IN THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT
OF PENNSYLVANIA
Civil Action No. 96-963
Feb. 15, 1996
Plaintiffs: American Civil Liberties Union, et al.
Defendant: Janet Reno
I. Background
Plaintiffs are providers and users of on-line communications. The
affidavits filed in support of plaintiffs' request for a temporary
restraining order (TRO) support the statement in plaintiffs brief (page 2)
that these communications deal with issues involving sexuality,
reproduction, human rights social responsibility, environmental concerns,
labor, conflict resolution, as well as other issues, all of which have
significant educational, political, medical, artistic, literary and social
value.
On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1995. Title V of the Act includes the provisions
of the Communications Decency Act of 1996 (CDA), codified at 47 U.S.C.
#223(a) to (h).
Pertinent to the matter now before this court, #223(a)(1)(B) provides:
(a) Whoever --
(1) in interstate or foreign communications -
(B) by means of a telecommunications device
knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of, any
comment, request, suggestion, proposal,
image, or other Communication which is
obscene or indecent, knowing that the
recipient of the communication is under 18
years of age, regardless of whether the maker
of such communication placed the call or
initiated the communication;
Section 223(d) provides:
(d) Whoever --
(l) in interstate of foreign communications knowingly--
(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in
a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image, or
other communication that, in context, depicts or
describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory
activities or organs, regardless of whether the user of
such service placed the call or initiated the
communication; or (2) knowingly permits any
telecommunications facility under such personas control
to be used for an activity prohibited by paragraph (1)
with the intent that it be used for such activity,
shall be fined under Title 18 United States Code, or
imprisoned not more than two years, or both.
In seeking a TRO with regard to the above provisions;, plaintiffs claim
that they will be irreparably harmed because their rights under the First
Amendment will we infringed. They fear prosecution under the CDA because as
a result of the vagueness of the crimes created by the Act, they do not
even know what speech or other Actions might subject them to prosecution.
Thus, even attempts to self- censor could prove fruitless. There is also
the concern by those plaintiffs who rely on on- line providers and other
carriers that these providers will likely ban communications that they
consider potentially Indecent or Patently offensive in order to avoid
criminal prosecution themselves, thereby depriving plaintiffs of the
ability to communicate about important issues.
The defendant counters by stating that there must be a realistic danger or
sustaining a direct injury as a result of the statute's enactment or
enforcement, apparently suggesting that plaintiffs' fears of prosecution
are imaginary or speculative. There is no evidence on the present record to
suggest defendant's position is correct in the latter regard.
Moreover, the defendant's brief quotes a portion of a Third Circuit case
for the proposition that "the assertion of First Amendment rights does not
automatically require a finding of irreparable injury. What the defendant
failed to cite from that case was the sentence immediately preceding the
above quote which was, "It is well established that the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Hohe v. Casey, 868 F. 2d 69, at p. 72, 73
(3d Cir. 1989). The Hohe case goes on to explain that plaintiff must show
"a chilling effect on free expression." That has been shown in this case by
affidavits previously referred to.
What likelihood is there that plaintiffs will prevail on the merits? In
Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d #2948.3, it
is suggested that this concept of probability of success on the merits must
be considered and balanced with the comparative injuries of the parties.
As the Second Circuit put it, when
the balance of hardship tips decidedly toward plaintiff. . .it
will ordinarily be enough that the plaintiff has raised questions
going to the merits so serious, substantial, difficult and
doubtful, as to make them a fair ground for litigation and thus
for more deliberative investigation. Hamilton Watch Co. v. Benrus
Watch Co., 206 F.2d 738, 740 (2d Cir. 1953).
I believe plaintiffs have, at least with regard to 47 U.S.C. #223(a)(1)
(B)(ii) and (a)(2) raised serious, substantial, difficult and doubtful
questions which are fair grounds for this litigation.
In explaining my reason for this conclusion, I will not go through a
piecemeal analysis of the cases, all of which have been set forth in both
plaintiffs and defendant's briefs, except, perhaps, in passing while
discussing the respective arguments of the parties.
First of all, I have no quarrel with the argument that Congress has a
compelling interest in protecting the physical and psychological well-being
of minors. Moreover, at least from the evidence before me, plaintiffs have
not convinced me that Congress has failed to narrowly tailor the CDA.
Where I do feel that the plaintiffs have raised serious, substantial,
difficult and doubtful questions is in their argument that the CDA is
unconstitutionally vague in the use of the undefined term, "indecent."
#223(a)(1)(B)(ii).
This strikes me as being serious because the undefined word "indecent",
standing alone, would leave reasonable people perplexed in evaluating what
is or is not prohibited by the statute.
It is a substantial question because this word alone is the basis for a
criminal felony prosecution.
It is a difficult question, I think, because any laws affecting freedoms
such as the ones here in question have spawned opinions which arguably
support both, sides.
Finally, it is a doubtful question because it simply is not clear, contrary
to what the government suggests, that the word "indecent" has ever been
defined by the Supreme Court. See Alliance for Community Media v. F.C.C.,
56 F.3d 105 (D.C. Cir. 1995) p. 130, footnote 2:
We note that the Supreme Court has never actually passed on the
FCC's broad definition of "indecency". See Action for Children's
Television v. FCC, 852 F.2d 1332, 1338-39 (D.C. Cir. 1988)
(acknowledging that in FCC v. Pacifica Foundation, 438 U.S 796,
98 S.Ct. 3026, 57 L.Ed. 2d 1073 (1978), the Supreme Court never
specifically addressed whether the FCC's generic definition of
indecency was unconstitutionally vague, but arguing that because
the Court "implicitly approved the definition by relying on it,
lower courts are barred from addressing the vagueness issue on
the merits.
Parenthetically, I had reached the same conclusion as Judge Wald, author of
the above footnote, before reading Alliance for Community Media. That, of
course, does not mean that we are correct but it did reinforce my belief
that the question of vagueness is a difficult and doubtful one.
In connection with the vagueness argument, the government correctly states
that plaintiffs face a most difficult challenge. That challenge has been
stated as one in which "the challenger must establish that no set of
circumstances exists under which the Act would be valid." Rust v. Sullivan,
500 U.S. 173, 183 (1990) (quoting United States v. Salerno, 481 U.S. 739,
745 (1987).
It is hard to imagine a set of circumstances where an act proscribing
certain conduct could be rendered valid if the description of that conduct,
the violation of which is a felony, is vague.
Defendant seems to argue that an indecent communication means the same as a
communication that in context, depicts or describes, "in terms patently
offensive as measured by Contemporary community standards, sexual or
excretory activities or organs. ..."
While I do not believe the patently offensive provision of #223(d)(l),
quoted above, is unconstitutionally vague, I do not see how that applies to
the undefined use of the word "indecent in #223(a)(1)(B)(ii). Depending on
who is making the judgment, indecent could include a whole range of conduct
not encompassed by "patently offensive."
The remaining considerations relative to a TRO request weigh in favor of
plaintiffs. I have not overlooked or ignored the outstanding argument made
by the government in part 1 of its brief. I particularly have pondered the
oft cited quote: when a court is asked to invalidate a "statutory provision
that has been approved by both Houses of the Congress and signed by the
president, particularly an Act of Congress that, confronts a deeply vexing
national problem, it shouts only do so for the moss compelling
constitutional reasons." Mistretta v. United States, 488 U.S. 361, 384
(1989), p. 17 of defendant's brief.
It is, of course, impossible to define conduct with mathematical certainty,
but on but on the other hand, it seems so me that due process, particularly
in the arena of criminal statutes, requires more than one vague, undefined
word, "indecent."
It is a most compelling constitutional reason to require of a law that it
reasonably informs a person of what conduct is prohibited particularly when
the violation of the law may result in fines, imprisonment, or both.
An order follows.
ORDER
This case is before the court on plaintiffs' motion for a temporary
restraining order against enforcement of both 47 U.S.C. #223(a)(1)(B) (as
amended by the Telecommunications Act of l996, #502), and 47 U.S.C.
#223(d). The court having considered plaintiffs' submissions in support or
their motion, and defendants' submissions in opposition thereto,
IT IS HEREBY ORDERED THAT plaintiffs motion for a temporary restraining
order is GRANTED, in part, as follows:
The defendant, her agents, and her servants are hereby ENJOINED from
enforcing against plaintiffs the provisions of 47 U.S.C. #223(a)(1)(B)(ii),
insofar as they extend to "indecent", but not "obscene". The plaintiffs'
motion is in all other respects, DENIED.
Unless previously ordered by this court, pursuant to 28 U.S.C. #2284(b)(3),
this order shall remain in force only until the hearing and determination
by the district court of three judges of the application for a preliminary
injunction.
SO ORDERED this 15th day of February, 1996.
Ronald L. Buckwalter
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