqh, 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) (upholding criminal prohibition on
transmission of indecent communication to persons under 18
through telephone facilities). In addition, Congress has
regulated access by minors to indecent material transmitted over
certain cable television channels. Alliance for Community Media
v. FCC, 56 F.3d 105, 129 (D.C. Cir. 1995), cert. granted, 116 S.
Ct. 471 (1995) (upholding requirement that indecent programming
on leased access channels be blocked to prevent access by
minors).
B. Interactive Computer Services and the Internet.
The newly established section 223(d) of Title 47 continues
this well-established regulation of indecent materials, applying
it next to the most rapidly evolving communications medium --
"interactive computer services." The CDA defines "interactive
computer service" to mean:
any information service, system, or access software provider
that provides or enables computer access by multiple users
to a computer server, including specifically a service or
system that provides access to the Internet and such systems
operated or services offered by libraries or educational
institutions .
47 U.S.C. Section 230(e)(2).
Common examples of interactive computer services include those
provided by commercial entities such as America Online, Prodigy,
and CompuServe that, in addition to providing subscribers with
access to information in their own databases, provide access to
the Internet. Interactive computer services also include other
entities called Internet Service Providers ("ISP"), which provide
software and a direct connection to the Internet. In addition,
so-called bulletin board services ("BBS") are separate computer
sites that can be logged onto through a telephone modem, and from
which text and graphical images can be downloaded to a home
computer.
The Communications Decency Act defines "the Internet" as "the
international computer network of both Federal and non-Federal
interoperable packet switched data networks." 47 U.S.C. Section
230(e)(1). In simpler terms, "the Internet is an international,
cooperative computer network of networks, which links many types
of users, such as governments, schools, libraries, corporations,
hospitals, individuals, and others." See Rita Tehan, Welcome to
Cyberia: An Internet Guide, Congressional Research Service,
Library of Congress, May 12, 1994 (Attached hereto as Exh. 5) at
1 (hereafter "CRS").(2) The Internet provides access to a vast
source of information worldwide on all manner of topics, from
world events, politics, education, art, sports, hobbies,
entertainment, science, healthcare, and law.
The Internet is growing exponentially, and is an increasingly
pervasive medium of communication and information. According
to CRS, in March 1994, the Internet connected over 28,000
networks of more than 2 million "host" computers in 60
countries. Id. at 3. By July 1995, the number of host computers
had risen to 6.6 million. See "Internet 95," Internet World
Magazine, November 1995 at 47-52 (Exh. 7). It is estimated
that, by the end of the decade, 120 million computers will be
connected to the Internet. Id. at 47. Estimates of the total
number of Internet users range from 20 million to 40 million
people worldwide, with another 200 million to join by 1999. Id.
The Internet is comprised of tens of thousands of commercial
enterprises, as well as educational groups. See Internet world
(Exh. 7) at 47.
A major development in the Internet's growth in the 1990s has
been in the so-called "World-Wide Web" (or "WWW"). Id. "The
Web, unlike earlier Net services, combines text, pictures,
sound, and even animation, and [] lets [users] move around with
a click of [a] computer mouse." Internet for Dummies (Exh. 6) at
9. The key to the growth of the Web has been the development of
"Web Browsers" -- software programs that allow for easy searches
of web sites. See Internet World (Exh. 7) at 47-48. The number
of Web servers online by the end of 1995 is estimated to be over
40,000. Id. at 47. Through an innovation called "hypertext
links" which is literally highlighted text on a web site's "Home
Page" -- a user may, with a point and click of a mouse, jump
from site to site and view photographic images, listen to audio
files, or see motion pictures through the World Wide Web. See
CRS at 5-6.(3)
Other popular aspects of online services include "email" -- i.e,
electronic mail -- a medium by which individual users can
transmit messages to specific recipients or to multiple users
through mailing lists. See Internet for Dummies (Exh. 6) at 9.
Individuals can also post and read news articles, messages, and
pictures of common interest on "newsgroups." One such service,
called "USENET," consists of an estimated 12,000 different topic
groups. As discussed infra, there are a multitude of newsgroups
that include sexually oriented and explicit text and graphical
images. Id. In addition, a broad range of files of information
can be retrieved from various computers on the Internet through
the so-called File Transfer Protocol (FTP), which "allows an
Internet-connected computer to contact another computer, log-on
anonymously, retrieve text, graphics, audio, or computer program
files, and transfer desired files back to itself." CRS at 1-2.
C. Children "Surfing the Net".
During the debate on the CDA, the Senate was informed that
"[o]f the 6.8 million homes with online accounts currently
available, 35 percent have children under the age of 18."
Remarks of Senator Coats, 141 Cong. Record S8333 (June 14,
1995) (Exh. 3) Online computer services, including the Internet,
have an array of information and material directed at informing,
educating, and entertaining children. For example, one
publication describing material for children on the Internet
lists such items as "Disney" -- information about Disneyland,
lyrics to Disney songs, EuroDisney reports, and other material
form the Magic Kingdom. See Hahn & Stout, The Internet Yellow
Pages (Osborne McGraw-Hill: 2d ed 1995) at 371 (Exh. 8). There
is also a related "chat" channel to talk about "all things
Disney." Id. Another listing for "Kids Internet Delight" is a
"gathering of sites children might enjoy, such as dinosaurs,
sports information, and links to elementary schools across the
country." Id. at 372. Sites are also listed for "youth" that
concern scouting and nature activities. Id. at 739-40.
The Internet is a place where millions of children are online
looking for information on fun and games, educational interests,
and hobbies. More and more households are purchasing computers
to enable their children to access, as effectively as possible,
educational and recreational materials.
D. Availability of Obscene and Indecent Materials Online.(5)
As the Senate debate on the Communications Decency Act made
graphically clear, there is also a very seamy side of the
Internet and related computer services. The range of such
material runs from the extreme of the most graphic obscenity and
child pornography, to less extreme pornography. As the Act's
chief sponsor, Senator James Exon, put it:
It is no exaggeration to say that the most disgusting,
repulsive pornography is only a few clicks away from any
child with a computer. I am not talking just about Playboy
and Penthouse magazines. ... I am talking about the most
hardcore, perverse types of pornography, photos, and stories
featuring torture, child abuse, and bestiality.
Remarks of Senator Exon, 141 Cong. Rec. S8330 (June 14, 1995).
Senator Exon inserted in the Congressional record graphic
descriptions of the types of sexually explicit pictures
materials available online, such as pictures of "nude
celebrities," "erotica females," "erotica animal," "erotica
blondes," and even more graphic material. See Remarks of
Senator Exon, 141 Cong. Rec. S8089 (June 9, 1995).
Senator Exon also described the availability of "free"
pornography on bulletin board services. As noted, bulletin
boards are separate computer sites that can be accessed through a
telephone modem-connection either directly or, increasingly,
through online Internet services.(6)
What these pornographers do is place free-of-charge material
on the Internet that is designed to lure people over to
their bulletin board so they can maybe hook them into a
monthly charge of some type, to have available whenever they
want from their pornography which is a library full of
everything you can imagine.
Remarks of Senator Exon, 141 Cong. Rec. S8340 (June 14, 1995).
Senator Exon's observations are verified by a cursory look
at publicly available sources. For example, The Internet Yellow
Pages contains many listings for "sex" and "X-rated" sites
online. See Exh. 10. This includes materials on various sexual
fetishes, masturbation, and Playboy Centerfolds. Id. at
601-602. There are web sites for locating "X-rated
pornographic photos." Id. at 602. There is a site for a
"cyber-brothel" available for exchanging erotic mail and
pictures. Id. at 732. There is a long list of "newsgroup"
sites called "alt.binaries" and "alt.sex" where erotic pictures
and stories can be downloaded over a computer. Id.(7)
None of this array of sexual and X-rated materials was discussed
in plaintiffs' papers. But it was the major cause of concern
that led to enactment of the CDA.
Beyond this, following the Senate's initial consideration of the
CDA, Senator Grassley chaired a hearing of the Senate Judiciary
Committee on July 24, 1995, on the subject of "Cyberporn and
Children: The Scope of the Problem, the State of Technology, and
the Need for Congressional Action." See Exh. 4. This hearing
discussed a range of problems associated with obscenity and
indecency online, including sexual solicitation and harassment
of minors through an online service, id. at 30-32, 34-37; the
availability of sexually explicit pornographic images on
computers, id. at 39-41; and the existence of "chat-groups"
discussing obscene and indecent matters id. at 69-76. The
committee also heard testimony from access providers on the
problem, id. at 78-87, and proposals for rating or "labelling"
the content of online material, id. at 89-93.
It is against the backdrop of this information that the
provisions -- and the constitutionality -- of the CDA must be
initially assessed in deciding plaintiffs' request for a TRO.
STATUTORY BACKGROUND
Two distinct aspects of the Communications Decency Act are at
issue in this case. Plaintiffs challenge section 223(a)(1)(B),
which prohibits a person in interstate or foreign communications
who uses a "telecommunications device" from knowingly making,
creating, or soliciting "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."
47 U.S.C. Section 223(a)(1)(B).(8)
Plaintiffs also challenge section 223(d) of the Act, which
provides that whoever --
(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 user 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,
shall be fined under title 18, United States Code, or
imprisoned not more than two years, or both.
47 U.S.C. Section 223(d).
Section 223(d)(1) applies to "indecent" communications -- which
is material that "in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs." Id. In
this regard, the conference report states that "[t]he gravamen
of the indecency concept is "patent offensiveness," and that
"such a determination cannot be made without a consideration of
the context of the description or depiction at issue." Conf.
Rep. at 189. The conference report also indicates that this
standard shall have the same meaning as in prior Supreme Court
decisions, noting also other judicial decisions that have
applied and upheld the indecency standard to regulate access by
minors to patently offensive communications. Conf. Rep. at 188
(citing Pacifica, supra; Sable Communications v. FCC, 492 U.S.
115, 126 (1989); Action for Children's Television, supra; Dial
Information Services, supra; Information Providers' Coalition
For Defense of the First Amendment, supra).
In establishing liability for indecent communications to minors
over an interactive computer service, the Act distinguishes
between those entities that provide access to information online
("access software provider") and those who provide the content of
that information ("information content provider"). An "access
software provider" means a provider of software that allows
access to and the organization of content on the computer. 47
U.S.C. Section 230(e)(4).(9)
An "information content provider" under the Act means "any
person or entity that is responsible, in whole or in part, for
the creation or development of information provided through the
Internet or any other interactive computer service." 47 U.S.C.
Section 230(e)(3).
Based in part on the foregoing distinctions, the Act establishes
statutory defenses to violations of sections 223(a) and (d).
The target of criminal penalties under CDA are "content
providers who violate [the Act] and persons who conspire with
such content providers, rather than entities that simply offer
general access to the Internet and other online content." See
Conf. Rep. at 190. Those who solely provide access or
connection to a computer network, and are not involved in the
creation of the content of the communication, are not liable for
violations of Sections 223(a) and (d) of the CDA. 47 U.S.C.
Section 223(e)(l).(10)
Most importantly for purposes of this case, the CDA also
establishes a defense for a person that
(A) has taken, in good faith, reasonable, effective,
and appropriate actions under the circumstances to
restrict or prevent access by minors to a communication
specified in such subsections, which may involve any
appropriate measures to restrict minors from such
communications, including any method which is feasible
under available technology; or
(B) has restricted access to such communication by
requiring use of a verified credit card, debit account,
adult access code, or adult personal identification
number.
47 U.S.C. Section 223(e)(5). The conference report states that
the word "effective" under the good faith defenses "is given its
common meaning and does not require an absolute 100% restriction
of access to be judged effective." Conf. Rep. at 190.
In connection with the good faith defense, the statute also
provides that the Federal Communications Commission "may
describe measures which are reasonable, effective, and
appropriate to restrict access to prohibited communications
under subsection (d)." 47 U.S.C. Section 223(e)(6). "The use of
such measures shall be admitted as evidence of good faith efforts
for purposes of paragraph (5) in any action arising under
subsection (d)." Id.
ARGUMENT
I. AN ACT OF CONGRESS MAY NOT BE ENJOINED ABSENT A SHOWING OF
COMPELLING CIRCUMSTANCES.
Plaintiffs ask this Court "to judge the constitutionality of
an Act of Congress -- 'the gravest and most delicate duty that
[a court] is called upon to perform,'" Rostker v. Goldberg, 453
U.S. 57, 64 (1981) (internal quotations omitted). It is well
established that acts of Congress are presumptively
constitutional. See United States v. National Dairy Prods., 372
U.S. 29, 32 (1963). When a court is asked to invalidate a
"statutory provision that has been approved by both Houses of
the Congress and signed by the President, particularly an Act of
Congress that confronts a deeply vexing national problem, it
should only do so for the most compelling constitutional
reasons." Mistretta v. United States, 488 U.S. 361, 384 (1989)
(internal quotations omitted).
Despite the enormity of this task, plaintiffs make this request
at the most preliminary stage of proceedings. Even outside the
context of a constitutional challenge to a federal statute, "the
grant of injunctive relief is an extraordinary remedy ...
which should be granted only in limited circumstances." AT&T; Co.
v. Winback and Conserve Program, 42 F.3d 1421, 1426-27 (3d Cir.
1994) (internal quotation omitted), cert. denied, 115 S.Ct. 1838
(1995). For this reason, in order for preliminary injunctive
relief to be granted, the Court must conclude that each of the
four factors considered when ruling on such a motion must weigh
in favor thereof. S&R; Corp. v. Jiffy Lube International, 968
F.2d 371, 374 (3d Cir. 1992). The factors are: "(l) the
likelihood that the applicant will prevail on the merits at a
final hearing; (2) the extent to which the plaintiffs are being
irreparably harmed by the conduct complained of; (3) the extent
to which the defendants will suffer irreparable harm if the
preliminary injunction is issued; and (4) the public interest."
Because "the Government should not be obliged to abandon an
important statutory scheme without an opportunity for plenary
consideration," Rostker, 448 U.S. at 1310 n.3, plaintiffs'
burden here is especially weighty. "[J]udicial power to stay an
act of Congress, like judicial power to hold that act
unconstitutional, is an awesome responsibility calling for the
utmost circumspection in its exercise." Heart of Atlanta Motel
v. United States, 85 S. Ct. 1, 2 (Black, Circuit Justice 1964).
Therefore, the challenged statute "should remain in effect
pending a final decision on the merits by [the courts]." Turner
Broadcasting Sys. v. FCC, 113 S. Ct. 1806, 1807 (1993)
(internal quotation omitted). Accord Bowen v. Kendrick, 483
U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers).
This form of measured approach -- in which courts weigh evidence
prior to enjoining statutes where acts of legislatures -- has
been followed in this Circuit. In Fabulous Associates v.
Pennsylvania Public Utility Comm'n, 896 F.2d 780, 783 (3d Cir.
1990), a case on which plaintiffs otherwise place great
emphasis, the district court denied the temporary restraining
order there requested, and subsequently enjoined the state
"dial-a-porn" statute at issue only after a full evidentiary
hearing had been afforded at the preliminary injunction stage.
Because enjoining an Act of Congress is such an extraordinary
step, plaintiffs' request for a TRO should be denied on this
basis alone. In addition, plaintiffs otherwise have failed to
satisfy the requirements for a TRO.(11)
II. PLAINTIFFS' ALLEGATIONS OF IRREPARABLE HARM ARE INSUFFICIENT
AND DO NOT OUTWEIGH THE GOVERNMENTAL INTERESTS AT STAKE.
"The basis of injunctive relief in the federal courts has
always been irreparable harm and inadequacy of legal remedies."
Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal quotation
omitted); see also Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 542 (1987). Therefore, "[a] plaintiff who challenges
a statute must demonstrate a realistic danger of sustaining a
direct injury as a result of the statute's operation or
enforcement." Babbitt v. United Farm Workers National Union, 442
U.S. 289, 298 (1979).
Although "it is not necessary that [the plaintiff] first expose
himself to actual arrest or prosecution," Steffel v. Thompson,
415 U.S. 452, 459 (1974), "persons having no fears of ...
prosecution except those that are imaginary or speculative, are
not to be accepted as appropriate plaintiffs." Younger v.
Harris, 401 U.S. 37, 42 (1971). The burden is on plaintiffs to
prove a "clear showing of immediate irreparable injury." ECRI v.
McGraw-Hill, 809 F.2d 223, 226 (3d Cir. 1987) (internal
quotation omitted).
This is true even where violations of First Amendment rights are
claimed. "[T]he assertion of First Amendment rights does not
automatically require a finding of irreparable injury." Hohe v.
Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848
(1989). "Constitutional harm is not necessarily synonymous with
the irreparable harm necessary for issuance of a preliminary
injunction." Id. at 73. Rather, it is the "purposeful
unconstitutional [government] suppression of speech [which]
constitutes irreparable harm for preliminary injunction purposes
...[,] the direct penalization, as opposed to incidental
inhibition, of First Amendment rights. ..." Id. (internal
quotations omitted). Plaintiffs are therefore required to show
that they suffer a "credible threat of prosecution." Babbitt,
442 U.S. at 298.
Plaintiffs have failed to meet this burden. Instead, they
proffer speculation that the Communications Decency Act is
targeted at, and could be used to prosecute, those who engage in
literary, artistic, scientific, political or health-related
speech. In fact, the clear intent of Congress in enacting the
CDA is to regulate access by minors to materials that, in
context, are patently offensive depictions of sexually explicit
activities, i.e., to control the widespread availability to
children online of what is colloquially referred to as
pornography. The statutory "indecency" standard at issue has
been used to regulate sharply offensive language and sexually
explicit material on broadcast media, as well as
"adult"-oriented fare on cable television and sexually explicit
"dial-a-porn" messages. Without any basis of support, other than
their own academic reading of the statute, plaintiffs contend
that the CDA would be immediately applied to all manner of
expression that, in context, may not be indecent. At best, any
alleged "chill" on such expression would be incidental to
carrying out the legitimate purposes of the Act to limit access
by children to pornography online.
While the Court may consider plaintiffs' claim that the statute
is so vague that it would cover the type of speech they describe
in their pleadings (a claim that, on its merits, should
rejected), the question presented here is whether such a threat
is so plausibly imminent as to warrant emergency injunctive
relief. Plaintiffs have made no such showing to support the
issuance of a TRO.
III. DEFENDANTS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS.
A. Congress Has Acted Permissibly Under The First
Amendment In Restricting The Availability To Minors Of
Online Indecency.
Section 223(d), as amended, is a lawful exercise of Congress'
authority to restrict access to indecent speech by children.
Although indecent images and texts (including non-obscene
pornography) are not outside the realm of the First Amendment,
and Congress may not proscribe them totally, indecent
communications have such little social value that they are at
the bottom of the scale of protected speech. See Pacifica, 438
U.S. at 743 (patently offensive references to sexual or
excretory activities or organs "surely lie at the periphery of
First Amendment concern"); Young v. American Mini Theatres, 427
U.S. 50, 70 (1976) (Stevens, J., concurring) (with respect to
sexually explicit, non-obscene speech, "society's interest in
protecting this type of expression is of a wholly different, and
lesser, magnitude than the interest in untrammeled political
debate ..."). Thus, Congress' authority to restrict indecent
speech is greater than its authority to restrict other forms of
speech.
In analyzing the constitutional validity of Congress' effort to
restrict online indecency, the Court should bear in mind that
"differences in the characteristics of new media justify
differences in the First Amendment standards applied to them."
Red Lion Broadcasting v FCC, 395 U.S. 367, 386 (1969); see also
Pacifica, 438 U.S. at 748 ("each medium of expression presents
special First Amendment problems"). However, as Congress made
clear in the legislative history of section 223(d), this Court
may be fairly guided by a substantial body of First Amendment
case law in the area of broadcasting (radio and television),
cable television, and telephone communications -- most notably
in the so-called "dial-a-porn" cases -- in making a
determination that Congress has acted within its constitutional
authority to restrict transmission or posting of patently
offensive images and texts regarding sexual or excretory
activities or organs made available to minors over computer
networks.
Assuming, arguendo, that this Court is to apply "strict
scrutiny" under the First Amendment to Congress' enactment of
section 223(d), the standard as articulated is whether, in
regulat[ing] the content of constitutionally protected speech in
order to promote a compelling interest," the government "chooses
the least restrictive means to further the articulated
interest." Sable communications, 492 U.S. at 126. As the Court
in Sable went on to state:
The Government may serve this ... interest, but to withstand
constitutional scrutiny, it must do so by narrowly drawn
regulations designed to serve those interests without
unnecessarily interfering with First Amendment freedoms. It
is not enough to show that the Government's ends are
compelling; the means must be carefully tailored to achieve
those ends.
Id. (internal quotations omitted); cf, ACT III 58 F.3d at 660
(noting that while strict scrutiny is applied across various
broadcast media, whether Congress' actions "survive[] that
scrutiny must necessarily take into account the unique context
of the broadcast medium").(12)
1. Congress Has A Compelling Interest In Preventing Minors
From Obtaining Access To Online Indecency.
"A democratic society rests, for its continuance, upon the
healthy, well-rounded growth of young people into full maturity
as citizens, with all that implies." Prince v. Massachusetts,
321 U.S. 158, 168 (1944). Thus, the Supreme Court has often
affirmed that the government has a "compelling interest in
protecting the physical and psychological well-being of minors,"
Sable Communications, 492 U.S. at 126, an interest that "extends
to shielding minors from the influence of literature [and other
indecent forms of expression] that is not obscene by adult
standards." Id. See Bethel School District No. 403 v. Fraser,
478 U.S. 675, 684 (1986) ("First Amendment jurisprudence has
acknowledged limitations on the otherwise absolute interest of
the speaker in reaching an unlimited audience where the speech
is sexually explicit and the audience may include children")
(emphasis added); New York v. Ferber, 458 U.S. 747, 756-64
(1982) (individuals may be prosecuted for distribution of
pornographic materials using depictions of sexually explicit
conduct by children, even if materials are not legally obscene);
Ginsberg v. New York, 390 U.S. 629, 638-640 (1968) (court upheld
conviction of store owner for selling a non-obscene "girlie"
magazine to a minor, recognizing that the power of the state to
regulate conduct of minors is greater than control of conduct of
adults). Collectively, these cases stand for the proposition
that the government may take steps to restrict the distribution
of indecent materials to minors -- including provision for
criminal penalties -- even though access to such materials could
not constitutionally be denied to adults.
Moreover, apart from the government's "independent interest in
the well-being of its youth," Ginsberg, 390 U.S. at 640; Sable
Communications, 492 U.S. at 126; Ferber, 458 U.S. at 756-57, the
government has an equally compelling interest in helping parents
exercise "authority in their own household to direct the rearing
of their children." Ginsberg, 390 U.S. at 639; see ACT III, 58
F.3d at 661. The interest of parents in the "care, custody, and
management" of children "occupies a unique place in our legal
culture, given the centrality of family life as the focus for
personal meaning and responsibility." Lassiter v. Department of
Social Services, 452 U.S. 18, 38 (1981) (Blackmun, J.,
dissenting) (quoting Stanley v. Illinois, 405 U.S. 645, 651
(1972)).
The government's interest in shielding children from online
indecency (including, but not limited to, in the form of images
and texts available on computer bulletin boards, Internet web
pages, or newsgroups), is no less vital than its interest in
shielding them from indecent messages conveyed in "dial-a-porn"
messages, see Sable Communications, 492 U.S. at 126, in school
assemblies, see Bethel School District, 478 U.S. at 683-84,
through the airwaves, see Pacifica, 438 U.S. at 749-50, or in
pornographic magazines, see Ginsberg, 390 U.S. at 639-40. In
each case, the harm that the government seeks to foreclose -- a
child's exposure to patently offensive depictions of sexual and
excretory activities -- is exactly the same. As the Supreme
Court has recognized, premature and repeated exposure to such
material can "seriously damag[e]" a child's development,
particularly the development of younger children "on the
threshold of awareness of human sexuality." Bethel School
District, 478 U.S. at 683.
Indeed, this case has compelling parallels to Pacifica, where
the Court held that indecent broadcasts could be regulated based
on factors including the "uniquely pervasive presence" of radio,
and the fact that such broadcasts were "uniquely accessible to
children." 438 U.S. at 748-49. Plaintiffs would be hard pressed
to discount that home computers have become commonplace; that
millions of homes are "on-line"; that there are large numbers of
juveniles and children who have developed computer literacy (in
many cases far beyond the simple act of pointing and clicking to
get into World Wide Web pages, or newsgroups); and that, in
general, there is a generational gap between children and their
less computer-sophisticated parents. (Indeed, a number of
plaintiffs' declarants highlight the fact that minors do indeed
access their services.) To paraphrase Pacifica, "[t]he ease with
which children may obtain access to [on-line indecent] material,
coupled with the concerns recognized in Ginsberg, amply justify
special treatment [of the online medium]." 438 U.S. at 750.(13)
Plaintiffs argue that there is no "compelling government
interest" here where Congress, in their view, has failed to make
appropriately tailored legislative findings concerning the
actual psychological harm suffered by children from exposure to
"indecent" pornography. See Pls.' Mem. at 28-29. Plaintiffs'
attack on Congress' actions fails for two straightforward
reasons. First, any doubts regarding Congress' knowledge of the
looming, if not overwhelming, nature of the problem of online
pornography, are readily dispelled by the available record before
Congress prior to passage of the Act, including that presented
in floor testimony and in hearings (see Exhs. 3, 4, 9, 10)."
Second, there is simply no constitutional infirmity in Congress
having acted to enact legislation in the absence of making such
detailed legislative findings. As the Third Circuit recently
held in a different context, plaintiffs, argument
assumes that Congress must meet a strict standard of
specificity in finding facts and reporting its conclusions.
That is not so. 'Congress is not obligated, when enacting
its statutes, to make a record of the type that an
administrative agency or court does to accommodate judicial
review., Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.
2445, 2471 (1994) (Kennedy, J.). Congress need not even rely
solely upon evidence provided in hearings. See Stafford v.
Wallace, 258 U.S. 495, 513 (1922).
United States v. Bishop, 66 F.3d 569, 582 (3d Cir. 1995), cert.
denied, 116 S. Ct. 681 (1996); accord, Fullilove v. Klutznick,
448 U.S. 448, 502-03 (1980) (Powell, J., concurring) (noting
that legislative bodies have a "broader mission").
In the end, plaintiffs cannot dispute that a large and growing
amount of pornography is presently available online and easily
accessible to children in the home, far exceeding anything
available prior to the advent of online computer services. Given
this fact, Congress' bedrock concern for the protection of
children takes on paramount importance.
2. Congress Has Provided For The "Least Restrictive Means"
By Which Online Indecency May Continue To Be Made
Available To Adults Although Inaccessible To Minors.
Contrary to plaintiffs' contention,(15) Congress neither
purported to ban, nor effectively ban, online indecency in all
its various forms. Cf. Sable Communications, 492 U.S. at 127
(statute denied adults as well as children access to indecent
"dial-a-porn" messages). Rather, in several narrowly tailored
provisions located in section 223(e), Congress acted in a
sophisticated way to provide "information content providers"
with broad defenses to criminal liability for the posting of
indecent material, provided that they have employed one or more
technical means of blocking access to minors as set forth in
section 223(e)(5)(A) & (B). Thus, those who create or "post"
indecent images or texts in cyberspace are on notice that they
are free to do so, so long as they have taken reasonable and
appropriate measures to block access to children effectively.
As the Congressional history makes clear, Congress borrowed from
a solid foundation of case law upholding similar measures in
formulating a scheme which places the burden on the information
content provider to restrict access to indecent communications.
a. The Defenses To Criminal Liability Provided For In
Section 223(e)(5)(B) Incorporate Valid
Restrictions Which Have Been Upheld in the
"Dial-A-Porn" Context.
Section 223(e)(5)(B) provides that it is a complete defense to
prosecution for a content provider to have restricted access to
indecent communications "by requiring use of a verified credit
card, debit account, adult access code, or adult personal
identification number." 47 U.S.C. Section 223(e)(5)(B). As such,
Congress has done no more than incorporate the standards for
blocking access to "dial-a-porn" messages -- which were
developed by the FCC in response to 47 U.S.C. Section 223(b), as
amended in 1989, and which have been subsequently upheld by the
Courts -- as one option that content providers may take to
ensure against children's online access to posted indecent
material. See 47 C.F.R. Section 64.201; Dial Information
Services, supra; Information Providers' Coalition, supra.(16)
Plaintiffs do not dispute that such measures are feasible and
are being employed in a variety of areas in "cyberspace." See,
e.g., Hauman Aff., paragraph 9 ("BiblioFile Books on Computer"
currently requires credit card for purchase of electronic
books);(17)Pls.' Mem. at 11 n.26 ("computer bulletin board
systems that specialize in adult material generally require
identification and payment and screen out minors, and are thus
not at issue in this case"). Certainly, with respect to content
providers to bulletin boards, Internet web pages, and other
sites, who have the technical means to control and block access
to their content, it should be undisputed that section
223(e)(5)(13) constitutes a sufficient "least restrictive means"
of regulating indecency.(18)
Other individuals and entities that communicate patently
offensive material may likewise utilize such measures that allow
for the identification of adults prior to obtaining access to
particular Internet web pages and other online sites. There is
simply insufficient evidence of record -- especially at this
early stage of the proceedings -- to suggest that such measures
would be so unduly burdensome on any of the plaintiffs, so as to
justify invalidating this provision on constitutional grounds.
b. Section 223(e)(5)(A) Provides For Additional "Safe
Harbors" From Liability For Providers Of Online
Indecency.
Going one step further than the "dial-a-porn" regulations,
Congress has included a second, broadly worded "safe harbor"
provision, allowing for a good faith defense to liability if a
person has taken "reasonable, effective, and appropriate
actions" to "restrict or prevent" access by minors to indecent
material, based on any appropriate measure or method which is
"feasible under available technology." 47 U.S.C. Section
223(e)(5)(A).(19)
In addition to whatever is feasible now, the legislative history
makes clear that Congress understood that "content selection
standards" and other technologies "currently under development"
may be developed which provide for effective restrictions on
access by minors to online indecency. See Conf. Rep. at 190
(Exh. 2). Congress also does not expect perfection; the
conference report makes clear that the statutory term
"effective" is to be given "its common meaning and does not
require an absolute 100% restriction of access to be judged
effective." Id.(20)
While plaintiffs interpose various objections to doing so, they
concede that many content providers can presently attempt to
comply with the Act, by utilizing a variety of such technical
means for essentially "screening out" indecent material from
various areas of cyberspace. See Pls.' Mem. at 48-50.(21) Other
than largely ipse dixit assertions, plaintiffs present scant
evidence of record that screening is impossible or unduly
burdensome on those content providers liable under the
statute.(22)
At bottom, plaintiffs are demanding that unlike physical space,
cyberspace he free of any form of "cyberzoning" of indecent
speech -- even if that means unlimited availability of
pornography and indecency to minors in the home. This position
flies in the face of a body of precedent in which the Supreme
Court has upheld reasonable time, place, and manner limitations
on indecency in "public" spaces. See, e.g., Bethel School
District, 478 U.S. at 675-87 (upholding restrictions on indecent
speech in a political address by high school student); City of
Renton v. Playtime Theatres, 475 U.S. 41 (1986) (upholding
zoning restrictions on location of adult theatres); City of
Newport v. Iacobucci, 479 U.S. 92 (1986) (upholding statute
forbidding non-obscene nude or nearly nude dancing in pubs); see
also American Booksellers Ass'n, Inc. v. Virginia, 882 F.2d 125
(4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990) (upholding
statute prohibiting the display of sexually explicit materials
to juveniles in a manner whereby they may examine and peruse
them).(23) The Constitution does not forbid the legislature from
requiring libraries and bookstores to shield adult magazines
from minors, and similarly, plaintiffs have failed to provide a
constitutional justification for requiring the application of a
different rule in cyberspace.(24)
c. The Availability to Parents of Voluntary Measures
Does Not Constitute a Least Restrictive
Alternative.
Plaintiffs' argument that Congress failed to consider "least
restrictive alternatives" also rests on the notion that
"alternative ways to restrict children's access to indecent
materials ... exist." Pls.' Mem. at 30. Plaintiffs
specifically discuss screening and filtering devices available
to parents to control the content of material received from
online sources. Id. at 21-24. They would have the Court find
that Congress may do no more in this area than encourage parents
to undertake voluntary self-help against access by minors to
online pornography and indecency. The defects in this analysis
should be apparent.(25)
To begin with, plaintiffs' bald assertions that such voluntary
filtering measures are effective and constitutionally sufficient
are entirely inadequate on which to obtain a TRO. While
plaintiffs trumpet such measures, they are equally quick to
concede that "[t]hese programs are not foolproof. New online
sites are created daily and no software can guarantee that it
will block access to every site. ..." Pls.' Mem. at 24.(26)
In this regard, it is important to remember that "the focus
should be on goals as well as means." Dial Information Services,
938 F.2d at 1542. "The goal ... is to prevent access to
indecent messages by children [and t]he means must be effective
in achieving the goal." Id. (emphasis added). While the
development and refinement of products and services available to
parents is unquestionably commendable, the existence of such
measures is not dispositive of whether Congress may enact
independent measures to resolve a serious problem, and whether
such measures are least restrictive.(27)
Other courts that have considered a comparable argument have
made clear "the Government's own interest in the well-being of
minors provides an independent justification" for the regulation
of indecency. ACT III, 58 F.3d at 661, 663 (citing Ferber, 458
U.S. at 756-57; Ginsberg, 390 U.S. at 640). In the context of
broadcast indecency, the D.C. Circuit noted that "[i]t is
fanciful to believe that the vast majority of parents who wish
to shield their children from indecent material can effectively
do so without meaningful restrictions on the airing of broadcast
indecency." Id.
Similarly, in the context of access to indecent cable television
programming, the court in Alliance For Community Media, 56 F.3d
at 125, also upheld governmental measures despite the presence
of a voluntary block-out alternative. The court found that
"given the pervasiveness of cable television and its
accessibility to children," voluntary measures would not have
achieved the government's aims. Id. The court found it was
constitutionally permissible for Congress "to protect children
and to enhance the ability of parents to shield their children
from the influence of 'adult' programming." Id. at 127 (citing
Ginsberg, 390 U.S. at 639-40). The court also made clear that
Congress has every right to reverse the presumption and, instead
of requiring parents to take affirmative steps to block incoming
indecent material, can require those who provide such
material to take steps to block its access to minors. Id. The
court saw "no reason why leased access programmers should
necessarily retain the advantage of inertia, and we can conceive
of no constitutional principle entitling them to do so." Id. at
126.
In the context of "dial-a-porn," the court in Dial Information
Services, 938 F.2d at 1542, again evaluated and rejected the
availability of voluntary measures that parents could utilize to
block access of indecent telephone messages from their children.
The court examined evidence as to the efficacy of the voluntary
system and found it lacking. It noted, for example, that many
parents might become aware of their child's contact with
indecent pornography only after serious psychological damage
from contact to indecent dial-a-porn has already occurred.
Id.(28)
While the online computer medium and the broadcast, cable, and
telephone media have important differences, the availability
of indecent and obscene sexually explicit material online is,
nonetheless, highly pervasive. See, e.g., Exh. 10. Indeed, the
content of indecent and obscene images and text available on
line is far more pervasive than anything that might ever be
available on the broadcast or cable television, or the
telephone. Not only is there more of it from multiple sources,
but much of it is far more extreme than anyone could ever obtain
from off-line sources. And much of it is relatively easy for
unsupervised children to point, click, find, and view.
Thus, while undoubtedly the "'custody, care, and nurture of the
child reside first in the parents,'" Pls.' Mem. at 30 (citing
Ginsberg, 390 U.S. at 639), the government has an "independent
interest in the well-being of its youth." Ginsberg, 390 U.S. at
640. The governmental and parental interests serve
"complementary objectives mutually supporting limitations on
children's access to material that is not obscene for adults."
ACT III, 58 F.3d at 663 (citing Ginsberg, 390 U.S. at 639-40).
B. The Indecency Standard is Not Void-for-Vagueness.
1. It is Settled Law That the CDA's Indecency Standard is
Not Unconstitutionally Vague.
Perhaps the heart of plaintiffs' complaint is that the indecency
standard set forth in the Communications Decency Act is
impermissibly vague. Pls.' Mem. at 34-42. They argue that
"'[i]ndecency' ... is a completely imprecise term -- wholly
subjective and dependent on individual values and attitudes that
no person engaged in speech can be expected to anticipate." Id.
at 35. Through the collection of a number of parties,
plaintiffs seek to set forth hypothetically impermissible
applications of the indecency standard to literary, artistic,
educational, health-related, or political speech. Indeed,
plaintiffs, theory appears to be that the government cannot
constitutionally regulate access by minors to any materials,
unless they meet the standard of legally obscene or its variant
of "harmful to minors." Id. at 36, 45-46.
It is important to remember first that plaintiffs are
challenging the facial validity of the CDA. Hence, the Court
must look to whether the statute "can be construed in a such a
manner that [i] can be applied to a set of individuals without
infringing upon constitutionally protected rights." Rust v.
Sullivan, 500 U.S. 173, 183 (1990). Even in a First Amendment
context, the Supreme Court has recognized that
"[a] facial challenge to a legislative Act is, of course,
the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances
exists under which the Act would be valid. The fact that
the [Act] might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render
[it] wholly invalid."
Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)).
Several courts have specifically upheld the indecency
standard against vagueness challenges. To begin with, the
Supreme Court in Pacifica upheld an FCC adjudication that an
afternoon radio broadcast of the now-famous "seven dirty words"
monologue by George Carlin was indecent. The FCC indecency
standard at issue in Pacifica was defined as "language that
describes, in terms patently offensive as measured by
contemporary community standards for the broadcast medium,
sexual or excretory activities and organs." 438 U.S. at 732.
Section 223(d) of the CDA mirrors the language at issue in
Pacifica. It regulates the knowing transmission of "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." 47 U.S.C.
Section 223(d)(1).
The Court in Pacifica also addressed vagueness concerns similar
to those raised here. In that case, Pacifica argued that the
indecency standard at issue was unduly vague because the
language "encompassed so much constitutionally protected
speech." 438 U.S. at 742. The Court rejected such over-arching
vagueness concerns and limited its review to the specific FCC
adjudication at issue.
It is true that the Commission's order may lead some
broadcasters to censor themselves. At most, however, the
Commission's definition of indecency will deter only the
broadcasting of patently offensive references to excretory
and sexual organs and activities. While some of these
references may be protected, they surely lie at the
periphery of First Amendment concern.
Id. at 743. The Court also stated that "[i]nvalidating any
rule on the basis of its hypothetical application to situations
not before the Court is 'strong medicine' to be applied
sparingly and only as a last resort.'" Id. (citing Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973)). The Court "decline[d] to
administer that medicine to preserve the vigor of patently
offensive sexual and excretory speech." Id.
Based on the Court's refusal to invalidate the indecency
standard across-the-board in Pacifica, the Courts of Appeals for
the D.C. Circuit, Second Circuit, and Ninth Circuit have upheld
the indecency standard against vagueness challenges.
First, in a decision upholding a requirement that television
stations restrict the broadcast of "indecent" programming to
certain hours, the D.C. Circuit rejected petitioners' vagueness
challenge, stating, "'the Supreme Court's decision in Pacifica
dispelled any vagueness concerns attending the [Commission's]
definition [of indecency] ...'" ACT III., 58 F.3d at 659
(quoting Action for Children's Television v. FCC, 932 F.2d 1504,
1508 (D.C. Cir. 1991) ("ACT II")). See also Alliance for
Community Media, 56 F.3d at 129 (rejecting contention that the
term "indecent" is unconstitutionally vague).
Next, in a 1991 decision upholding a requirement that telephone
companies "reverse block" dial-a-porn on telephone lines, the
Second Circuit noted that "the Commission's most recent
definition of 'indecent' tracks one that it developed in the
radio broadcast context and that passed muster in the Supreme
Court."(29) Dial Information Services, 938 F.2d at 1541 (citing
Pacifica). Finding that " [i]ndecent' has been defined clearly
by the Federal Communications Commission," the court rejected
petitioners' vagueness challenge.
Finally, upholding the same restriction on dial-a-porn, the
Ninth Circuit stated "the term 'indecent' has a judicially
recognized meaning that is not unconstitutionally vague."
Information Providers' Coalition, 928 F.2d at 874. The court
noted that the FCC had "borrowed a definition that already had
received the imprimatur of the Court." Id. (citing Pacifica).
The court reasoned that "[i]f the indecency definition passes
the void-for-vagueness test for persons of ordinary intelligence
who broadcast radio communications, it certainly must pass the
same test for those persons who offer indecent communications
over the telephone line." Id. at 875.
The conference report on the Communications Decency Act
specifically embraces the indecency standard that was at issue
in Pacifica. It explains that the term "indecent," as applied
to the transmission of text or images over interactive computer
devices, "codifies the definition of indecency from FCC v.
Pacifica Foundation, 438 U.S. 726 (1978)," and is intended to
have "the same meaning" as established in that case and in Sable
Communications, supra.(30) Conf. Rep. at 188. Recognizing that
the "precise contours" of the definition of indecency "have
varied slightly depending on the communications medium" at
issue, the conferees explained that "[t]he essence of the
phrase -- patently offensive descriptions of sexual and excretory
activities -- has remained constant, however." Id. at 188-89.
Accordingly, plaintiffs' argument that the indecency standard is
vague has met with consistent judicial rejection.
2. The Patent Offensiveness Standard is Not
Unconstitutionally Vague.
Aside from the fact that no court has ever declared the
indecency standard void-for-vagueness, the question remains as
to whether the standard could be found to be impermissibly
vague.(31)
Although due process requires that a criminal statute be
"clearly defined," Grayned v. City of Rockford, 408 U.S. 104,
108 (1972), the Supreme Court has recognized that "we can never
expect mathematical certainty from our language." Id. at 110.
Accordingly, "due process does not require 'impossible
standards' of clarity," Kolender v. Lawson, 461 U.S. 352, 361
(1983) (quoting United States v. Petrillo, 332 U.S. 1, 7-8
(1947)), but rather that a criminal statute "give the person of
ordinary intelligence a reasonable opportunity to know what is
prohibited, so that he may act accordingly." Grayned, 408 U.S.
at 108.
This holds true even in the First Amendment context.
"[Language's] inherent limitations obtain in a speech-laden,
First Amendment setting as in any other." United States v.
Thomas, 864 F.2d 188, 195 (D.C. Cir. 1988). Courts do not
require that "an enactment touching on First Amendment interests
set forth the precise line dividing proscribed from permitted
behavior, or that a person contemplating a course of behavior
know with certainty whether his or her act will be found to
violate the proscription." Id. Rather, "even in this sensitive
area the Due Process Clause requires that the enactment be
drafted with reasonable specificity sufficient to provide fair
notice." Id.
Plaintiffs' contention that the indecency standard is so
subjective as to leave the public guessing as to what is
proscribed, or as to invite arbitrary law enforcement, Pls.'
Mem. at 34-42, is built on a foundation of speculation
unsupported by existing authority in this area.
The Supreme Court in Pacifica stressed that "indecency is
largely a function of context -- it cannot be adequately judged
in the abstract." 438 U.S. at 742. The Court specifically
rejected Pacifica's request to invalidate the FCC's indecency
regulation entirely "on the basis of hypothetical applications
not before the Court." Id. at 743. The court emphasized that
its decision to uphold the FCC's specific adjudication as to the
indecent "seven dirty words" monologue did not mean the
indecency standard could be widely applied to any speech that
included offensive or sexually-related language.
Rather, the Court indicated that a consideration of context
includes a consideration of the merit of the work's content. At
issue in Pacifica was a broadcast that the Court found was
indisputably "vulgar," "offensive," and "shocking." Id. at 747.
The Court distinguished the "Filthy Words" monologue at issue
there from "a telecast of an Elizabethan comedy," id. at 750, or
"a prime-time recitation of Geoffrey Chaucer's Miller's Tale."
Id. at 750 n.29. Putting aside the fact that most works of such
literary merit do not contain proscribed communications,(32) for
those works that might, Pacifica indicates that their merit is
included in the statute's calculus with its command that
communications be adjudged "in context."
In adopting the indecency standard in the CDA, Congress likewise
expressed a clear intent that the standard consider works "in
context." Distinguishing "material with redeeming value," the
conference report states that in applying the indecency
standard, "it will be imperative to consider the context and the
nature of the material in question when determining its "patent
offensiveness." Conf. Rep. at 189.
It is clear from the Senate debate that the CDA was enacted
after a discussion of sexually explicit pornographic images and
text, ranging from indecent to obscene to child pornography. A
review of the content of adult bulletin boards, and the
Internet's various newsgroups and web sites, reveals a
substantial body of sexually explicit material. See Exhs. 9,
10. These include full-screen images of fully or partially
nude women and men -- sometimes even moving images -- in
graphically sexual positions. See Sable Communications, 492
U.S. at 132 (Scalia, J. concurring) (the more narrow the
understanding of what is "obscene," the more pornographic what
is embraced within the residual category of "indecency"). It
cannot be said that, in addressing the problem of easy access by
minors to such material, Congress sought to apply the CDA
generally to discussions of safe sex or health-related
information on AIDS, or to discussions of human rights abuses or
legal issues, as plaintiffs suggest.
Plaintiffs' claim that the indecency standard is vague is also
in tension with Supreme Court decisions assessing a similar
standard in the context of obscenity. The indecency standard,
including that in section 223(d), is closely analogous to the
second part of the three-prong obscenity formulation announced
in Miller v. California, 413 U.S. 15, 24 (1-973).(33) This part
of the Miller test for whether a work is obscene concerns
whether it "depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state
law." Id.(34) The Court in Miller gave some examples of what it
meant by "patently offensive" under part (b) of the Miller test:
(a) Patently offensive representations or descriptions of
ultimate sexual acts, normal or perverted, actual or
simulated.
(b) Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of
the genitals.
Id. at 25.
In addition, under the patent offensiveness prong, the issue is
whether sexual or excretory functions are presented in a
"patently offensive way" -- not simply whether offensive sexual
acts are depicted. Thus, the manner in which sexual or
excretory activities are presented is an important consideration
as to whether the material is patently offensive and, hence,
indecent (for example, whether sexual or excretory activities
are presented in a pandering, exploitive, or repeated fashion).
In sum, notwithstanding the fact that Pacifica indicates that
the indecency standard must be understood and applied in the
context of the work; or that courts have applied the indecency
standard in the context of "adult" fare such as "dial-a-porn";
or that Congress was prompted to act to control access by minors
to explicit pornography online, plaintiffs ask the Court to
enjoin an Act of Congress based on an academic reading of a
statute which they theorize might be applied generally to
literary, scientific, or health-care related communications that
concerns sexuality or may contain offensive words. Plaintiffs
point to no authority supporting their position that the
indecency standard would be applied so broadly. As such, they
have not demonstrated the likelihood of success on the merits of
this issue necessary to obtain a temporary restraining order.(35)
C. The Indecency Standard is Not Unconstitutionally Overbroad.
Plaintiffs' overbreadth argument is a strange one. They
contend that section 223(d) is overbroad because it keeps from
minors materials that, plaintiffs assert, they have a First
Amendment right to obtain. See Pls.' Mem. at 43-47. Relying on
cases in which the governing authority employed a "harmful to
minors" standard instead of an "indecency" standard,(36)
plaintiffs suggest that the former establishes the outer limit of
what may be kept from minors without violating their rights.
They contend that the indecency standard therefore violates
minors, rights by prohibiting access to materials that, although
patently offensive in their depictions of sexual and excretory
organs, do not meet the "harmful to minors" test. See id.
As the Supreme Court has made clear, facial invalidation for
overbreadth is "strong medicine" to be used "with hesitation,
and then only as a last resort." New York v. Ferber, 458 U.S. at
769 (internal quotation marks omitted); see also United States v.
Knox, 32 F.3d 733, 751-52 (3d Cir. 1994). The potential for some
troublesome applications is not enough. A statute can be found
overbroad only if it has a "substantial number of impermissible
applications." Id. at 771; New York State Club Ass'n. v. City
of New York, 487 U.S. 1, 14 (1988); Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 503 n.12 (1985); Broadrick v. Oklahoma, 413
U.S. at 615.
Plaintiffs' contention that Congress is constitutionally
precluded from barring access by minors through the indecency
standard may be disposed of easily. "[E]ven where there is an
invasion of protected freedoms the power of the state to
control the conduct of children reaches beyond the scope of
its authority over adults." Ginsberg, 390 U.S. at 638 (1968)
(internal quotations omitted). Although the Supreme Court has
upheld the "harmful to minors" test as a valid limit on minors,
rights to access, see id. at 635, there is no indication that
this standard constitutes the outer limit of what may be
prohibited. In Pacifica itself, the Court upheld application of
the indecency standard as applied to minors in the limited
context of broadcast media, 438 U.S. at 750, and suggested that
the standard might be applied even more widely. Id. at 749
("bookstores and motion picture theaters, for example, may be
prohibited from making indecent material available to
children"). Likewise, in Sable Communications, the Court
recognized "the compelling interest of preventing minors from
being exposed to indecent telephone messages." 492 U.S. at 131;
see also Fabulous Associates, 896 F.2d at 787 ("[t]here is
little question that the interest of the state in shielding its
youth from exposure to indecent materials is a compelling state
interest").
Indeed, three circuits have now upheld the use of the
"indecency" standard as applied to minors. ACT 111, supra
("indecency" standard applied to restrict minors' access to
television broadcasts); Alliance for Community Media, supra
(same); Dial information Services, supra (same, in dial-a-porn
context); Information Providers' Coalition, supra (dial-a-porn).
The idea, then, that the CDA is overbroad because it applies an
indecency standard and not a "harmful to minors" one is clearly
wrong.(37)
D. The Act is Not Impermissibly Underinclusive.
In the first of a number of make-weight arguments, plaintiffs
contend that the Act "constructs an impermissible system of
discrimination by imposing regulations on those who communicate
through the online medium but not on those who communicate the
same information through the print medium." Pls.' Mem. at 51. A
like argument was recently advanced, and squarely rejected, in
Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2467-69
(1994).
In that case, the plaintiffs complained that certain statutory
requirements imposed on cable television operators had not been
imposed on other television media. On that basis, plaintiffs
challenged the regulations in question as presumptively invalid
under the First Amendment. Id. at 2467-68. The Supreme Court
rejected this claim, explaining that "the fact that a law singles
out a certain medium ... is insufficient by itself to raise
First Amendment concerns.'" Id. at 2468 (citing Leathers v.
Medlock, 499 U.S. 439, 452 (1991)).
In so holding, the Court specifically distinguished such
precedents as Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U.S. 575 (1983), on which plaintiffs here rely.
See Pls.' Mem. at 51. The Court explained that these cases
involved laws which "targeted a small number of speakers, and
thus threatened to distort the market for ideas." Turner
Broadcasting, 114 S. Ct. at 2468 (internal quotations
omitted).(38) By contrast, the indecency provisions challenged
here "are broadbased," id., applying to millions of users of
"telecommunications devices" and "interactive computer
services." 47 U.S.C. Section 223(a)(1)(B), (d)(1). See Pls.'
Mem. at 11-12. "As a result, the[se] provisions do not pose the
same dangers of suppression and manipulation that were posed by
the more narrowly targeted regulations in Minneapolis Star. ..."
Turner Broadcasting, 114 S. Ct. at 2468.
E. The Act Violates No Right to Privacy in Private "E-mail".
Plaintiffs next argue that the CDA violates the constitutional
right to privacy emanating from the First, Fourth and Ninth
Amendments, which protects private e-mail "against
governmental invasion or censorship." Pls.' Mem. at 53.
This claim includes one of plaintiffs, few specific challenges
to section 223(a)(1)(B). As a threshold matter, it is open to
question whether this or any of plaintiffs, claims implicate
this provision. The broad thrust of plaintiffs' challenge in
this action is "to stop the enforcement of provisions ... that
criminalize their expression" over "computer communications
systems," Pls.' Mem. at 1, and the "online medium." Id. at 25.
Plaintiffs use both of these terms synonymously with
"interactive computer services." Id. at 1 n.l.
Under the statute, however, section 223(a)(1)(B) does not apply
to "interactive computer services." 47 U.S.C. Section
223(h)(1)(B). Section 223(a)(1)(B) prohibits the knowing
dissemination of obscene or indecent communications to minors
"by means of a telecommunications device." Whatever meaning is
encompassed by that term, it specifically "does not include an
interactive computer service." Id. Section 223(h)(1)(B)). See
also Sections 223(h)(2), 230(e)(2) (defining interactive computer
service as including "a service or system that provides access to
the Internet").
Thus, insofar as the "e-mail" communications at issue in this
claim are through the use of "interactive computer services,"
section 223(a)(1)(B) is not implicated. Certainly plaintiffs do
not show otherwise, and the Court should decline to enjoin
enforcement of section 223(a)(1)(B) until it is ascertained that
this aspect of the statute is properly at issue.
Nor does section 223(d) run afoul of the "right to privacy."
First, contrary to plaintiffs' suggestions, the Act does not
"seek[] to suppress completely any information," Carey v.
Population Services Int'l, 431 U.S. 678, 700 (1977), concerning
"sexuality, reproduction and the human body." Pls.' Mem. at 53.
Rather, it requires adults to block access to minors of
communications that depict sexual or excretory activities in a
patently offensive way. Plaintiffs, speculation this may mean
anything about sex is unfounded.
Moreover, plaintiffs' challenge to the indecency standard in the
context of point-to-point e-mail is easily their weakest
contention. Either the sender will know that the recipient of
any indecent material is a minor, and there would be no
justification for relieving them of liability. Or the sender
will not know the age of the recipient, in which case there
should be no liability under the Act.
Finally, the CDA fully respects any "reasonable expectation of
privacy" that persons may have in their private e-mail, see
Pls.' Mem. at 53, citing Katz v. United States, 389 U.S. 347
(1967), for it does not authorize the interception, disclosure,
or any other "governmental invasion" of such communications.
Indeed, federal law generally prohibits any person, including
federal agents, from intercepting or disclosing any wire, oral
or electronic communication without either a warrant, or the
consent of one of the parties to the communication. 18 U.S.C.
Sections 2510(6); 2511(l), (2)(c), (d); 2515. The Constitution
specifically, the Fourth Amendment -- requires no more. Katz,
389 U.S. at 354-59 (warrant requirement); United States v.
Caceras, 440 U.S. 741, 744 (1979) (consent of a party).
F. The Act Violates No Right of Anonymity.
Plaintiffs also contend that the indecency provisions of the
CDA violate a First Amendment right to "access information
anonymously." Pls.' Mem. at 54. The argument appears to be that
"[i]n order to comply with the Act," i.e., to take reasonable,
effective and appropriate actions to restrict minors' access to
indecent online communications, 47 U.S.C. Section 223(e)(5)(A),
both online speakers and receivers of information would have to
sacrifice their anonymity, which might "deter the exercise of
First Amendment rights." Pls.' Mem. at 55-56 (citing Brown v.
Socialist Workers 74 Campaign, 459 U.S. 87 (1982); NAACP v.
Alabama, 357 U.S. 449 (1958)).
This line of authority has no bearing here. First, the courts
have consistently upheld restrictions on access by minors to
indecent material, even if such restrictions may necessitate
that adults who desire such material must affirmatively request
it or must identify themselves by providing a credit card number
or by seeking an adult access code. See Alliance for Community
Media, supra; Dial Information Services, supra; Information
Providers' Coalition, supra.
The cases cited by plaintiffs recognized a First Amendment right
to be exempted from otherwise valid disclosure requirements for
persons demonstrating a "reasonable probability" that compelled
disclosure would result in "threats, harassment, or reprisals
from either Government officials or private parties." Buckley
v. Valeo, 424 U.S. 1, 74 (1976) (per curiam). See Brown, 459
U.S. at 101-02; NAACP v. Alabama, 357 U.S. at 462-63. This line
of authority does not concern or preclude the use of narrowly
tailored measures necessary to preclude minors from access to
indecent materials.
IV. HARM TO DEFENDANT AND THE PUBLIC INTEREST OUTWEIGHS
PLAINTIFFS' SPECULATIVE HARM.
For many of the reasons already discussed, the final two
standards for preliminary injunctive relief also weigh in the
government's favor. Individuals undoubtedly have an important
interest in being free of purposeful and direct intrusions on
First Amendment freedoms. Hohe, 868 F.2d at 72. But the
governmental interests at stake here in controlling access by
minors in indecent sexually explicit materials is compelling.
Weighed in the balance, this interest easily outweighs what are
ultimately speculative harms advanced by plaintiffs. It cannot
be said that the type of speech plaintiffs describe is either
the target of this statute, nor comparable to the kind of
"adult" materials to which the government has sought to block
access by minors.
Absent a more compelling showing that the type of speech
plaintiffs seek to vindicate is directly threatened by the CDA,
the Court should not enjoin a provision of law which would
obligate purveyors of indecent pornographic images and textual
materials online to take reasonable steps to block access by
minors. The Attorney General's ability to protect children and
the public interest through this measure should not be deferred.
V. SHOULD THE COURT DECIDE TO ENTER A TRO, PLAINTIFFS' PROPOSED
INJUNCTION IS FLAWED AS A MATTER OF LAW.
If the Court decides that an extraordinary emergency
injunction is called for in this case, then it must nonetheless
reject the form of order submitted by plaintiffs. Plaintiffs,
proposed TRO contains unqualified language that would bar
enforcement of the indecency provisions on a nationwide basis.
An injunction of such scope would be plainly overbroad. Even
when a court seeks to correct a perceived offense to the
Constitution, e.g., Zepeda v. I.N.S., 753 F.2d 719, 727 (9th
Cir. 1983), "injunctive relief should be no broader than
necessary to provide full relief to the aggrieved party."
Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F. 2d 875, 888
(3d Cir. 1986) modified on other grounds, 809 F.2d 979 (3d Cir.
1986), cert. dismissed, 488 U.S. 918 (1988). Plaintiffs can be
accorded complete relief by an order barring enforcement of the
statute only against them. See also Baeder v. Heckler, 768 F.2d
547, 553 (3d Cir. 1985).
In addition, insofar as the statutes in question extend to
obscene communications that are not protected by the First
Amendment, Sable Communications, 492 U.S. at 124, and to
communications, not involving online media, that are not at issue
in this case, then they must remain in effect.
Defendants have submitted alternative proposed orders denying
plaintiffs' motion for a TRO and, if the Court chooses to grant
it, limiting the order to its lawful scope.(39)
CONCLUSION
For the foregoing reasons, plaintiffs' motion for a temporary
restraining order should be denied.
Respectfully Submitted,
FRANK W. HUNGER
Assistant Attorney General
Civil Division
MICHAEL R. STILES
United States Attorney
MARK R. KMETZ
Assistant United States Attorney
DENNIS G. LINDER
Director, Federal Programs Branch
THEODORE C. HIRT
Assistant Branch Director
ANTHONY J. COPPOLINO
JASON R. BARON
MARY E. KOSTEL
JAMES E. GILLIGAN
Trial Attorneys
United States Department of Justice
Civil Division
Federal Programs Branch
901 E. Street N.W.
Washington, D.C. 2O530
Tel: (202) 514-4782
Date: February 14, 1996
END NOTES
1. The text of Title V of the Telecommunications Act as enacted
into law is attached at Exhibit 1. Hereafter, the provisions of
the CDA will be referred to by their U.S. Code citations (i.e.,
47 U.S.C. Section 223(a) to (h)). The Joint Explanatory
Statement of the Committee of Conference for Title V is at
Exhibit 2.
2. The Internet began in the 1960s as a research project of the
Department of Defense Advanced Research Project Agency. CRS
at 3. The original ARPANET allowed DoD, contractors, and
universities to communicate electronically. It was later
supplanted by a network of computers funded by the National
Science Foundation called NSFNET. Id.; see also John R.
Levine, Carol Baroudi, Margaret Levine Young, The Internet for
Dummies (3d Ed. 1995), IDG Books Worldwide at 13-14 (Exh. 6).
The term "Internet" is derived from the name of a communications
"protocol" called the Internet Protocol, which enables
computer traffic to be networked from one computer to the other.
See CRS at 2; Internet for Dummies at 12, 14.
3. Other related methods for searching for information on the
Internet are described by CRS, Exh. 6 at 5.
4. Exh. 3 includes Senate floor debate on the Communications
Decency Act, and related statements and materials presented on
the Senate floor both before and after the Act was considered.
5. At this initial TRO stage, defendants present only an
overview of the kinds of sexually explicit "adult" materials
available on-line. Specific examples of such materials, and
additional evidence as to where they are located and how they may
be accessed, will be made available to the Court in further
proceedings.
6. Plaintiffs' assertion that such bulletin board services are
not at issue in this case is wrong. Pls.1 Mem. at 11 n.26.
While plaintiffs may not run adult bulletin boards, the CDA
reaches these online entities, and the Act's facial validity
turns on whether Congress is permissibly regulating these and
other online sites that contain sexually explicit material.
7. See also Marketing Pornography on the Information
Superhighways: A Survey of 917,410 Images, Descriptions, Short
Stories, and Animations Downloaded 8.5 Million Times by Consumers
in Over 2000 Cities in Forty Countries, Provinces, and
Territories, 83 Georgetown Law Journal 1849 (June 1995) (Exh. 9).
This article describes material located primarily on USENET
newsgroups, id. at 1865-76, and on adult commercial bulletin
boards (BBS), id. at 1876-1905. Defendants offer this as an
initial reference of the availability and nature of obscene and
indecent material from some on-line sources, such as USENET and
BBS. BBS systems, which formed a major part of the study, are
not considered to be a part of "the Internet" per se, but, as
Senator Exon indicated, are covered by the CDA.
8. Section 223(a) is not a new provision of law. The principal
amendment to it by the CDA is to replace the word "telephone"
with "telecommunications device." The focus of plaintiffs'
challenge concerns the use of "interactive computer services,"
which are at issue in section 223(d) and are specifically
excluded from the definition of a telecommunications device. 47
U.S.C. Section 223(h)(1)(B). The specific basis for plaintiffs'
challenge to section 223(a) is unclear. In the absence of a
specific showing as to how this provision is applicable and
might be in violation of the Constitution, it should not be
enjoined.
9. Such software may function to "filter, screen, allow, or
disallow" access to content, or to "pick, choose, analyze, or
digest content." see 47 U.S.C. Section 230(e)(4)(B). It might
also function to "transmit, receive, display, forward, cache,
search, subset, organize, reorganize, or translate content." Id.
Section 230(e)(4)(C).
10. Two exceptions to this defense are if the access provider
conspires with an entity actively involved in the creation or
knowing distribution of a communication that is unlawful under
the Act, or if the access provider "knowingly advertises the
availability of such communications." 47 U S.C. Section
223(e)(2). Second, the access provider defense is not available
to an access provider who owns or controls a facility, system, or
network engaged in the violation of section 223(a) or (d).
Section 223(e)(3).
11. Nor is there any basis for the issuance of a TRO against the
abortion-related provision of newly-amended 18 U.S.C. Section
1462(c). There is no credible threat that anyone, including
plaintiffs, would be prosecuted thereunder. Both President
Clinton, in his statement upon signing the Telecommunications Act
of 1996, and Attorney General Reno, in letters transmitted to
Congress, have made that point clear. See Exh. 13. Those
statements note that the Department has a longstanding policy
that previous such provisions are unconstitutional and will not
be enforced. Last week, the district court in Sanger, et al. v.
Reno, CV 96-0526 (E.D.N.Y.), denied plaintiffs' motion for a TRO
enjoining section 1462(c) as to abortion-related speech.
12. For purposes of opposing plaintiffs' request for emergency
injunctive relief, we do not press here the argument that,
following Pacifica, a more lenient standard of scrutiny under
First Amendment law is appropriate for analyzing the
constitutionality of section 223(d), in light of the ease of
access to and intrusiveness of the patently offensive material
available to minors "on-line" in the home. See Pacifica, 438
U.S. at 748-749; cf. Fabulous Associates, 896 F.2d at 783-85
(Commonwealth argued for less searching scrutiny in
"dial-a-porn" context). Because, however, the government is
likely to succeed on the merits even under a "strict scrutiny"
formulation, the Court need not reach the issue of the
appropriate standard of review in ruling on plaintiffs' request.
13. Moreover, plaintiffs' varied attempts at distinguishing
"cyberspace" from more traditional communications media only
serve to underscore the concerns at stake over the well-being of
children being exposed to this new medium in all of its aspects
(good and evil). See Pls.' Mem. at 19-21. For example, the
"interactivity" of communications, with the presence of an
unlimited number of people on the sending and receiving end
(including but not limited to "live chat rooms"), strongly
suggests the need for the special protection of children from
indecency.
14. Also, plaintiffs cannot take issue with the fact that
exposure to pornography has profound, adverse effects on minors.
See generally, "Note, The Regulation of Telephone Pornography --
Sable Communications, Inc. v. Federal Communications
Commission," 24 Wake Forest L. Rev. 433, 433 (1989) (citing
reports on the effect of pornography, including Attorney
General's Commission on Pornography, U.S. Dep't of Justice,
Final Report (1986)).
15. Throughout their brief, plaintiffs have chosen to
characterize the CDA as a "ban" on indecent speech. See, e.g.,
Pls.' Mem. at 47 (CDA is "effectively a total ban").
16. The holding to the contrary in Fabulous Associates is
distinguishable, in that the only statutory provision at issue
was a restriction placed in the Pennsylvania Public Utility Act
that adults obtain a particular form of nine-digit access code
from the telephone company, for the purpose of enabling the
placement of "dial-a-porn" calls. 896 F.2d at 782. Also, the
panel in Fabulous Associates had no occasion to examine federal
law, including FCC regulations, see 47 C.F.R. Section 64.201,
which were subsequently upheld in Dial Information Services,
supra and Information Providers' Coalition, supra.
17. While Mr. Hauman states he is "unsure" whether the use of
credit cards constitutes a "good faith" defense, id., the
statute and legislative history answer that question clearly in
the affirmative.
18. Adult bulletin board services and other such content
providers often utilize Internet web sites home pages, on which
they display a free "sample" of pornographic or indecent
material, as a means of advertising their products and services
for which it is necessary to then pay by credit card.
Plaintiffs, suggestion that Congress may do nothing to prevent
free online access to such material consistent with the
Constitution is clearly wrong.
19. Section 223(e)(6) authorizes the FCC to "describe measures
which are reasonable, effective, and appropriate" actions under
the circumstances to restrict access to indecency by minors, and
the use of such measures can be used as evidence in any defense
against prosecution. The FCC recently released for public
comment a draft Implementation Schedule for S. 652 --
Telecommunications Act of 1996 (Exh. 12), including for section
223. Given this grant of authority to an administrative agency
to study technological issues, and to issue an evaluation of
available technologies, there should be special hesitation for a
court, in the context of a facial challenge to the statute, to
enjoin the CDA. At a minimum, this provision means that
plaintiffs must prove that no possible set of FCC findings would
be permissible under the Act, i.e., that the statute would still
be unconstitutional on its face no matter what guidance the FCC
may issue.
20. The broadness of Section 223(e)(5)(A) suggests that there
may come to pass a variety of creative, technical means for
effectively blocking access to minors, which by definition are
not now fully susceptible to evaluation either at this stage, or
at any later evidentiary stage, of the present facial challenge.
Only in the concrete context of future prosecutions, when the
effectiveness of a specific blocking technology may be at issue,
will courts have adequate opportunity to assess how this aspect
of the statute will be implemented.
21. One possible approach, suggested (but discounted) in
plaintiffs' papers, would be to divide up what are currently, in
plaintiffs' terms, "public spaces" in cyberspace, into sub-areas
where messages or images would be posted in advance to either
"adults only" or "unrestricted" forums. See Pls.' Mem. at 50.
While at this early juncture defendant does not purport to pass
on the efficacy or sufficiency of this approach under the
statute, and while Section 223(e)(5)(A) does not on its face
compel or imposes this type of solution to the exclusion of
others, certainly plaintiffs' comments strongly suggest that
there are indeed additional measures that can be taken to
restrict or channel access to indecency. At present, however,
plaintiffs have failed to meet their burden (in the context of a
TRO to enjoin a statute on constitutional grounds), of adequately
demonstrating that as a matter of both fact and law, no such
technically effective means exist so as to fail to save the
statutory provision under any circumstances.
22. Plaintiffs' objections that such screening mechanisms are
economically infeasible, see Sears Aff.; Pls.' Mem. at 49 n.92,
or would hinder the use of "linking" mechanisms on the Internet,
see Pls.' Mem. at 49 nn.93 & 94, do not by themselves of
constitutional dimensions. In concept, such measures are
comparable to restricting minors' access from the "adult"
section of a local video store.
23. Indeed, Pacifica itself can be viewed as an affirmance of a
time, place, and manner restriction on the broadcasting of
indecent material. The restrictions the CDA places on indecent
on-line speech, just as in the case of radio broadcasting, "do[]
not by any means reduce adults to [accessing on-line] only what
is fit for children." 438 U.S. at 750 n.28. Rather, the statute
would allow adults to access indecent online materials that must
be restricted as to minors.
24. Plaintiffs also suggest that there is something ineffective,
and therefore problematic, about the CDA, in that indecent
material may be created and posted "on-line" outside the United
States but nevertheless be available to minors here. See Pls.'
Mem. at 32. The fact that some material may remain available on
foreign computers does not mean that Congress may not police
interactive computer services or the Internet within our own
borders.
25. Again, while no constitutional requirement exists for
Congress to have made particularized findings on voluntary
controls, see supra, Congress did in fact receive ample
testimony on parental blocking software, and therefore must be
presumed to have acted with the knowledge of the efficacy (or
lack thereof) of such voluntary measures.
26. For example, the Court may take notice of some available
public assessments of the blocking products plaintiffs cite.
One such product is reportedly "totally ineffective at screening
pornographic images." See "Three Cybersmut Censors Try to Clean
Up the Internet." PC Magazine, November 7, 1995 at 46; "Kids
Safety: Advice About Internet and Web Safety," Family PC
Magazine at 81 (February 1996) (Exh. 11). Another product
reportedly controls Internet resources, but "doesn't work with
non-Internet sources of on-line pornography, such as bulletin
board systems." Id. If these assessments prove to be accurate,
then on both counts some of the voluntary measures which
plaintiffs cite may in fact be insufficient, at least at the
present time. Graphical images on web sites and material on
"adult" bulletin boards are among the principal sources of
indecent and obscene material online.
27. Arguably, the very existence of a "market" for such software
strongly suggests the depth of the problem Congress chose to
address.
28. See also Pacifica, 438 U.S. at 748-49 ("To say that one may
avoid further offense by turning off the radio when he hears
indecent language is like saying that the remedy for an assault
is to run away after the first blow. One may hang up on an
indecent phone call, but that option does not give the caller a
constitutional immunity or avoid a harm that has already taken
place").
29. The FCC had developed its definition during the
notice-and-comment rulemaking process, stating that "in 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."
In re Regulations Concerning Indecent Communications by
Telephone, Gen. Dkt. No. 90-64, paragraph 12 (Report and Order,
released June 29, 1990) (quoted in Dial information Services, 938
F.2d at 1540-41).
30. In Sable, the Court held that a complete ban on indecent
dial-a-porn messages exceeded that which was necessary to
protect minors from access to such messages, but did not address
whether the indecency standard was vague. 492 U.S. at 126-131.
31. This question may again be considered by the Supreme Court
on certiorari in Alliance for Community Media, supra. The
questions on which certiorari was granted include whether
Congress violates the First Amendment by permitting, but not
requiring, cable operators to prohibit indecent programming on
leased access or public channels (i.e., whether this constitutes
"state action"), and whether Congress violates the First
Amendment by requiring cable operators who choose not to ban
indecent programming on such channels to block such programming
and permit access only upon request. Whether the indecency
standard is impermissibly vague is primarily implicated by the
second question.
32. The Court in Pacifica noted that
[a] requirement that indecent language be avoided will have
its primary effect on the form, rather than the content, of
serious communication. There are few, if any, thoughts that
cannot be expressed by the use of less offensive language.
438 U.S. at 743 n.18.
33. The obscenity test announced in Miller is: (a) whether the
average person, applying contemporary community standards, would
find that the work, taken as a whole, appeals to the prurient
interest; and (b) whether the work depicts or describes in a
patently offensive way, sexual conduct specifically defined by
the applicable state law; and whether the work, taken as a
whole, lacks serious literary, artistic, political, or
scientific value. Miller, 413 U.S. at 24. See Pope v.
Illinois, 481 U.S. 497, 500-501 (1987) (revising the
Miller test to provide that a "reasonable person" should be the
judge of the third prong -- whether the material has literary,
artistic, political or scientific value).
34. Each of the three elements of the Court's obscenity
definition is conceptually independent of the other two. It
would be illogical to conclude that the legal standard embodied
in one of those elements, i.e., "patent offensiveness," can be
unconstitutionally vague where indecency regulation is
concerned, but permissible in an anti-obscenity statute. See
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57-58 & n.6
(1989), (rejecting vagueness challenge to an Indiana statute
that broadly deemed any book or film "obscene" if, among other
things, it "depicts or describes, in a patently offensive way,
sexual conduct").
35. Plaintiffs' contention that the access provider defense is
impermissibly vague on its face is without merit. Pls.' Mem. at
42-43 (discussing 47 U.S.C. Section 223(e)(1). The conference
report states that the target of criminal penalties under CDA are
"content providers who violate [the Act] and persons who
conspire with such content providers, rather than entities that
simply offer general access to the Internet and other online
content." Conf. Rep. at 190. In the absence of such conditions,
"commercial and non-profit Internet operators who provide access
to the Internet and other interactive computer services shall
not be liable for indecent material accessed by means of their
services." Id.
36. See American Booksellers v. Webb, 919 F.2d 1493 (llth
Cir. 1990), cert. denied, 500 U.S. 492 (1991); American
Booksellers Ass'n v. Virginia, 882 F.2d 125 (4th Cir. 1989),
cert. denied, 494 U.S. 1056 (1991); Upper Midwest Booksellers
Ass'n v. Minneapolis, 780 F.2d 1389 (8th Cir. 1985); M.S. News
Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983).
37. Plaintiffs' argument that section 223(d) is overbroad
because it impermissibly burdens adults' rights to access
indecent material is, in substance, identical to their argument
that the Act is not narrowly tailored, addressed above.
38. Minneapolis Star, for example, dealt with a tax on paper and
ink which, in practical application, fell upon only 14-16
newspapers. 460 U.S. at 578-79.
39. For the reasons stated supra, the Court should not enjoin 47
U.S.C. Section 223(a)(l)(B) since plaintiffs have made no showing
that this provision applies to their conduct. In addition, the
Court should not enjoin 18 U.S.C. Section 1462(c) regarding
abortion-related speech since there is no possible imminent
threat of prosecution under this section.