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ACLU v. Reno, 1996 U.S. Dist. LEXIS 1617; 24 Media L. Rep. 1379 (E. Pa., 1996)

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

MEMORANDUMBUCKWALTER, J. I. BACKGROUNDPlaintiffs are providers and users of on-line communications. The affidavits filed in support of plaintiffs' request for atemporary restraining order (TRO) support the statement inplaintiffs' brief (page 2) that these communications deal withissues involving sexuality, reproduction, human rights, socialresponsibility, environmental concerns, labor, conflictresolution, as well as other issues, all of which havesignificant educational, political, medical, artistic, literaryand social value.On February 8, 1996, President Clinton signed into law theTelecommunications Act of 1996. Title V of the Act includes theprovisions 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, Section223(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 imprisonednot more than two years, or both.In seeking TRO with regard to the above provisions,(1) plaintiffsclaim that they will be irreparably harmed because their rightsunder the First Amendment will be infringed. They fearprosecution under the CDA because as a result of the vagueness ofthe crimes created by the Act, they do not even know what speechor other actions might subject them to prosecution. Thus, evenattempts to self-censor could prove fruitless. There is also theconcern by those plaintiffs who rely on on-line providers andother carriers that these providers will likely bancommunications that they consider potentially "indecent" or"patently offensive" in order to avoid criminal prosecutionthemselves, thereby depriving plaintiffs of the ability tocommunication about important issues.The defendant counters by stating that there must be a realisticdanger 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 noevidence on the present record to suggest defendant's position iscorrect in the latter regard.Moreover, the defendant's brief quotes a portion of a ThirdCircuit case for the proposition that "the assertion of FirstAmendment rights does not automatically require a finding ofirreparable injury." What the defendant failed to cite from thatcase was the sentence immediately preceding the above quota whichwas, "It is well established that the loss of First Amendmentfreedoms, for even minimal periods of time, unquestionablyconstitutes irreparable injury." Hohe v. Casey, 868 F.2d 69, atp. 72, 73 (3d Cir. 1989). The Hohe case goes on to explain thatplaintiff must show "a chilling effect on free expression." Thathas been shown in this case by affidavits previously referred to.What likelihood is there that plaintiffs will prevail on themerits? In Wright, Miller & Kane, Federal Practice and Procedure:Civil 2d Section 2948.3, it is suggested that this concept ofprobability of success on the merits must be considered andbalanced 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 thislitigation.In explaining my reason for this conclusion, I will not gothrough a piecemeal analysis of the cases, all of which have beenset forth in both plaintiffs' and defendants' briefs, except,perhaps, in passing while discussing the respective arguments ofthe parties.First of all, I have no quarrel with the argument that Congresshas a compelling interest in protecting the physical andpsychological well-being of minors. Moreover, at least from theevidence before me, plaintiffs have not convinced me thatCongress has failed to narrowly tailor the CDA.Where I do feel that the plaintiffs have raised serious,substantial, difficult and doubtful questions is in theirargument that the CDA is unconstitutionally vague in the use ofthe 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 peopleperplexed in evaluating what is or is not prohibited by thestatute.It is a substantial question because this word alone is the basisfor criminal felony prosecution.It is a difficult question, I think, because any laws affectingfreedoms such as the ones here in question have spawned opinionswhich arguably support both sides.Finally, it is a doubtful question because it simply is notclear, contrary to what the government suggests, that the word"indecent" has ever been defined by the Supreme Court. SeeAlliance 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 forCommunity Media. That, of course, does not mean that we arecorrect, but it did reinforce my belief that the question ofvagueness is a difficult and doubtful one.In connection with the vagueness argument, the governmentcorrectly states that plaintiffs face a most difficult challenge.That challenge has been stated as one in which "the challengermust establish that no set of circumstances exists under whichthe 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 actproscribing certain conduct could be rendered valid if thedescription of that conduct, the violation of which is a felony,is vague.Defendant seems to argue that an indecent communication means thesame as a communication that in context, depicts or describes,"in terms patently offensive as measured by contemporarycommunity standards, sexual or excretory activities or organs...."While I do not believe the patently offensive provision ofSection 223(d)(1), quoted above, is unconstitutionally vague, Ido not see how that applies to the undefined use of the word"indecent" in Section 223(a)(1)(B)(ii). Depending on who ismaking the judgment, indecent could include a whole range ofconduct not encompassed by "patently offensive."The remaining considerations relative to a TRO request weigh infavor of plaintiffs. I have not overlooked or ignored theoutstanding argument made by the government in part 1 of itsbrief. I particularly have pondered the oft cited quote: When acourt is asked to invalidate a "statutory provision that has beenapproved by both Houses of the Congress and signed by thePresident, particularly an Act of Congress that confronts adeeply vexing national problem, it should only do so for the mostcompelling 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 mathematicalcertainty, but on the other hand, it seems to me, that dueprocess, particularly in the arena of criminal statutes, requiresmore than one vague, undefined word, "indecent."It is a most compelling constitutional reason to require of a lawthat it reasonably informs a person of what conduct is prohibitedparticularly 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 PENNSYLVANIAAMERICAN CIVIL LIBERTIES : CIVIL ACTIONUNION, et al., : Plaintiffs, : NO. 96-963 : v. : :JANET RENO, : Defendant : ORDERThis case is before the court on plaintiffs' motion for atemporary restraining order against enforcement of both 47 U.S.C.Section 223(a)(1)(B) (as amended by the Telecommunications Act of1996, Section 502), and 47 U.S.C. Section 223(d). The courthaving considered plaintiffs' submissions in support of theirmotion, and defendants' submissions in opposition thereto,IT IS HEREBY ORDERED THAT plaintiffs' motion for a temporaryrestraining order is GRANTED, in part, as follows:The defendant, her agents, and her servants are hereby ENJOINEDfrom 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 otherrespects, DENIED.Unless previously ordered by this court, pursuant to 28 U.S.C.Section 2284(b)(3), this order shall remain in force only untilthe hearing and determination by the district court of threejudges 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 NOTE1. Plaintiffs have also sought the same relief as to 18 U.S.C.Section 1462, but at this early stage of the litigation, it seemsclear that no irreparable harm will befall plaintiffs. (See Gov'tEx. 13).