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. |