APOLLOMEDIA CORPORATION v.RENO, No. C-97-346 MMC (N.Calif., 1998), affirmed, ___ U.S. ____ (1999).

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Dissenting Opinion I believe that our approach here should be the same as the approach taken by the Supreme Court in Reno v. American Civil Liberties Union; - U.S. -, 117 S.Ct. 2329 (1997). There, the Court construed the section of the CDA immediately following the section challenged in this case, and found that proscriptions of "obscene or indecent" communications meant just that - - proscriptions of communications which were either obscene or indecent. The Supreme Court held that while proscriptions of obscene communications were constitutionally permissible, proscriptions of indecent communications were not, and invoked the severability clause of the statute to sever the words "or indecent" from the statute. I would do the same here.

 

ILLSTON, District Judge, dissenting:

I agree with the majority that the sections of the Communications Decency Act ("CDA") challenged in this case may constitutionally prevent the transmission of obscene communications over the Internet. I disagree, however, with the majority's conclusion that the actual words of the statute - "obscene, lewd, lascivious, filthy, or indecent" - should be read to mean only "obscene.' This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are.

I believe that our approach here should be the same as the approach taken by the Supreme Court in Reno v. American Civil Liberties Union; - U.S. -, 117 S.Ct. 2329 (1997). There, the Court construed the section of the CDA immediately following the section challenged in this case, and found that proscriptions of "obscene or indecent" communications meant just that - - proscriptions of communications which were either obscene or indecent. The Supreme Court held that while proscriptions of obscene communications were constitutionally permissible, proscriptions of indecent communications were not, and invoked the severability clause of the statute to sever the words "or indecent" from the statute. I would do the same here.

As the majority acknowledges, "indecent" speech falls within the protection of the First Amendment. See Reno v. ACLU, 117 S.Ct. at 2346 ("[i]n evaluating the free speech rights of adults, we have made it perfectly clear that 'sexual expression which is indecent but not obscene is protected by the First Amendment.'" (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)). The government can regulate such speech, but only if it acts towards compelling ends with means "carefully tailored to achieve those ends." Sable, 492 U.S. at 126. "Obscene" speech, on the other hand, may be "wholly prohibited." FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978).

The statutory provision at issue here makes it a crime to transmit an "obscene, lewd, lascivious, filthy, or indecent" communication over the Internet "with intent to annoy." In Reno v. ACLU, 117 S.Ct. at 2329, the Court addressed the constitutionality of two provisions of the CDA, one of which - - 47 U.S.C. §223(a)(1)(B) - - immediately follows the subparagraph challenged by ApolloMedia here. Section 223(a)(1)(B) stated:

Whoever . . . in interstate or foreign communications . . . 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 . . . shall be fined under Title 18, or imprisoned not more than two years, or both.

(emphasis added).

The second provision challenged in the Reno case was §223(d), which provided:

Whoever . . . 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 . . . shall be fined under Title 18, or imprisoned not more than two years, or both.

(emphasis added).

The Supreme Court held that the CDA's use of the terms "indecent" in §223(a)(1)(B) and "patently offensive" in §223(d)¹ violated the First Amendment because the terms were overbroad: "[the terms] lack[] the precision that the First Amendment requires when a statute regulates the content of speech." Reno v. ACLU, 117 S.Ct. at 2346. It explained that the imprecision of the terms was "of special concern" because of a resulting, "obvious chilling effect on free speech," id. at 2344, enhanced by the fact that the CDA is a criminal statute, see id. at 2344-45, and the expansive nature of communication over the Internet, see id. at 2347.

Of particular importance to the present case is the Supreme Court's analysis of the CDA's use of the term "indecent" in §223(a)(1)(B). While recognizing that in certain contexts "the governmental interest in protecting children from harmful materials" allows for restrictions on speech that is described only as "indecent," id. at 2346, the Supreme Court found that the CDA provisions at issue were far too broad to comply with the First Amendment, indeed, "wholly unprecedented." Id. at 2347.

After deciding that §223(a)(1)(B)'s inclusion of the term "indecent" violated the First Amendment, the Court invoked the severability clause of the Telecommunications Act of 1996,² of which the CDA is a part, to excise the language "or indecent" from §223(a)(1)(B). See id. at 2350. The Court concluded "[a]s set forth by [§223(a)(1)(B)], the restriction of 'obscene' material [which can be 'banned totally'] enjoys a textual manifestation separate from that for 'indecent' material, which we have held unconstitutional." See id.

In light of the Reno v. ACLU decision, a statute criminalizing "indecent" speech over the Internet, without careful tailoring toward protecting children from harmful materials or other compelling interest, cannot survive a First Amendment challenge.

Section 223(a)(1)(A) is not such a statute, according to the majority. Guided by the important principle that courts should avoid constitutional difficulties with statutes if a statutory construction that eliminates such difficulties is "fairly possible," the majority avoids Reno v. ACLU's effect by interpreting §223(a)(1)(A)'s "string of words" - - "obscene, lewd lascivious, filthy, or indecent" - - to prohibit "obscene" communication only. The majority finds support for this interpretation in four early obscenity cases: Roth v. United States, 354 U.S. 476 (1957); Manual Enterprises Inc. v. Day, 370 U.S. 478 (1962); United States v. 12 200-ft. Reels of Super 8MM Film, 413 U.S. 123 (1973); Hamling v. United States, 418 U.S. 87 (1974).

To determine whether §223(a)(1)(A) can be fairly read to prohibit obscene speech only, one must begin with the language of the statute. See Bailey v. United States, 516 U.S. 137, 144 (1995). Section 223(a)(1)(A) reads:

Whoever . . . in interstate or foreign communications . . . 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, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten, or harass another person . . . shall be fined under Title 18 or imprisoned not more than two years or both.

(emphasis added).³ By its terms, then, §223(a)(1)(A) makes either "obscene . . . or indecent" communication a crime. Such a literal reading of the statute - - that the word "indecent" has a meaning separate from that of "obscene" - - is bolstered by the assumption that, particularly when statutory terms describe an element of a criminal offense, "Congress intended each of [the statute's] terms to have meaning." Bailey, 116 S.Ct. at 506-07.

To avoid the conclusion that §223(a)(1)(A) prohibits "indecent" Internet communication "with intent to annoy," and is therefore unconstitutional pursuant to Reno v. ACLU,⁴ the majority looks to Roth. Manual Enterprises, 12 200-ft. Reels and Hamling for the proposition that a string of descriptive words including both "obscene" and "indecent" is to be interpreted to mean "obscene" only. These cases offer little support, however. First, the cases were decided before the Supreme Court's First Amendment taxonomy - - in particular the legal significance attached to the terms "obscene" and "indecent" - - was in place. Only one of these cases - - Hamilton - - post-dated the emergence in Miller v. California, 413 U.S. 15 (1973) of a discrete legal test for "obscenity." And none of these cases was decided after the term "indecent" received specific treatment under the First Amendment. See, e.g., Sable, 492 U.S. at 126 ("Sexual expression which is indecent but not obscene is protected by the First Amendment . . . ."); Pacifica, 438 U.S. at 740 n.14 (defining "indecent" to mean "not conforming to generally accepted standards of morality"). Second, as the Supreme Court recently suggested in Reno v. ACLU First Amendment holdings are tied closely to the nature of the medium being regulated. See 117 S.Ct. at 2343; Pacifica, 438 U.S. at 740. Roth, Manual Enterprises, and Hamling dealt with statutes governing the mail, and 12 200-ft. Reels concerned an import statute.

Additionally, as the majority notes, the Supreme Court in Pacifica, and Reno v. ACLU refused to "read out" Congress' inclusion of the term "indecent" in regulations of speech. In Pacifica, for example, the argument that the term "indecent" in a statute prohibiting "obscene, indecent, or profane" speech should be interpreted to mean "obscene" was explicitly rejected. See Pacifica, 438 U.S. at 739-740. The Supreme Court relied on the fact that there, as here, the statute's words were "written in the disjunctive, implying that each has a separate meaning." Id. at 740.

These later "strings of words" cases by themselves undermine the claim that there is a "longstanding" and "settled" Supreme Court approach to statutes prohibiting both "obscene" and "indirect" speech. In any event, however, I believe that Reno v. ACLU represents the Supreme Court's direction that in this statute, separate words used in the disjunctive are to be separately considered.

Finally, I note that although the Supreme Court declined to decide whether the provisions of the CDA which it examined in Reno v. ACLU would have violated the Fifth Amendment, the interpretation urged by the government and adopted by the majority in this case might make §223(a)(1)(A) unconstitutionally vague in violation of the Fifth Amendment. This is because an Internet user "of common intelligence (will) necessarily guess at [the] meaning and differ as to [the] application," see Connally v. General Constr. Co., 269 U.S. 385, 391 (1926), of a statute that says it prohibits "indecent" communication and "lewd," "lascivious," and "filthy" communication, but actually does not. It is also problematic to allow the language "obscene, lewd, lascvious, filthy, or indecent" to stand in §223(a)(1)(A) when, in the following subparagraph, the Supreme Court has explicitly excised the word "indecent" for being overbroad in violation of the First Amendment.

The present debate over the language of the CDA seems academic until one considers the application of this criminal statute to the Internet, a communication medium being used daily by tens of millions of people in dozens of countries around the world. It is unrealistic to expect these users to know that the words of this statute do not mean what they say, and that the government has promised not to enforce the statute in accordance with its terms. I would therefore find that the challenged section of the statute as written is unconstitutional; but that, as with the sections of the statute considered in Reno v. ACLU, the terms other than "obscene" in §223(a)(1)(A) can be severed from it, "leaving the rest of [the section] standing." 117 S.Ct. at 2350.

Dated September 22, 1998.

Susan Illston
United States District Judge

FOOTNOTES

¹The Court treated the CDA's use of the terms "indecent" and "patently offensive" in these sections as synonymous. Reno v. ACLU, 117 S.Ct. at 2345.

²47 U.S.C. §608 reads: "If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby."

³Section 223(a)(1)(A) differs from §223(a)(1)(B), the provision addressed in Reno v. ACLU, in three ways, First, it adds the adjectives "lewd," "lascivious," and "filthy." Second, the "knowledge" element is replaced with an "intent to annoy, abuse, threaten, or harass another person" requirement. Third, §223(a)(1)(A) contains no requirement that the accused know "that the recipient of the communication is under 18 years of age."

⁴The government's opposition to plaintiff's motion was based entirely on its contention that §223(a)(1)(A) prohibits "obscene" speech only. No argument was made that a "compelling interest"

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