Text from the ACLU Freedom Page
http://www.aclu.org
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.
JANET RENO, in her official capacity as
ATTORNEY GENERAL OF THE UNITED STATES,
Defendant.
Febuary 8, 1996
PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF A MOTION FOR A
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
INTRODUCTION
The plaintiffs in this First Amendment challenge to the
"Communications Decency Act of 1996" seek emergency relief to
stop the enforcement of provisions of the Act that criminalize
their expression of constitutionally protected information and
ideas over computer communications systems/1. The Act bans all
expression that is "indecent" or "patently offensive" from all
online systems that are accessible to minors. Not only does this
ban unconstitutionally restrict the First Amendment rights of
minors and those who communicate with them about important
issues, but, because of the nature of the online medium, it
essentially bans "indecent" or "patently offensive" speech
entirely, thus impermissibly reducing the adult population to
"only what is fit for children." Butler v. Michigan, 352 U.S.
380, 383 (1957).
The prohibitions are also unconstitutionally vague and overbroad.
The terms "indecency" and "patently offensive" are not further
defined. None of the plaintiffs knows how to define the Act's
terms or how much of their communications are criminal under the
Act. The Act explains neither how to comply, nor which
participants in the distribution of online speech may be held
liable. Further, there are many alternatives already available
for those parents who wish to shield their children from online
communications that they deem inappropriate. Finally, the Act
interferes with the privacy rights of minors, and impermissibly
discriminates against computer communications by imposing
censorship that would not be permitted for the print medium/2.
The plaintiffs are providers and users of online communications
with significant educational, political, medical, artistic,
literary, and social value that deal with issues such as
sexuality, reproduction, human rights, and civil liberties. The
censorship provisions that they challenge threaten not only to
chill these important communications but to dismantle the free
and open nature of a promising new medium that could empower
citizens and promote democracy in the next millennium. The
exponential growth in computer technology, and international
computer networks like the Internet, is transforming the nature
of communication. Computer networks have created new communities
with new opportunities for people with similar interests to
communicate with each other. Computer networks embody the values
that underlie the First Amendment by nurturing the robust
exchange of ideas. By imposing vague and broad-ranging standards
wholly inappropriate for this new medium, the Act would stifle
the creativity and breadth of expression occurring in cyberspace.
This result cannot be reconciled with the First Amendment.
Because plaintiffs and their members and online audiences face
the irreparable loss of First Amendment rights, plaintiffs ask
the Court to enter preliminary relief enjoining the Act's
enforcement.
STATEMENT OF THE CASE
A. The Plaintiffs' Online Speech
Plaintiffs include more than twenty organizations and individuals
who use online computer networks to send, display and view
information. All of the plaintiffs are both online speakers and
online listeners or recipients of information who communicate
through electronic mail ("e-mail"), online discussion groups, and
online databases that can be accessed by millions of other online
users simultaneously. Plaintiffs sue on their own behalf and on
behalf of those who access their online communications.
Plaintiffs who are membership organizations sue on their own
behalf and on behalf of their members who use online
communications.
All of the plaintiffs use online networks to send, display or
view information that could be considered to be "indecent" or
"patently offensive." Some communicate important health-related
information about sex/3. Others communicate important news and
educational information about human rights and civil liberties/4.
Still others communicate material that contains strong language
that many consider unsuitable for minors to read or hear and that
the Federal Communications Commission has found "indecent" in the
broadcast context/5. Notwithstanding the social value of
plaintiffs' speech for both minors and adults, all face possible
prosecution under the Act.
More specifically, plaintiffs include/6:
* American Civil Liberties Union (ACLU): a national
civil rights organization, the ACLU posts online
information that includes the language deemed offensive
in the Supreme Court's 1978 decision in FCC v. Pacifica
, 438 U.S. 726 (1978), and hosts online discussions on
civil liberties issues such as arts censorship,
obscenity and indecency law, discrimination against gay
men and lesbians, and reproductive freedom. The ACLU
also sends and receives information about abortion
through online networks, the mails, telephone and FAX
lines/7.
* Human Rights Watch (HRW): an international human
rights organization, HRW uses computer technology to
communicate around the world with members, interested
persons, and the public. These discussions, and HRW's
published online human rights reports, sometimes
contain graphic language about prostitution, rape and
torture involving sexual mutilation/8.
* Electronic Privacy Information Center (EPIC): a
research organization advocating for free speech and
privacy rights in the online medium, EPIC maintains
extensive online resources that include references to
censored material. For example, EPIC has posted poems
that were written by subscribers of America Online
(AOL) and then removed from AOL on the grounds that
they were "vulgar or [contained] sexually oriented
language."/9
* Electronic Frontier Foundation (EFF): a national
non-partisan organization advocating for civil
liberties in the online medium, EFF maintains extensive
online resources. EFF's electronic resources, like
those of the ACLU and EPIC, include considerable
material about censorship including quotations from
previously censored material/10.
* Journalism Education Association (JEA): a national
organization of high school journalism teachers, JEA
members teach minors how to access information on
computer networks and assist minors with online
research on many subjects, including censorship, gay
and lesbian issues, teenage sexuality, reproduction,
abortion, art, literature, and law/11.
* Computer Professionals for Social Responsibility
(CPSR): a national organization of computer
professionals, CPSR and its members are involved in
every aspect of computer technology. They use the
online medium as a primary method of communication and
also host a number of online discussion groups that
include frank discussions of sex/12.
* National Writers Union (NWU): a national organization
of writers, NWU and its members use computer technology
to communicate with each other often in frank terms and
some of whom post erotic fiction on the networks/13.
* ClariNet: publishers of an electronic newspaper,
ClariNet distributes news articles that sometimes use
frank, strong language, and describe sexual subjects.
ClariNet also publishes a humor newsgroup which posts
jokes, some of which include vulgar language or
sexually explicit material/14.
* Institute for Global Communications (IGC): a national
online service provider, IGC provides Internet web
sites, access to the Internet, and other online
services primarily to nonprofit organizations,
including SIECUS (the Sex Information and Education
Council of the United States), the Family Violence
Prevention Fund, Stop Prisoner Rape, Human Rights
Watch, and Pacifica Radio/15.
* Stop Prisoner Rape (SPR): an organization dedicated
to advocacy to end prison rape, SPR hosts an Internet
site that uses frank street terms to discuss the
problem of rape in the nation's jails, prisons, and
juvenile facilities in order to assist inmates or
former inmates in dealing with the consequences of that
experience/16.
* AIDS Education Global Information System (AEGIS) and
Critical Path AIDS Project (Critical Path):
organizations that offer vital information about AIDS
and HIV, AEGIS and Critical Path often necessarily
contain discussions of sex because HIV/AIDS is a
sexually transmitted disease. In order to ensure that
those accessing the information fully understand
prevention methods, Critical Path and AEGIS discussions
often use street terms for sexual organs and/or acts.
Critical Path also provides access services for
connection to other online networks/17.
* Safer Sex Page: an Internet site that provides safe
sex education materials, Safer Sex Page often uses
frank and explicit language and pictures. Safer Sex
Page also hosts an online discussion group that allows
individuals to discuss sexual subjects relevant to
safer sex(Fn 18).
* BiblioBytes: a publisher of electronic books for sale
over the World Wide Web ("the web"), BiblioBytes offers
romance novels, erotica, classics, adventure, and
horror /19.
* Wildcat Press: a publisher that specializes in
classic gay and lesbian literature, Wildcat Press
advertises its books by publishing excerpts online.
Wildcat also sponsors two online youth magazines that
publish poetry, fiction, essays, fine art and
photography by teenagers, some of which is sexually
explicit/20.
* Queer Resources Directory (QRD): one of the largest
online distributors of gay, lesbian, and bisexual
resources on the Internet, QRD includes some material
about human sexuality that is sexually explicit/21.
* Justice On Campus (JOC): a student-operated Internet
site on free speech, JOC posts and discusses material
that has been censored, particularly material censored
by schools/22.
* Cyberwire Dispatch (CWD): an online editorial column
about telecommunications issues, CWD often uses vulgar
and graphic language to protest censorship. Brock
Meeks, publisher and editor of Cyberwire Dispatch, also
writes for other print and online magazines/23.
* The Ethical Spectacle: an online monthly newspaper,
The Ethical Spectacle discusses ethical issues
including Nazi experimentation and the morality of
pornography. In the course of those discussions, works
that have in the past been censored or considered
pornography are discussed and quoted/24.
* Planned Parenthood Foundation of America (PPFA): the
leading national voluntary health organization in the
field of reproductive health care, PPFA sends and
receives, through online communications, telephone,
FAX, and regular mail, a broad range of information
about abortion/25.
B. The Censorship Provisions of the Act
Plaintiffs principally challenge two sections of the Act. Section
502, amending 47 U.S.C. Section 223(a)(1)(B) (hereinafter Section
223(a)(1)(B) or "the indecency provision"), provides in part that
anyone who, "by means of a telecommunications device," "makes,
creates, or solicits" and "initiates the transmission" of any
material "which is obscene or indecent, knowing that the
recipient of the communication is under 18 years of age," "shall
be criminally fined or imprisoned." Section 502, adding 47 U.S.C.
Section 223(d)(1) (hereinafter Section 223(d)(1) or "the patently
offensive provision"), makes it a crime to use an "interactive
computer service" to "send" or "display in a manner available" to
a person under age 18, any material that
in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs ...
Plaintiffs also challenge Section 223(a)(2) and Section
223(d)(2), which makes it a crime for anyone to "knowingly
permit[] any telecommunications facility under his control to be
used for any activity prohibited" in Sections 223(a)(1)(B) and
223(d)(1).
Finally, plaintiffs challenge 18 U.S.C. Section 1462, as amended
by the Act, which prohibits the sending and receiving of
information by any means regarding "where, how, or of whom, or by
what means" "any drug, medicine, article, or thing designed,
adapted, or intended for producing abortion . . . may be obtained
or made."
C. The Nature of the Online Medium
To understand the urgency of the issues presented by this case,
it is necessary to appreciate the unique nature of the online
medium. Online networks represent a revolutionary synthesis of
several traditional means of communication and places for
communicating and exchanging information -- including the
telephone system, the postal service, a television or radio
broadcast, a newspaper, a library or book store, a fax machine, a
town hall or public park, and a shopping mall. The following
section discusses the ways people communicate over online
networks, the types of online systems and how they operate, and
the distinctions between the online medium and traditional forms
of communication.
1. Types of Online Systems
Although computer communications systems are various and complex,
there are a few basic types and functions that are critical to
understanding why censorship of material that is "indecent" or
"patently offensive" is unnecessary and unconstitutional on these
networks. An estimated 75,000 online systems currently exist,
varying widely in size, subject matter, scope and features. These
systems are accessed with a computer, phone line, and modem.
There is usually a start-up and subscription fee, which varies in
price depending on the size and features of the system.
Subscribers are provided with a user name and a password that
allows them to access the online service. While some users employ
their full proper names as their online user names, others have
online names that are pseudonyms. These users therefore may send,
view, and receive online communications anonymously.
Most online systems offer a package of services that can include
e-mail to transmit private messages to one or a group of users or
to an established mailing list on a particular topic; chat groups
that allow simultaneous online discussions; ongoing discussion
groups; informational databases; and access to the Internet.
Text, audio, and video files can all be exchanged on an online
system if the user has the right computer hardware and software.
Once users obtain online access, they may generally use all of
the services without providing further identification or paying
an additional fee/26.
The quintessential online system is the Internet, the largest
online network in the world. The Internet is an enormous network
that links a large number of smaller networks set up by
universities, industry and government. While estimates are
unreliable due to its astronomical growth, the Internet is
believed to connect at least 59,000 computer networks and 2.2
million computers in 159 countries/27. There are an estimated
20-40 million users of the Internet/28. The Internet grows at a
rate of 10-15 percent per month, and a new online network is
connected to the Internet every 30 minutes/29.
Many Internet users are connected to the service through an
Internet Service Provider (ISP). ISP's provide connection,
software, and tools for using the Internet/30. Larger businesses
and institutions often have a direct connection to the Internet.
Most universities in the United States are now directly connected
to the Internet and provide free accounts on their participating
computers to students, faculty, and staff.
Online users can communicate over the Internet in many different
ways. E-mail is the most basic online communication method; users
are given a personal e-mail address that allows them to exchange
messages or files with anyone else with an Internet e-mail
address. Gopher and the World Wide Web ("the web") are two
popular ways to create and access permanent information
databases, or online sites, established by thousands of
organizations and individuals through the Internet. Both gopher
and the web allow the user to print or download documents from
the Internet/31. The web, the newest Internet tool, provides
thousands of sites that contain menus, text, and graphics. Most
sites allow users to link instantly to other documents and web
sites by clicking on highlighted words in the text of the
document being viewed.
The Internet and other online services also provide access to
"online discussion groups," which are set up by particular
computer networks connected to the Internet. The host of the
discussion group sets up a section on the network that is devoted
to the discussion of a particular issue (akin to a public
bulletin board), and any other online user with access to the
host network can post messages on the topic by sending an e-mail
message to the discussion group. Users can also post reponses to
particular messages/32. Plaintiffs host online discussion groups
on topics such as AIDS education; safer sex practices; and
university censorship/33.
Online users can also communicate using "chat rooms," which are
usually dedicated to a particular topic and allow users to engage
in simultaneous live interactive discussion (similar to a
multi-party phone call). Like online discussion groups, chat
rooms are usually hosted by particular networks that are
connected to the Internet/34.
Software is also available that allows any online user to
establish an "online mailing list" for a particular topic or
purpose. Other online users "subscribe" to online mailing lists
by sending messages from their own e-mail addresses. Any
subscriber can then send a message that is distributed to all of
the other subscribers on the list/35.
There are a number of methods available for searching for
information on the web. These methods, often called "search
engines," allow an online user to insert a string of words and
simultaneously search the thousands of databases on the web for
information on a particular subject/36. While users may tailor
their searches to exclude some extraneous information, it is not
possible to screen all unrelated information from appearing in
the search results. The search results provide users with a
citation list of sites on the subject searched, and the user then
chooses which of those sites to access/37.
The summary above provides only a cursory overview of a very
complex and promising new communications medium/38. All online
systems, though, have two important features in common:
users must seek out with specificity the information they wish to
retrieve and the kinds of communications in which they wish to
engage.
online systems provide users with a multitude of options for
controlling and limiting, if desired, the kinds of information
they access through the networks.
2. Who Runs Cyberspace
Nobody owns cyberspace, and the ability of anyone to control what
goes into or through online networks varies widely depending on
the nature of the system. Many aspects of online networks and
sites run automatically without the active involvement of the
host. For example, online system software automatically answers
the telephone when a user attempts to log on, verifies passwords,
connects the user to the system, allows users to exchange
messages, downloads and uploads files when requested by users and
disconnects the user when the user logs off the system.
Large online services like America Online and Prodigy create
their own content files and also negotiate with other information
providers to post content on their systems. Some of these online
services review the content from outside information providers
before it is posted/39. However, in contrast to the control and
review of information they create themselves or received from
third parties, these systems have little prior control over the
content of subscribers' e-mail or the speech that takes place in
their simultaneous chat rooms. In addition, it is impossible to
monitor access to other networks and sites through the host
network. For example, Plaintiff ACLU's web site provides a "link"
to Plaintiff EFF's web site, but Plaintiff ACLU has no power to
monitor EFF's web site communications/40.
There are other gatekeepers in cyberspace known as moderators.
Online mailing lists, online discussion groups and chat rooms on
a particular subject are often "moderated." Some moderators are
employed by universities or companies that set up the list or
newsgroup, but the overwhelming number are people who volunteer
to serve as moderator because they are interested in the topic.
These moderators review incoming messages before they are posted
to a public site or sent to a mailing list to determine whether
the message is related to the subject matter or conforms to other
standards set up by the discussion group. For example, Plaintiff
Safer Sex Web Page hosts an online discussion group about safe
sex, but the creator of the web page reviews messages posted by
others before he posts them to the public discussion group in
order to screen out messages that do not relate to the topic/41.
Given the lack of centralized Internet gatekeepers and the huge
flow of online information, moderators play a valuable role in
focusing online discussion and eliminating superfluous messages.
3. How Cyberspace Differs From Other Media
Users of online networks are producers as well as consumers of
information. Perhaps the most revolutionary aspect of cyberspace
is its ability to turn the passive consumer into a mass producer
of information. Online users, through services like e-mail,
online discussion groups, or the web, can publish or post
information to other users -- or to the entire Internet -- and
then use the same services to read or receive information. In
fact, online networks make no distinction between information
providers and information users, and "most users play both roles
from time to time./42" Unlike radio or television networks, in
which spectrum scarcity limits the number of potential
information producers, an online network can accommodate a
virtually unlimited number of both users and producers of
information/43.
Cyberspace is also more decentralized than any other
communications medium. It is comprised of thousands of individual
computers and computer networks, with thousands of individual
speakers, information providers, and information users, and no
centralized distribution point. Access to start-up technology,
content production, and connectivity are all decentralized in
cyberspace. Anyone can purchase the necessary equipment to get
online or to create a web site from her home computer. Once a
person becomes connected to global networks like the Internet,
there are no central gatekeepers who determine where that person
can travel in cyberspace. Many commentators have noted that the
decentralized nature of cyberspace is what has made the medium
flourish/44. It also makes cyberspace fundamentally different
from the broadcast medium/45.
Attempts to control content in cyberspace affect not just a few
distributors and producers, but the millions of US citizens and
international users who speak daily online/46. The effect of
censorship is thus much broader than on radio and television,
which have a limited and identifiable number of producers; it is
even broader than print because information travels
instantaneously across national boundaries. Congress has
conducted no study to determine how the Act's censorship
provisions would affect the interactive environment, or indeed,
whether they would be effective in keeping ostensibly harmful
materials from children.
Cyberspace also differs from print, television or radio because
it is "interactive." Other, traditional media are one-way
communications systems with no opportunity for input from the
user. Online communications, by contrast, allow users to shift
fluidly from the position of listener to that of speaker, and
from the role of consumer to that of information provider.
Moreover, unlike the traditional phone or fax, cyberspace
communications can be more than just two-way. There is no limit
to the number of people on either side of the sending or
receiving end of the communication.
Also unlike traditional media, cyberspace contains various types
of interactive communications. Online users can exchange e-mail
to one or a specified group of other users; engage in an ongoing
exchange of postings on a particular subject through online
discussion groups; talk simultaneously with others in an online
chat group; or retrieve documents from web sites.
Online media thus "offer users tremendous control over the
information that they and their children receive. Unlike
traditional mass media which 'assaults' viewers with content,
interactive media requires users to seek out information from any
number of the millions of available [online sites]./47" Viewing
messages or files in cyberspace does not happen automatically.
Each participant in this form of communication chooses not only
whether, when and where to participate, but also whether to send
or receive information at any specific time; at what rate writing
and reading (sending and receiving) will occur; and what topic
this communication will concern. Thus, in contrast to television
or radio, it is very difficult to be "assaulted" with images
online. There is little risk of accidental exposure to
established online files, because an online user sees a subject
line or headline describing the content before it is viewed, and
actively chooses what she wishes to see or hear in cyberspace.
Computer communications and online communities also differ from
other media in their global reach. The Internet is accessible
from a growing number of countries around the world/48. Once
information is posted to an international online network like the
Internet, it is not possible to allow only residents of a
particular country to download that information; the information
becomes available to anyone in the world who can access the
Internet. Similarly, it is impossible to prevent persons in other
countries from posting information to international online
networks. There is currently no technological method for
determining with specificity the geographic location from which
users access or post to online systems.
Finally, unlike other media, online systems offer both "public"
and "private" spaces for communication. E-mail and online mailing
lists are private. Web sites, online discussion groups and chat
rooms are "public" in the sense that any Internet subscriber can
access them, but they are not akin to a town hall or public park
because it is impossible to identify the physical characteristics
of other online users. This fact is particularly relevant to
legislation targeting minors. In public parks and other public
spaces in the geographical world, adults can easily determine
whether children are present, and may decide to alter their
speech and conduct accordingly. On the Internet, as it currently
functions, it is impossible to determine whether a child or
teenager is participating in a chat room or whether a minor is
accessing a public space on the network. Thus, any regulations
governing communications to minors inevitably affects
communications among adults.
4. Screening and Filtering Devices Available to Control Content
As described above, the very nature of the online medium puts
control of information and content in the hands of the users. In
addition, there are an increasing number of devices that assist
users in screening and blocking access to certain kinds of
information. Almost all online information has a headline or
subject line that tells the online user what will be viewed if
the user chooses to access the information. Online users can
simply choose not to view or download information if the headline
relates to information the user finds objectionable. There are
also methods that allow users to block out all incoming messages
from a particular person (for example, an harassing e-mailer), or
messages related to particular subject matter in Usenet
newsgroups or mailing lists/49.
In addition, some online services offer filtering and screening
devices specifically designed for parents, and industry continues
to develop software programs for the specific purpose of
assisting online users in controlling the information they
receive through their systems. Currently, there are four general
categories of technological options, each providing "a slightly
different, but equally effective, point of intervention."/50
First, commercial online services like America Online, Prodigy,
and Compuserve provide optional features to prevent children from
accessing simultaneous chat rooms and to block access to Usenet
newsgroups based on keywords, subject matter, or specific
newsgroup. They also offer screening software that automatically
blocks messages that contain language such as the "seven dirty
words," and tracking and monitoring software so that parents can
see which sites their children have accessed. In addition, there
are "kids-only" discussion groups that are closely monitored by
adults. Finally, these services offer telephone help and detailed
instructions for parents/51.
Parents who subscribe to the Internet through an ISP can also
purchase software applications to control access to content/52.
"SurfWatch" software allows parents to block access to Usenet
groups and Internet sites which are known to contain sexually
explicit material. SurfWatch employs a group of professional
"net.surfers" who monitor the Internet for new sites; these
findings are then reviewed by a group of parents and educators,
and the list is automatically updated on the home computer. "NET
NANNY" allows parents to block any areas on the Internet that the
parent deems appropriate, to prevent children from giving
personal information to strangers by e-mail or in chat rooms, and
to keep a log of all online activity that occurs on the home
computer. "CYBERsitter" allows parents to monitor their
children's computer activity and can prevent children from
downloading specified files/53.
Other available software caters to schools and businesses that
provide access to the Internet. Products such as the "Netscape
Proxy Server" and "WEBTrack" allow schools and businesses to
block specific sites from access by all users on the network, and
to track and monitor Internet use. WEBTrack is providing its
software free to all K-12 schools/54.
These products are only some of the currently available ways that
parents can control their children's access to the Internet and
other online services. New products are constantly being
developed. About two dozen online companies have formed a
coalition entitled the Platform for Internet Content Selection
(PICS) to develop technical standards to enable voluntary rating
of a variety of online content. The standards would enable
content creators voluntarily to label their own content so that
individuals and families could block material, if they chose. The
group will also create standards to allow multiple third-party
rating of online content/55.
These programs are not foolproof. New online sites are created
daily and no software can guarantee that it will block access to
every site that discusses sex or uses "vulgar" words. However,
the various blocking mechanisms are much more effective than a
government ban in keeping minors away from material that their
parents and teachers deem inappropriate. Particularly given the
inability of any government to ban material posted outside its
borders, blocking mechanisms are a more effective alternative
than censorship.
ARGUMENT
Plaintiffs more than satisy the requirements for preliminary
injunctive relef. In order for this Court to grant a Temporary
Restraining Order and Preliminary Injunction pursuant to Rule 65,
Federal Rules of Civil Procedure, plaintiffs must establish: (a)
that they are likely to prevail on the merits; (b) that they will
suffer irreparable harm if injunctive relief is not granted; (c)
that potential harm to the defendants from issuance of a
temporary restraining order does not outweigh possible harm to
the plaintiffs if such relief is denied; and (d) that the
granting of injunctive relief would not be against the public
interest. See In re Arthur Trecher's Franchise Litigation, 689
F.2d 1137, 1143 (3d Cir. 1982); Constructors Association of
Western Pennsylvania v. Kreps, 573 F.2d 811, 814-15 (3d Cir.
1978).
A. Plaintiffs, Their Members, and Audiences Will Suffer
Irreparable Harm if Preliminary Relief is not Granted
Plaintiffs have no adequate remedy at law for deprivation of the
constitutional right of free expression. As the Supreme Court
ruled in Elrod v. Burns, 427 U.S. 347, 373-74 (1976), "The loss
of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Plaintiffs all
use the online medium to communicate information that fits within
the broad definitions of "indecent" and "patently offensive," and
the statute's vague and overbroad terms will force some
plaintiffs to self-censor/56. Others, who either choose not to
self-censor or are unable to apply the statute's vague and
overbroad terms, will face the risk of criminal prosecution if
the Act is not temporarily enjoined/57.
In addition, many of the plaintiffs rely on online providers and
other carriers to distribute their online information. If the
statute is not temporarily enjoined, these providers will likely
ban communications that they consider potentially "indecent" or
"patently offensive" in order to avoid criminal prosecution
themselves/58. By doing so, they would deprive the plaintiffs,
their members, and those who use their online resources of the
ability to communicate about important issues.
B. Plaintiffs Have a Substantial Likelihood of Success on the
Merits
1. The Act Violates The First Amendment Because It Criminalizes
Constitutionally Protected Expression
The "indecency" and "patently offensive" standards in Sections
223(a)(1)(B) and 223(d) are unconstitutional because they
criminalize constitutionally protected expression/59. As noted,
§223(a)(1)(B) criminalizes "mak[ing], creat[ing], or
solicit[ing]" and "transmi[tting]" any communication "which is
obscene or indecent, knowing that the recipient of the
communication is under 18 years of age." Section 223(d)(1) makes
it a crime to use an "interactive computer service" to "send" or
"display in a manner available" to a person under age 18, any
communication that in context, depicts or describes, in terms
patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs . . . . in
context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs . . . .
Yet "indecency" (unlike obscenity) is constitutionally protected
speech that often has substantial social value. Sable Comm. v.
FCC, 492 U.S. 115, 126 (1989).
Subject only to "narrow and well-understood exceptions, [the
First Amendment] does not countenance governmental control over
the content of messages expressed by private individuals." Turner
Broadcasting System v. FCC, 114 S. Ct. 2445, 2458-59 (1994)
(citing R.A.V. v. St. Paul, 112 S. Ct. 2538, 2547 (1992); Texas
v. Johnson, 491 U.S. 397, 414 (1989)). The "indecency" and
"patently offensive" provisions of Sections 223(a)(1)(B) and
223(d) are unquestionably content-based bans, and thus are
presumptively unconstitutional. Content-based regulations of
speech will be upheld only when they are justified by
"compelling" governmental interests and "narrowly tailored" to
effectuate those interests. See Turner Broadcasting System, 114
S. Ct. at 2445; Simon & Schuster, Inc. v. New York State Crimes
Victims Bd., 502 U.S. 105 (1991); Sable Comm. v. FCC, 492 U.S.
115, 126 (1989); Fabulous Assoc., Inc. v. Pennsylvania Pub. Util.
Comm., 896 F.2d 780, 784 (1990). The Supreme Court has applied
strict scrutiny to content-based regulations because "[a]t the
heart of the First Amendment lies the principle that each person
should decide for him or herself the ideas and beliefs deserving
of expression, consideration, and adherence." Turner Broadcasting
System, 114 S. Ct. at 2458. The censorship provisions of the Act
fail this strict scrutiny test.
First, there is simply no evidence of a "compelling government
interest" in protecting minors from a vague category of
"indecent" or "patently offensive" material in the online medium.
When First Amendment rights are at stake, courts cannot defer to
a legislative judgment but must make an independent inquiry to
assess whether the record supports the government's interests.
Sable, 492 U.S. at 129; Landmark Comm., Inc. v. Virginia, 435
U.S. 829, 843 (1978); Turner Broadcasting System, 114 S. Ct. at
2471. The Court has found this "particularly true where the
Legislature has concluded" that the statute "does not violate the
First Amendment." Sable, 492 U.S. at 129. The chief proponent in
the Senate of the online indecency legislation described its
purpose by waving around a "blue book" of images and declaring
that children must be protected from such images/60. Most of
these images were of hard-core pornography or child pornography,
both of which are currently subject to criminal prosecution under
existing federal law/61. While courts have found "a compelling
interest in protecting the physical and psychological well-being
of minors," Sable, 492 U.S. at 126; FCC v. Pacifica Foundation,
438 U.S. 726, 749 (1978); Ginsberg v. New York, 390 U.S. 629, 640
(1968), to discuss that interest in the abstract "is not to
scrutinize the Government's assertions as applied to this case."
ACT III, 58 F.3d at 678 (Edwards, C.J., dissenting). Even
assuming that the images circulated among Congressmen as a
justification for the Communications Decency Act were not already
illegal under existing obscenity and child pornography laws,
Congress provided not one iota of evidence that minors are
actually harmed by exposure to communications deemed by some
government agent to be "indecent" or "patently offensive."/62
Unlike Ginsberg, 390 U.S. at 639, which targeted speech that was
obscene under a variable obscenity test applied to minors, and
that therefore lacked any serious value, the Act targets any
reference to sexual activity or body parts that is considered
"offensive," even if the ideas or information in question
undeniably has serious literary, artistic, scientific, or
eduational value. Offensiveness is surely not a proxy for
harm/63. The Act thus bans much material that is unquestionably
valuable rather than harmful to older minors, including
information on safe sex practices, human rights abuses, and civil
liberties issues/64.
The Supreme Court has stated, "It is cardinal with us that the
custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder."
Ginsberg, 390 U.S. at 639 (quoting Prince v. Massachusetts, 321
U.S. 158, 166 (1944)). Yet rather than facilitate parents'
supervision over what material their children should view, the
Act establishes the Government as final arbiter. A far cry from
gentle government assistance to parents, the Act actually puts
parents at risk of criminal prosecution if they choose to expose
their children to material deemed "indecent" or "patently
offensive" by a government officer. In fact, the inquiry-driven
nature of online communications may put parents and teachers at
risk of prosecution if they simply allow children to use online
communications, since any online use by a minor could result in
the "transmission" or "display" of "indecent" or "patently
offensive" material.
The statute fails the second prong of the strict scrutiny test as
well. That is, even if the government could establish a
compelling interest in protecting minors from "indecent" or
"patently offensive" material in cyberspace, the government
cannot show that a total ban on indecency is a "narrowly
tailored" way to achieve that interest. Indeed, the Congressal
Record shows no consideration of alternative ways to restrict
children's access to indecent materials, although alternatives
clearly exist/65. This failure to examine itself makes the
statute constitutionally infirm. How can the Government argue
that a ban on indecency is the "least restrictive means" without
ever having examined other means? In Sable, the Supreme Court
struck down a content-based statute banning "indecent" commercial
telephone messages on the ground that "the congressional record
contains no legislative findings that would justify us in
concluding that there is no constitutionally acceptable less
restrictive means, short of a total ban, to achieve the
Government's interest in protecting minors." 492 U.S. at 29; see
also id. at 131 (Scalia, J., concurring) (available technological
alternatives render statute invalid, even though some children
"would manage to secure access")/66.
Had Congress bothered to hold hearings on various ways to
restrict minors' access to communications with sexual content or
vulgar words, it would have learned of a myriad of ways in which
all online users, including parents, can control the information
they receive/67. While not failproof, these methods put
responsibility for making choices about minors' access to
sexually explicit material "where our society has traditionally
placed it -- on the shoulders of the parent." Fabulous Assoc.,
Inc., 896 F.2d at 788 (citing Bolger, 462 U.S. at 73-74).
In fact, because of the nature of the online medium, even a total
ban will be ineffective at ridding online networks of "indecent"
or "patently offensive" material. See TBS, 114 S. Ct. at 2470
(regulation must "in fact alleviate the . . . alleged harms in a
direct and material way.") (citing Edenfield v. Fane, 113 S. Ct.
1792, 1798-1800 (1993) (emphasis added). Unlike broadcasting,
where the vast majority of Americans receive radio and television
only from broadcasts within the United States, cyberspace is a
global medium. Anyone in the world who has access to an online
network can post information that can be viewed by anyone else in
the world with access to the same network. While the jurisdiction
and practical ability of the U.S. Justice Deparment to enforce
this law outside the United States is an open question, in fact
online users and content providers in other countries may not
even know of the law and are unlikely to follow it in any event.
Therefore, it is highly unlikely that online users, information
providers and access providers based in other countries will
"purge" their systems of material that could be "indecent" or
"patently offensive" in the United States. Censorship by any
government (including the United States) is simply not an
effective way to eliminate "indecent" or "patently offensive"
communications from online services because these services
transcend national boundaries. Technologies that allow online
users to control the material from the receiving end are a much
more effective way to shield minors from allegedly harmful
material than any attempt to ban expression from the distribution
end.
In Fabulous Assoc., Inc., the Third Circuit held that requiring
adults to obtain an advance identification code in order to
obtain access to sexually explicit phone messages failed the
least restrictive means test and thus violated the First
Amendment. 896 F.2d at 788. As discussed above, in cyberspace,
screening and identification methods are not technically or
economically feasible, are ineffective, and result in an
effective total ban of "indecent" speech. The "indecency"
provisions of the Act are clearly even more restrictive than
those held unconstitutional in Fabulous Assoc., Inc./68
The statute is thus clearly not the least restrictive means for
controlling minors' access to objectionable material. The
rationale that led the Supreme Court to uphold time channeling
(not a total ban) of "indecent" language in broadcast, Pacifica,
438 U.S. 726 (1978), does not apply in cyberspace/69. Recently,
the Supreme Court emphasized the narrowness of the Pacifica
holding when it said, "the rationale for applying a less rigorous
standard of First Amendment scrutiny to broadcast regulation" --
"the unique physical limitations of the broadcast medium" --
"does not apply in the context of cable regulation." Turner
Broadcasting System, 114 S. Ct. at 2456; see also Sable, 492 U.S.
at 127; Bolger v. Youngs Drug Prods., 463 U.S. 60, 74 (1983);
Fabulous Assoc., Inc., 896 F.2d at 794; (Pacifica an
"emphatically narrow" holding). Just as the Supreme Court
clarified in Turner Broadcasting System for the cable medium,
"[t]he broadcast cases are inapposite" in the cyberspace medium
because cyberspace "does not suffer from the inherent limitations
that characterize the broadcast medium." 114 S. Ct. at 2456. The
Supreme Court has emphasized many times that its "decisions have
recognized that the special interest of the Federal Government in
regulation of the broadcast media does not readily translate into
a justification for regulation of other means of communication."
Youngs, 463 U.S. at 74; Turner Broadcasting System, 114 S. Ct. at
2456.
2. The Act Is Unconstitutionally Vague
a. "Indecency" and "Patent Offensiveness"
Vague laws violate two fundamental principles of due process: (1)
they leave the public guessing as to what actions are proscribed;
and (2) they invite arbitrary and discriminatory enforcement by
giving unbridled discretion to law enforcement officers. Grayned
v. City of Rockford, 408 U.S. 104, 108-09 (1972); Connally v.
General Construction Co., 269 U.S. 385, 391 (1926). Vagueness is
a particular problem where laws regulate expression; and,
accordingly, the Supreme Court has ruled that perhaps the most
important factor affecting the clarity that the Constitution
demands of a law is whether it threatens to inhibit the exercise
of constitutionally protected rights. If, for example, the law
interferes with the right of free speech or association, a more
stringent vagueness test should apply.
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 499 (1982)/70. In short, "[p]recision of regulation
... must be the touchstone" where free expression is concerned.
NAACP v. Button, 371 U.S. 415, 438 (1963). Such exactitude is
necessary since "[u]ncertain meanings" inevitably lead citizens
to "'steer far wider of the unlawful zone' . . . than if the
boundaries of the forbidden areas were clearly marked.'" Baggett
v. Bullitt, 377 U.S. 360, 372 (1964) (quoting Speiser v. Randall,
357 U.S. 513, 526 (1958)).
The "indecency" and "patently offensive" standards violate both
objectives of the vagueness doctrine and fail to meet the
stringent constitutional test for laws regulating speech. Both
standards are so vague that a "person of ordinary intelligence"
could not possibly "know what is prohibited." Grayned, 408 U.S.
at 108; Smith v. Goguen, 415 U.S. at 572. "Indecency" itself is a
completely imprecise term -- wholly subjective and dependent on
individual values and attitudes that no person engaged in speech
can be expected to anticipate/71. Any one person's notion of
"indecency" will be influenced by such factors as his or her age,
occupation, race, level of education, socioeconomic status,
geographic location, personal interests and politics. Rock or
country music fans are likely to have very different ideas on the
subject from conservative ministers; a New York sophisticate's
notions will contrast dramatically with those of many rural
residents; artists, students, intellectuals, and political
leaders are also likely to have different definitions/72.
Some courts have resolved challenges to the vagueness of the term
"indecent" or "patently offensive" by construing it to mean
"obscene." See, e.g., Hamling v. United States, 418 U.S. 87
(1974)/73. Such a saving construction is not possible in this
case because Congress plainly intended to suppress more than
"obscene" communications. Its deliberate use of the FCC's
"indecency" definition and the legislative history citations to
FCC v. Pacifica, 438 U.S. 726 (1978), demonstrate that Congress
intended to expand the narrow plurality decision in Pacifica,
explicitly limited to time-channeling and to the broadcast
medium, to a total ban on "indecency" throughout cyberspace. 142
Cong. Rec. At H1128-29 (Jan. 31, 1996). In fact, the "patently
offensive" language of Section 223(d) shows that Congress, like
the FCC in Pacifica, intended to use only one part of the
three-part test for obscenity, set out in Miller v. California,
413 U.S. 15, 24 (1973), thus banning communications that lack
prurient appeal and that have serious literary, artistic,
political, or scientific value.
Defining "indecency" as material that is "patently offensive as
measured by contemporary community standards" does little to
resolve the vagueness problem. First, what is "patently
offensive" is purely a matter of personal taste. As Justice
Harlan succinctly put it, "one man's vulgarity is another's
lyric." Cohen v. California, 403 U.S. 15, 25 (1971). Second, the
addition of "contemporary community standards" does nothing to
solve the vagueness problem. Just as nobody can predict what a
particular individual, organization, government agency, judge, or
prosecutor will consider "indecent," so no one can predict what
the varied and multifarious elements in our society might
consider "patently offensive as measured by contemporary
community standards."
Nor does the ban's confinement to "sexual or excretory activities
or organs" resolve the vagueness problem. The Supreme Court has
recognized that sex is "a great and mysterious motive force in
human life," and thus "one of the vital problems of human
interest and public concern." Roth v. United States, 354 U.S.
476, 487 (1957). Most speech about "sexual ... activities or
organs" is therefore entitled to full constitutional protection,
see, e.g., Sable, 492 U.S. at 126 (1989); it is only "hardcore
pornography" that lacks any serious literary, artistic,
political, or scientific value that may be outside the First
Amendment's umbrella. Miller v. California, 413 U.S. 15, 24, 27
(1973)/74. Since most communications on the subject of human
sexuality are constitutionally protected, and the Act seeks to
ban such communications only if they are "patently offensive"
according to "community standards," it is these latter completely
vague terms that are pivotal.
While much sex-related speech was considered taboo in the past,
contemporary America absorbs a great deal of such speech through
mainstream culture. For example, birth control, masturbation, and
orgasm are discussed on popular prime time television shows such
as "Seinfeld," "Roseanne," "Married with Children," and "Mad
About You;" "excretory functions" are a popular source of humor
on the animated show "The Simpsons," watched by children and
adults. Sexually explicit literature such as Philip Roth's
Sabbath's Theatre, winner of last year's National Book Award, are
on best-seller lists and available through numerous bookstores
and libraries. World-renowned museums such the Museum of Modern
Art in New York and the Walker Art Center in Minneapolis exhibit
the art of Robert Mapplethorpe and Andres Serrano. Broadway
musicals and plays such as "Love, Valour, & Compassion" and "Oh!
Calcutta" with all-nude scenes win theater awards and are
attended by hundreds of thousands of people. Given the
availability and consumption through mainstream print, broadcast,
and live performance of art and information about sexuality by
both adults and older minors, it is more impossible than ever for
anyone to judge what material would constitute a non-obscene but
"patently offensive" description or depiction of "sexual or
excretory activities or organs." Thus, the fact that the only
"patently offensive" expression barred by §223(d)(1) deals with
sex, excretion, or body parts does nothing to alleviate the
imprecision of the operative terms: "patently offensive as
measured by contemporary community standards."/75
Both the "indecency" and the "patently offensive" standard also
violate the second prong of the constitutional vagueness doctrine
because they give unbridled discretion to prosecutors and invite
the worst type of arbitrary and viewpoint-discriminatory
censorship actions. See Forsyth County v. The Nationalist
Movement, 505 U.S. 123, 132 (1992); City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750, 757-58 (1988). The arbitrary
effect of applying such terms to online speech has already been
experienced by some of the plaintiffs when their online providers
have attempted to screen "vulgar" or "offensive speech." The host
of plaintiff ACLU's web site has expressed the possible need to
remove certain explicit information from the ACLU site/76.
Plaintiff Clarinet had its entire set of newsgroups about sexual
subjects (covering news stories about anti-abortion activists,
gay rights, and information) blocked by certain online providers
who feared liability under German law for sex-related speech/77.
For prosecutors to be allowed to prosecute persons or
organizations using such vague standards is to invite the most
serious kind of constitutional harm. As Justice Harlan said in
Cohen, 403 U.S. at 25, "it is largely because governmental
officials cannot make principled distinctions in this area that
the Constitution leaves matters of taste and style so largely to
the individual."
Subjective standards for speech are not cured by a government's
interest in protecting children from exposure to harmful
material. As the Supreme Court said in Interstate Circuit v.
Dallas, 390 U.S. 676 (1968):
The permissible extent of vagueness is not directly proportional
to, or a function of, the extent of the power to regulate or
control expression with respect to children. . . . "It is . . .
essential that legislation aimed at protecting children from
allegedly harmful expression -- no less than legislation enacted
with respect to adults -- be clearly drawn and that the standards
adopted be reasonably precise so that those who are governed by
the law and those that administer it will understand its meaning
and application."
Id. at 689 (quoting People v. Kahan, 15 N.Y.2d 311, 313 (1965)
(Fuld, C.J., concurring).
The Supreme Court's 1978 plurality decision in FCC v. Pacifica
Foundation, 438 U.S. 726, does not salvage the vagueness of such
terms as "indecency" or "patently offensive." Pacifica narrowly
upheld the application of an earlier version of the FCC's
"indecency" test -- confined to the time channeling of programs
using specific vulgar words -- to a comic monologue that involved
repetitive, "shock value" use of common vulgar words/78. Without
addressing the inherent vagueness of an "indecency" definition
that turned on such ineffable concepts as "patent offensiveness"
and "community standards" -- indeed, without addressing the
facial constitutionality of the FCC's definition at all/79 -- the
Pacifica plurality narrowly held that it did not violate the
First Amendment for the agency to prohibit a radio station from
broadcasting the repetitive use of these particular words during
hours when children were most likely to be in the listening
audience. Id. at 750. Because the Pacifica decision was narrowly
limited to its facts,/80 involved only time-channeling, and
rested on the "`unique' attributes of broadcasting," Sable, 492
U.S. at 127, Bolger, 463 U.S. at 74, it does not foreclose a
vagueness challenge to the "indecency" and "patently offensive"
provisions of Sections 223(a)(1)(B) and 223(d)(1)/81.
The Supreme Court is scheduled on February 21, 1996 to hear oral
argument in Alliance for Community Media v. FCC, 56 F.3d 105
(D.C. Cir. 1995), a case challenging "indecency" regulations for
cable television. The Supreme Court may decide a vagueness
challenge to the "indecency" regulations in that case. Meanwhile,
a stay is in effect preventing application of the "indecency"
regulations to cable television. Certainly, this Court should
stay application of vague "indecency" bans to all of cyberspace
at the very least until a decision in Alliance.
b. The Vagueness of the Liability Provisions
The Act puts access providers like plaintiffs IGC, AEGIS, and
Critical Path AIDS Project at risk of criminal prosecution simply
for allowing users to access their online systems, regardless of
whether they produced the content of the material that is
"indecent" or "patently offensive." Sections 223(a)(1)(B) and
223(d)(1) contain no specific intent clause. Any access provider
that provides general access to a variety of online information
databases, online discussion groups, and chat rooms "knows" that
"indecent" or "patently offensive" information could be
"displayed" to a minor if a minor gains access through its
system. The only sure way to comply with the statute would be to
provide accounts only to adults, or to provide two separate
networks -- one for adults, and one for minors -- which would be
econimically infeasible and would impermissibly restrict the
First Amendment rights of minors to engage in online
communication.
The defense set out in Section 223(e) exacerbates the uncertainty
of the liability provisions. Section 223(e) provides:
(1) No person shall be held to have violated subsection (a) or
(d) solely for providing access or connection to or from a
facility, system, or network not under that person's control,
including transmission, downloading, intermediate storage, access
software, or other related capabilities that are incidental to
providing such access or connection that does not include the
creation of the content of the communication.
Because even access providers who do not themselves create the
content of communications on their systems can technologically
exercise "control" over the communications for which they are
conduits, it is far from clear that this defense relieves access
providers of liability.
The Act also puts information providers at risk for content
posted by others on their sites. Many of the plaintiffs sponsor
online discussion groups and chat rooms in which they allow
online users to post messages on a particular topic or to discuss
a topic simultaneously with other online users/82. While these
plaintiffs do not themselves create the posted messages, their
online resources are used to "display" or "initiate the
transmission" of the messages, and thus they could be held liable
if someone posted an "indecent" or "patently offensive" message
and a minor gained access to the message through their sites.
3. The Act is Substantially Overbroad
a. The Act Bans Speech That Is Constitutionally Protected for
Minors
The constitutional infirmity of overbroad legislation "is that it
sweeps protected activity within its proscription." M.S. News Co.
v. Casado, 721 F.2d 1281, 1287 (10th Cir. 1983) (citing Erznoznik
v. City of Jacksonville, 422 U.S. 205, 212-13 (1975); Grayned v.
City of Rockford, 408 U.S. 104, 114 (1972)); See also NYS Club
Ass'n v. City of New York, 487 U.S. 1 (1988); Maryland v. Munson,
467 U.S. 947 (1984); Broadrick v. Oklahoma, 413 U.S. 601 (1973).
Sections 223(a)(1)(B) and 223(d) are overbroad because they ban
much expression that is protected even for minors. The Supreme
Court has ruled in many contexts that the First Amendment
protects minors as well as adults; and that minors have the
constitutional right to speak and to receive the information and
ideas necessary for their intellectual development and their
participation as citizens in a democracy,/83 including
information about reproduction and sexuality, Carey v. Population
Serv., Int'l , 431 U.S. 678, 693 (1977). With only narrow
exceptions, therefore, it is unconstitutional for the government
to restrict minors' participation in the marketplace of ideas.
The statute impermissibly burdens minors' First Amendment rights
in two ways. First, the Act could result in the outright
exclusion of minors from many of the vast public spaces in the
online medium that are currently accessible to both minors and
adults. Most information providers and other online users do not
currently know whether they are communicating with a minor. Thus,
there is no way to ensure that they could not be held criminally
liable for "transmi[tting]," §223(a)(1)(B), or "displaying,"
Section 223(d) to minors "indecent" or "patently offensive"
material. Minors would have to be completely excluded from online
public spaces to ensure that adult users and information
providers could post material they are constitutionally entitled
to post. (This would also require an identification scheme that
in the online medium is both technically and economically
infeasible, and would impermissibly burden adult access.) While
minors could access online public spaces that had been cleared of
all "patently offensive" or "indecent" speech, most information
providers, including the plaintiffs in this case, do not have the
resources to create two versions of their online communications
-- one for adults, and one for minors/84.
Second, the statute impermissibly burdens minors' First Amendment
right to ideas and information about sexuality, reproduction, and
the human body -- subjects of interest not only to humanity
generally, but of special interest to maturing adolescents. While
there are limited exceptions to minors' First Amendment rights to
sex-related materials, those exceptions to not apply to the Act's
vague and overbroad speech ban. One such exception is obscenity,
a category of expression which the Court has ruled does not merit
First Amendment protection because it is "no essential part of
the exposition of ideas" and is "utterly without redeeming social
importance." Roth v. United States, 354 U.S. at 484-485. In
Ginsberg v. New York, 390 U.S. 629 (1968), the Court held that a
state could ban the dissemination to minors of materials not
obscene when distributed to adults, but only if the material met
an adjusted three-pronged "obscene" or "harmful to minors"
test/85. Thus, states may only prohibit the dissemination to
minors of material that lacks serious value for them, appeals to
their shameful or morbid (not healthy) interest in sex, and
contains depictions or descriptions of specified sexual
activities that a local community would consider patently
offensive for minors/86. And in upholding "harmful to minors"
laws as constitutional, some courts have been careful to consider
the First Amendment rights of older adolescents and have
construed such laws to prohibit only that material that would
lack serious value for a 17 year-old. American Booksellers Assoc.
v. Webb, 919 F.2d 1493, 1504 (11th Cir. 1990); American
Booksellers Assoc. v. Virginia, 882 F.2d 125 (4th Cir. 1989)/87.
The statute deliberately encompasses a vast amount of valuable
material that falls outside the Ginsberg "harmful to minors" test
-- material that has serious value to minors and that appeals
only to a healthy interest (or no interest) in sexuality. It is
therefore unconstitutionally overbroad because it criminalizes
speech and information that minors have a First Amendment right
to engage in and receive, including the information provided by
plaintiffs in this case. Plaintiff ACLU, EPIC, and EFF believe
that it is important for minors to be able to access their online
educational materials about civil liberties issues so that they
can recognize when their rights are being infringed/88.
Plaintiffs Journalism Education Association, AEGIS, Critical Path
AIDS Project, and Safer Sex Web Page believe that it is important
that minors, many of whom are sexually active, have access to
their online safe sex education material because it could
literally save their lives/89.
b. The Act Unconstitutionally Restricts the Free Speech Rights of
Adults
Even if an "indecency" or "patent offensiveness" standard could
constitutionally be applied to restrict the ideas and information
available to minors, government may not, by asserting its
interest in "protecting" minors, ban the exercise of First
Amendment rights by adults. Butler v. Michigan, 352 U.S. at 382;
see also Erznoznik v. City of Jacksonville, 422 U.S. at 212-13
(holding unconstitutional ordinance that prohibited the showing
of films containing nudity ostensibly in the interests of
protecting minors); Fabulous Assoc., Inc., 896 F.2d at 788
(holding unconstitutional statute that inhibited adult access to
sexually explicit phone messages ostensibly in the interests of
protecting minors). Because of the nature of the online medium,
the Act is effectively a total ban on "indecency" and "patent
offensiveness" in cyberspace and thus violates the free speech
rights of adult online users. In the words of Justice
Frankfurter, the Act "burn[s] up the house to roast the pig."
Butler, 352 U.S. at 383.
The Act criminalizes the "transmission" or "display" to minors of
"indecent" or "patently offensive" material. The vast majority of
information in online networks is displayed in "public" spaces --
spaces that act as online libraries or bookstores -- and that
minors as well as adults can access. As described above, World
Wide Web sites, gopher sites, online discussion groups, chat
rooms, and Usenet news groups are all accessible by minors. There
is no way to prevent transmission or display to minors of
"indecent" or "patently offensive" material in the public areas
of cyberspace without seriously restricting the rights of adults
and minors to constitutionally protected material and crippling
the potential of a new communications medium/90.
A review of the nature of online communications illustrates the
problem. There are two ways in which plaintiffs and other online
users and providers could attempt to comply with the Act. The
first would be to attempt to screen all "indecent" or "patently
offensive" material from all of the public spaces on online
networks. This would de facto reduce all of the information in
online public spaces to material that is suitable only for
children, in direct violation of Butler. In addition, because
"indecent" and "patently offensive" are inherently vague terms,
plaintiffs and other online users and providers have no idea how
to determine which material on the subject of sexuality or
reproduction, or containing "vulgar" language, they need to
screen. An attempt to screen would thus inevitably lead to
suppression of constitutionally protected material both for
adults and for minors/91. Baggett v. Bullitt, 377 U.S. at 372.
Screening is also practically if not technically infeasible.
Unmoderated Usenet discussion groups would be eliminated because
there is no one distribution point for such services at which to
even attempt screening. Other online discussion groups, web
sites, and interactive information databases would be eliminated
because of the enormous burden of attempting to screen postings
from outside users. To shut down the "interactive" feature of
online communications would be to stifle its communication
potential as a diverse marketplace of ideas in which anyone can
participate. For many noncommercial providers, such a screening
requirement would also be economically infeasible, given the
enormous time and human resources it would take to screen the
vast amount of information that flows into a given online site.
See Fabulous Assoc., Inc., 896 F.2d at 788 (noting economic
burden of requiring access codes substantially burdens
constitutionally protected speech)/92.
In addition, the mechanisms that allow users to search hundreds
of different online information databases simultaneously could no
longer be used because it is technically impossible to screen all
"indecent" or "patently offensive" material from appearing in the
search results/93. Similarly, the tremendously useful "linking"
feature of online communications would have to be eliminated
because it would be impossible to screen all the material on the
linked sites in addition to the content on the home site/94.
The second way in which plaintiffs and other online users and
providers could attempt to comply with the Act would be to forbid
minors from accessing online resources that might be "indecent"
or "patently offensive." This would require online information
providers to create two versions of their online communications
-- one for adults, and one for minors. It would also require an
identification scheme to ensure that minors could not gain access
to the adult sites. While requiring payment via credit card or
other identification card (e.g., driver's license) would be a way
to exclude most minors, most online information is currently
provided for free (once the user has paid a general access
subscription fee), and without identification requirements.
Imposing such requirements would both be economically infeasible
for all but the largest corporate online providers and would
prevent adults without credit or proper identification from
accessing online resources, thus excluding a large class of
American adults and an even larger class of adults outside the
United States). Identification requirements would also prevent
anonymous access, and would require content and access providers
to maintain records of users who had accessed their sites in
order to prove that a particular user was not a minor. All of
these burdens on adult access are impermissible in the the
context of constitutionally protected material/95. See Fabulous
Assoc., Inc., 896 F.2d at 788.
4. The Act is Impermissibly Underinclusive
The Act constructs an impermissible system of discrimination by
imposing regulations on those who communicate through the online
medium but not on those who communicate the same information
through the print medium. See First Nat'l Bank of Boston v.
Bellotti, 435 U.S. 765, 784-85 (1978) ("In the realm of protected
speech, the legislature is constitutionally disqualified from
dictating . . . the speakers who may address a public issue.");
Minneapolis Star & Tribune Co. v. Minnesota Comm'r, 460 U.S. 575,
592 (1983). The statute distinguishes among speakers for
content-based regulation based upon a criterion that "bears no
relationship whatsoever to the particular interests . . .
asserted." City of Cincinnati v. Discovery Network, Inc., 113 S.
Ct. 1505, 1514 (1993).
Many of the plaintiffs provide educational materials through both
the print and the online medium. For example, plaintiffs ACLU,
Human Rights Watch, Electronic Privacy Information Center, and
Electronic Frontier Foundation all create educational materials
about civil liberties and human rights issues that are
distributed through brochures, books, and pamphlets and that are
also available through its online sites/96. Irrationally, the
statute would make it a crime to send an electronic version of a
document that is "indecent" or "patently offensive" even though
print distribution of the same document is unquestionably
protected by the First Amendment. It makes no sense for
plaintiffs to deny a minor access to an online version of a
publication that the minor could easily -- and legally -- request
from plaintiffs in printed form.
The discrimination between online speakers and print speakers is
particularly problematic because online communications systems
have provided a low-cost forum for many speakers who do not own
mainstream newspapers, broadcast, or other mass media. With
absolutely no constitutional justication or rationale, the
statute creates second-class First Amendment rights for online
users and information providers/97.
5. The Act Unconstitutionally Criminalizes Private E-mail
Sections 223 (a)(1)(B) and (d) criminalize "indecent" or
"patently offensive" communications to or between minors. The Act
thus prohibits a 17-year-old from having an online discussion
with a romantic partner about activities in which they had
lawfully engaged, and which they had lawfully discussed on the
phone, in person or by regular mail. The Act also prohibits
e-mail distribution among or between minors of important
information about sexuality, reproduction and the human body that
minors are clearly constitutionally entitled to receive.
The Act has an additional constitutional defect when applied to
private e-mail. E-mail is the equivalent of a private, personal
correspondence sent through the U.S. mail, or private
conversations by telephone or within the home. Such
communications are protected against governmental invasion or
censorship by the constitutional right to privacy found in the
First, Fourth, and Ninth Amendments and the substantive due
process clause of the Fifth Amendment. See Griswold v.
Connecticut, 381 U.S. 479, 484-85 (1965); id at 487-91 (Goldberg,
J. concurring)(Ninth Amendment); id at 500 (Harlan, J.
concurring) (substantive due process); Carey, 431 U.S. at 684-85
(due process clause).
As the Supreme Court recognized in Katz v. United States, 389
U.S. 347 (1967), individuals ordinarily have a "reasonable
expectation of privacy" in their telephone conversations. Minors
as well as adults have constitutional privacy rights that include
a right to personal decisionmaking about intimate matters
concerning sex and reproduction. See, e.g., Bellotti v. Baird,
443 U.S. 622, 642-43 (1979). The exercise of such a privacy right
requires access to information, particularly when acquired
through personal, intimate, one-on-one conversations with family
members, romantic partners, or trusted friends. If, as the Court
ruled in Stanley v. Georgia, 394 U.S. 557 (1969), the right of
privacy, combined with the First Amendment principle of freedom
of thought, prohibits the government from criminalizing the
possession of even obscenity within the privacy of the home,
surely the combined weight of free thought and privacy principles
protect "indecent" communications through private e-mail from
governmental invasion or control.
6. The Act Violates the First Amendment Right to Access
Information Anonymously
Currently, online users have a password and user name which they
use to sign on to their online service. Many user names are
pseudonyms that allow users to send, view, and receive online
communications anonymously/98. Several of the plaintiffs offer
information that users might want to access anonymously. For
example, AEGIS provides information and opportunities for
discussions about AIDS or HIV. Similarly, Queer Resources
Directory provides information and discussion opportunities to
gays, lesbians, and bisexuals. The Safer Sex Page provides
information on safer sex and sponsors a Safer Sex Forum for open
discussion/99. Users of these online services have reasons to
remain anonymous. For instance, users could fear discrimination
and harassment, or simply want to maintain their privacy on
sensitive issues. Some people might forego or be inhibited from
discussing issues and receiving information if they had to
disclose their identities/100.
In order to comply with the Act, plaintiffs would have to require
identification of those seeking access to a web site, chat room,
discussion group, or other online forum. Such an identification
requirement would remove the current option of anonymity for both
speakers and receivers of information.
As the Court recently stressed, anonymity "exemplifies the
purpose behind the Bill of Rights, and of the First Amendment in
particular: to protect unpopular individuals from
retaliation--and their ideas from suppression--at the hand of an
intolerant society." McIntyre v. Ohio Elections Com'n, 115 S.Ct.
1511, 1524 (1995). Thus, with regard to speakers, the Court has
held on a number of occasions that the right to publish
anonymously is protected by the First Amendment. E.g., id. at
1516; Talley v. California, 362 U.S. 60, 64-65 (1960). Cyberspace
represents a new frontier for literary, political, and other
publishers who must be granted the same rights of anonymity in
this medium as they are accorded in print.
The anonymous receipt of information in cyberspace is also a
First Amendment right. The Supreme Court has held that the right
to receive literature is protected by the First Amendment. Lamont
v. Postmaster General, 381 U.S. 301, 305, 307 (1965). The
government cannot require a written request to receive mail
because such a requirement limits "the unfettered exercise of the
addressee's First Amendment rights." Id. at 305. Because the
receipt of information is protected by the First Amendment, the
importance accorded anonymous receipt should be as great as that
given to anonymous publishing as discussed above. Further, the
Supreme Court has concluded that compelled disclosure of identity
may unconstitutionally deter the exercise of First Amendment
rights. E.g., Brown v. Socialist Workers '74 Campaign Comm., 459
U.S. 87 (1982) (holding unconstitutional as applied to unpopular
political party statute requiring candidates for political office
to disclose identities of contributors and recipients of campaign
funds); NAACP v. Alabama, 357 U.S. 449 (1958) (denying state
access to membership lists). This is no less so for recipients of
information than for publishers.
As the Third Circuit has discussed, "[a]n identification
requirement exerts an inhibitory effect ... and such deterrence
raises First Amendment issues comparable to those raised by
direct state imposed burdens or restrictions." Fabulous
Associates v. Pennsylvania Public Utility Com'n, 896 F.2d 780,
785 (3d Cir. 1990) (citing Talley, 362 U.S. at 64-65). Thus, the
court held unconstitutional a statute mandating access codes with
an identification requirement for the use of phone sex services
because there was a less restrictive alternative. Fabulous, 896
F.2d at 787-88. The identification requirement for receipt of
information over the computer is analogous and a fortiori
violates First Amendment rights of anonymity.
7. 18 U.S.C. §1462(c), as Amended, Criminalizes Constitutionally
Protected Speech About Abortion
Plaintiffs ACLU and Planned Parenthood, and others routinely
engage in communications barred by 18 U.S.C. § 1462(c) by
providing information about how and where to obtain abortions or
abortifacient drugs and devices, and when and under what
conditions doctors may perform abortions/101. These plaintiffs
also receive information about the conditions under which
abortions are performed, how they are performed, where they are
performed, and how to use abortifacient drugs and devices/102.
Plaintiffs receive this information from physicians performing
abortions, abortion rights advocates, and others/103. Through
these communications, Plaintiffs send and receive information
regarding "where, how, or of whom, or by what means" "any drug,
medicine, article, or thing designed, adapted, or intended for
producing abortion . . . may be obtained or made." 18 U.S.C. §
1462 (c). Thus, the activities of Plaintiffs fall squarely within
the §1462(c) ban.
Speech regarding abortion, including the communications barred by
§1462(c), is protected by the First Amendment. Bigelow v.
Virginia, 421 U.S. 809 (1975); see also Bolger v. Youngs, 463
U.S. 60 (information regarding contraceptives); Carey v.
Population Servs. Int'l, 431 U.S. at 700-02 (plurality opinion)
(same); Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., 425 U.S. 748 (1976) (information
regarding prescription drugs in general). Restrictions on
abortion-related speech are impermissible even under the lesser
scrutiny applied to commercial speech. Bigelow, 421 U.S. at
828-29; see also Bolger, 421 U.S. 809; Carey, 431 U.S. at 700-02.
In this case, where the speech is non-commercial and the
restriction is content-based, the statute is "presumptively
invalid," R.A.V. v. City of St. Paul, 505 U.S. at 382, and is
subject to "the most exacting scrutiny," Turner Broadcasting
System v. FCC, 114 S. Ct. at 2459 (1994).
The government has no compelling interest in restricting speech
about abortion. On the contrary, speech about abortion "relates
to activity which is [constitutionally] protected from
unwarranted state interference." Bolger, 463 U.S. at 69
(information regarding contraception); see also Carey, 431 U.S.
at 700-01 (same); Bigelow, 421 U.S. at 822 (abortion). The
Supreme Court has never found a government interest in
suppressing speech related to abortion or contraception
sufficient to uphold a restriction. See, e.g., Bigelow, 421 U.S.
at 827 (rejecting, inter alia, argument that ban on
abortion-related advertising furthered the state's interests in
maintaining the quality of medical care); Bolger, 463 U.S. at 71
(rejecting, inter alia, argument that alleged offensiveness could
justify suppression of protected speech); Carey, 431 U.S. at 701
(same). Therefore, §1462(c) is invalid on its face.
C. Any Asserted Harm to Defendants from Issuance of a Temporary
Restraining Order and Preliminary Injunction does not Outweigh
the Potential Harm to Plaintiffs if Censorship Provisions of the
Act are Not Enjoined
The harm to the plaintiffs, their members, and audiences, if the
Act is not enjoined, is of constitutional dimension. Plaintiffs
face suppression of constitutionally protected speech. The banned
speech includes material of significant educational, political,
medical, artistic and social value that deals with issues such as
sexuality, reproduction, human rights and civil liberties. Some
of the speech could literally save lives. Moreover, the vagueness
and subjectivity of the bans will result in suppression of even
greater amounts of information than "if the boundaries were
clearly marked." Speiser v. Randall, 357 U.S. 513, 526 (1958).
Plaintiffs will eit her have to self-censor their communications
or face criminal prosecution if the Act is not enjoined.
Plaintiffs who rely on online providers to distribute their
information may be deprived of the ability to communicate about
important issues if the Act is not enjoined and the providers ban
their material in order to avoid prosecution themselves.
The only governmental interest is in suppression of speech that
is "indecent" or "patently offensive" and transmitted by
computers. Such a purpose is flatly unconstitutional. Even if the
government could show some harm to minors from some subcategory
of "indecent" speech, there are numerous less burdensome methods
available for protecting those minors. Finally, the identical
speech is available to minors in print form and will continue to
be available whether or not the Act is in effect.
D. Preliminary Relief Would Serve the Public Interest
For all the foregoing reasons, the injunction will not disserve
the public interest. There is no public interest in suppressing
constitutionally protected speech or in reducing all speech in
the promising new online medium to a level considered by the
government to be acceptable for minors. On the contrary, the
public interest is served by robust exchange of ideas, and many
alternatives are available for those parents who wish to shield
their children from online communications that they deem
appropriate.
CONCLUSION
For all these reasons, plaintiffs respectfully ask that the
motion be granted.
Christopher A. Hansen
Marjorie Heins
Ann Beeson
Steven R. Shapiro
Laura K. Abel
Catherine Weiss
Reproductive Freedom Project
American Civil Liberties Union Fdn.
132 West 43 St.
New York, NY 10036
212-944-9800
Stefan Presser
ACLU of Pennsylvania
125 South Ninth St. Suite 701
Philadelphia, PA 19107
215-923-4357
David L. Sobel
Marc Rotenberg
Electronic Privacy Information Center
666 Pennsylvania Ave. SE Suite 301
Washington, D.C. 20003
202-544-9240
Michael Godwin
Electronic Frontier Foundation
1550 Bryant St., Suite 725
San Francisco, CA 94103
415-436-9333
Roger Evans
Legal Action for Reproductive Rights
Planned Parenthood Federation of America
810 Seventh Avenue
New York, NY 10019
212-261-4708
February 8, 1996
/FOOTNOTES/
/1 The Terms "computer communications systems," "online medium,"
"interactice computer service," "online networks," and
"cyberspace" will be used synonymously in this brief to refer to
the combination of all online computer technologies affected by
the Act.
/2 Plaintiffs also challenge a portion of the Act that bans
communications about abortion, and argue that the Act violates
the First Amendment rights of those who wish to receive ideas and
information anonymously.
/3 Sister Mary Elizabeth Aff. Paragraphs 3, 6.
/4 Chatelle Aff. Para. 9; McCullagh Aff. Para. 4; Rotenberg Aff.
Para. 7.
/5 Glasser Aff. Para. 11; Meeks Aff. Para. 4.
/6 For further detail on the plaintiffs and the basis for their
fear of prosecution under the Act, see the Complaint and the
affidavits submitted with this motion.
/7 Glasser Aff.
/8 Mariner Aff.
/9 Rotenberg Aff.
/10 Godwin Aff.
/11 Perkins Bowen Aff.
/12 Krause Aff.
/13 Chatelle Aff.
/14 Templeton Aff.
/15 Sears Aff.
/16 Donaldson Aff.
/17 Sister Mary Elizabeth Aff; Kuromiya Aff.
/18 Troyer Aff.
/19 Hauman Aff.
/20 Nell Warren Aff.
/21 Casti Aff.
/22 McCullagh Aff.
/23 Meeks Aff.
/24 Wallace Aff.
/25 Johnson Aff.
/26 Computer bulletin board systems that specialize in adult
material generally require identification and payment and screen
out minors, and are thus not at issue in this case.
/27 General Accounting Office, Report to Congress: Information
Superhighway-An Overview of Technology Challenges, January 1995,
at ch. 1.
/28 Peter Lewis, "On the Net," New York Times, May 29, 1995; see
also White House Interagency Task Force on the National
Information Infrastructure, "The Global Information
Infrastructure: Agenda for Cooperation," Feb. 15, 1995, at 5.
/29 White House Task Force, at 6. See also statistics on the
Internet, at gopher://nic.merit.edu:7043/11/statistics/nsfnet
/history/netcount.
/30 See, e.g., Sears Aff.
/31 Gopher, the older of the methods (and now becoming somewhat
obsolete), is a menu-driven program that allows the user to
"gopher" through multiple layers of menus to search for
information on a particular topic, and to link to other sites on
the Internet. For other ways to access information on the
Internet, see Plaintiff EFF's Guide to the Internet, available in
print form and on the Internet at http://www.eff.org.
/32 "Usenet" is another set of online discussion groups that has
its own generalized distribution system. Usenet discussion groups
are known as "newsgroups." Usenet carries more than 40 million
characters a day -- "roughly the equivalent of volumes A-G of the
Encyclopedia Britannica." EFF's Guide to the Internet, ch. 3.
Most online systems that provide access to the Internet also
provide access to Usenet.
/33 See, e.g., Kuromiya Aff. 7; Troyer Aff. 17; McCullagh Aff. 9.
/34 Glasser Aff. 3; Godwin Aff. 3.
/35 Godwin Aff. 5; Mariner Aff. 7; Sister Mary Elizabeth Aff. 6;
Kuromiya Aff. 10.
/36 The search mechanisms work somewhat similarly to the
searching features used on the popular online legal databases
LEXIS and Westlaw. Internet search engines differ from LEXIS and
Westlaw, though, because they allow users to search hundreds of
computer networks located all over the world rather than simply
searching one centralized computer network.
/37 Kuromiya Aff. 12; Godwin 4.
/38 For example, many online services were developed separately
from the Internet. These services provide their own content to
subscribers and now also usually provide access to content over
the Internet. Large commercial services like America Online,
CompuServe, and Prodigy have over a million subscribers each and
contain thousands of databases and chat groups on a variety of
topics. Smaller online networks, known as Computer Bulletin Board
Systems (BBS's), usually cater to people interested in
specialized subject matter or to people from a particular
geographical region.
/39 For example, America Online negotiated with businesses to
advertise on their "Downtown AOL" section. ATKOL Video, a gay
video store, negotiated a contract to post its mail order catalog
on the service. After signing an agreement with ATKOL, AOL
reviewed the catalog and then censored several video titles from
the online version before it would allow posting. See "AOL
Censors Gay Video Titles, Finds Buns' Acceptable but Studs' Too
Sleazy," ACLU Cyber-Liberties Update, 12/6/95.
/40 Glasser Aff. 12; Godwin Aff. 4; Troyer Aff. 17; Wallace Aff.
10; McCullagh Aff. 9.
/41 Troyer Aff. 11.
/42 Jerry Berman and Daniel Weitzner, "Abundance and User
Control: Renewing the Democratic Heart of the First Amendment in
the Age of Interactive Media," 104 Yale L.J. 1619, 1623-24
(1995).
/43 Id.
/44 "Any attempt to impose centralized content control in a
bureaucratic manner on this fundamentally decentralized medium is
bound to stifle the growth of the medium, squander the democratic
potential of the Internet, and may even cut the United States off
from the growing global information infrastructure." Interactive
Working Group Report to Senator Leahy, Parental Empowerment,
Child Protection, & Free Speech in Interactive Media, 7/24/95,
(Leahy Report), at 4-5; see also Berman and Weitzner, Abundance
and User Control, at 1624.
/45 "Unlike centralized broadcast radio and television services,
there are no central control points through which either a single
network operator or government censors can control particular
content. . . . [The] proliferation of individual speakers stands
in sharp contrast to broadcast television or even cable
television, where one may count five, ten or perhaps one hundred
speakers, each of whom controls a channel." Leahy Report, at 4-5.
/46 Leahy Report, at 4-5.
/47 Leahy Report, at 5-6.
/48 Unlike the phone system, cost does not depend on the distance
between sender and receiver. Thus, it may cost no more for an
online user in Australia to communicate by e-mail with an
Irishman than it does for two neighbors in Beijing to exchange
messages on a computer bulletin board.
/49 See EFF's Guide to the Internet, at 4.2.
/50 Leahy Report, at 6.
/51 Leahy Report, at 7-8.
/52 Because there is no central distribution point on the
Internet, unlike large commercial online systems like AOL,
Prodigy, and Compuserve, it is difficult if not impossible for
Internet Service Providers to monitor all of the content that
passes through their networks.
/53 Leahy Report, at 8-10.
/54 Leahy Report, at 10-11.
/55 "On-Line Firms Team Up on Technology," Washington Post,
September 9, 1995.
/56 Glasser Aff. 21; Perkins Bowen Aff. 12; Sister Mary Elizabeth
Aff. 12; Donaldson Aff. 20.
/57 Glasser Aff. 16; Wallace Aff. 8; Rotenberg Aff. 9; Perkins
Bowen Aff. 14; Kuromiya Aff. 16.
/58 Troyer Aff. 16; Meeks Aff. 8; McCullagh Aff. 8; Templeton
Aff. 8; Wallace Aff. 9.
/59 The Federal Communications Commission has defined the term
"indecency" for purposes of regulating broadcast radio and
television as material that "depicts or describes, in terms
patently offensive as measured by contemporary community
standards for the broadcast medium, sexual or excretory
activities or organs." See Action for Children's Television v.
FCC, 58 F.3d 654, 657 (D.C.Cir. 1995) (en banc), cert. denied,
133 L.Ed.2d 658 (1996). The FCC has issued the same definition of
"indecency" in other statutes or regulations designed to suppress
speech on sexual subjects. See, e.g., Alliance for Community
Media v. FCC, 56 F.3d 105, 124 n.4 (D.C.Cir. 1995) (en banc),
cert. granted, 64 U.S.L.W. 3347 (U.S. Nov. 13, 1995) (No. 95-124)
("indecency" on leased access and public, education, and
governmental access cable channels); Dial Information Services v.
Thornburgh, 938 F.2d 1535, 1540 (2d Cir. 1991), cert. denied, 112
S.Ct. 966 (1992) ("indecent" telephone communications). Although
223(d) tracks this FCC definition, the "indecency" provision in
223(a)(1)(B) does not incorporate the "patently offensive"
language and thus differs from the cases considering "indecency"
in broadcast, cable television and telephones because the
provision contains no further definition of "indecent" and the
FCC is given no jurisdiction under the statute to issue any such
definition. In fact, other provisions of the Act expressly deny
jurisdiction to the Federal Communications Commission. See 509,
adding 47 U.S.C. 230(d); 502, adding 47 U.S.C. 223(e)(6).
/60 See 141 Cong. Rec. S8130-31, June 12, 1995.
/61 Indeed, the Justice Department has already prosecuted online
obscenity and child pornography in several cases. See, e.g., U.S.
v. Thomas, 1996 U.S. App. LEXIS 1069 (6th Cir. Jan. 29, 1996)
(Nos. 94-6648/94-6649); "Use of Computer Network For Child Sex
Sets Off Raids," The New York Times, 9/14/95.
/62 The Supreme Court has not ruled precisely on what is required
in terms of a showing of harm from exposure to "indecency" or
"patently offensive" material. The harm to children from exposure
to indecency was not at issue in Pacifica, which narrowly upheld
the FCC's time channeling of vulgar words in the broadcast
medium.
/63 The Supreme Court has repeatedly made it clear that the
government "may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable."
Texas v. Johnson, 491 U.S. 397, 414 (1989). See also Hustler
Magazine v. Falwell, 485 U.S. 46, 55-56 (1988); Bolger v. Youngs
Drug Prods. Corp., 463 U.S. 60, 71 (1983); ("offensiveness" not a
justification for suppressing speech); Cohen v. California, 403
U.S. 15, 25 (1971) (government cannot "cleanse public debate" of
certain "offensive" words).
/64 Troyer Aff.; Sister Mary Elizabeth Aff; Kuromiya Aff.;
Mariner Aff.; Glasser Aff.; Rotenberg Aff.; Godwin Aff.
/65 See 142 Cong. Rec. H1128-29, Jan. 31, 1996.
/66 After Sable, Congress passed more narrowly tailored
legislation designed to bar minors' access to "dial-a-porn"
services. This statute was upheld in Dial Information Services v.
Thornburgh, 938 F.2d 1535 (2d Cir. 1991); Information Providers
v. FCC, 928 F.2d 866 (9th Cir. 1991). Those decisions are
irrelevant to the present case, however, because there Congress
had made findings that the blocking mechanisms mandated by the
statute were the least restrictive means of achieving the
government's compelling goal. The present statute, by contrast,
is supported by no such legislative findings and wil effectively
deny adults as well as minors access to valuable speech.
/67 See discussion at section C4 supra .
/68 In addition, the adult access restrictions in Fabulous
Assoc., Inc. applied only to material deemed "harmful to minors"
under the Ginsberg test, a much narrower restriction than the
Act's ban of "indecent" and "patently offensive" speech. 896 F.2d
at 896.
/69 One commentator has noted that "First Amendment lawyers
should be wary of applying current legal metaphors to the newer
electronic communication spaces without substantially immersing
themselves in the experience of using such cyberspaces.
Legislators should be equally cautious." Anne Wells Branscomb,
Anonymity, Autonomy, and Accountability: Challenges to the First
Amendment in Cyberspaces, 104 Yale L.J. 1639, 1676 (1995). See
also Thomas G. Krattenmaker and L.A. Powe, Jr., Converging First
Amendment Principles for Converging Communications Media, 104
Yale L.J. 1719 (1995) ("How can one reconcile the fact of
technology and media convergence with the legal presumption of
distinct treatments?"); Donald Lively, The Information
Superhighway: A First Amendment Road Map, 35 B.C. L. Rev. 1067
(1994) (arguing for the abandonment of different levels of First
Amendment protection for different media).
/70 See also Hynes v. Mayor & Council of Oradell, 425 U.S. 610,
620 (1976) (more exacting vagueness scrutiny required where First
Amendment rights are implicated); Smith v. Goguen, 415 U.S. 566,
573 (1971) (where statute "is capable of reaching expression
sheltered by the First Amendment, the [vagueness] doctrine
demands a greater degree of specificity than in other contexts");
Cramp v. Board of Public Instruction, 368 U.S. 278, 287 (1961)
(same).
/71 See, e.g., Smith v. Goguen, 415 U.S. at 573 (law barring
"contemptuous" treatment of the flag is unconstitutionally
vague); Coates v. Cincinnati, 402 U.S. 611, 614 (1971) (law
prohibiting "annoying" conduct is unconstitutionally vague);
Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 552-53
(1975) ("clean and healthful and culturally uplifting" standard
impermissibly gives city unbridled discretion); Cinevision Corp.
v. City of Burbank, 745 F.2d 560, 573 (9th Cir. 1984), cert.
denied, 471 U.S. 1054 (1985) ("family entertainment" standard not
sufficient to limit "arbitrary and capricious action"); Finley v.
National Endowment for the Arts, 795 F.Supp. 1457, 1471-72
(C.D.Cal. 1992), app. pending ("general standards of decency" is
unconstitutionally vague); Gay Men's Health Crisis v. Sullivan,
792 F. Supp. 278, 295 n.35 (S.D.N.Y 1992) ("offensiveness" is
unconstitutionally vague).
/72 With absolutely no other guidance, the use of the term
"indecency" in 223(a)(1)(B) encompasses material that does not
even relate to sexuality or contain "vulgar" language.
/73 See also United States v. 12,2000-ft. Reels of Film, 413 U.S.
123, 130 n.7 (1973); Manual Enterprises, Inc. v. Day, 370 U.S.
478, 482-83 (1962); Carlin III, 837 F.2d at 558-60; Osborne v.
Ohio, 495 U.S. 103, 132 n.7 (1990) (Brennan, J., dissenting)
(reviewing cases in which "courts found it necessary to equate
lewd' [and indecent'] with obscene' in order to avoid overbreadth
and vagueness problems.").
/74 Under Miller, even socially worthless hardcore pornography is
not necessarily unprotected; it must also appeal to a shameful or
morbid, rather than a healthy, interest in sex, and be patently
offensive according to the relevant local community. Id. at 24;
see also Brockett v. Spokane Arcades, 472 U.S. 491 (1985).
/75 As the Supreme Court noted in Miller v. California, 413 U.S.
at 30, "[O]ur Nation is simply too big and too diverse for this
Court to reasonably expect that such standards [as `patently
offensive'] could be articulated for all 50 States in a single
formulation, even assuming the prerequisite consensus exists." No
court could possibly determine what is "patently offensive"
according to the "community standards" of cyberspace, which is
not a national, but a global communications medium. Such
decisions plainly should not be left to myriad local prosecutors,
judges, and juries.
/76 Glasser Aff. 9. The company has not yet decided what action
to take.
/77 Many other examples of private application of standards like
"indecency" have received attention from the mainstream and
online press. America Online recently banned a poetry discussion
group for using "vulgar" and "offensive" speech. See Rotenberg
Aff. 8.
/78 The original FCC definition of "indecency" pursuant to the
broadcast prohibition in 18 U.S.C. 1464 referred only to
"patently offensive" language; it was later expanded to include
descriptions or depictions. See Action for Children's Television
v. FCC, 852 F.2d 1332, 1336 (D.C. Cir. 1988); John Crigler &
William Byrnes, Decency Redux: The Curious History of the New FCC
Broadcast Indecency Policy, 38 Cath.U.L.Rev. 329 (1989).
/79 Pacifica, 438 U.S. at 742-43.
/80 See 438 U.S. at 750; Sable Communications, 492 U.S. at 128;
Bolger v. Youngs, 463 U.S. at 74.
/81 In the context of vagueness challenges to "indecency"
restrictions in other media, the Second, Ninth, and D.C. Circuits
have held that Pacifica determined that "indecency" was not
unconstitutionally vague. Dial Information v. Thornburgh, 938
F.2d at 1541 (2d Cir. 1991) (dismissing vagueness challenge to
FCC's "indecency" regulations for dial-a-porn); Information
Providers v. FCC, 928 F.2d 866 (9th Cir. 1991) (same); Alliance
for Community Media v. FCC, 56 F.3d 105 (D.C. Cir., (1995)
(rejecting vagueness challenge to "indecency" restrictions on
cable, but welcoming "correction" from "Higher Authority"). But
see Finley v. National Endowment for the Arts, 795 F. Supp 1457,
1471 (C.D.Cal 1992), appeal pending, (finding statute imposing
"general standards of decency" to be unconstitutionally vague).
/82 Glasser Aff. 4, 13; Troyer Aff. 4; Godwin Aff. 3.
/83 See, e.g., Board of Education v. Pico, 457 U.S. 853, 864
(1982); Erznoznik v. City of Jacksonville, 422 U.S. at 213-14;
Tinker v. Des Moines Ind. School Dist., 393 U.S. 503 (1969); West
Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
/84 See Glasser Aff. 18; Mariner Aff. 13; Meeks Aff. 5; Donaldson
Aff. 14; Godwin Aff. 11; Nell Warren Aff. 9; Wallace Aff. 7.
/85 Ginsberg pre-dated Miller. While the Supreme Court has not
revisited the so-called "obscene as to minors" or "harmful to
minors" test since Ginsburg, circuit courts dealing with "harmful
to minors" laws have concluded that the Ginsburg standard should
simply be adjusted to take account of the most recent Supreme
Court definition of obscenity in Miller. See American Booksellers
Assoc. v. Webb, 919 F.2d 1493, 1496 (11th Cir. 1990); American
Booksellers Assoc. v. Virginia, 882 F.2d 125, 127 (4th Cir.
1989); Upper Midwest Booksellers Assoc. v. Minneapolis, 780 F.2d
1389, 1391 (8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d
1281, 1286 (10th Cir. 1983).
/86 See ABA v. Webb, 919 F.2d 1493; ABA v. Virginia, 882 F.2d 125
Upper Midwest Booksellers Assoc. v. Minneapolis, 780 F.2d 1389;
M.S. News Co. v. Casado, 721 F.2d 1281.
/87 Another very limited exception to minors' First Amendment
rights has been the "indecency" rules for radio and television
broadcast. See Pacifica, 438 U.S. 726 (1978) For the reasons
articulated in section B.1. supra, Pacifica cannot be expanded to
ban all "patently offensive" communications in the completely
different medium of cyberspace.
/88 Glasser Aff. 15; Godwin Aff. 9; Rotenberg Aff. 8.
/89 Sister Mary Elizabeth Aff. 7; Kuromiya Aff. 17; Troyer Aff.
8.
/90 Kuromiya Aff. 21; Sears Aff. 7; Krause Aff. 21; Sobel Aff.
10.
/91 Chatelle Aff. 7; Templeton Aff. 6; Troyer Aff. 12; Sister
Mary Elizabeth Aff. 12; McCullagh Aff. 7; Meeks Aff. 7; Donaldson
Aff. 20; Casti Aff. 11; Mariner Aff. 9; Nell Warren Aff. 8.
/92 Sears Aff. 6.
/93 JEA Aff. 6, 14.
/94 Wallace Aff. 10; Templeton Aff. 10; Krause Aff. 24; Troyer
Aff. 17; Donaldson Aff. 8; Chatelle Aff. 7; McCullagh Aff. 9;
Casti Aff. 12.
/95 Ginsberg-type "harmful-to-minors" display statutes that have
been upheld under narrowing constructions are readily
distinguishable from the statute at issue in this case. First,
those statutes prohibited the display only of material that fit
the three-part Ginsberg/Miller "obscene as to minors" standard,
as opposed to the much more broad and vague catergories of
"indecency" and "patent offensiveness." Second, courts have
careful to interpret those statutes to require compliance that
does not impermissibly burden adult access to constitutionally
protected materials. ABA v. Virginia, 882 F.2d at 127
(booksellers only need take "reasonable steps" to prevent
juveniles from browsing material deemed "harmful to minors"); ABA
v. Webb, 919 F.2d at 1507 (booksellers need only put material
deemed "harmful to minors" behind blinder racks, and need not
physically segregate it from other materials, in order to comply
with the statute). In contrast, because of the unique nature of
the online medium, any strategy by which an online information
user or provider might comply with the Act would unduly burden
both minors' and adults' access to constitutionally protected
speech.
/96 Glasser Aff. 3; Mariner Aff. 5-6; Rotenberg Aff. 3; Godwin
Aff. 4.
/97 While the Supreme Court has held that speakers in the
broadcast medium have less First Amendment protection than
speakers in the print medium, see Pacifica, 438 U.S. 726 (1978),
the rationale for the distinction is absent in cyberspace. See
discussion infra at section B.1. supra.
/98 Troyer Aff. 9; Kuromiya Aff. 21; Nell Warren Aff. 9.
/99 Sister Mary Elizabeth Aff.; Casti Aff.; Troyer Aff.
/100 Nell Warren Aff. 7; Sister Mary Elizabeth Aff. 7; Kuromiya
Aff. 21;Troyer Aff. 9.
/101 Glasser Aff. 23, 25; Johnson Aff. 3, 4, 7, 11.
/102 Glasser Aff. 24, 26; Johnson Aff. 8, 11.
/103 Glasser Aff. 24, 26; Johnson Aff. 8, 11.
Copyright 1996. American Civil Liberties Union
Return to the FUCK the Communications Decency Act of 1996 Home Page