The full text of the federal judge's decision issued in February 1996 granting a request for a temporary restraining order for provisions of the Communications Decency Act of 1996.
For the June 1996 decision in which a three-judge panel held that provisions of the CDA violated the First Amendment, see ACLU v. Reno, 1996 U.S. Dist. LEXIS 7919.
For additional information about content regulation on the Internet, see Internet Regulation
MEMORANDUM
BUCKWALTER, J.
I. BACKGROUND
Plaintiffs are providers and users of on-line communications.
The affidavits filed in support of plaintiffs' request for a
temporary restraining order (TRO) support the statement in
plaintiffs' brief (page 2) that these communications deal with
issues involving sexuality, reproduction, human rights, social
responsibility, environmental concerns, labor, conflict
resolution, as well as other issues, all of which have
significant educational, political, medical, artistic, literary
and social value.
On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996. Title V of the Act includes the
provisions of the Communications Decency Act of 1996 (CDA),
codified at 47 U.S.C. Section 223(a) to (h).
Pertinent to the matter now before this court, Section
223(a)(1)(B) provides:
(a) Whoever --
(1) in interstate or foreign communications --
(B) by means of a telecommunications device
knowingly --
(I) makes, creates, or solicits, and
(ii) initiates the transmission of, any
comment, request, suggestion, proposal,
image, or other communication which is
obscene or indecent, knowing that the
recipient of the communication is under 18
years of age, regardless of whether the maker
of such communication placed the call or
initiated the communication;
Section 223(d) provides:
(d) 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, sexuality or excretory activities or organs,
regardless of whether the user of such service placed
the call or initiated the communications; or
(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited in 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.
In seeking TRO with regard to the above provisions,(1) plaintiffs
claim that they will be irreparably harmed because their rights
under the First Amendment will be infringed. They fear
prosecution under the CDA because as a result of the vagueness of
the crimes created by the Act, they do not even know what speech
or other actions might subject them to prosecution. Thus, even
attempts to self-censor could prove fruitless. There is also the
concern by those plaintiffs who rely on on-line providers and
other carriers that these providers will likely ban
communications that they consider potentially "indecent" or
"patently offensive" in order to avoid criminal prosecution
themselves, thereby depriving plaintiffs of the ability to
communication about important issues.
The defendant counters by stating that there must be a realistic
danger of sustaining a direct injury as a result of the statute's
enactment or enforcement, apparently suggesting that plaintiffs'
fears of prosecution are imaginary or speculative. There is no
evidence on the present record to suggest defendant's position is
correct in the latter regard.
Moreover, the defendant's brief quotes a portion of a Third
Circuit case for the proposition that "the assertion of First
Amendment rights does not automatically require a finding of
irreparable injury." What the defendant failed to cite from that
case was the sentence immediately preceding the above quota which
was, "It is well established that the loss of First Amendment
freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Hohe v. Casey, 868 F.2d 69, at
p. 72, 73 (3d Cir. 1989). The Hohe case goes on to explain that
plaintiff must show "a chilling effect on free expression." That
has been shown in this case by affidavits previously referred to.
What likelihood is there that plaintiffs will prevail on the
merits? In Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d Section 2948.3, it is suggested that this concept of
probability of success on the merits must be considered and
balanced with the comparative injuries of the parties.
As the Second Circuit puts it, when
the balance of hardship tips decidedly toward plaintiff
... it will ordinarily be enough that the plaintiff has
raised questions going to the merits so serious,
substantial, difficult and doubtful, as to make them a
fair ground for litigation and thus for more
deliberative investigation. Hamilton Watch Co. v.
Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953).
I believe plaintiffs have, at least with regard to 47 U.S.C.
Section 223(a)(1)(B)(ii) and (a)(2) raised serious, substantial,
difficult and doubtful questions which are fair grounds for this
litigation.
In explaining my reason for this conclusion, I will not go
through a piecemeal analysis of the cases, all of which have been
set forth in both plaintiffs' and defendants' briefs, except,
perhaps, in passing while discussing the respective arguments of
the parties.
First of all, I have no quarrel with the argument that Congress
has a compelling interest in protecting the physical and
psychological well-being of minors. Moreover, at least from the
evidence before me, plaintiffs have not convinced me that
Congress has failed to narrowly tailor the CDA.
Where I do feel that the plaintiffs have raised serious,
substantial, difficult and doubtful questions is in their
argument that the CDA is unconstitutionally vague in the use of
the undefined term, "indecent." Section 223(a)(1)(B)(ii).
This strikes me as being serious because the undefined word
"indecent", standing alone, would leave reasonable people
perplexed in evaluating what is or is not prohibited by the
statute.
It is a substantial question because this word alone is the basis
for criminal felony prosecution.
It is a difficult question, I think, because any laws affecting
freedoms such as the ones here in question have spawned opinions
which arguably support both sides.
Finally, it is a doubtful question because it simply is not
clear, contrary to what the government suggests, that the word
"indecent" has ever been defined by the Supreme Court. See
Alliance for Community Media v. F.C.C., 56 F.3d 105 (D.C. Cir.
1995) p. 130, footnote 2:
We note that the Supreme Court has never actually
passed on the FCC's broad definition of "indecency".
See Action for Children's Television v. FCC, 852 F.2d
1332, 1338-39 (D.C. Cir. 1988) (acknowledging that in
FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct.
3026, 57 L.Ed.2d 1073 (1978), the Supreme Court never
specifically addressed whether the FCC's generic
definition of indecency was unconstitutionally vague,
but arguing that because the Court "implicitly"
approved the definition by relying on it, lower courts
are barred from addressing the vagueness issue on the
merits.
Parenthetically, I had reached the same conclusion as Judge Wald,
author of the above footnote, before reading Alliance for
Community Media. That, of course, does not mean that we are
correct, but it did reinforce my belief that the question of
vagueness is a difficult and doubtful one.
In connection with the vagueness argument, the government
correctly states that plaintiffs face a most difficult challenge.
That challenge has been stated as one in which "the challenger
must establish that no set of circumstances exists under which
the Act would be valid." Rust v. Sullivan, 500 U.S. 173, 183
(1990) (quoting United States v. Salerno, 481 U.S. 739, 745
(1987)).
It is hard to imagine a set of circumstances where an act
proscribing certain conduct could be rendered valid if the
description of that conduct, the violation of which is a felony,
is vague.
Defendant seems to argue that an indecent communication means the
same as a communication that in context, depicts or describes,
"in terms patently offensive as measured by contemporary
community standards, sexual or excretory activities or organs.
..."
While I do not believe the patently offensive provision of
Section 223(d)(1), quoted above, is unconstitutionally vague, I
do not see how that applies to the undefined use of the word
"indecent" in Section 223(a)(1)(B)(ii). Depending on who is
making the judgment, indecent could include a whole range of
conduct not encompassed by "patently offensive."
The remaining considerations relative to a TRO request weigh in
favor of plaintiffs. I have not overlooked or ignored the
outstanding argument made by the government in part 1 of its
brief. I particularly have pondered the oft cited quote: 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), p. 17 of defendant's brief.
It is, of course, impossible to define conduct with mathematical
certainty, but on the other hand, it seems to me, that due
process, particularly in the arena of criminal statutes, requires
more than one vague, undefined word, "indecent."
It is a most compelling constitutional reason to require of a law
that it reasonably informs a person of what conduct is prohibited
particularly when the violation of the law may result in fines,
imprisonment, or both.
An order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES : CIVIL ACTION
UNION, et al., :
Plaintiffs, : NO. 96-963
:
v. :
:
JANET RENO, :
Defendant :
ORDER
This case is before the court on plaintiffs' motion for a
temporary restraining order against enforcement of both 47 U.S.C.
Section 223(a)(1)(B) (as amended by the Telecommunications Act of
1996, Section 502), and 47 U.S.C. Section 223(d). The court
having considered plaintiffs' submissions in support of their
motion, and defendants' submissions in opposition thereto,
IT IS HEREBY ORDERED THAT plaintiffs' motion for a temporary
restraining order is GRANTED, in part, as follows:
The defendant, her agents, and her servants are hereby ENJOINED
from enforcing against plaintiffs the provisions of 47 U.S.C.
Section 2223(a)(1)(B)(ii), insofar as they extend to "indecent",
but not "obscene". The plaintiffs' motion is in all other
respects, DENIED.
Unless previously ordered by this court, pursuant to 28 U.S.C.
Section 2284(b)(3), this order shall remain in force only until
the hearing and determination by the district court of three
judges of the application for a preliminary injunction.
SO ORDERED this 15th day of February, 1996.
BY THE COURT:
RONALD L. BUCKWALTER, J.
cc: Counsel of record via FAX by chambers 2/15/96
END NOTE
1. Plaintiffs have also sought the same relief as to 18 U.S.C.
Section 1462, but at this early stage of the litigation, it seems
clear that no irreparable harm will befall plaintiffs. (See Gov't
Ex. 13).
