SUMMARY OF ARGUMENT

I. Parents and their children have a First Amendment right to
receive information and acquire knowledge, Meyer v. Nebraska, 262
U.S. 390, 399-401 (1923), and the Internet has unmatched
potential to facilitate that interest. Much of the Internet's
potential as an educational and informational resource will be
wasted, however, if people are unwilling to avail themselves of
its benefits because they do not want their children harmed by
exposure to patently offensive sexually explicit material. The
government therefore not only has an especially strong interest
in protecting children from patently offensive material on the
Internet, it has an equally compelling interest in furthering the
First Amendment interest of all Americans to use what has become
an unparalleled educational resource. The Communications Decency
Act of 1996 constitutionally advances those interests.

A. The transmission and specific child provisions prohibit the
sending of indecent material to children with knowledge that the
recipient is under 18. Those provisions are essentially no
different from the prohibition on the sale of indecent material
to minors upheld in Ginsberg v. New York, 390 U.S. 629 (1968).
Like that prohibition, the transmission and specific child
provisions directly prevent the dissemination of indecent
material to children without prohibiting adult access to that
material. Because there is no First Amendment right to
disseminate indecent material to children, the transmission and
specific child provisions must be upheld.


B. The display provision is also constitutional. When read
together with the defenses to prosecution, the display provision
permits persons to post indecent material on the Internet so long
as they condition access on the use of credit cards or other
adult identification devices, or otherwise employ reasonable,
effective, and appropriate measures to ensure that their
materials are not available to minors. That approach is
constitutional under FCC v. Pacifica Foundation, 438 U.S. 726,
749 (1978). Just as it was constitutional for the FCC to channel
indecent broadcasts to times of the day when children most likely
would not be exposed to them, so Congress could channel indecent
communications to places on the Internet where children are
unlikely to obtain them. Indeed, there is a stronger
justification for the display provision than there was for the
restriction approved in Pacifica. The indecency problem
on the Internet is much more pronounced than it is on broadcast
stations. And unless steps are taken to restrict the
availability of such material to children, many parents may be
deterred from bringing the Internet into their homes at all.

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) and
Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) . also
support the constitutionality of the display provision. In
effect, the display provision operates as an adult "cyberzoning"
restriction, very much like the adult theater zoning ordinances
upheld in Renton and Young. Just as the cities of Detroit and
Renton could direct adult theaters away from residential
neighborhoods, so Congress could direct purveyors of indecent
material away from areas of cyberspace that are easily accessible
to children.

C. The display provision does not impose a flat ban on indecent
communication. Current technology affords significant
opportunities for adults to communicate and receive indecent
material over the Internet and through other channels. For
example, those who post indecent material on Web sites for
commercial purposes can ensure that only adults have access to
their material by requiring a credit card number or an adult ID.
Similarly, operators of noncommercial Web sites can use adult
verification services for that purpose. There are also ways to
communicate through other Internet applications that would not
expose children to indecency. And, as technology evolves, the
opportunities for adult-to-adult communication of indecent
material will expand even further. The district court's
decision, which was premised on its characterization of the
display provision as a flat ban on indecent communications, is
therefore incorrect.

D. There is no less burdensome way to vindicate the government's
vital interests that would work equally well. Congress reasonably
determined that commercial software that attempts to screen out
indecent information only partially addresses the problem. Such
software cannot identify all existing sexually explicit sites; it
cannot keep pace with the rapid emergence of numerous new
sexually explicit sites; it places the entire burden on parents;
and it is owned by only a small fraction of Americans.

In the short run, the CDA may impose some burdens and costs on
adult-to-adult communication of indecent material. Congress
constitutionally decided, however, that it is better to place
some burdens and costs on those who disseminate patently
offensive material through use of a new and rapidly changing
technology than it is to leave children unprotected.

[FULL TEXT: I]

II. The district court erred in finding the CDA's restrictions
unconstitutionally vague. The restrictions apply only to
material that, "in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs." 47 U.S.C.
223(d)(1). That formulation gives fair warning concerning the
great bulk-of what is and is not covered.

The CDA's definition of indecency is similar to one of the
elements that this Court used to define obscenity in Miller v.
California, 413 U.S. 15 (1973), and to one of the elements that
New York used to define material harmful to minors in Ginsberg.
And it is almost identical to the definition of indecency upheld
against a vagueness challenge in Denver Area Educational
Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996).
Those decisions strongly support the conclusion that the CDA's
definition of indecency is not unconstitutionally vague.

The historical meaning of the CDA's indecency definition and the
CDA's legislative history indicate that the kind of graphic
pictures that appear in soft-porn and hard-core porn magazines
almost always would be covered, while material having scientific,
educational, or news value almost always would not be covered.
There may be borderline cases in which it is difficult to
determine on which side of the line particular material falls.
But that does not show that the CDA's definition of indecency is
unconstitutionally vague.

[FULL TEXT:II]

III. Even if the display provision were unconstitutional in some
of its applications, the district court erred in enjoining
enforcement of all three provisions in their entirety. The CDA
is governed by a severability clause that makes clear that any
invalid provision is severable from the rest. The severability
clause also makes clear that if application of particular
provisions is invalid in some respects, the CDA should otherwise
remain intact.

Under the severability clause, any infirmity in the display
provision could not affect the transmission and specific child
provisions. Moreover, even assuming the display provision were
invalid in some of its applications, the district court had no
justification for invalidating the display provision in other
respects -- e.g., as applied to material displayed for commercial
purposes. The constitutionality of that application is not open
to serious question.

Because the CDA's restrictions are all facially constitutional,
and because any infirmity in those provisions could not justify
the district court's sweeping injunction, the district court's
judgment should be reversed.

[FULL TEXT: III]