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III. THE PRELIMINARY INJUNCTION ENTERED BY THE DISTRICT
COURT WAS IN ANY EVENT FAR TOO BROAD IN SCOPE


Finally, even if the display provision were unconstitutional in
some of its applications, the district court erred in enjoining
enforcement of all three provisions at issue in their entirety.
The CDA's indecency restrictions were each enacted as amendments
to the Communications Act of 1934. Communications Decency Act of
1996, Pub. L. No. 104-104, Section 502, 110 Stat. 133. They are
therefore governed by the severability clause contained in that
Act, which provides that "[i]f 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." 47 U.S.C. 608. See Leavitt v. Jane L., 116 S. Ct. 2068,
2070 (1996) (relying on severability clause in the underlying Act
to which the challenged provisions were added). As this Court
has noted, Section 608 "indicate[s] in the strongest possible
language that any invalid provision [is] severable from the rest
of the Act." Pacifica, 438 U.S. at 739 n.13. As a result, any
infirmity in the display prohibition would not affect the
transmission and specific person provisions. Indeed, quite apart
from the severability provision, in light of Congress's basic
objective of protecting children, it simply is not possible that
Congress would have preferred no provisions at all to the two
provisions standing by themselves. Cf. Denver Area, 116 S. Ct.
at 2397.

Section 608 is significant in another respect. Under that
clause, any determination that the display provision is invalid
as applied to particular persons or specific circumstances shall
not affect its application "to other persons or circumstances."
47 U.S.C. 608; see Wyoming v. Oklahoma, 502 U.S. 437, 460-461 &
n.14 (1992). To take the clearest example, even assuming that
the display provision would have some invalid applications, there
would be no basis for invalidating the provision as applied to
commercial Web sites. See also Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 503-504 (1985) (unless there are
"countervailing considerations," a statute should "be declared
invalid to the extent it reaches too far, but otherwise left
intact"); compare United States v. National Treasury Employees
Union, 115 S. Ct. 1003, 1019 & n.26 (1995) (refusing to preserve
certain applications after finding an act of Congress
unconstitutionally overbroad, because Congress had sent
conflicting signals as to where the new line should be drawn,
each of the new lines would raise independent constitutional
concerns, and there was no severability clause).

Contrary to appellees, understanding (ALA Resp. 16; ACLU Mot. to
Aff. 24-25), our argument on this point is not that the district
court should have construed the CDA's display provision to reach
only commercial providers; nor do we argue that the district
court should have rewritten the statutory prohibition. Instead,
consistent with the statutory command in the applicable
severability clause, the district court was required to limit it
preliminary injunctive relief to those applications for which it
found that appellees had made the requisite showing of probable
unconstitutionality, and to leave intact the rest.

Despite its apparent agreement that the display provision could
be applied constitutionally to commercial providers, the district
court refused to leave that part of the prohibition intact, on
the ground that Congress made a conscious decision to impose the
CDA's restrictions on commercial and noncommercial providers
alike. J.S. App. 75a-76a; see S. Conf. Rep. No. 230, supra, at
191. But that does not provide any basis for ignoring
the express terms of the severability clause. Moreover, Congress
included noncommercial providers of patently offensive material
because it found "that there is a great deal of [such] material
on the Internet available to anyone free of charge." 141 Cong.
Rec. S8089 (daily ed. June 9, 1995) (remarks of Sen. Exon). That
concern does not suggest that Congress would have wanted
commercial purveyors of indecency to proceed with impunity if a
court were to hold that regulation of some noncommercial
providers lay beyond its powers. In fact, the supporters of the
CDA repeatedly emphasized that the Act would govern the
activities of "entrepreneurs who are seeking money, cash money-
making opportunities. Id. at S8090 (daily ed. June 9, 1995)
(remarks of Sen. Exon) 141 Cong. Rec. 8340 (daily ed. June 14,
1995) ("the moneymakers on pornography"); id. at S8333 (remarks
of Sen. Coats) (those "in the business of providing [patently
offensive] material"). That history leaves little doubt that if
the display provision cannot be given effect in all of its
applications at the present time, Congress at least would have
wanted the restrictions to apply to the display of indecent
material "for commercial purposes," see 47 U.S.C. 223(b)
(prohibiting indecent telephone communications "for commercial
purposes").

As we have explained in Points I and II of the brief, however,
the CDA provisions that appellees challenge are constitutional on
their face in the context of all significant categories of
communication functions now undertaken on the Internet. The
three-judge district court therefore erred in entering a
preliminary injunction barring enforcement of those provisions in
any respect, especially in this action brought pursuant to a
statutory provision that provides for expedited review only of a
challenge to the constitutionality of a provision of the CDA "on
its face." Pub. L. No. 104-104, Section 561 (a), 110 Stat. 143.

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