IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION,: CIVIL ACTION NO. 96-963 et al. :
JANET RENO, Attorney General of:
the United States :
AMERICAN LIBRARY ASSOC., : CIVIL ACTION NO. 96-1458 INC., et al. :
UNITED STATES DEP'T OF :
JUSTICE, et al. :
Before: Sloviter, Chief Judge, United States
Court of Appeals for the Third Circuit; Buckwalter
and Dalzell, Judges, United States District Court
for the Eastern District of Pennsylvania
|Findings of Fact||Judge Sloviter's Opinion||Judge Buckwalter's Opinion||Judge Dalzell's Opinion||Mock Supreme Court Opinion|
June 11, 1996
ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION
Before us are motions for a preliminary injunction filed by plaintiffs
who challenge on constitutional grounds provisions of the Communications
Decency Act of 1996 (CDA or "the Act"), which constitutes Title
V of the Telecommunications Act of 1996, signed into law by the President
on February 8, 1996.1 Telecommunications Act of 1996, Pub. L. No. 104-104,
Sec. 502, 110 Stat. 56, 133-35. Plaintiffs include various organizations
and individuals who, inter alia, are associated with the computer and/or
communications industries, or who publish or post materials on the Internet,
or belong to various citizen groups. See ACLU Complaint (Paras. 7-26),
ALA First Amended Complaint (Paras. 3, 12-33).
The defendants in these actions are Janet Reno, the Attorney General
of the United States, and the United States Department of Justice. For
convenience, we will refer to these defendants as the Government. Plaintiffs
contend that the two challenged provisions of the CDA ttat are directed
to communications over the Internet which might be deemed "indecent"
or "patently offensive" for minors, defined as persons under
the age of eighteen, infringe upon rights protected by the First Amendment
and the Due Process Clause of the Fifth Amendment.
Plaintiffs in Civil Action Number 96-963, in which the lead plaintiff
is the American Civil Liberties Union (the ACLU),2 filed their action in
the United States District Court for the Eastern District of Pennsylvania
on the day the Act was signed, and moved for a temporary restraining order
to enjoin enforcement of these two provisions of the CDA. On February 15,
1996, following an evidentiary hearing, Judge Ronald L. Buckwalter, to
whom the case had been assigned, granted a limited temporary restraining
order, finding in a Memorandum that 47 U.S.C. Sec. 223(a)(1)(B) ("the
indecency provision" of the CDA) was unconstitutionally vague. On
the same day, Chief Judge Dolores K. Sloviter, Chief Judge of the United
States Court of Appeals for the Third Circuit, having been requested by
the parties and the district court to convene a three-judge court, pursuant
to Sec. 561(a) of the CDA, appointed such a court consisting of, in addition
to Judge Buckwalter, Judge Stewart Dalzell of the same district, and herself,
as the circuit judge required by 28 U.S.C. Sec. 2284.
After a conference with the court, the parties entered into a stipulation, which the court approved on February 26, 1996, wherein the Attorney General agreed that: she will not initiate any investigations or prosecutions for violations of 47 U.S.C. Sec. 223(d) for conduct occurring after enactment of this provision until the three-judge court hears Plaintiffs' Motion for Preliminary Injunction . . . and has decided the motion.
The Attorney General's commitment was qualified to the extent that: her full authority to investigate or prosecute any violation of Sec. 223(a)(1)(B), as amended, and Sec. 223(d) as to conduct which occurs or occurred during any period of time after enactment of these provisions (including for the period of time to which this stipulation applies) should the Court deny
plaintiffs' motion or, if the motion is granted, should these provisions
ultimately be upheld.
Stipulation, Para. 4, in C.A. No. 96-963.
Shortly thereafter, the American Library
Association, Inc. (the ALA) and others3 filed a similar action at C.A.
No. 96-1458. On February 27, 1996, Chief Judge Sloviter, again pursuant
to Sec. 561(a) of the CDA and upon request, convened the same three-judge
court pursuant to 28 U.S.C. Sec. 2284. The actions were consolidated pursuant
to Fed. R. Civ. P. 42(a), "for all matters relating to the disposition
of motions for preliminary injunction in these cases, including the hearing
on such motions."
The parties were afforded expedited discovery in connection with the motions for preliminary injunction, and they cooperated with Judge Dalzell, who had been assigned the case management aspects of the litigation. While the discovery was proceeding, and with the agreement of the parties, the court began receiving evidence at the consolidated hearings which were conducted on March 21 and 22, and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties worked closely with Judge Dalzell and arranged to stipulate to many of the underlying facts and to place much of their cases in chief before the court by sworn declarations, so that the hearings were largely devoted to cross-examination of certain of the witnesses whose declarations had been filed. The parties submitted
proposed findings of fact and post-hearing memoranda on April 29, and the court heard extensive oral argument on May 10, 1996.4
Statutory Provisions at Issue
Plaintiffs focus their challenge on two
provisions of section 502 of the CDA which amend 47 U.S.C. Secs. 223(a)
Section 223(a)(1)(B) provides in part that any person in interstate or foreign communications who, "by means of a telecommunications device,"5 "knowingly . . . makes, creates, or solicits" and "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," "shall be criminally
fined or imprisoned." (emphasis added).
Section 223(d)(1) ("the patently offensive provision"), makes it a crime to use an "interactive computer service"6 to "send" or "display in a manner available" to a person under age 18, "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."
Plaintiffs also challenge on the same grounds the provisions in Sec. 223(a)(2) and Sec. 223(d)(2), which make it a crime for anyone to "knowingly permit any telecommunications facility under [his or her] control to be used for any activity
prohibited" in Secs. 223(a)(1)(B) and 223(d)(1). The challenged
provisions impose a punishment of a fine, up to two years imprisonment,
or both for each offense.
Plaintiffs make clear that they do not quarrel with the statute to the
extent that it covers obscenity or child pornography, which were already
proscribed before the CDA's adoption. See 18 U.S.C. Secs. 1464-65 (criminalizing
obscene material); id. Secs. 2251-52 (criminalizing child pornography);
see also New York v. Ferber, 458 U.S. 747 (1982); Miller v. California,
413 U.S. 15 (1973).
Plaintiffs in the ACLU action also challenge the provision of the CDA
that criminalizes speech over the Internet that transmits information about
abortions or abortifacient drugs and devices, through its amendment of
18 U.S.C. Sec. 1462(c). That section now prohibits the sending and receiving
of information over the Internet 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".
The Government has stated that it does not contest plaintiffs' challenge
to the enforceability of the provision of the CDA as it relates to 18 U.S.C.
As part of its argument that the CDA passes constitutional muster, the
Government cites the CDA's "safe harbor" defenses in new Sec.
223(e) of 47 U.S.C., which provides: (e) Defenses
In addition to any other defenses available by law:
(1) No person shall be held to have violated subsection (a) or (d) of
this section 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.
(2) The defenses provided by paragraph (1) of this subsection shall
not be applicable to a person who is a conspirator with an entity actively
involved in the creation or knowing distribution of communications that
violate this section, or who knowingly advertises the availability of such
(3) The defenses provided in paragraph (1) of this subsection shall
not be applicable to a person who provides access or connection to a facility,
system, or network engaged in the violation of this section that is owned
or controlled by such person.
(4) No employer shall be held liable under this section for the actions of an employee or agent unless the employee's or agent's conduct is within the scope of his or her employment or agency and the employer (A) having knowledge of such conduct, authorizes or ratifies such conduct, or (B)
recklessly disregards such conduct.
(5) It is a defense to a prosecution under subsection (a)(1)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an
activity under subsection (a)(1)(B) that a person --
(A) has taken, in good faith, reasonable, effective, and appropriate
actions under the circumstances to restrict or prevent access by minors
to a communication specified in such subsections, which may involve any
appropriate measures to restrict minors from such communications, including
any method which is feasible under available technology; or
(B) has restricted access to such communication by requiring use of
a verified credit card, debit account, adult access code, or adult personal
(6) The [Federal Communications] Commission may describe measures which
are reasonable, effective, and appropriate to restrict access to prohibited
communications under subsection (d) of this section. Nothing in this section
authorizes the Commission to enforce, or is intended to provide the Commission
with the authority to approve, sanction, or permit, the use of such measures.
The Commission shall have no enforcement authority over the failure to
utilize such measures. . . .
II. FINDINGS OF FACT
All parties agree that in order to apprehend the legal questions at
issue in these cases, it is necessary to have a clear understanding of
the exponentially growing, worldwide medium that is the Internet, which
presents unique issues relating to the application of First Amendment jurisprudence
and due process requirements to this new and evolving method of communication.
For this reason all parties insisted on having extensive evidentiary hearings
before the three-judge court. The court's Findings of fact are made pursuant
to Fed. R. Civ. P. 52(a). The history and basic technology of this medium
are not in dispute, and the first forty-eight paragraphs of the following
Findings of fact are derived from the like-numbered paragraphs of a stipulation8
the parties filed with the court.9 The Nature of Cyberspace The Creation
of the Internet and the Development of Cyberspace
The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks. This is best understood if one considers what a linked group of computers -- referred to here as a "network" -- is, and what it does. Small networks are now ubiquitous (and are often called "local area networks"). For example, in many United States Courthouses, computers are linked to each other for the purpose of exchanging files and messages (and to share equipment such as printers). These are networks.
Some networks are "closed" networks, not linked to other computers
or networks. Many networks, however, are connected to other networks, which
are in turn connected to other networks in a manner which permits each
computer in any network to communicate with computers on any other network
in the system. This global Web of linked networks and computers is referred
to as the Internet.
The nature of the Internet is such that it is very difficult, if not
impossible, to determine its size at a given moment. It is indisputable,
however, that the Internet has experienced extraordinary growth in recent
years. In 1981, fewer than 300 computers were linked to the Internet, and
by 1989, the number stood at fewer than 90,000 computers. By 1993, over
1,000,000 computers were linked. Today, over 9,400,000 host computers worldwide,
of which approximately 60 percent located within the United States, are
estimated to be linked to the Internet. This count does not include the
personal computers people use to access the Internet using modems. In all,
reasonable estimates are that as many as 40 million people around the world
can and do access the enormously flexible communication Internet medium.
That figure is expected to grow to 200 million Internet users by the year
Some of the computers and computer networks that make up the Internet
are owned by governmental and public institutions, some are owned by non-profit
organizations, and some are privately owned. The resulting whole is a decentralized,
global medium of communications -- or "cyberspace" -- that links
people, institutions, corporations, and governments around the world. The
Internet is an international system. This communications medium allows
any of the literally tens of millions of people with access to the Internet
to exchange information. These communications can occur almost instantaneously,
and can be directed either to specific individuals, to a broader group
of people interested in a particular subject, or to the world as a whole.
The Internet had its origins in 1969 as an experimental project of the
Advanced Research Project Agency ("ARPA"), and was called ARPANET.
This network linked computers and computer networks owned by the military,
defense contractors, and university laboratories conducting defense-related
research. The network later allowed researchers across the country to access
directly and to use extremely powerful supercomputers located at a few
key universities and laboratories. As it evolved far beyond its research
origins in the United States to encompass universities, corporations, and
people around the world, the ARPANET came to be called the "DARPA
Internet," and finally just the "Internet."
From its inception, the network was designed to be a decentralized, self-maintaining series of redundant links between computers and computer networks, capable of rapidly transmitting communications without direct human involvement or control, and with the automatic ability to re-route
communications if one or more individual links were damaged or otherwise
unavailable. Among other goals, this redundant system of linked computers
was designed to allow vital research and communications to continue even
if portions of the network were damaged, say, in a war.
To achieve this resilient nationwide (and ultimately global) communications
medium, the ARPANET encouraged the creation of multiple links to and from
each computer (or computer network) on the network. Thus, a computer located
in Washington, D.C., might be linked (usually using dedicated telephone
lines) to other computers in neighboring states or on the Eastern seaboard.
Each of those computers could in turn be linked to other computers, which
themselves would be linked to other computers.
A communication sent over this redundant series of linked computers
could travel any of a number of routes to its destination. Thus, a message
sent from a computer in Washington, D.C., to a computer in Palo Alto, California,
might first be sent to a computer in Philadelphia, and then be forwarded
to a computer in Pittsburgh, and then to Chicago, Denver, and Salt Lake
City, before finally reaching Palo Alto. If the message could not travel
along that path (because of military attack, simple technical malfunction,
or other reason), the message would automatically (without human intervention
or even knowledge) be re-routed, perhaps, from Washington, D.C. to Richmond,
and then to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto. This type of transmission, and re-routing, would
likely occur in a matter of seconds.
9. Messages between computers on the Internet do not necessarily travel
entirely along the same path. The Internet uses "packet switching"
communication protocols that allow individual messages to be subdivided
into smaller "packets" that are then sent independently to the
destination, and are then automatically reassembled by the receiving computer.
While all packets of a given message often travel along the same path to
the destination, if computers along the route become overloaded, then packets
can be re-routed to less loaded computers.
10. At the same time that ARPANET was maturing (it subsequently ceased
to exist), similar networks developed to link universities, research facilities,
businesses, and individuals around the world. These other formal or loose
networks included BITNET, CSNET, FIDONET, and USENET. Eventually, each
of these networks (many of which overlapped) were themselves linked together,
allowing users of any computers linked to any one of the networks to transmit
communications to users of computers on other networks. It is this series
of linked networks (themselves linking computers and computer networks)
that is today commonly known as the Internet.
11. No single entity -- academic, corporate, governmental, or non-profit
-- administers the Internet. It exists and functions as a result of the
fact that hundreds of thousands of separate operators of computers and
computer networks independently decided to use common data transfer protocols
to exchange communications and information with other computers (which
in turn exchange communications and information with still other computers).
There is no centralized storage location, control point, or communications
channel for the Internet, and it would not be technically feasible for
a single entity to control all of the information conveyed on the Internet.
How Individuals Access the Internet
12. Individuals have a wide variety of avenues to access cyberspace
in general, and the Internet in particular. In terms of physical access,
there are two common methods to establish an actual link to the Internet.
First, one can use a computer or computer terminal that is directly (and
usually permanently) connected to a computer network that is itself directly
or indirectly connected to the Internet. Second, one can use a "personal
computer" with a "modem" to connect over a telephone line
to a larger computer or computer network that is itself directly or indirectly
connected to the Internet. As detailed below, both direct and modem connections
are made available to people by a wide variety of academic, governmental,
or commercial entities.
13. Students, faculty, researchers, and others affiliated with the vast
majority of colleges and universities in the United States can access the
Internet through their educational institutions. Such access is often via
direct connection using computers located in campus libraries, offices,
or computer centers, or may be through telephone access using a modem from
a student's or professor's campus or off-campus location. Some colleges
and universities install "ports" or outlets for direct network
connections in each dormitory room or provide access via computers located
in common areas in dormitories. Such access enables students and professors
to use information and content provided by the college or university itself,
and to use the vast amount of research resources and other information
available on the Internet worldwide.
14. Similarly, Internet resources and access are sufficiently important
to many corporations and other employers that those employers link their
office computer networks to the Internet and provide employees with direct
or modem access to the office network (and thus to the Internet). Such
access might be used by, for example, a corporation involved in scientific
or medical research or manufacturing to enable corporate employees to exchange
information and ideas with academic researchers in their fields.
15. Those who lack access to the Internet through their schools or employers still have a variety of ways they can access the Internet. Many communities across the country have established "free-nets" or community networks to provide their citizens with a local link to the Internet (and to provide local-oriented content and discussion groups). The first such community network, the Cleveland Free-Net Community Computer System, was established in 1986, and free-nets now exist in scores of communities as diverse as Richmond, Virginia, Tallahassee, Florida, Seattle, Washington, and San Diego, California. Individuals typically can access free-nets at little or no cost via modem connection or by using computers available in community buildings. Free-nets are often operated by a local library, educational institution, or non-profit community group.
16. Individuals can also access the Internet through many local libraries. Libraries often offer patrons use of computers that are linked to the Internet. In addition, some libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet. Increasingly,
patrons now use library services and resources without ever physically
entering the library itself. Libraries typically provide such direct or
modem access at no cost to the individual user.
17. Individuals can also access the Internet by patronizing an increasing
number of storefront "computer coffee shops," where customers
-- while they drink their coffee -- can use computers provided by the shop
to access the Internet. Such Internet access is typically provided by the
shop for a small hourly fee.
18. Individuals can also access the Internet through commercial and
non-commercial "Internet service providers" that typically offer
modem telephone access to a computer or computer network linked to the
Internet. Many such providers -- including the members of plaintiff Commercial
Internet Exchange Association -- are commercial entities offering Internet
access for a monthly or hourly fee. Some Internet service providers, however,
are non-profit organizations that offer free or very low cost access to
the Internet. For example, the International Internet Association offers
free modem access to the Internet upon request. Also, a number of trade
or other non-profit associations offer Internet access as a service to
19. Another common way for individuals to access the Internet is through
one of the major national commercial "online services" such as
America Online, CompuServe, the Microsoft Network, or Prodigy. These online
services offer nationwide computer networks (so that subscribers can dial-in
to a local telephone number), and the services provide extensive and well
organized content within their own proprietary computer networks. In addition
to allowing access to the extensive content available within each online
service, the services also allow subscribers to link to the much larger
resources of the Internet. Full access to the online service (including
access to the Internet) can be obtained for modest monthly or hourly fees.
The major commercial online services have almost twelve million individual
subscribers across the United States.
20. In addition to using the national commercial online services, individuals
can also access the Internet using some (but not all) of the thousands
of local dial-in computer services, often called "bulletin board systems"
or "BBSs." With an investment of as little as $2,000.00 and the
cost of a telephone line, individuals, non-profit organizations, advocacy
groups, and businesses can offer their own dial-in computer "bulletin
board" service where friends, members, subscribers, or customers can
exchange ideas and information. BBSs range from single computers with only
one telephone line into the computer (allowing only one user at a time),
to single computers with many telephone lines into the computer (allowing
multiple simultaneous users), to multiple linked computers each servicing
multiple dial-in telephone lines (allowing multiple simultaneous users).
Some (but not all) of these BBS systems offer direct or indirect links
to the Internet. Some BBS systems charge users a nominal fee for access,
while many others are free to the individual users.
21. Although commercial access to the Internet is growing rapidly, many
users of the Internet -- such as college students and staff -- do not individually
pay for access (except to the extent, for example, that the cost of computer
services is a component of college tuition). These and other Internet users
can access the Internet without paying for such access with a credit card
or other form of payment.
Methods to Communicate Over the Internet
22. Once one has access to the Internet, there are a wide variety of
different methods of communication and information exchange over the network.
These many methods of communication and information retrieval are constantly
evolving and are therefore difficult to categorize concisely. The most
common methods of communications on the Internet (as well as within the
major online services) can be roughly grouped into six categories:
(1) one-to-one messaging (such as "e-mail"),
(2) one-to-many messaging (such as "listserv"),
(3) distributed message databases (such as
(4) real time communication (such as "Internet Relay Chat"),
(5) real time remote computer utilization (such as "telnet"),
(6) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web").
Most of these methods of communication can be used to transmit text, data, computer programs, sound, visual images (i.e., pictures), and moving video images.
23. One-to-one messaging. One method of communication on the Internet
is via electronic mail, or "e-mail," comparable in principle
to sending a first class letter. One can address and transmit a message
to one or more other people. E-mail on the Internet is not routed through
a central control point, and can take many and varying paths to the recipients.
Unlike postal mail, simple e-mail generally is not "sealed" or
secure, and can be accessed or viewed on intermediate computers between
the sender and recipient (unless the message is encrypted).
24. One-to-many messaging. The Internet also contains automatic mailing
list services (such as "listservs"), [also referred to by witnesses
as "mail exploders"] that allow communications about particular
subjects of interest to a group of people. For example, people can subscribe
to a "listserv" mailing list on a particular topic of interest
to them. The subscriber can submit messages on the topic to the listserv
that are forwarded (via e-mail), either automatically or through a human
moderator overseeing the listserv, to anyone who has subscribed to the
mailing list. A recipient of such a message can reply to the message and
have the reply also distributed to everyone on the mailing list. This service
provides the capability to keep abreast of developments or events in a
particular subject area. Most listserv-type mailing lists automatically
forward all incoming messages to all mailing list subscribers. There are
thousands of such mailing list services on the Internet, collectively with
hundreds of thousands of subscribers. Users of "open" listservs
typically can add or remove their names from the mailing list automatically,
with no direct human involvement. Listservs may also be "closed,"
i.e., only allowing for one's acceptance into the listserv by a human moderator.
25. Distributed message databases. Similar in function to listservs
-- but quite different in how communications are transmitted -- are distributed
message databases such as "USENET newsgroups." User-sponsored
newsgroups are among the most popular and widespread applications of Internet
services, and cover all imaginable topics of interest to users. Like listservs,
newsgroups are open discussions and exchanges on particular topics. Users,
however, need not subscribe to the discussion mailing list in advance,
but can instead access the database at any time. Some USENET newsgroups
are "moderated" but most are open access. For the moderated newsgroups,10
all messages to the newsgroup are forwarded to one person who can screen
them for relevance to the topics under discussion. USENET newsgroups are
disseminated using ad hoc, peer to peer connections between approximately
200,000 computers (called USENET "servers") around the world.
For unmoderated newsgroups, when an individual user with access to a USENET
server posts a message to a newsgroup, the message is automatically forwarded
to all adjacent USENET servers that furnish access to the newsgroup, and
it is then propagated to the servers adjacent to those servers, etc. The
messages are temporarily stored on each receiving server, where they are
available for review and response by individual users. The messages are
automatically and periodically purged from each system after a time to
make room for new messages. Responses to messages, like the original messages,
are automatically distributed to all other computers receiving the newsgroup
or forwarded to a moderator in the case of a moderated newsgroup. The dissemination
of messages to USENET servers around the world is an automated process
that does not require direct human intervention or review.
26. There are newsgroups on more than fifteen thousand different subjects.
In 1994, approximately 70,000 messages were posted to newsgroups each day,
and those messages were distributed to the approximately 190,000 computers
or computer networks that participate in the USENET newsgroup system. Once
the messages reach the approximately 190,000 receiving computers or computer
networks, they are available to individual users of those computers or
computer networks. Collectively, almost 100,000 new messages (or "articles")
are posted to newsgroups each day.
27. Real time communication. In addition to transmitting messages that can be later read or accessed, individuals on the Internet can engage in an immediate dialog, in "real time", with other people on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" (or IRC) allows two or more to type messages to each other that almost immediately appear on the others' computer screens. IRC is analogous to a telephone party line, using a computer and keyboard rather than a telephone. With IRC, however, at any one time there are thousands of different party lines available, in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects. Moreover, one can create a new party line to discuss a different topic at any time. Some IRC conversations are "moderated" or include "channel operators."
28. In addition, commercial online services such as America Online,
CompuServe, the Microsoft Network, and Prodigy have their own "chat"
systems allowing their members to converse.
29. Real time remote computer utilization. Another method to use information
on the Internet is to access and control remote computers in "real
time" using "telnet." For example, using telnet, a researcher
at a university would be able to use the computing power of a supercomputer
located at a different university. A student can use telnet to connect
to a remote library to access the library's online card catalog program.
30. Remote information retrieval. The final major category of communication
may be the most well known use of the Internet -- the search for and retrieval
of information located on remote computers. There are three primary methods
to locate and retrieve information on the Internet.
31. A simple method uses "ftp" (or file transfer protocol)
to list the names of computer files available on a remote computer, and
to transfer one or more of those files to an individual's local computer.
32. Another approach uses a program and format named "gopher"
to guide an individual's search through the resources available on a remote
The World Wide Web
33. A third approach, and fast becoming the most well-known on the Internet,
is the "World Wide Web." The Web utilizes a "hypertext"
formatting language called hypertext markup language (HTML), and programs
that "browse" the Web can display HTML documents containing text,
images, sound, animation and moving video. Any HTML document can include
links to other types of information or resources, so that while viewing
an HTML document that, for example, describes resources available on the
Internet, one can "click" using a computer mouse on the description
of the resource and be immediately connected to the resource itself. Such
"hyperlinks" allow information to be accessed and organized in
very flexible ways, and allow people to locate and efficiently view related
information even if the information is stored on numerous computers all
around the world.
34. Purpose. The World Wide Web (W3C) was created to serve as the platform
for a global, online store of knowledge, containing information from a
diversity of sources and accessible to Internet users around the world.
Though information on the Web is contained in individual computers, the
fact that each of these computers is connected to the Internet through
W3C protocols allows all of the information to become part of a single
body of knowledge. It is currently the most advanced information system
developed on the Internet, and embraces within its data model most information
in previous networked information systems such as ftp, gopher, wais, and
35. History. W3C was originally developed at CERN, the European Particle
Physics Laboratory, and was initially used to allow information sharing
within internationally dispersed teams of researchers and engineers. Originally
aimed at the High Energy Physics community, it has spread to other areas
and attracted much interest in user support, resource recovery, and many
other areas which depend on collaborative and information sharing. The
Web has extended beyond the scientific and academic community to include
communications by individuals, non-profit organizations, and businesses.
36. Basic Operation. The World Wide Web is a series of documents stored
in different computers all over the Internet. Documents contain information
stored in a variety of formats, including text, still images, sounds, and
video. An essential element of the Web is that any document has an address
(rather like a telephone number). Most Web documents contain "links."
These are short sections of text or image which refer to another document.
Typically the linked text is blue or underlined when displayed, and when
selected by the user, the referenced document is automatically displayed,
wherever in the world it actually is stored. Links for example are used
to lead from overview documents to more detailed documents, from tables
of contents to particular pages, but also as cross-references, footnotes,
and new forms of information structure.
37. Many organizations now have "home pages" on the Web. These
are documents which provide a set of links designed to represent the organization,
and through links from the home page, guide the user directly or indirectly
to information about or relevant to that organization.
38. As an example of the use of links, if these Findings were to be
put on a World Wide Web site, its home page might contain links such as
those: *THE NATURE OF CYBERSPACE *CREATION OF THE INTERNET AND THE DEVELOPMENT
OF CYBERSPACE *HOW PEOPLE ACCESS THE INTERNET *METHODS TO COMMUNICATE OVER
39. Each of these links takes the user of the site from the beginning
of the Findings to the appropriate section within this Adjudication. Links
may also take the user from the original Web site to another Web site on
another computer connected to the Internet. These links from one computer
to another, from one document to another across the Internet, are what
unify the Web into a single body of knowledge, and what makes the Web unique.
The Web was designed with a maximum target time to follow a link of one
tenth of a second.
40. Publishing. The World Wide Web exists fundamentally as a platform
through which people and organizations can communicate through shared information.
When information is made available, it is said to be "published"
on the Web. Publishing on the Web simply requires that the "publisher"
has a computer connected to the Internet and that the computer is running
W3C server software. The computer can be as simple as a small personal
computer costing less than $1500 dollars or as complex as a multi-million
dollar mainframe computer. Many Web publishers choose instead to lease
disk storage space from someone else who has the necessary computer facilities,
eliminating the need for actually owning any equipment oneself.
41. The Web, as a universe of network accessible information, contains
a variety of documents prepared with quite varying degrees of care, from
the hastily typed idea, to the professionally executed corporate profile.
The power of the Web stems from the ability of a link to point to any document,
regardless of its status or physical location.
42. Information to be published on the Web must also be formatted according
to the rules of the Web standards. These standardized formats assure that
all Web users who want to read the material will be able to view it. Web
standards are sophisticated and flexible enough that they have grown to
meet the publishing needs of many large corporations, banks, brokerage
houses, newspapers and magazines which now publish "online" editions
of their material, as well as government agencies, and even courts, which
use the Web to disseminate information to the public. At the same time,
Web publishing is simple enough that thousands of individual users and
small community organizations are using the Web to publish their own personal
"home pages," the equivalent of individualized newsletters about
that person or organization, which are available to everyone on the Web.
43. Web publishers have a choice to make their Web sites open to the general pool of all Internet users, or close them, thus making the information accessible only to those with advance authorization. Many publishers choose to keep their sites open to all in order to give their information the widest potential audience. In the event that the publishers choose to maintain restrictions on access, this may be accomplished by assigning specific user names and passwords as a prerequisite to access to the site. Or, in the case of Web sites maintained for internal use of one organization, access will only be allowed from other computers within that organization's local network.11
44. Searching the Web. A variety of systems have developed that allow
users of the Web to search particular information among all of the public
sites that are part of the Web. Services such as Yahoo, Magellan, Altavista,
Webcrawler, and Lycos are all services known as "search engines"
which allow users to search for Web sites that contain certain categories
of information, or to search for key words. For example, a Web user looking
for the text of Supreme Court opinions would type the words "Supreme
Court" into a search engine, and then be presented with a list of
World Wide Web sites that contain Supreme Court information. This list
would actually be a series of links to those sites. Having searched out
a number of sites that might contain the desired information, the user
would then follow individual links, browsing through the information on
each site, until the desired material is found. For many content providers
on the Web, the ability to be found by these search engines is very important.
45. Common standards. The Web links together disparate information on
an ever-growing number of Internet-linked computers by setting common information
storage formats (HTML) and a common language for the exchange of Web documents
(HTTP). Although the information itself may be in many different formats,
and stored on computers which are not otherwise compatible, the basic Web
standards provide a basic set of standards which allow communication and
exchange of information. Despite the fact that many types of computers
are used on the Web, and the fact that many of these machines are otherwise
incompatible, those who "publish" information on the Web are
able to communicate with those who seek to access information with little
difficulty because of these basic technical standards.
46. A distributed system with no centralized control. Running on tens of thousands of individual computers on the Internet, the Web is what is known as a distributed system. The Web was designed so that organizations with computers containing information can become part of the Web simply by attaching their computers to the Internet and running appropriate World Wide Web software. No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user's perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point.
47. Contrast to closed databases. The Web's open, distributed, decentralized nature stands in sharp contrast to most information systems that have come before it. Private information services such as Westlaw, Lexis/Nexis, and Dialog, have contained large storehouses of knowledge, and can be accessed from the Internet with the appropriate passwords and access software. However, these databases are not linked together into a single whole, as is the World Wide Web.
48. Success of the Web in research, education, and political activities.
The World Wide Web has become so popular because of its open, distributed,
and easy-to-use nature. Rather than requiring those who seek information
to purchase new software or hardware, and to learn a new kind of system
for each new database of information they seek to access, the Web environment
makes it easy for users to jump from one set of information to another.
By the same token, the open nature of the Web makes it easy for publishers
to reach their intended audiences without having to know in advance what
kind of computer each potential reader has, and what kind of software they
will be using.
Restricting Access to Unwanted On-Line Material12
49. With the rapid growth of the Internet, the increasing popularity
of the Web, and the existence of material online that some parents may
consider inappropriate for their children, various entities have begun
to build systems intended to enable parents to control the material which
comes into their homes and may be accessible to their children. The World
Wide Web Consortium launched the PICS ("Platform for Internet Content
Selection") program in order to develop technical standards that would
support parents' ability to filter and screen material that their children
see on the Web.
50. The Consortium intends that PICS will provide the ability for third
parties, as well as individual content providers, to rate content on the
Internet in a variety of ways. When fully implemented, PICS-compatible
World Wide Web browsers, Usenet News Group readers, and other Internet
applications, will provide parents the ability to choose from a variety
of rating services, or a combination of services.
51. PICS working group [PICS-WG] participants include many of the major
online services providers, commercial internet access providers, hardware
and software companies, major internet content providers, and consumer
organizations. Among active participants in the PICS effort are:
Adobe Systems, Inc.
Center for Democracy and Technology
Delphi Internet Services
Digital Equipment Corporation
First Virtual Holdings Incorporated
Industrial Technology Research Institute of Taiwan
Information Technology Association of America
Institut National de Recherche en Informatique et en Automatique (INRIA)
Interactive Services Association
MIT/LCS/World Wide Web Consortium
Netscape Communications Corporation
O'Reilly and Associates
Prodigy Services Company
Providence Systems/Parental Guidance Recreational Software Advisory Council SafeSurf
Time Warner Pathfinder
52. Membership in the PICS-WG includes a broad cross-section of companies
from the computer, communications, and content industries, as well as trade
associations and public interest groups. PICS technical specifications
have been agreed to, allowing the Internet community to begin to deploy
products and services based on the PICS-standards.
53. Until a majority of sites on the Internet have been rated by a PICS
rating service, PICS will initially function as a "positive"
ratings system in which only those sites that have been rated will be displayed
using PICS compatible software. In other words, PICS will initially function
as a site inclusion list rather than a site exclusion list. The default
configuration for a PICS compatible Internet application will be to block
access to all sites which have not been rated by a PICS rating service,
while allowing access to sites which have a PICS rating for appropriate
54. For over a year, various companies have marketed stand alone software
that is intended to enable parents and other adults to limit the Internet
access of children. Examples of such software include: Cyber Patrol, CYBERsitter,
The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape
Proxy Server, and WebTrack. The market for this type of software is growing,
and there is increasing competition among software providers to provide
55. As more people, particularly children, began to use the Internet, Microsystems Software, Inc. decided to develop and market Internet software intended to empower parents to exercise individual choice over what material their children could access. Microsystems' stated intent is to develop a product which would give parents comfort that their children can reap the benefits of the Internet while shielding them from objectionable or otherwise inappropriate materials based on the parents' own particular tastes and values. Microsystems' product, Cyber Patrol, was developed to address this need.
56. Cyber Patrol was first introduced in August 1995, and is currently
available in Windows and Macintosh versions. Cyber Patrol works with both
direct Internet Access providers (ISPs, e.g., Netcom, PSI, UUnet), and
Commercial Online Service Providers (e.g., America Online, Compuserv, Prodigy,
Microsoft). Cyber Patrol is also compatible with all major World Wide Web
browsers on the market (e.g., Netscape, Navigator, Mosaic, Prodigy's Legacy
and Skimmer browsers, America Online, Netcom's NetCruiser, etc.). Cyber
Patrol was the first parental empowerment application to be compatible
with the PICS standard. In February of 1996, Microsystems put the first
PICS ratings server on the Internet.
57. The CyberNOT list contains approximately 7000 sites in twelve categories. The software is designed to enable parents to selectively block access to any or all of the twelve CyberNOT categories simply by checking boxes in the Cyber Patrol Headquarters (the Cyber Patrol program manager). These categories are: Violence/Profanity: Extreme cruelty, physical or emotional acts against any animal or person which are primarily intended to hurt or inflict pain. Obscene words, phrases, and profanity defined as text that uses George Carlin's seven censored words more often than once every fifty messages or pages.
Partial Nudity: Full or partial exposure of the human anatomy except
when exposing genitalia.
Nudity: Any exposure of the human genitalia.
Sexual Acts (graphic or text): Pictures or text exposing anyone or anything
involved in explicit sexual acts and lewd and lascivious behavior, including
masturbation, copulation, pedophilia, intimacy and involving nude or partially
nude people in heterosexual, bisexual, lesbian or homosexual encounters.
Also includes phone sex ads, dating services, adult personals, CD-ROM and
Gross Depictions (graphic or text): Pictures or descriptive text of anyone or anything which are crudely vulgar, deficient in civility or behavior, or showing scatological impropriety. Includes such depictions as maiming, bloody figures, indecent depiction of bodily functions.
Racism/Ethnic Impropriety: Prejudice or discrimination against any race
or ethnic culture. Ethnic or racist jokes and slurs. Any text that elevates
one race over another.
Satanic/Cult: Worship of the devil; affinity for evil, wickedness. Sects
or groups that potentially coerce individuals to grow, and keep, membership.
Drugs/Drug Culture: Topics dealing with the use of illegal drugs for
entertainment. This would exclude current illegal drugs used for medicinal
purposes (e.g., drugs used to treat victims of AIDS). Includes substances
used for other than their primary purpose to alter the individual's state
of mind such as glue sniffing.
Militant/Extremist: Extremely aggressive and combative behaviors, radicalism,
advocacy of extreme political measures. Topics include extreme political
groups that advocate violence as a means to achieve their goal.
Gambling: Of or relating to lotteries, casinos, betting, numbers games, on-line sports or financial betting including non-monetary dares.
Questionable/Illegal: Material or activities of a dubious nature which may be illegal in any or all jurisdictions, such as illegal business schemes, chain letters, software piracy, and copyright infringement.
Alcohol, Beer & Wine: Material pertaining to the sale or consumption
of alcoholic beverages. Also includes sites and information relating to
58. Microsystems employs people to search the Internet for sites containing
material in these categories. Since new sites are constantly coming online,
Microsystems updates the CyberNOT list on a weekly basis. Once installed
on the home PC, the copy of Cyber Patrol receives automatic updates to
the CyberNOT list over the Internet every seven days.
59. In February of 1996, Microsystems signed a licensing arrangement with CompuServe, one of the leading commercial online services with over 4.3 million subscribers. CompuServe provides Cyber Patrol free of charge to its subscribers. Microsystems the same month signed a licensing arrangement with Prodigy, another leading commercial online service with over 1.4 million subscribers. Prodigy will provide Cyber Patrol free of charge of its subscribers.
60. Cyber Patrol is also available directly from Microsystems for $49.95,
which includes a six month subscription to the CyberNOT blocked sites list
(updated automatically once every seven days). After six months, parents
can receive six months of additional updates for $19.95, or twelve months
for $29.95. Cyber Patrol Home Edition, a limited version of Cyber Patrol,
is available free of charge on the Internet. To obtain either version,
parents download a seven day demonstration version of the full Cyber Patrol
product from the Microsystems Internet World Wide Web Server. At the end
of the seven day trial period, users are offered the opportunity to purchase
the complete version of Cyber Patrol or provide Microsystems some basic
demographic information in exchange for unlimited use of the Home Edition.
The demographic information is used for marketing and research purposes.
Since January of 1996, over 10,000 demonstration copies of Cyber Patrol
have been downloaded from Microsystems' Web site.
61. Cyber Patrol is also available from Retail outlets as NetBlocker
Plus. NetBlocker Plus sells for $19.95, which includes five weeks of updates
to the CyberNOT list.
62. Microsystems also sells Cyber Patrol into a growing market in schools.
As more classrooms become connected to the Internet, many teachers want
to ensure that their students can receive the benefit of the Internet without
encountering material they deem educationally inappropriate.
63. Microsystems is working with the Recreational Software Advisory
Council (RSAC), a non-profit corporation which developed rating systems
for video games, to implement the RSAC rating system for the Internet.
64. The next release of Cyber Patrol, expected in second quarter of
this year, will give parents the ability to use any PICS rating service,
including the RSAC rating service, in addition to the Microsystems CyberNOT
65. In order to speed the implementation of PICS and encourage the development
of PICS-compatible Internet applications, Microsystems maintains a server
on the Internet which contains its CyberNOT list. The server provides software
developers with access to a PICS rating service, and allows software developers
to test their products' ability to interpret standard PICS labels. Microsystems
is also offering its PICS client test program for Windows free of charge.
The client program can be used by developers of PICS rating services to
test their services and products.
66. Another software product, SurfWatch, is also designed to allow parents and other concerned users to filter unwanted material on the Internet. SurfWatch is available for both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95 Operating Systems, and works with direct Internet Access Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000 other Internet Service Providers).
67. The suggested retail price of SurfWatch Software is $49.95, with
a street price of between $20.00 and $25.00. The product is also available
as part of CompuServe/Spry Inc.'s Internet in a Box for Kids, which includes
access to Spry's Kids only Internet service and a copy of SurfWatch. Internet
in a Box for Kids retails for approximately $30.00. The subscription service,
which updates the SurfWatch blocked site list automatically with new sites
each month, is available for $5.95 per month or $60.00 per year. The subscription
is included as part of the Internet in a Box for Kids program, and is also
provided as a low-cost option from Internet Service Providers.
68. SurfWatch is available at over 12,000 retail locations, including
National stores such as Comp USA, Egghead Software, Computer City, and
several national mail order outlets. SurfWatch can also be ordered directly
from its own site on the World Wide Web, and through the Internet Shopping
69. Plaintiffs America Online (AOL), Microsoft Network, and Prodigy
all offer parental control options free of charge to their members. AOL
has established an online area designed specifically for children. The
"Kids Only" parental control feature allows parents to establish
an AOL account for their children that accesses only the Kids Only channel
on America Online.15
70. AOL plans to incorporate PICS-compatible capability into its standard
Web browser software, and to make available to subscribers other PICS-compatible
Web browsers, such as the Netscape software.
71. Plaintiffs CompuServe and Prodigy give their subscribers the option
of blocking all access to the Internet, or to particular media within their
proprietary online content, such as bulletin boards and chat rooms.
72. Although parental control software currently can screen for certain
suggestive words or for known sexually explicit sites, it cannot now screen
for sexually explicit images unaccompanied by suggestive text unless those
who configure the software are aware of the particular site.
73. Despite its limitations, currently available user-based software
suggests that a reasonably effective method by which parents can prevent
their children from accessing sexually explicit and other material which
parents may believe is inappropriate for their children will soon be widely
Content on the Internet
74. The types of content now on the Internet defy easy classification. The entire card catalogue of the Carnegie Library is on-line, together with journals, journal abstracts, popular magazines, and titles of compact discs. The director of the Carnegie Library, Robert Croneberger, testified that on-line services are the emerging trend in libraries generally. Plaintiff Hotwired Ventures LLC organizes its Web site into information regarding travel, news and commentary, arts and entertainment, politics, and types of drinks. Plaintiff America Online, Inc., not only creates chat rooms for a broad variety of topics, but also allows members to create their own chat rooms to suit their own tastes. The ACLU uses an America Online chat room as an unmoderated forum for people to debate civil liberties issues. Plaintiffs' expert, Scott Bradner,16 estimated that 15,000 newsgroups exist today, and he described his own interest in a newsgroup devoted solely to Formula 1 racing cars. America Online makes 15,000 bulletin boards available to its subscribers, who post between 200,000 and 250,000 messages each day. Another plaintiffs' expert, Harold Rheingold, participates in "virtual communities" that simulate social interaction. It is no exaggeration to conclude that the content on the Internet is as diverse as human thought.
75. The Internet is not exclusively, or even primarily, a means of commercial
communication. Many commercial entities maintain Web sites to inform potential
consumers about their goods and services, or to solicit purchases, but
many other Web sites exist solely for the dissemination of non-commercial
information. The other forms of Internet communication -- e-mail, bulletin
boards, newsgroups, and chat rooms -- frequently have non-commercial goals.
For the economic and technical reasons set forth in the following paragraphs,
the Internet is an especially attractive means for not-for-profit entities
or public interest groups to reach their desired audiences. There are examples
in the parties' stipulation of some of the non-commercial uses that the
Internet serves. Plaintiff Human Rights Watch, Inc., offers information
on its Internet site regarding reported human rights abuses around the
world. Plaintiff National Writers Union provides a forum for writers on
issues of concern to them. Plaintiff Stop Prisoner Rape, Inc., posts text,
graphics, and statistics regarding the incidence and prevention of rape
in prisons. Plaintiff Critical Path AIDS Project, Inc., offers information
on safer sex, the transmission of HIV, and the treatment of AIDS.
76. Such diversity of content on the Internet is possible because the
Internet provides an easy and inexpensive way for a speaker to reach a
large audience, potentially of millions. The start-up and operating costs
entailed by communication on the Internet are significantly lower than
those associated with use of other forms of mass communication, such as
television, radio, newspapers, and magazines. This enables operation of
their own Web sites not only by large companies, such as Microsoft and
Time Warner, but also by small, not-for-profit groups, such as Stop Prisoner
Rape and Critical Path AIDS Project. The Government's expert, Dr. Dan R.
Olsen,17 agreed that creation of a Web site would cost between $1,000 and
$15,000, with monthly operating costs depending on one's goals and the
Web site's traffic. Commercial online services such as America Online allow
subscribers to create Web pages free of charge. Any Internet user can communicate
by posting a message to one of the thousands of newsgroups and bulletin
boards or by engaging in an on-line "chat", and thereby reach
an audience worldwide that shares an interest in a particular topic.
77. The ease of communication through the Internet is facilitated by the use of hypertext markup language (HTML), which allows for the creation of "hyperlinks" or "links". HTML enables a user to jump from one source to other related sources by clicking on the link. A link might take the user from Web site to Web site, or to other files within a particular Web site. Similarly, by typing a request into a search engine, a user can retrieve many different sources of content related to the search that the creators of the engine have collected.
78. Because of the technology underlying the Internet, the statutory
term "content provider,"18 which is equivalent to the traditional
"speaker," may actually be a hybrid of speakers. Through the
use of HTML, for example, Critical Path and Stop Prisoner Rape link their
Web sites to several related databases, and a user can immediately jump
from the home pages of these organizations to the related databases simply
by clicking on a link. America Online creates chat rooms for particular
discussions but also allows subscribers to create their own chat rooms.
Similarly, a newsgroup gathers postings on a particular topic and distributes
them to the newsgroup's subscribers. Users of the Carnegie Library can
read on-line versions of Vanity Fair and Playboy, and America Online's
subscribers can peruse the New York Times, Boating, and other periodicals.
Critical Path, Stop Prisoner Rape, America Online and the Carnegie Library
all make available content of other speakers over whom they have little
or no editorial control.
79. Because of the different forms of Internet communication, a user of the Internet may speak or listen
interchangeably, blurring the distinction between "speakers"
and "listeners" on the Internet. Chat rooms, e-mail, and newsgroups
are interactive forms of communication, providing the user with the opportunity
both to speak and to listen.
80. It follows that unlike traditional media, the barriers to entry
as a speaker on the Internet do not differ significantly from the barriers
to entry as a listener. Once one has entered cyberspace, one may engage
in the dialogue that occurs there. In the argot of the medium, the receiver
can and does become the content provider, and vice-versa.
81. The Internet is therefore a unique and wholly new medium of worldwide
human communication. Sexually Explicit Material On the Internet
82. The parties agree that sexually explicit material exists on the
Internet. Such material includes text, pictures, and chat, and includes
bulletin boards, newsgroups, and the other forms of Internet communication,
and extends from the modestly titillating to the hardest-core.
83. There is no evidence that sexually-oriented material is the primary type of content on this new medium. Purveyors of such material take advantage of the same ease of access available to all users of the Internet, including establishment of a Web site.
84. Sexually explicit material is created, named, and posted in the
same manner as material that is not sexually explicit. It is possible that
a search engine can accidentally retrieve material of a sexual nature through
an imprecise search, as demonstrated at the hearing. Imprecise searches
may also retrieve irrelevant material that is not of a sexual nature. The
accidental retrieval of sexually explicit material is one manifestation
of the larger phenomenon of irrelevant search results.
85. Once a provider posts content on the Internet, it is available to
all other Internet users worldwide. Similarly, once a user posts a message
to a newsgroup or bulletin board, that message becomes available to all
subscribers to that newsgroup or bulletin board. For example, when the
UCR/California Museum of Photography posts to its Web site nudes by Edward
Weston and Robert Mapplethorpe to announce that its new exhibit will travel
to Baltimore and New York City, those images are available not only in
Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile,
or Beijing -- wherever Internet users live. Similarly, the safer sex instructions
that Critical Path posts to its Web site, written in street language so
that the teenage receiver can understand them, are available not just in
Philadelphia, but also in Provo and Prague. A chat room organized by the
ACLU to discuss the United States Supreme Court's decision in FCC v. Pacifica
Foundation would transmit George Carlin's seven dirty words to anyone who
enters. Messages posted to a newsgroup dedicated to the Oklahoma City bombing
travel to all subscribers to that newsgroup.
86. Once a provider posts its content on the Internet, it cannot prevent
that content from entering any community. Unlike the newspaper, broadcast
station, or cable system, Internet technology necessarily gives a speaker
a potential worldwide audience. Because the Internet is a network of networks
(as described above in Findings 1 through 4), any network connected to
the Internet has the capacity to send and receive information to any other
network. Hotwired Ventures, for example, cannot prevent its materials on
mixology from entering communities that have no interest in that topic.
87. Demonstrations at the preliminary injunction hearings showed that
it takes several steps to enter cyberspace. At the most fundamental level,
a user must have access to a computer with the ability to reach the Internet
(typically by way of a modem). A user must then direct the computer to
connect with the access provider, enter a password, and enter the appropriate
commands to find particular data. On the World Wide Web, a user must normally
use a search engine or enter an appropriate address. Similarly, accessing
newsgroups, bulletin boards, and chat rooms requires several steps.
88. Communications over the Internet do not "invade" an individual's
home or appear on one's computer screen unbidden. Users seldom encounter
content "by accident." A document's title or a description of
the document will usually appear before the document itself takes the step
needed to view it, and in many cases the user will receive detailed information
about a site's content before he or she need take the step to access the
document. Almost all sexually explicit images are preceded by warnings
as to the content. Even the Government's witness, Agent Howard Schmidt,
Director of the Air Force Office of Special Investigation, testified that
the "odds are slim" that a user would come across a sexually
explicit site by accident.
89. Evidence adduced at the hearing showed significant differences between
Internet communications and communications received by radio or television.
Although content on the Internet is just a few clicks of a mouse away from
the user, the receipt of information on the Internet requires a series
of affirmative steps more deliberate and directed than merely turning a
dial. A child requires some sophistication and some ability to read to
retrieve material and thereby to use the Internet unattended.
Obstacles to Age Verification on the Internet
90. There is no effective way to determine the identity or the age of
a user who is accessing material through e-mail, mail exploders, newsgroups
or chat rooms. An e-mail address provides no authoritative information
about the addressee, who may use an e-mail "alias" or an anonymous
remailer. There is also no universal or reliable listing of e-mail addresses
and corresponding names or telephone numbers, and any such listing would
be or rapidly become incomplete. For these reasons, there is no reliable
way in many instances for a sender to know if the e-mail recipient is an
adult or a minor. The difficulty of e-mail age verification is compounded
for mail exploders such as listservs, which automatically send information
to all e-mail addresses on a sender's list. Government expert Dr. Olsen
agreed that no current technology could give a speaker assurance that only
adults were listed in a particular mail exploder's mailing list.
91. Because of similar technological difficulties, individuals posting
a message to a newsgroup or engaging in chat room discussions cannot ensure
that all readers are adults, and Dr. Olsen agreed. Although some newsgroups
are moderated, the moderator's control is limited to what is posted and
the moderator cannot control who receives the messages.
92. The Government offered no evidence that there is a reliable way
to ensure that recipients and participants in such fora can be screened
for age. The Government presented no evidence demonstrating the feasibility
of its suggestion that chat rooms, newsgroups and other fora that contain
material deemed indecent could be effectively segregated to "adult"
or "moderated" areas of cyberspace.
93. Even if it were technologically feasible to block minors' access to newsgroups and similar fora, there is no method by which the creators of newsgroups which contain discussions of art, politics or any other subject that could potentially elicit "indecent" contributions could limit the blocking of access by minors to such "indecent" material and still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent.
94. Likewise, participants in MUDs (Multi-User Dungeons) and MUSEs (Multi-User
Simulation Environments) do not know whether the other participants are
adults or minors. Although MUDs and MUSEs require a password for permanent
participants, they need not give their real name nor verify their age,
and there is no current technology to enable the administrator of these
fantasy worlds to know if the participant is an adult or a minor.
95. Unlike other forms of communication on the Internet, there is technology
by which an operator of a World Wide Web server may interrogate a user
of a Web site. An HTML document can include a fill-in-the-blank "form"
to request information from a visitor to a Web site, and this information
can be transmitted back to the Web server and be processed by a computer
program, usually a Common Gateway Interface (cgi) script. The Web server
could then grant or deny access to the information sought. The cgi script
is the means by which a Web site can process a fill-in form and thereby
screen visitors by requesting a credit card number or adult password.
96. Content providers who publish on the World Wide Web via one of the
large commercial online services, such as America Online or CompuServe,
could not use an online age verification system that requires cgi script
because the server software of these online services available to subscribers
cannot process cgi scripts. There is no method currently available for
Web page publishers who lack access to cgi scripts to screen recipients
online for age.
The Practicalities of the Proffered Defenses
Note: The Government contends the CDA makes available three potential
defenses to all content providers on the Internet: credit card verification,
adult verification by password or adult identification number, and "tagging".
Credit Card Verification
97. Verification19 of a credit card number over the Internet is not
now technically possible. Witnesses testified that neither Visa nor Mastercard
considers the Internet to be sufficiently secure under the current technology
to process transactions in that manner. Although users can and do purchase
products over the Internet by transmitting their credit card number, the
seller must then process the transaction with Visa or Mastercard off-line
using phone lines in the traditional way. There was testimony by several
witnesses that Visa and Mastercard are in the process of developing means
of credit card verification over the Internet.
98. Verification by credit card, if and when operational, will remain
economically and practically unavailable for many of the non-commercial
plaintiffs in these actions. The Government's expert "suspect[ed]"
that verification agencies would decline to process a card unless it accompanied
a commercial transaction. There was no evidence to the contrary.
99. There was evidence that the fee charged by verification agencies
to process a card, whether for a purchase or not, will preclude use of
the credit-card verification defense by many non-profit, non-commercial
Web sites, and there was no evidence to the contrary. Plaintiffs' witness
Patricia Nell Warren, an author whose free Web site allows users to purchase
gay and lesbian literature, testified that she must pay $1 per verification
to a verification agency. Her Web site can absorb this cost because it
arises in connection with the sale of books available there.
100. Using credit card possession as a surrogate for age, and requiring use of a credit card to enter a site, would impose a significant economic cost on non-commercial entities. Critical Path, for example, received 3,300 hits daily from February 4 through March 4, 1996. If Critical Path must pay a fee every time a user initially enters its site, then, to provide free access to its non-commercial site, it would incur a monthly cost far beyond its modest resources. The ACLU's Barry Steinhardt testified that maintenance of a credit card verification system for all visitors to the ACLU's Web site would require it to shut down its Web site because the projected cost would exceed its budget.
101. Credit card verification would significantly delay the retrieval
of information on the Internet. Dr. Olsen, the expert testifying for the
Government, agreed that even "a minute is [an] absolutely unreasonable
[delay] . . . [P]eople will not put up with a minute." Plaintiffs'
expert Donna Hoffman similarly testified that excessive delay disrupts
the "flow" on the Internet and stifles both "hedonistic"
and "goal-directed" browsing.
102. Imposition of a credit card requirement would completely bar adults
who do not have a credit card and lack the resources to obtain one from
accessing any blocked material. At this time, credit card verification
is effectively unavailable to a substantial number of Internet content
providers as a potential defense to the CDA.
Adult Verification by Password
103. The Government offered very limited evidence regarding the operation
of existing age verification systems, and the evidence offered was not
based on personal knowledge. AdultCheck and Verify, existing systems which
appear to be used for accessing commercial pornographic sites, charge users
for their services. Dr. Olsen admitted that his knowledge of these services
was derived primarily from reading the advertisements on their Web pages.
He had not interviewed any employees of these entities, had not personally
used these systems, had no idea how many people are registered with them,
and could not testify to the reliability of their attempt at age verification.
104. At least some, if not almost all, non-commercial organizations,
such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard
charging listeners to access their speech as contrary to their goals of
making their materials available to a wide audience free of charge.
105. It would not be feasible for many non-commercial organizations to design their own adult access code screening systems because the administrative burden of creating and maintaining a screening system and the ongoing costs involved is beyond their reach. There was testimony that the costs would be prohibitive even for a commercial entity such as HotWired, the online version of Wired magazine.
106. There is evidence suggesting that adult users, particularly casual
Web browsers, would be discouraged from retrieving information that required
use of a credit card or password. Andrew Anker testified that HotWired
has received many complaints from its members about HotWired's registration
system, which requires only that a member supply a name, e-mail address
and self-created password. There is concern by commercial content providers
that age verification requirements would decrease advertising and revenue
because advertisers depend on a demonstration that the sites are widely
available and frequently visited.
107. Even if credit card verification or adult password verification
were implemented, the Government presented no testimony as to how such
systems could ensure that the user of the password or credit card is in
fact over 18. The burdens imposed by credit card verification and adult
password verification systems make them effectively unavailable to a substantial
number of Internet content providers.
The Government's "Tagging" Proposal
108. The feasibility and effectiveness of "tagging" to restrict
children from accessing "indecent" speech, as proposed by the
Government has not been established. "Tagging" would require
content providers to label all of their "indecent" or "patently
offensive" material by imbedding a string of characters, such as "XXX,"
in either the URL or HTML. If a user could install software on his or her
computer to recognize the "XXX" tag, the user could screen out
any content with that tag. Dr. Olsen proposed a "-L18" tag, an
idea he developed for this hearing in response to Mr. Bradner's earlier
testimony that certain tagging would not be feasible.
109. The parties appear to agree that it is technologically feasible
-- "trivial", in the words of plaintiffs' expert -- to imbed
tags in URLs and HTML, and the technology of tagging underlies both plaintiffs'
PICS proposal and the Government's "-L18" proposal.
110. The Government's tagging proposal would require all content providers
that post arguably "indecent" material to review all of their
online content, a task that would be extremely burdensome for organizations
that provide large amounts of material online which cannot afford to pay
a large staff to review all of that material. The Carnegie Library would
be required to hire numerous additional employees to review its on-line
files at an extremely high cost to its limited budget. The cost and effort
would be substantial for the Library and frequently prohibitive for others.
Witness Kiroshi Kuromiya testified that it would be impossible for his
organization, Critical Path, to review all of its material because it has
only one full and one part-time employee.
111. The task of screening and tagging cannot be done simply by using
software which screens for certain words, as Dr. Olsen acknowledged, and
we find that determinations as to what is indecent require human judgment.
112. In lieu of reviewing each file individually, a content provider could tag its entire site but this would prevent minors from accessing much material that is not "indecent" under the CDA.
113. To be effective, a scheme such as the -L18 proposal would require
a worldwide consensus among speakers to use the same tag to label "indecent"
material. There is currently no such consensus, and no Internet speaker
currently labels its speech with the -L18 code or with any other widely-recognized
114. Tagging also assumes the existence of software that recognizes
the tags and takes appropriate action when it notes tagged speech. Neither
commercial Web browsers nor user-based screening software is currently
configured to block a -L18 code. Until such software exists, all speech
on the Internet will continue to travel to whomever requests it, without
hindrance. Labelling speech has no effect in itself on the transmission
(or not) of that speech. Neither plaintiffs nor the Government suggest
that tagging alone would shield minors from speech or insulate a speaker
from criminal liability under the CDA. It follows that all speech on any
topic that is available to adults will also be available to children using
the Internet (unless it is blocked by screening software running on the
computer the child is using).
115. There is no way that a speaker can use current technology to know if a listener is using screening software.
116. Tags can not currently activate or deactivate themselves depending
on the age or location of the receiver. Critical Path, which posts on-line
safer sex instructions, would be unable to imbed tags that block its speech
only in communities where it may be regarded as indecent. Critical Path,
for example, must choose either to tag its site (blocking its speech in
all communities) or not to tag, blocking its speech in none.
The Problems of Offshore Content and Caching
117. A large percentage, perhaps 40% or more, of content on the Internet originates outside the United States. At the hearing, a witness demonstrated how an Internet user could access a Web site of London (which presumably is on a server in England), and then link to other sites of interest in England. A user can sometimes discern from a URL that content is coming from overseas, since InterNIC allows a content provider to imbed a country code in a domain name.20 Foreign content is otherwise indistinguishable from domestic content (as long as it is in English), since foreign speech is created, named, and posted in the same manner as domestic speech. There is no requirement that foreign speech contain a country code in its URL. It is undisputed that some foreign speech that travels over the Internet is sexually explicit.
118. The use of "caching" makes it difficult to determine
whether the material originated from foreign or domestic sources. Because
of the high cost of using the trans-Atlantic and trans-Pacific cables,
and because the high demand on those cables leads to bottleneck delays,
content is often "cached", or temporarily stored, on servers
in the United States. Material from a foreign source in Europe can travel
over the trans-Atlantic cable to the receiver in the United States, and
pass through a domestic caching server which then stores a copy for subsequent
retrieval. This domestic caching server, rather than the original foreign
server, will send the material from the cache to the subsequent receivers,
without placing a demand on the trans-oceanic cables. This shortcut effectively
eliminates most of the distance for both the request and the information
and, hence, most of the delay. The caching server discards the stored information
according to its configuration (e.g., after a certain time or as the demand
for the information diminishes). Caching therefore advances core Internet
values: the cheap and speedy retrieval of information.
119. Caching is not merely an international phenomenon. Domestic content
providers store popular domestic material on their caching servers to avoid
the delay of successive searches for the same material and to decrease
the demand on their Internet connection. America Online can cache the home
page of the New York Times on its servers when a subscriber first requests
it, so that subsequent subscribers who make the same request will receive
the same home page, but from America Online's caching service rather than
from the New York Times's server.21
120. Put simply, to follow the example in the prior paragraph, America Online has no control over the content that the New York Times posts to its Web site, and the New York Times has no control over America Online's distribution of that content from a caching server.
121. Anonymity is important to Internet users who seek to access sensitive
information, such as users of the Critical Path AIDS Project's Web site,
the users, particularly gay youth, of Queer Resources Directory, and users
of Stop Prisoner Rape (SPR). Many members of SPR's mailing list have asked
to remain anonymous due to the stigma of prisoner rape.
Plaintiffs' Choices Under the CDA
122. Many speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution. The CDA's defenses -- credit card verification, adult access codes, and adult personal identification numbers -- are effectively unavailable for non-commercial, not-for-profit entities.
123. The plaintiffs in this action are businesses, libraries, non-commercial
and not-for-profit organizations, and educational societies and consortia.
Although some of the material that plaintiffs post online -- such as information
regarding protection from AIDS, birth control or prison rape -- is sexually
explicit and may be considered "indecent" or "patently offensive"
in some communities, none of the plaintiffs is a commercial purveyor of
what is commonly termed "pornography."
CONCLUSIONS OF LAW
Plaintiffs have established a reasonable probability of eventual success
in the litigation by demonstrating that Secs. 223(a)(1)(B) and 223(a)(2)
of the CDA are unconstitutional on their face to the extent that they reach
indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional
on their face. Accordingly, plaintiffs have shown irreparable injury, no
party has any interest in the enforcement of an unconstitutional law, and
therefore the public interest will be served by granting the preliminary
injunction. Elrod v. Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey,
868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848 (1989); Acierno v.
New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). The motions for preliminary
injunction will therefore be granted.
The views of the members of the Court in support of these conclusions
SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:
A. Statutory Provisions
As noted in Part I, Introduction, the plaintiffs' motion for a preliminary
injunction is confined to portions of two provisions of the Communications
Decency Act of 1996, Sec. 223(a) and Sec. 223(d), which they contend violate
their First Amendment free speech and Fifth Amendment due process rights.
To facilitate reference, I set forth those provisions in full. Section
223(a), the "indecency" provision, subjects to criminal penalties
of imprisonment of no more than two years or a fine or both anyone who:
1) in interstate or foreign communications . . .
(B) by means of a telecommunications device
(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; . . . (2) knowingly permits any telecommunications facility
under his control to be used for any activity prohibited by paragraph (1)
with the intent that it be used for such activity.
The term "telecommunications device" is specifically defined
not to include "the use of an interactive computer service,"
as that is covered by section 223(d)(1).
Section 223(d), the "patently offensive" provision, subjects
to criminal penalties anyone who: (1) in interstate or foreign communications
(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 use
of such service placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility under such person's
control to be used for an activity prohibited by paragraph (1) with the
intent that it be used for such activity.
Two aspects of these provisions stand out. First, we are dealing with
criminal provisions, subjecting violators to substantial penalties. Second,
the provisions on indecent and patently offensive communications are not
The government uses the term "indecent" interchangeably with
"patently offensive" and advises that it so construes the statute
in light of the legislative history and the Supreme Court's analysis of
the word "indecent" in FCC v. Pacifica Foundation, 438 U.S. 726
(1978). However, the CDA does not define "indecent." Notwithstanding
Congress' familiarity with Pacifica, it enacted Sec. 223(a), covering "indecent"
communications, without any language confining "indecent" to
descriptions or depictions of "sexual or excretory activities or organs,"
language it included in the reference to "patently offensive"
in Sec. 223(d)(1)(B). Nor does Sec. 223(a) contain the phrase "in
context," which the government believes is relevant.
The failure to define "indecent" in Sec. 223(a) is thus arguably
a negative pregnant and subject to "the rule of construction that
an express statutory requirement here, contrasted with statutory silence
there, shows an intent to confine the requirement to the specified instance."
Field v. Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v. United
States, 498 U.S. 395, 404 (1991) ("'[W]here Congress includes particular
language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion'") (quoting
Russello v. United States, 464 U.S. 16, 23 (1983)).
Plaintiffs note the difference but do not press this as a basis for distinguishing between the two sections in their preliminary injunction arguments and therefore I will also use the words interchangeably for this purpose, leaving open the issue for consideration at the final judgment stage if it becomes relevant.
B. Preliminary Injunction Standard
To obtain a preliminary injunction, plaintiffs must establish that they
are likely to prevail on the merits and that they will suffer irreparable
harm if injunctive relief is not granted. We also must consider whether
the potential harm to the defendant from issuance of a temporary restraining
order outweighs possible harm to the plaintiffs if such relief is denied,
and whether the granting of injunctive relief is in the public interest.
See Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90-91 (3d Cir. 1992);
Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).
In a case in which the injury alleged is a threat to First Amendment
interests, the finding of irreparable injury is often tied to the likelihood
of success on the merits. In Elrod v. Burns, 427 U.S. 347 (1976), the Supreme
Court emphasized that "the loss of First Amendment freedoms, for even
minimal periods of time, unquestionably constitutes irreparable injury."
Id. at 373 (citing New York Times Co. v. United States, 403 U.S. 713 (1971)).
Subjecting speakers to criminal penalties for speech that is constitutionally
protected in itself raises the spectre of irreparable harm. Even if a court
were unwilling to draw that conclusion from the language of the statute
itself, plaintiffs have introduced ample evidence that the challenged provisions,
if not enjoined, will have a chilling effect on their free expression.
Thus, this is not a case in which we are dealing with a mere incidental
inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert.
denied, 493 U.S. 848 (1989), but with a regulation that directly penalizes
Nor could there be any dispute about the public interest factor which
must be taken into account before a court grants a preliminary injunction.
No long string of citations is necessary to find that the public interest
weighs in favor of having access to a free flow of constitutionally protected
speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 114 S. Ct.
2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 763-65 (1976).
Thus, if plaintiffs have shown a likelihood of success on the merits,
they will have shown the irreparable injury needed to entitle them to a
C. Applicable Standard of Review
The CDA is patently a government-imposed content-based restriction on
speech, and the speech at issue, whether denominated "indecent"
or "patently offensive," is entitled to constitutional protection.
See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126
(1989). As such, the regulation is subject to strict scrutiny, and will
only be upheld if it is justified by a compelling government interest and
if it is narrowly tailored to effectuate that interest. Sable, 492 U.S.
at 126; see also Turner Broadcasting, 114 S. Ct. at 2459 (1994). "[T]he
benefit gained [by a content-based restriction] must outweigh the loss
of constitutionally protected rights." Elrod v. Burns, 427 U.S. at
The government's position on the applicable standard has been less than
pellucid but, despite some references to a somewhat lesser burden employed
in broadcasting cases, it now appears to have conceded that it has the
burden of proof to show both a compelling interest and that the statute
regulates least restrictively. Tr. of Preliminary Injunction Hearing at
121 (May 10, 1996). In any event, the evidence and our Findings of Fact
based thereon show that Internet communication, while unique, is more akin
to telephone communication, at issue in Sable, than to broadcasting, at
issue in Pacifica, because, as with the telephone, an Internet user must
act affirmatively and deliberately to retrieve specific information online.
Even if a broad search will, on occasion, retrieve unwanted materials,
the user virtually always receives some warning of its content, significantly
reducing the element of surprise or "assault" involved in broadcasting.
Therefore, it is highly unlikely that a very young child will be randomly
"surfing" the Web and come across "indecent" or "patently
Judge Dalzell's separate opinion fully explores the reasons for the
differential treatment of radio and television broadcasting for First Amendment
purposes from that accorded other means of communication. It follows that
to the extent the Court employed a less than strict scrutiny standard of
review in Pacifica and other broadcasting cases, see, e.g., Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367 (1969), there is no reason to employ a less than
strict scrutiny standard of review in this case. D. The Nature of the Government's
The government asserts that shielding minors from access to indecent
materials is the compelling interest supporting the CDA. It cites in support
the statements of the Supreme Court that "[i]t is evident beyond the
need for elaboration that a State's interest in `safeguarding the physical
and psychological well-being of a minor' is `compelling,'" New York
v. Ferber, 458 U.S. 747, 757 (1982)(quoting Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 607 (1982)), and "there is a compelling interest
in protecting the physical and psychological well-being of minors. This
interest extends to shielding minors from the influence of literature that
is not obscene by adult standards." Sable, 492 U.S at 126. It also
cites the similar quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania
Public Utility Comm'n, 896 F.2d 780, 787 (3d Cir. 1990).
Those statements were made in cases where the potential harm to children from the material was evident. Ferber involved the constitutionality of a statute which prohibited persons from knowingly promoting sexual performances by children under 16 and distributing material depicting such performances. Sable and Fabulous involved the FCC's ban on "dial-a-porn" (dealing by definition with pornographic telephone messages). In contrast to the material at issue in those cases, at least some of the material subject to coverage under the "indecent" and "patently offensive" provisions of the CDA may contain valuable literary, artistic or educational information of value to older minors as well as adults. The Supreme Court has held that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213 (1975)(citations omitted).
In Erznoznik, the Court rejected an argument that an ordinance prohibiting the display of films containing nudity at drive-in movie theatres served a compelling interest in protecting minor passersby from the influence of such films. The Court held that the prohibition was unduly broad, and explained that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S. at 213-14. As Justice Scalia noted in Sable, "[t]he more pornographic what is embraced within the . . . category of `indecency,' the more reasonable it becomes to insist upon greater assurance of insulation from minors." Sable, 492 U.S. at 132 (Scalia, J., concurring). It follows that where non-pornographic, albeit sexually explicit, material also falls within the sweep of the statute, the interest will not be as compelling.
In part, our consideration of the government's showing of a "compelling interest" trenches upon the vagueness issue, discussed in detail in Judge Buckwalter's opinion but equally pertinent to First Amendment analysis. Material routinely acceptable according to the standards of New York City, such as the Broadway play Angels in America which concerns homosexuality and AIDS portrayed in graphic language, may be far less acceptable in smaller, less cosmopolitan communities of the United States. Yet the play garnered two Tony Awards and a Pulitzer prize for its author, and some uninhibited parents and teachers might deem it to be material to be read or assigned to eleventh and twelfth graders. If available on the Internet through some libraries, the text of the play would likely be accessed in that manner by at least some students, and it would also arguably fall within the scope of the CDA.
There has been recent public interest in the female genital mutilation routinely practiced and officially condoned in some countries. News articles have been descriptive, and it is not stretching to assume that this is a subject that occupies news groups and chat rooms on the Internet. We have no assurance that these discussions, of obvious interest and relevance to older teenage girls, will not be viewed as patently offensive - even in context - in some communities.
Other illustrations abound of non-obscene material likely to be available
on the Internet but subject to the CDA's criminal provisions. Photographs
appearing in National Geographic or a travel magazine of the sculptures
in India of couples copulating in numerous positions, a written description
of a brutal prison rape, or Francesco Clemente's painting "Labirinth,"
see Def. Exh. 125, all might be considered to "depict or describe,
in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs." 47 U.S.C. Sec. 223(d)(1).
But the government has made no showing that it has a compelling interest
in preventing a seventeen-year-old minor from accessing such images.
By contrast, plaintiffs presented testimony that material that could be considered indecent, such as that offered by Stop Prisoner Rape or Critical Path AIDS project, may be critically important for certain older minors. For example, there was testimony that one quarter of all new HIV infections in the United States is estimated to occur in young people between the ages of 13 and 20, an estimate the government made no effort to rebut. The witnesses believed that graphic material that their organizations post on the Internet could help save lives, but were concerned about the CDA's effect on their right to do so.
The government counters that this court should defer to legislative conclusions about this matter. However, where First Amendment rights are at stake, "[d]eference to a legislative finding cannot limit judicial inquiry." Sable, 492 U.S. at 129 (quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978)). "[W]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law." Id.
Moreover, it appears that the legislative "findings" the government
cites concern primarily testimony and statements by legislators about the
prevalence of obscenity, child pornography, and sexual solicitation of
children on the Internet. Similarly, at the hearings before us the government
introduced exhibits of sexually explicit material through the testimony
of Agent Howard Schmidt, which consisted primarily of the same type of
hard-core pornographic materials (even if not technically obscene) which
concerned Congress and which fill the shelves of "adult" book
and magazine stores. Plaintiffs emphasize that they do not challenge the
Act's restrictions on speech not protected by the First Amendment, such
as obscenity, child pornography or harassment of children. Their suit is
based on their assertion, fully supported by their evidence and our findings,
that the CDA reaches much farther.
I am far less confident than the government that its quotations from
earlier cases in the Supreme Court signify that it has shown a compelling
interest in regulating the vast range of online material covered or potentially
covered by the CDA. Nonetheless, I acknowledge that there is certainly
a compelling government interest to shield a substantial number of minors
from some of the online material that motivated Congress to enact the CDA,
and do not rest my decision on the inadequacy of the government's showing
in this regard.
E. The Reach of the Statute
Whatever the strength of the interest the government has demonstrated
in preventing minors from accessing "indecent" and "patently
offensive" material online, if the means it has chosen sweeps more
broadly than necessary and thereby chills the expression of adults, it
has overstepped onto rights protected by the First Amendment. Sable, 492
U.S. at 131.
The plaintiffs argue that the CDA violates the First Amendment because
it effectively bans a substantial category of protected speech from most
parts of the Internet. The government responds that the Act does not on
its face or in effect ban indecent material that is constitutionally protected
for adults. Thus one of the factual issues before us was the likely effect
of the CDA on the free availability of constitutionally protected material.
A wealth of persuasive evidence, referred to in detail in the Findings
of Fact, proved that it is either technologically impossible or economically
prohibitive for many of the plaintiffs to comply with the CDA without seriously
impeding their posting of online material which adults have a constitutional
right to access.
With the possible exception of an e-mail to a known recipient, most
content providers cannot determine the identity and age of every user accessing
their material. Considering separately content providers that fall roughly
into two categories, we have found that no technology exists which allows
those posting on the category of newsgroups, mail exploders or chat rooms
to screen for age. Speakers using those forms of communication cannot control
who receives the communication, and in most instances are not aware of
the identity of the recipients. If it is not feasible for speakers who
communicate via these forms of communication to conduct age screening,
they would have to reduce the level of communication to that which is appropriate
for children in order to be protected under the statute. This would effect
a complete ban even for adults of some expression, albeit "indecent,"
to which they are constitutionally entitled, and thus would be unconstitutional
under the holding in Sable, 492 U.S. at 131.
Even as to content providers in the other broad category, such as the
World Wide Web, where efforts at age verification are technically feasible
through the use of Common Gateway Interface (cgi) scripts (which enable
creation of a document that can process information provided by a Web visitor),
the Findings of Fact show that as a practical matter, non-commercial organizations
and even many commercial organizations using the Web would find it prohibitively
expensive and burdensome to engage in the methods of age verification proposed
by the government, and that even if they could attempt to age verify, there
is little assurance that they could successfully filter out minors.
The government attempts to circumvent this problem by seeking to limit
the scope of the statute to those content providers who are commercial
pornographers, and urges that we do likewise in our obligation to save
a congressional enactment from facial unconstitutionality wherever possible.
But in light of its plain language and its legislative history, the CDA
cannot reasonably be read as limited to commercial pornographers. A court
may not impose a narrowing construction on a statute unless it is "readily
susceptible" to such a construction. Virginia v. American Booksellers
Ass'n, 484 U.S. 383, 397 (1988). The court may not "rewrite a . .
. law to conform it to constitutional requirements." Id. Although
we may prefer an interpretation of a statute that will preserve the constitutionality
of the statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980),
we do not have license to rewrite a statute to "create distinctions
where none were intended." American Tobacco Co. v. Patterson, 456
U.S. 63, 72 n.6 (1982); see also Consumer Party v. Davis, 778 F.2d 140,
147 (3d Cir. 1985). The Court has often stated that "absent a clearly
expressed legislative intention to the contrary, [statutory] language must
ordinarily be regarded as conclusive." Escondido Mut. Water Co. v.
La Jolla Band of Mission Indians, 466 U.S. 765, 772 (1984)(quoting North
Dakota v. United States, 460 U.S. 300, 312 (1983)).
It is clear from the face of the CDA and from its legislative history
that Congress did not intend to limit its application to commercial purveyors
of pornography. Congress unquestionably knew how to limit the statute to
such entities if that was its intent, and in fact it did so in provisions
relating to dial-a-porn services. See 47 U.S.C. Sec. 223(b)(2)(A) (criminalizing
making any indecent telephone communication "for commercial purposes").
It placed no similar limitation in the CDA. Moreover, the Conference Report
makes clear that Congress did not intend to limit the application of the
statute to content providers such as those which make available the commercial
material contained in the government's exhibits, and confirms that Congress
intended "content regulation of both commercial and non-commercial
providers." Conf. Rep. at 191. See also, 141 Cong. Rec. S8089 (daily
ed. June 9, 1995) (Statement of Senator Exon).
The scope of the CDA is not confined to material that has a prurient
interest or appeal, one of the hallmarks of obscenity, because Congress
sought to reach farther. Nor did Congress include language that would define
"patently offensive" or "indecent" to exclude material
of serious value. It follows that to narrow the statute in the manner the
government urges would be an impermissible exercise of our limited judicial
function, which is to review the statute as written for its compliance
with constitutional mandates.
I conclude inexorably from the foregoing that the CDA reaches speech
subject to the full protection of the First Amendment, at least for adults.22
In questions of the witnesses and in colloquy with the government attorneys,
it became evident that even if "indecent" is read as parallel
to "patently offensive," the terms would cover a broad range
of material from contemporary films, plays and books showing or describing
sexual activities (e.g., Leaving Las Vegas) to controversial contemporary
art and photographs showing sexual organs in positions that the government
conceded would be patently offensive in some communities (e.g., a Robert
Mapplethorpe photograph depicting a man with an erect penis).
We have also found that there is no effective way for many Internet
content providers to limit the effective reach of the CDA to adults because
there is no realistic way for many providers to ascertain the age of those
accessing their materials. As a consequence, we have found that "[m]any
speakers who display arguably indecent content on the Internet must choose
between silence and the risk of prosecution." Such a choice, forced
by sections 223(a) and (d) of the CDA, strikes at the heart of speech of
adults as well as minors.
F. Whether CDA is Narrowly Tailored
In the face of such a patent intrusion on a substantial category of
protected speech for adults, there is some irony in considering whether
the statute is narrowly tailored or, as sometimes put, whether Congress
has used the least restrictive means to achieve a compelling government
interest. See Sable, 492 U.S. at 126. It would appear that the extent of
the abridgement of the protected speech of adults that it has been shown
the CDA would effect is too intrusive to be outweighed by the government's
asserted interest, whatever its strength, in protecting minors from access
to indecent material. Nonetheless, the formulation of the inquiry requires
that we consider the government's assertion that the statute is narrowly
drafted, and I proceed to do so.
In this case, the government relies on the statutory defenses for its
argument of narrow tailoring. There are a number of reasons why I am not
persuaded that the statutory defenses can save the CDA from a conclusion
of facial unconstitutionality.
First, it is difficult to characterize a criminal statute that hovers
over each content provider, like the proverbial sword of Damocles, as a
narrow tailoring. Criminal prosecution, which carries with it the risk
of public obloquy as well as the expense of court preparation and attorneys'
fees, could itself cause incalculable harm. No provider, whether an individual,
non-profit corporation, or even large publicly held corporation, is likely
to willingly subject itself to prosecution for a miscalculation of the
prevalent community standards or for an error in judgment as to what is
indecent. A successful defense to a criminal prosecution would be small
Credit card and adult verification services are explicitly referred to as defenses in Sec. 223(e)(5)(B) of the CDA. As is set forth fully in the detailed Findings of Fact, these defenses are not technologically or economically feasible for most providers.
The government then falls back on the affirmative defense to prosecution
provided in Sec. 223(e)(5)(A) for a person who "has taken, in good
faith, reasonable, effective, and appropriate actions under the circumstances
to restrict or prevent access by minors to a communication specified in
such subsections . . . including any method which is feasible under available
technology." The government emphasizes that "effective"
does not require 100% restriction, and that this defense is "open-ended"
and requires only reasonable efforts based on current technology.
But, as the evidence made clear, there is no such technology at this
time. The government proffered as one option that would constitute a valid
affirmative defense under Sec. 223(e)(5)(A) a "tagging" scheme
conceived by Dr. Olsen in response to this lawsuit whereby a string of
characters would be imbedded in all arguably indecent or patently offensive
material. Our Findings of Fact set forth fully the reasons why we found
that the feasibility and effectiveness of tagging in the manner proposed
by the government has not been established. All parties agree that tagging
alone does nothing to prevent children from accessing potentially indecent
material, because it depends upon the cooperation of third parties to block
the material on which the tags are embedded. Yet these third parties, over
which the content providers have no control, are not subject to the CDA.
I do not believe a statute is narrowly tailored when it subjects to potential
criminal penalties those who must depend upon third parties for the effective
operation of a statutory defense.
Most important, the government's "tagging" proposal is purely
hypothetical and offers no currently operative defense to Internet content
providers. At this time, there is no agreed-upon "tag" in existence,
and no web browsers or user-based screening systems are now configured
to block tagged material. Nor, significantly, has the government stipulated
that a content provider could avoid liability simply by tagging its material.
Third, even if the technology catches up, as the government confidently predicts, there will still be a not insignificant burden attached to effecting a tagging defense, a burden one should not have to bear in order to transmit information protected under the constitution. For example, to effect tagging content providers must review all of their material currently published online, as well as all new material they post in the future, to determine if it could be considered "patently offensive" in any community nationwide. This would be burdensome for all providers, but for the many not-for-profit entities which currently post thousands of Web pages, this burden would be one impossible to sustain.
Finally, the viability of the defenses is intricately tied to the clarity of the CDA's scope. Because, like Judge Buckwalter, and for many of the reasons he gives, I believe that "indecent" and "patently offensive" are inherently vague, particularly in light of the government's inability to identify the relevant community by whose standards the material will be judged, I am not persuaded by the government that the statutory defenses in Sec. 223(e) provide effective protection from the unconstitutional reach of the statute.
Minors would not be left without any protection from exposure to patently unsuitable material on the Internet should the challenged provisions of the CDA be preliminarily enjoined. Vigorous enforcement of current obscenity and child pornography laws should suffice to address the problem the government identified in court and which concerned Congress. When the CDA was under consideration by Congress, the Justice Department itself communicated its view that it was not necessary because it was prosecuting online obscenity, child pornography and child solicitation under existing laws, and would continue to do so.23 It follows that the CDA is not narrowly tailored, and the government's attempt to defend it on that ground must fail. G. Preliminary Injunction
When Congress decided that material unsuitable for minors was available
on the Internet, it could have chosen to assist and support the development
of technology that would enable parents, schools, and libraries to screen
such material from their end. It did not do so, and thus did not follow
the example available in the print media where non-obscene but indecent
and patently offensive books and magazines abound. Those responsible for
minors undertake the primary obligation to prevent their exposure to such
material. Instead, in the CDA Congress chose to place on the speakers the
obligation of screening the material that would possibly offend some communities.
Whether Congress' decision was a wise one is not at issue here. It was
unquestionably a decision that placed the CDA in serious conflict with
our most cherished protection - the right to choose the material to which
we would have access.
The government makes what I view as an extraordinary argument in its
brief. It argues that blocking technology needed for effective parental
control is not yet widespread but that it "will imminently be in place."
Government's Post-hearing Memorandum at 66. It then states that if we uphold
the CDA, it "will likely unleash the 'creative genius' of the Internet
community to find a myriad of possible solutions." I can imagine few
arguments less likely to persuade a court to uphold a criminal statute
than one that depends on future technology to cabin the reach of the statute
within constitutional bounds.
The government makes yet another argument that troubles me. It suggests
that the concerns expressed by the plaintiffs and the questions posed by
the court reflect an exaggerated supposition of how it would apply the
law, and that we should, in effect, trust the Department of Justice to
limit the CDA's application in a reasonable fashion that would avoid prosecution
for placing on the Internet works of serious literary or artistic merit.
That would require a broad trust indeed from a generation of judges not
far removed from the attacks on James Joyce's Ulysses as obscene. See United
States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934); see also
Book Named "John Cleland's Memoirs of a Woman of Pleasure" v.
Attorney General of Mass., 383 U.S. 413 (1966). Even if we were to place
confidence in the reasonable judgment of the representatives of the Department
of Justice who appeared before us, the Department is not a monolithic structure,
and individual U.S. Attorneys in the various districts of the country have
or appear to exercise some independence, as reflected by the Department's
tolerance of duplicative challenges in this very case.
But the bottom line is that the First Amendment should not be interpreted
to require us to entrust the protection it affords to the judgment of prosecutors.
Prosecutors come and go. Even federal judges are limited to life tenure.
The First Amendment remains to give protection to future generations as
well. I have no hesitancy in concluding that it is likely that plaintiffs
will prevail on the merits of their argument that the challenged provisions
of the CDA are facially invalid under both the First and Fifth Amendments.
BUCKWALTER, District Judge
I believe that plaintiffs should prevail in this litigation.
My conclusion differs in part from my original memorandum filed in conjunction with the request for a Temporary Restraining Order. As part of the expedited review (per Sec. 561 of the CDA), and in contrast to the limited documentation available to me at the time of the T.R.O. hearing, we have now gathered voluminous evidence presented by way of sworn declarations, live testimony, demonstrative evidence, and other exhibits.24 Based upon our findings of fact derived from careful consideration of that evidence, I now conclude that this statute is overbroad and does not meet the strict scrutiny standard in Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).
More specifically, I now find that current technology is inadequate
to provide a safe harbor to most speakers on the Internet. On this issue,
I concur in Chief Judge Sloviter's opinion. In addition, I continue to
believe that the word "indecent" is unconstitutionally vague,
and I find that the terms "in context" and "patently offensive"
also are so vague as to violate the First and Fifth Amendments.
It is, of course, correct that statutes that attempt to regulate the
content of speech presumptively violate the First Amendment. See e.g. R.A.V.
v. City of Saint Paul, 505 U.S. 377, 381 (1992). That is as it should be.
The prohibition against Government's regulation of speech cannot be set
forth any clearer than in the language of the First Amendment itself. I
suspect, however, that it may come as a surprise to many people who have
not followed the evolution of constitutional law that, by implication at
least, the First Amendment provides that Congress shall make no law abridging
the freedom of speech unless that law advances a compelling governmental
interest.25 Our cherished freedom of speech does not cover as broad a spectrum
as one may have gleaned from a simple reading of the Amendment.26
First Amendment jurisprudence has developed into a study of intertwining standards and applications, perhaps as a necessary response to our ever-evolving culture and modes of communication.27
Essentially, my concerns are these: above all, I believe that the challenged
provisions are so vague as to violate both the First and Fifth Amendments,
and in particular that Congress' reliance on Pacifica is misplaced. In
addition, I believe that technology as it currently exists -- and it bears
repeating that we are at the preliminary injunction phase only -- cannot
provide a safe harbor for most speakers on the Internet, thus rendering
the statute unconstitutional under a strict scrutiny analysis. I refer
to Chief Judge Sloviter's more detailed analysis of this issue.
While I believe that our findings of fact clearly show that as yet no
defense is technologically feasible, and while I also have found the present
Act to be unconstitutionally vague, I believe it is too early in the development
of this new medium to conclude that other attempts to regulate protected
speech within the medium will fail a challenge. That is to say that I specifically
do not find that any and all statutory regulation of protected speech on
the Internet could not survive constitutional scrutiny. Prior cases have
established that government regulation to prevent access by minors to speech
protected for adults, even in media considered the vanguard of our First
Amendment protections, like print, may withstand a constitutional challenge.
See e.g. Ginsberg v. New York, 390 U.S. 629, 635 (1968) ("`Material
which is protected for distribution to adults is not necessarily constitutionally
protected from restriction upon its dissemination to children.'")
(quoting Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947,
952, 218 N.E.2d 668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc.
v. Leary, 385 U.S. 12 (1966)). It should be noted that those restrictions
that have been found constitutional were sensitive to the unique qualities
of the medium at which the restriction was aimed.
This statute, all parties agree, deals with protected speech, the preservation
of which has been extolled by court after court in case after case as the
keystone, the bulwark, the very heart of our democracy. What is more, the
CDA attempts to regulate protected speech through criminal sanctions, thus
implicating not only the First but also the Fifth Amendment of our Constitution.
The concept of due process is every bit as important to our form of government
as is free speech. If free speech is at the heart of our democracy, then
surely due process is the very lifeblood of our body politic; for without
it, democracy could not survive. Distilled to its essence, due process
is, of course, nothing more and nothing less than fair play. If our citizens
cannot rely on fair play in their relationship with their government, the
stature of our government as a shining example of democracy would be greatly
diminished. I believe that an exacting or strict scrutiny of a statute
which attempts to criminalize protected speech requires a word by word
look at that statute to be sure that it clearly sets forth as precisely
as possible what constitutes a violation of the statute.
The reason for such an examination is obvious. If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer. Kolender, 461 U.S. 352; Hoffman Estates, 455 U.S. 489; Smith v. Goguen, 415 U.S. 566 (1974); Grayned v. City of Rockford, 408 U.S. 104 (1972); Winters v. New York, 333 U.S. 507 (1948).
In dealing with issues of vagueness and due process over the years,
the Supreme Court has enunciated many notable principles. One concern with
vague laws relates to the issue of notice. The older cases have used phrases
such as "a statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application violates the first
essential of due process of law," Connally v. General Const. Co.,
269 U.S. 385, 391 (1926) (citations omitted); "it will not do to hold
an average man to the peril of indictment for the unwise exercise of his
. . . knowledge involving so many factors of varying effect that neither
the person to decide in advance nor the jury to try him after the fact
can safely and certainly judge the result," Cline v. Frink Dairy Co.,
274 U.S. 445, 465 (1927); and "[n]o one may be required at peril of
life, liberty or property to speculate as to the meaning of penal statutes.
All are entitled to be informed as to what the State commands or forbids,"
Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939). Second, the Court has
said that laws must provide precise standards for those who apply them
to prevent arbitrary and discriminatory enforcement, because "[w]hen
the legislature fails to provide such minimal guidelines, a criminal statute
may permit `a standardless sweep [that] allows policemen, prosecutors,
and juries to pursue their personal predilections.'" Kolender, 461
U.S. at 358 (citing Goguen, 415 U.S. at 575). Finally, when First Amendment
concerns have been implicated, a stricter standard of examination for vagueness
is imperative. "[T]his court has intimated that stricter standards
of permissible statutory vagueness may be applied to a statute having a
potentially inhibiting effect on speech; a man may the less be required
to act at his peril here, because the free dissemination of ideas may be
the loser." Smith v. California, 361 U.S. 147, 151 (1959). See also
Hoffman Estates, 455 U.S. at 499 ("[P]erhaps 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 . . .
, a more stringent vagueness test should apply.") (citations omitted).
A case which sums up vagueness as it relates to due process as succinctly as any other is Grayned v. City of Rockford. Here the court said: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute "abut[s] upon sensitive areas of basic First Amendment freedoms," it "operates to inhibit the exercise of [those] freedoms." Uncertain meanings inevitably lead citizens to "'steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked." Grayned, 408 U.S. at 108-109 (citations omitted).
At the same time, in considering the vagueness issue, as the Government correctly points out, "[C]ondemned to the use of words, we can never expect mathematical certainty from our language." Grayned, 408 U.S. at 110. See also Hoffman Estates, 455 U.S. 489; Hynes v. Mayor & Council of Oradell, 425 U.S. 610 (1976); Goguen, 415 U.S. 566. In addition, it will always be true that the fertile legal "imagination can conjure hypothetical cases in which the meaning of [disputed] terms will be in nice question." American Communications Assn. v. Douds, 339 U.S. 382, 412 (1950). Thus, as I considered the vagueness issue I have kept in mind the observation of Justice Holmes, denying a challenge to vagueness in Nash v. United States, 229 U.S. 373 (1913). To Justice Holmes, "the law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment . . ., he may incur the penalty of death." Nash, 229 U.S. at 377. Even more recently the court has stated that "due process does not require `impossible standards' of clarity." Kolender, 461 U.S. at 361, (quoting United States v. Petrillo, 332 U.S. 1, 7-8 (1947)). It is with all of these principles in mind, as they interplay with the unique features of the Internet, that I have reached my conclusion.
The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA. The Government initially argues that "indecent" in this statute is the same as "patently offensive." I do not agree that a facial reading of this statute supports that conclusion. The CDA does not define the term "indecent," and the FCC has not promulgated regulations defining indecency in the medium of cyberspace. If "indecent" and "patently offensive" were intended to have the same meaning, surely section (a) could have mirrored section (d)'s language.28 Indecent in this statute is an undefined word which, standing alone, offers no guidelines whatsoever as to its parameters. Interestingly, another federal crime gives a definition to indecent entirely different from that proposed in the present case.29 While not applicable here, this example shows the indeterminate nature of the word and the need for clear definition, particularly in a statute which infringes upon protected speech. Although the use of different terms in Sec. 223(a) and (d) suggests that Congress intended that the terms have different meanings, the Conference Report indicates an intention to treat Sec. 223(a) as containing the same language as Sec. 223(d). Conf. Rep. at 188-89 ("The conferees intend that the term indecency . . . has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and [Sable] and "New section 223(d)(1) codifies the definition of indecency from [Pacifica] . . . . The precise contours of the definition of indecency have varied . . . . The essence of the phrase -- patently offensive descriptions of sexual and excretory activities -- has remained constant, however."). Therefore, I will acknowledge that the term indecency is "reasonably susceptible" to the definition offered in the Conference Report and might therefore adopt such a narrowing construction if it would thereby preserve the constitutionality of the statute. See Virginia v. American Booksellers Association, 484 U.S. 383, 397 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). Accepting these terms as synonymous, however, provides no greater help to a speaker attempting to comply with the CDA. Contrary to the Government's suggestion, Pacifica does not answer the question of whether the terms pass constitutional muster in the present case. In Pacifica, the Court did not consider a vagueness challenge to the term "indecent," but considered only whether the Government had the authority to regulate the particular broadcast at issue -- George Carlin's Monologue entitled "Filthy Words." In finding in the affirmative, the Court emphasized that its narrow holding applied only to broadcasting, which is "uniquely accessible to children, even those too young to read." 438 U.S. at 749. Thus, while the Court sanctioned the FCC's time restrictions on a radio program that repeatedly used vulgar language, the Supreme Court did not hold that use of the term "indecent" in a statute applied to other media, particularly a criminal statute, would be on safe constitutional ground.
The Supreme Court more recently had occasion to consider a statute banning
"indecent" material in the dial-a-porn context in Sable, 492
U.S. 115, and found that a complete ban on such programming violated the
First Amendment because it was not narrowly tailored to serve the purpose
of limiting children's access to commercial pornographic telephone messages.
Once again, the Court did not consider a challenge to the term "indecent"
on vagueness grounds, and indeed has never directly ruled on this issue.
Several other courts have, however, upheld the use of the term in statutes
regulating different media. For example, in Information Providers' Coalition
v. FCC, 928 F.2d 866 (9th Cir. 1991), the Ninth Circuit Court of Appeals
considered whether the term "indecent" in the 1989 Amendment
to the Communications Act regulating access to telephone dial-a-porn services
and the FCC's implementing regulations was void for vagueness. The FCC
had defined "indecent" as "the description or depiction
of sexual or excretory activities or organs in a patently offensive manner
as measured by contemporary community standards for the telephone medium."
928 F.2d at 874. Although recognizing that the Supreme Court had never
explicitly ruled on a vagueness challenge to the term, the court read Sable
and Pacifica as having implicitly accepted the use of this definition of
"indecent." The court further stated that the FCC's definition
of "indecent" was no less imprecise than was the definition of
"obscenity" as announced in Miller v. California, 413 U.S. 15,
25 (1973), and thus concluded that "indecent" as pertained to
dial-a-porn regulations must survive a vagueness challenge. See also Dial
Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), (upholding
the use of "indecent" in the same amendment to the Communications
Act and FCC regulations.); Action for Children's Television v. FCC, 932
F.2d 1504, 1508 (D.C.Cir. 1991) (rejecting vagueness challenge to "indecency"
provision in broadcast television regulations).30
Notably, however, in these telephone and cable television cases the FCC had defined indecent as patently offensive by reference to contemporary community standards for that particular medium. See, e.g., Pacifica, 438 U.S. at 732 (defining "indecent" by reference to terms "patently offensive as measured by contemporary community standards for the broadcast medium"); Dial Information Services, 938 F.2d at 1540 (defining indecency by reference to contemporary community standards for the telephone medium). Here, the provision is not so limited. In fact, there is no effort to conform the restricting terms to the medium of cyberspace, as is required under Pacifica and its progeny.
The Government attempts to save the "indecency" and "patently
offensive" provisions by claiming that the provisions would only be
used to prosecute pornographic works which, when considered "in context"
as the statute requires, would be considered "indecent" or "patently
offensive" in any community. The Government thus contends that plaintiffs'
fears of prosecution for publishing material about matters of health, art,
literature or civil liberties are exaggerated and unjustified. The Government's
argument raises two issues: first is the question of which "community
standards" apply in cyberspace, under the CDA; and second is the proposition
that citizens should simply rely upon prosecutors to apply the statute
Are the contemporary community standards to be applied those of the
vast world of cyberspace, in accordance with the Act's apparent intent
to establish a uniform national standard of content regulation? The Government
offered no evidence of any such national standard or nationwide consensus
as to what would be considered "patently offensive". On the contrary,
in supporting the use of the term "indecent" in the CDA, the
Government suggests that, in part, this term was chosen as a means of insulating
children from material not restricted under current obscenity laws. This
additional term is necessary, the Government states, because "whether
something rises to the level of obscene is a legal conclusion that, by
definition, may vary from community to community." Govt. Brief at
31. In support of its argument, the Government points to the Second Circuit's
decision in United States v. Various Articles of Obscene Merchandise, Schedule
No. 2102, 709 F.2d 132, 134, 137 (2d Cir. 1983), which upheld the district
court's conclusion that "detailed portrayals of genitalia, sexual
intercourse, fellatio, and masturbation" including the film "Deep
Throat" and other pornographic films and magazines, are not obscene
in light of the community standards prevailing in New York City."
What this argument indicates is that as interpretations of obscenity ebb
and flow throughout various communities, restrictions on indecent material
are meant to cover a greater or lesser quantity of material not reached
by each community's obscenity standard. It follows that to do this, what
constitutes indecency must be as open to fluctuation as the obscenity standard
and cannot be rigidly constructed as a single national standard if it is
meant to function as the Government has suggested. As Justice Scalia stated,
"[t]he more narrow the understanding of what is `obscene,' . . . the
more pornographic what is embraced within the residual category of `indecency.'"
Sable, 492 U.S. at 132 (Scalia, J. concurring). This understanding is consistent
with the case law, in which the Supreme Court has explained that the relevant
community is the one where the information is accessed and where the local
jury sits. See Sable, 492 U.S. at 125; Hamling v. United States, 418 U.S.
87 (1974); Miller, 413 U.S. at 30 ("[O]ur nation is simply too big
and too diverse for this Court to reasonably expect that such standards
[of what is patently offensive] could be articulated for all 50 states
in a single formulation."). However, the Conference Report with regard
to the CDA states that the Act is "intended to establish a uniform
national standard of content regulation." Conf. Rep. at 191. This
conflict inevitably leaves the reader of the CDA unable to discern the
relevant "community standard," and will undoubtedly cause Internet
users to "steer far wider of the unlawful zone" than if the community
standard to be applied were clearly defined. The chilling effect on the
Internet users' exercise of free speech is obvious. See Baggett v. Bullitt,
377 U.S. 360, 372 (1964). This is precisely the vice of vagueness.
In addition, the Government's argument that the challenged provisions
will be applied only to "pornographic" materials, and will not
be applied to works with serious value is without support in the CDA itself.
Unlike in the obscenity context, indecency has not been defined to exclude
works of serious literary, artistic, political or scientific value, and
therefore the Government's suggestion that it will not be used to prosecute
publishers of such material is without foundation in the law itself. The
Government's claim that the work must be considered patently offensive
"in context" does nothing to clarify the provision, for it fails
to explain which context is relevant. "Context" may refer to,
among other things, the nature of the communication as a whole, the time
of day it was conveyed, the medium used, the identity of the speaker, or
whether or not it is accompanied by appropriate warnings. See e.g., Pacifica,
438 U.S. at 741 n.16, n.17 (referring to "the context of the whole
book," and to the unique interpretation of the First Amendment "in
the broadcasting context").
The thrust of the Government's argument is that the court should trust
prosecutors to prosecute only a small segment of those speakers subject
to the CDA's restrictions, and whose works would reasonably be considered
"patently offensive" in every community. Such unfettered discretion
to prosecutors, however, is precisely what due process does not allow.
"It will not do to say that a prosecutor's sense of fairness and the
Constitution would prevent a successful . . . prosecution for some of the
activities seemingly embraced within the sweeping statutory definitions.
The hazard of being prosecuted . . . nevertheless remains . . . . Well-intentioned
prosecutors and judicial safeguards do not neutralize the vice of a vague
law." Baggett, 377 U.S. at 373-74; see also Keyishian v. Board of
Regents, 385 U.S. 589, 599 (1967)("[i]t is no answer" to a vague
law for the Government "to say that the statute would not be applied
in such a case."). And we cannot overlook the vagaries of politics.
What may be, figuratively speaking, one administration's pen may be another's
The evidence and arguments presented by the Government illustrate the
possibility of arbitrary enforcement of the Act. For example, one Government
expert opined that any of the so-called "seven dirty words" used
in the Carlin monologue would be subject to the CDA and therefore should
be "tagged," as should paintings of nudes displayed on a museum's
web site. The Government has suggested in its brief, however, that the
Act should not be so applied. See Govt. Brief at 37 (suggesting that "seven
dirty words" if used "in the context of serious discussions"
would not be subject to the Act). Even Government counsel was unable to
define "indecency" with specificity. The Justice Department attorney
could not respond to numerous questions from the court regarding whether,
for example, artistic photographs of a nude man with an erect penis, depictions
of Indian statues portraying different methods of copulation, or the transcript
of a scene from a contemporary play about AIDS could be considered "indecent"
under the Act.
Plaintiffs also argue that section 223(e)(5)(A) of the CDA, offering
a defense for speakers who take "good faith, reasonable, effective
and appropriate actions under the circumstances to restrict or prevent
access by minors to a communication" covered by the Act, is unconstitutionally
vague because it fails to specify what would constitute an effective defense
to prosecution. The plain language of the safe harbor provision indicates
an effort to ensure that the statute limits speech in the least restrictive
means possible by taking into account emerging technologies in allowing
for any and all "reasonable, effective and appropriate" approaches
to restricting minors' access to the proscribed material. But, the statute
itself does not contain any description of what, other than credit card
verification and adult identification codes -- which we have established
remain unavailable to most content providers -- will protect a speaker
from prosecution. Significantly, although the FCC is authorized to specify
measures that might satisfy this defense, the FCC's views will not be definitive
but will only "be admitted as evidence of good faith efforts"
that the defendant has met the requirements of the defense. 47 U.S.C. Sec.
223(e)(6). Thus, individuals attempting to comply with the statute presently
have no clear indication of what actions will ensure that they will be
insulated from criminal sanctions under the CDA.
The consequences of posting indecent content are severe.31 I recognize
that people must make judgments each and every day, many times in the most
intimate of relationships and that an error in judgment can have serious
consequences. It is also true that where those consequences involve penal
sanctions, a criminal law or statute has more often than not carefully
defined the proscribed conduct. It is not so much that the accused needs
these precise definitions, as it has been said he or she rarely reads the
law in advance. What is more important is that the enforcer of statutes
must be guided by clear and precise standards. In statutes that break into
relatively new areas, such as this one, the need for definition of terms
is greater, because even commonly understood terms may have different connotations
or parameters in this new context.32 Words cannot define conduct with mathematical
certainty, and lawyers, like the bright and intelligent ones now before
us, will most certainly continue to devise ways by which to challenge them.
This rationale, however, can neither support a finding of constitutionality
nor relieve legislators from the very difficult task of carefully drafting
legislation tailored to its goal and sensitive to the unique characteristics
of, in this instance, cyberspace.
DALZELL, District Judge
I begin with first principles: As a general rule, the Constitution forbids the Government from silencing speakers because of their particular message. R.A.V. v. City of Saint Paul, 112 S. Ct. 2538, 2542 (1992). "Our political system and cultural life rest upon this ideal." Turner Broadcasting Sys. v. FCC, 114 S. Ct. 2445, 2458 (1994). This general rule is subject only to "narrow and well-understood exceptions". Id. A law that, as here, regulates speech on the basis of its content, is "presumptively invalid". R.A.V., 112 S. Ct. at 2542.
Two of the exceptions to this general rule deal with obscenity (commonly understood to include so-called hardcore pornography), Miller v. California, 413 U.S. 15 (1973), and child pornography, New York v. Ferber, 458 U.S. 747 (1982). The Government can and does punish with criminal sanction people who engage in these forms of speech. 18 U.S.C. Secs. 1464-65 (criminalizing obscene material); id. Secs. 2251-52 (criminalizing child pornography). Indeed, the Government could punish these forms of speech on the Internet even without the CDA. E.g., United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995) (affirming obscenity convictions for the operation of a computer bulletin board).
The Government could also completely ban obscenity and child pornography from the Internet. No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them. Child pornography and obscenity have "no constitutional protection, and the government may ban [them] outright in certain media, or in all." Alliance for Community Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995) (citing R.A.V., 112 S. Ct. at 2545), cert. granted sub nom. Denver Area Educ. Telecommunications Consortium, 116 S. Ct. 471 (1996); see also Ferber, 458 U.S. at 756. As R.A.V. notes, "'the freedom of speech' referred to by the First Amendment does not include a freedom to disregard these traditional limitations." R.A.V., 112 S. Ct. at 2543.
The cases before us, however, are not about obscenity or child pornography. Plaintiffs in these actions claim no right to engage in these forms of speech in the future, nor does the Government intimate that plaintiffs have engaged in these forms of speech in the past.
This case is about "indecency", as that word has come to be
understood since the Supreme Court's decisions in FCC v. Pacifica Foundation,
438 U.S. 726 (1976), and Sable Communications v. FCC, 492 U.S. 115 (1989).
The legal difficulties in these actions arise because of the special place
that indecency occupies in the Supreme Court's First Amendment jurisprudence.
While adults have a First Amendment right to engage in indecent speech,
Sable, 492 U.S. at 126; see also Pacifica, 438 U.S. at 747-48, the Supreme
Court has also held that the Government may, consistent with the Constitution,
regulate indecency on radio and television, and in the "dial-a-porn"
context, as long as the regulation does not operate as a complete ban.
Thus, any regulation of indecency in these areas must give adults access
to indecent speech, which is their right.
The Government may only regulate indecent speech for a compelling reason,
and in the least restrictive manner. Sable, 492 U.S. at 126. "It is
not enough to show that the Government's ends are compelling; the means
must be carefully tailored to achieve those ends." Id. This "most
exacting scrutiny", Turner, 114 S. Ct. at 2459, requires the Government
to "demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct
and material way." United States v. National Treasury Employees Union,
115 S. Ct. 1003, 1017 (1995) (citing Turner, 114 S. Ct. at 1017). Thus,
although our analysis here must balance ends and means, the scales tip
at the outset in plaintiffs' favor. This is so because "[r]egulations
which permit the Government to discriminate on the basis of the content
of the message cannot be tolerated under the First Amendment." Simon
& Schuster, Inc. v. Members of the New York State Crime Victims Board,
502 U.S. 105, 116 (1991) (citation omitted).
The Government argues that this case is really about pornography on
the Internet. Apart from hardcore and child pornography, however, the word
pornography does not have a fixed legal meaning. When I use the word pornography
in my analysis below, I refer to for-profit purveyors of sexually explicit,
"adult" material similar to that at issue in Sable. See 492 U.S.
at 118. Pornography is normally either obscene or indecent, as Justice
Scalia noted in his concurrence in Sable. Id. at 132. I would avoid using
such an imprecise (and overbroad) word, but I feel compelled to do so here,
since Congress undoubtedly had such material in mind when it passed the
CDA. See S. Rep. No. 230, 104th Cong., 2d Sess. 187-91 (1996), reprinted
in 1996 U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report]. Moreover,
the Government has defended the Act before this court by arguing that the
Act could be constitutionally applied to such material.
Plaintiffs have, as noted, moved for a preliminary injunction. The standards
for such relief are well-settled. Plaintiffs seeking preliminary injunctive
relief must show (1) "[a] reasonable probability of eventual success
in the litigation" and (2) "irreparabl[e] injur[y] pendente lite"
if relief is not granted. Acierno v. New Castle County, 40 F.2d 645, 653
(3d Cir. 1994). We must also consider, if appropriate, (3) "the possibility
of harm to other interested persons from the grant or denial of the injunction",
and (4) "the public interest". Id.; see also Opticians Ass'n
v. Independent Opticians, 920 F.2d 187, 192 (3d Cir. 1990).
In a First Amendment challenge, a plaintiff who meets the first prong
of the test for a preliminary injunction will almost certainly meet the
second, since irreparable injury normally arises out of the deprivation
of speech rights, "for even minimal periods of time". Elrod v.
Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d
Cir.), cert. denied, 493 U.S. 848 (1989). Of course, neither the Government
nor the public generally can claim an interest in the enforcement of an
unconstitutional law. Thus, I focus my legal analysis today primarily on
whether plaintiffs have shown a likelihood of success on their claim that
the CDA is unconstitutional. The issues of irreparable harm to plaintiffs,
harm to third parties, and the public interest all flow from that determination.33
Plaintiffs' challenge here is a "facial" one. A law that regulates
the content of speech is facially invalid if it does not pass the "most
exacting scrutiny" that we have described above, or if it would "penalize
a substantial amount of speech that is constitutionally protected".
Forsyth County v. Nationalist Movement, 112 S. Ct. 2395, 2401 (1992). This
is so even if some applications would be "constitutionally unobjectionable".
Id.; see also National Treasury Employees Union v. United States, 990 F.2d
1271, 1279-80 (D.C. Cir. 1993) (Randolph, J., concurring), aff'd, 115 S.
Ct. 1003 (1995). Sometimes facial challenges require an inquiry into a
party's "standing" (i.e., whether a party may properly challenge
a law as facially invalid). See, e.g., Ferber, 458 U.S. at 767-79. At other
times a facial challenge requires only an inquiry into the law's reach.
See, e.g., R.A.V., 112 S. Ct. at 2547.34 As I describe it in part C below,
I have no question that plaintiffs here have standing to challenge the
validity of the CDA, and, indeed, the Government has not seriously challenged
plaintiffs' standing to do so. See, e.g., Virginia v. American Booksellers
Assoc., 484 U.S. 383, 392 (1988). Thus, the focus is squarely on the merits
of plaintiffs' facial challenge.35
I divide my legal analysis below into three parts. In Part B, I examine
the traditional definition of indecency and relate it to the provisions
of the CDA at issue in this action. From this analysis I conclude that
Sec. 223(a) and Sec. 223(d) of the CDA reach the same kind of speech. My
analysis also convinces me that plaintiffs are unlikely to succeed in their
claim that the CDA is unconstitutionally vague. In Part C, I address the
Government's argument that plaintiffs are not the CDA's target, nor would
they likely face prosecution under the Act. Here, I conclude that plaintiffs
could reasonably fear prosecution under the Act, even if some of their
fears border on the farfetched. In Part D, I consider the legal implications
of the special attributes of Internet communication, as well as the effect
that the CDA would have on these attributes. In this Part I conclude that
the disruptive effect of the CDA on Internet communication, as well as
the CDA's broad reach into protected speech, not only render the Act unconstitutional
but also would render unconstitutional any regulation of protected speech
on this new medium.
B. Defining Indecency
Although no court of appeals has ever to my knowledge upheld a vagueness challenge to the meaning of "indecency", several recent cases have grappled with the elusive meaning of that word in the context of cable television and "dial-a-porn". Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), cert. granted, 116 S. Ct. 471 (1996); Dial Information Serv. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992); Information Providers Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991).
In Alliance for Community Media, 56 F.3d at 123-25, for example, the
District of Columbia Court of Appeals addressed prohibitions on indecent
programming on certain cable television channels. That court noted that
the FCC has codified the meaning of "'indecent' programming"
on cable television as "programming that describes or depicts sexual
or excretory activities or organs in a patently offensive manner as measured
by contemporary community standards for the cable medium." Id. at
112 (citing what is now 47 C.F.R. Sec. 76.701(g)).
The FCC took a similar approach to the definition of "indecency"
in the "dial-a-porn" medium.36 In Dial Information Services,
938 F.2d at 1540, the Second Circuit quoted the FCC's definition of indecent
telephone communications in that context: [I]n the dial-a-porn context,
we believe it is appropriate to define indecency as the description or
depiction of sexual or excretory activities or organs in a patently offensive
manner as measured by contemporary community standards for the telephone
medium. Id. at 1540 (citation omitted); see also Information Providers'
Coalition for Defense of the First Amendment v. FCC, 928 F.2d 866, 876
(9th Cir. 1991).
These three cases recognize that the FCC did not define "indecency"
for cable and dial-a-porn in a vacuum. Rather, it borrowed from the Supreme
Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In
that case (which I describe in greater detail below), the Supreme Court
established the rough outline from which the FCC fashioned its three-part
definition. For the first two parts of the test, the Supreme Court emphasized
the "importance of context" in examining arguably indecent material.
Id. at 747 n.25. "Context" in the Pacifica opinion includes consideration
of both the particular medium from which the material originates and the
particular community that receives the material. Id. at 746 (assuming that
the Carlin monologue "would be protected in other contexts");
id. at 748-51 (discussing the attributes of broadcast); see also Information
Providers' Coalition, 928 F.2d at 876 (discussing the "content/context
dichotomy"). Second, the opinion limits its discussion to "patently
offensive sexual and excretory language", Pacifica, 438 U.S. at 747,
and this type of content has remained the FCC's touchstone. See, e.g.,
Alliance for Community Media, 56 F.3d at 112.37
We have quoted from the CDA extensively above and I will only briefly
rehearse that discussion here. Section 223(a) of the CDA criminalizes "indecent"
speech on the Internet. This is the "indecency" provision. Section
223(d) of the CDA addresses speech that, "in context, depicts or describes,
in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs". This is the "patently
offensive" provision. The foregoing discussion leads me to conclude
that these two provisions describe the same kind of speech. That is, the
use of "indecent" in Sec. 223(a) is shorthand for the longer
description in Sec. 223(d). Conversely, the longer description in Sec.
223(d) is itself the definition of "indecent" speech. I believe
Congress could have used the word "indecent" in both Sec. 223(a)
and Sec. 223(d), or it could have used the "patently offensive"
description of Sec. 223(d) in Sec. 223(a), without a change in the meaning
of the Act. I do not believe that Congress intended that this distinction
alone would change the reach of either section of the CDA.38
The CDA's legislative history confirms this conclusion. There, the conference committee explicitly noted that Sec. 223(d) "codifies the definition of indecency from FCC v. Pacifica Foundation, 438 U.S. 726 (1978). . . . The conferees intend that the term indecency (and the rendition of the definition of that term in new section 502) has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)." Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02. The legislative history makes clear that Congress did not intend to create a distinction in meaning when it used the generic term "indecency" in Sec. 223(a) and the definition of that term in Sec. 223(d).39
There is no doubt that the CDA requires the most stringent review for vagueness, since it is a criminal statute that "threatens to inhibit the exercise of constitutionally protected rights". Colautti v. Franklin, 439 U.S 379, 391 (1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8 (1983); Grayned, 408 U.S. at 108-09. My analysis here nevertheless leads ineluctably to the conclusion that the definition of indecency is not unconstitutionally vague. The Miller definition of obscenity has survived such challenges, see, e.g., Hamling v. United States, 418 U.S. 87, 118-19 (1974); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57 (1989), and the definition of indecency contains a subset of the elements of obscenity. If the Miller test "give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly", Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), the omission of parts of that test does not warrant a contrary conclusion. See Dial Information Services, 938 F.2d at 1541-42. Similarly, since the definition of indecency arose from the Supreme Court itself in Pacifica, we may fairly imply that the Court did not believe its own interpretation to invite "arbitrary and discriminatory enforcement" or "abut upon sensitive areas of basic First Amendment freedoms". Grayned, 408 U.S. at 108-109 (citations and alterations omitted). Sable, while not explicitly addressing the issue of vagueness, reinforces this conclusion. See Information Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S. at 126-27). It follows, then, that plaintiffs' vagueness challenge is not likely to succeed on the merits and does not support preliminary injunctive relief.
The possible interpretations of the defenses in Sec. 223(e) do not alter
this conclusion. As a matter of statutory construction, Sec. 223(e)(5)(B)
could not be clearer. This section, which imports the dial-a-porn defenses
into the CDA, creates "specific and objective" methods to avoid
liability. See Roberts v. United States Jaycees, 468 U.S. 609, 629 (1984).
Section 223(e)(5)(A) is more suspect, since it arguably "fail[s] to
describe with sufficient particularity what a suspect must do in order
to satisfy" it. Kolender 461 U.S. at 361.40 Yet even though the defenses
in both sections are unavailable to many Internet users, their unavailability
does not render the liability provisions vague. Rather, their unavailability
just transforms Sec. 223(a) and Sec. 223(d) into a total ban, in violation
of Butler v. Michigan, 352 U.S. 380, 383 (1957), and Sable, 492 U.S. at
127, 131. I am sensitive to plaintiffs' arguments that the statute, as
written, does not create safe harbors through which all Internet users
may shield themselves from liability. Transcript of May 10, 1996, at 37-38.
Here again, however, the absence of safe harbors relates to the (over)breadth
of a statute, and not its vagueness. See Sable, 492 U.S. at 127, 131.
C. Plaintiffs' Likelihood of Prosecution Under the Act
The Government has consistently argued that the speech of many of the
plaintiffs here is almost certainly not indecent. They point, for example,
to the educational and political content of plaintiffs' speech, and they
also suggest that the occasional curse word in a card catalogue will probably
not result in prosecution. See Senate Report at 189, reprinted in 1996
U.S.C.C.A.N. at 203 ("Material with serious redeeming value is quite
obviously intended to edify and educate, not to offend."). In this
section I address that argument.
I agree with the Government that some of plaintiffs' claims are somewhat
exaggerated, but hyperbolic claims do not in themselves weigh in the Government's
favor. In recent First Amendment challenges, the Supreme Court has itself
paid close attention to extreme applications of content-based laws.
In Simon & Schuster, Inc. v. Members of the New York State Crimes
Victim Board, 502 U.S. 105 (1991), the Court addressed the constitutionality
of a law that required criminals to turn over to their victims any income
derived from books, movies, or other commercial exploitation of their crimes.
Id. at 504-05. In its opinion, the Court evaluated the argument of an amicus
curiae that the law's reach could include books such as The Autobiography
of Malcolm X, Civil Disobedience, and Confessions of Saint Augustine, and
authors such as Emma Goldman, Martin Luther King, Jr., Sir Walter Raleigh,
Jesse Jackson, and Bertrand Russell. Id. at 121-22. The Court credited
the argument even while recognizing that it was laced with "hyperbole":
The argument that [the] statute . . . would prevent publication of all
of these works is hyperbole -- some would have been written without compensation
-- but the . . . law clearly reaches a wide range of literature that does
not enable a criminal to profit from his crime while a victim remains uncompensated.
Id. at 122. If a content-based law "can produce such an outcome",
id. at 123 (emphasis added), then Simon & Schuster allows us to consider
those outcomes in our analysis.
Even more recently, in United States v. National Treasury Employees Union, 115 S. Ct. 1003 (1995), the Court addressed the constitutionality of a law that banned federal employees from accepting honoraria for publications unrelated to their work. Id. at 1008. The Court noted that the law would reach "literary giants like Nathaniel Hawthorne and Herman Melville, . . . Walt Whitman, . . . and Bret Harte". Id. at 1012. This concern resurfaced later in the opinion, see id. at 1015 ("[W]e cannot ignore the risk that [the ban] might deprive us of the work of a future Melville or Hawthorne."), even though a footnote immediately renders this concern at least hyperbolic: These authors' familiar masterworks would survive the honoraria ban as currently administered. Besides exempting all books, the [regulations implementing the ban] protect fiction and poetry from the ban's coverage, although the statute's language is not so clear. But some great artists deal in fact as well as fiction, and some deal in both. Id. n.16 (citations omitted).
Here, even though it is perhaps unlikely that the Carnegie Library will
ever stand in the dock for putting its card catalogue online, or that the
Government will hale the ACLU into court for its online quiz of the seven
dirty words, we cannot ignore that the Act could reach these activities.
The definition of indecency, like the definition of obscenity, is not a
rigid formula. Rather, it confers a large degree of autonomy to individual
communities to set the bounds of decency for themselves. Cf. Sable, 492
U.S. at 125-26. This is as it should be, since this flexibility recognizes
that ours is a country with diverse cultural and historical roots. See,
e.g., Hamling, 418 U.S. at 104 ("A juror is entitled to draw on his
own knowledge of the views of the average person in the community or vicinage
from which he comes for making the required determination, just as he is
entitled to draw on his knowledge of the propensities of a 'reasonable'
person in other areas of the law.").
Putting aside hyperbolic application, I also have little doubt that
some communities could well consider plaintiffs' speech indecent, and these
plaintiffs could -- perhaps should -- have a legitimate fear of prosecution.
In Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995),
the District of Columbia Court of Appeals summarized three broadcasts that
the FCC found indecent in the late 1980s: The offending morning broadcast
. . . contained "explicit references to masturbation, ejaculation,
breast size, penis size, sexual intercourse, nudity, urination, oral-genital
contact, erections, sodomy, bestiality, menstruation and testicles."
The remaining two were similarly objectionable. Id. at 657 (citing In re
Infinity Broadcasting Corp., 3 FCC R. 930, 932 (1987)). In Infinity Broadcasting,
one of the broadcasts that the FCC found indecent was an excerpt of a play
about AIDS, finding that the excerpts "contained the concentrated
and repeated use of vulgar and shocking language to portray graphic and
lewd depictions of excretion, anal intercourse, ejaculation, masturbation,
and oral-genital sex". 3 FCC R. at 934.41 To the FCC, even broadcasts
with "public value . . . addressing the serious problems posed by
AIDS" can be indecent if "that material is presented in a manner
that is patently offensive". Id. (emphasis in original).42
Yet, this is precisely the kind of speech that occurs, for example,
on Critical Path AIDS Project's Web site, which includes safer sex instructions
written in street language for easy comprehension. The Web site also describes
the risk of HIV transmission for particular sexual practices. The FCC's
implication in In the Matter of King Broadcasting Co., 5 FCC R. 2971 (1990),
that a "candid discussion of sexual topics" on television was
decent in part because it was "not presented in a pandering, titillating
or vulgar manner" would be unavailing to Critical Path, other plaintiffs,
and some amici. These organizations want to pander and titillate on their
Web sites, at least to a degree, to attract a teen audience and deliver
their message in an engaging and coherent way.43
In In re letter to Merrell Hansen, 6 FCC R. 3689 (1990), the FCC found
indecent a morning discussion between two announcers regarding Jim Bakker's
alleged rape of Jessica Hahn. Id. Here, too, the FCC recognized that the
broadcast had public value. Id. (noting that the broadcast concerned "an
incident that was at the time 'in the news'"). Yet, under the FCC's
interpretation of Pacifica, "the merit of a work is 'simply one of
the many variables' that make up a work's context". Id. (citation
One of the plaintiffs here, Stop Prisoner Rape, Inc., has as its core purpose the issue of prison rape. The organization creates chat rooms in which members can discuss their experiences. Some amici have also organized Web sites dedicated to survivors of rape, incest, and other sexual abuse. These Web sites provide fora for the discussion and contemplation of shared experiences. The operators of these sites, and their participants, could legitimately fear prosecution under the CDA.
With respect to vulgarity, the Government is in a similarly weak position.
In Pacifica, the Supreme Court held that multiple repetition of expletives
could be indecent. Pacifica, 438 U.S. at 750. Although the FCC did not
follow this rationale with respect to a broadcast of "a bona fide
news story" on National Public Radio, Letter to Mr. Peter Branton,
6 FCC R. 610 (1991), aff'd on other grounds sub nom. Branton v. FCC, 993
F.2d 906, 908 (D.C. Cir. 1993), the ACLU, a plaintiff here, could take
little comfort from that administrative decision. It would need to discern,
for example, whether a chat room that it organized to discuss the meaning
of the word fuck was more like the Carlin monologue or more like a National
Public Radio broadcast.44 Plaintiffs' expert would have found expletives
indecent in a community consisting only of himself,45 and his views undoubtedly
-- and reasonably -- reflect the view of many people.
In sum, I am less confident than the Government that societal mores
have changed so drastically since Pacifica that an online equivalent of
the Carlin monologue, or the Carlin monologue itself online, would pass
muster under the CDA. Under existing precedent, plaintiffs' fear of prosecution
under the Act is legitimate, even though they are not the pornographers
Congress had in mind when it passed the CDA.46 Cf. City of Houston v. Hill,
482 U.S. 451, 459 (1987). My discussion of the effect and reach of the
CDA, therefore, applies both to plaintiffs' hyperbolic concerns and to
their very real ones. D. A Medium-Specific Analysis
The Internet is a new medium of mass communication.47 As such, the Supreme
Court's First Amendment jurisprudence compels us to consider the special
qualities of this new medium in determining whether the CDA is a constitutional
exercise of governmental power. Relying on these special qualities, which
we have described at length in our Findings of fact above, I conclude that
the CDA is unconstitutional and that the First Amendment denies Congress
the power to regulate protected speech on the Internet. This analysis and
conclusions are consistent with Congress's intent to avoid tortuous and
piecemeal review of the CDA by authorizing expedited, direct review in
the Supreme Court "as a matter of right" of interlocutory, and
not merely final, orders upholding facial challenges to the Act. See Sec.
561(b) of the Telecommunications Act of 1996.48
1. The Differential Treatment of Mass Communication Media
Nearly fifty years ago, Justice Jackson recognized that "[t]he
moving picture screen, the radio, the newspaper, the handbill, the sound
truck and the street corner orator have differing natures, values, abuses
and dangers. Each . . . is a law unto itself". Kovacs v. Cooper, 336
U.S. 77, 97 (1949) (Jackson, J., concurring). The Supreme Court has expressed
this sentiment time and again since that date, and differential treatment
of the mass media has become established First Amendment doctrine. See,
e.g., Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994)
("It is true that our cases have permitted more intrusive regulation
of broadcast speakers than of speakers in other media."); Pacifica,
438 U.S. at 748 ("We have long recognized that each medium of expression
presents special First Amendment problems."); City of Los Angeles
v. Preferred Communications, Inc., 476 U.S. 488, 496 (1974) ("Different
communications media are treated differently for First Amendment purposes.")
(Blackmun, J., concurring); Metromedia, Inc. v. City of San Diego, 453
U.S. 490, 500-01 (1981) (plurality opinion) ("This Court has often
faced the problem of applying the broad principles of the First Amendment
to unique forums of expression."). Thus, the Supreme Court has established
different rules for print, Miami Herald Publishing Co. v. Tornillo, 418
U.S. 241 (1974), broadcast radio and television, see, e.g., Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367 (1969), cable television, Turner, 114 S. Ct. at
2456-57, and even billboards, Metromedia, 453 U.S. at 501, and drive-in
movie theaters, Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975).
This medium-specific approach to mass communication examines the underlying
technology of the communication to find the proper fit between First Amendment
values and competing interests. In print media, for example, the proper
fit generally forbids governmental regulation of content, however minimal.
Tornillo, 418 U.S. at 258. In other media (billboards, for example), the
proper fit may allow for some regulation of both content and of the underlying
technology (such as it is) of the communication. Metromedia, 453 U.S. at
Radio and television broadcasting present the most expansive approach
to medium-specific regulation of mass communication. As a result of the
scarcity of band widths on the electromagnetic spectrum, the Government
holds broad authority both to parcel out the frequencies and to prohibit
others from speaking on the same frequency: As a general matter, there
are more would-be broadcasters than frequencies available in the electromagnetic
spectrum. And if two broadcasters were to attempt to transmit over the
same frequency in the same locale, they would interfere with one another's
signals, so that neither could be heard at all. The scarcity of broadcast
frequencies thus required the establishment of some regulatory mechanism
to divide the electromagnetic spectrum and assign specific frequencies
to particular broadcasters. Turner, 114 S. Ct. at 2456 (citing FCC v. League
of Women Voters, 468 U.S. 364 (1984)).
This scarcity also allows the Government to regulate content even after
it assigns a license: In addition, the inherent physical limitation on
the number of speakers who may use the broadcast medium has been thought
to require some adjustment in traditional First Amendment analysis to permit
the Government to place limited content restraints, and impose certain
affirmative obligations, on broadcast licensees. Id. at 2457 (citing Red
Lion, 395 U.S. at 390-95; National Broadcasting Co. v. United States, 319
U.S. 190 (1943)).
The broadcasting cases firmly establish that the Government may force
a licensee to offer content to the public that the licensee would otherwise
not offer, thereby assuring that radio and television audiences have a
diversity of content. In broadcasting, "[i]t is the right of the public
to receive suitable access to social, political, esthetic, moral, and other
ideas and experiences which is crucial". Red Lion, 395 U.S. at 390;
see also CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A licensed broadcaster
is 'granted the free and exclusive use of a limited and valuable part of
the public domain; when he accepts that franchise it is burdened by enforceable
public obligations.'") (citation omitted); Columbia Broadcasting Sys.,
Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1973). These content
restrictions include punishing licensees who broadcast inappropriate but
protected speech at an impermissible time. Pacifica, 438 U.S. at 750-51.
In this case, the Government relies on the Pacifica decision in arguing
that the CDA is a constitutional exercise of governmental power. Since
the CDA regulates indecent speech, and since Pacifica authorizes governmental
regulation of indecent speech (so the Government's argument goes), it must
follow that the CDA is a valid exercise of governmental power. That argument,
however, ignores Pacifica's roots as a decision addressing the proper fit
between broadcasting and the First Amendment. The argument also assumes
that what is good for broadcasting is good for the Internet.
2. The Scope of the Pacifica Decision
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court
first decided whether the Government had the power to regulate indecent
speech. Id. at 729. In Pacifica, a radio listener complained about the
broadcast of George Carlin's "Filthy Words" monologue at 2:00
p.m. on a Tuesday afternoon. Id. at 729-30. The Carlin monologue was replete
with "the words you couldn't say on the public . . . airwaves . .
. , ever", and the listener had tuned in while driving with his young
son in New York. Id. The FCC issued a declaratory order, holding that it
could have subjected the Pacifica Foundation (owner of the radio station)
to an administrative sanction. Id. at 730. In its order the FCC also described
the standards that it would use in the future to regulate indecency in
the broadcast medium. Id. at 731. The Supreme Court upheld the FCC's decision
and confirmed the power of that agency to regulate indecent speech. Id.
The rationale of Pacifica rested on three overlapping considerations.
First, using as its example the Carlin monologue before it, the Court weighed
the value of indecent speech and concluded that such speech "lie[s]
at the periphery of First Amendment concerns." Id. at 743. Although
the Court recognized that the FCC had threatened to punish Pacifica based
on the content of the Carlin monologue, id. at 742, it found that the punishment
would have been permissible because four-letter words "offend for
the same reasons that obscenity offends." Id. at 746 (footnote omitted).
The Court then described the place of four-letter words "in the hierarchy
of first amendment values": Such utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step
to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality. Id. at 746 (citing Chaplinsky
v. New Hampshire, 315 U.S. 568, 572 (1942)).
Second, the Court recognized that "broadcasting . . . has received the most limited First Amendment protection." Id. at 748. The Government may regulate broadcast consistent with the Constitution, even though the same regulation would run afoul of the First Amendment in the print medium. Id. (comparing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) with Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)). This is so because broadcasting has a "uniquely pervasive presence in the lives of all Americans" and "is uniquely accessible to children, even those too young to read." Pacifica, 438 U.S. at 748-49.
Third, the Court found the FCC's sanction -- an administrative sanction
-- to be an appropriate means of regulating indecent speech. At the outset
of the opinion, the Court disclaimed that its holding was a "consider[ation
of] any question relating to the possible application of Sec. 1464 as a
criminal statute." Id. at 739 n.13. Later in the opinion, the Court
"emphasize[d] the narrowness of [its] holding", and explicitly
recognized that it had not held that the Carlin monologue would justify
a criminal prosecution. Id. at 750. Instead, the Court allowed the FCC
to regulate indecent speech with administrative penalties under a "nuisance"
rationale -- "like a pig in the parlor instead of the barnyard."
Id. at 750 (citation omitted).
Time has not been kind to the Pacifica decision. Later cases have eroded
its reach, and the Supreme Court has repeatedly instructed against overreading
the rationale of its holding.
First, in Bolger v. Young Drug Products Corp., 463 U.S. 60 (1983), the
Supreme Court refused to extend Pacifica to a law unrelated to broadcasting.
In that case, a federal law prohibited the unsolicited mailing of contraceptive
advertisements. Id. at 61. The Government defended the law by claiming
an interest in protecting children from the advertisements. The Court rejected
this argument as overbroad: In [Pacifica], this Court did recognize that
the Government's interest in protecting the young justified special treatment
of an afternoon broadcast heard by adults as well as children. At the same
time, the majority "emphasize[d] the narrowness of our holding",
explaining that broadcasting is "uniquely pervasive" and that
it is "uniquely accessible to children, even those too young to read."
The receipt of mail is far less intrusive and uncontrollable. Our 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. Id. at 74 (citations and
footnotes omitted) (emphasis in original) see also id. at 72 ("[T]he
'short, though regular, journey from mail box to trash can . . . is an
acceptable burden, at least so far as the Constitution is concerned.'")
(citation omitted) (alterations in original).
Second, in Sable Communications v. FCC, 492 U.S. 115 (1989), the Supreme
Court again limited Pacifica. In that case, the Court considered the validity
of a ban on indecent "dial-a-porn" communications. Id. at 117-18.49
As in Bolger, the Government argued that Pacifica justified a complete
ban of that form of speech. The Supreme Court disagreed, holding instead
that Pacifica's "emphatically narrow" holding arose out of the
"unique attributes of broadcasting". Id. at 127. The Court held
that the ban was unconstitutional. Id. at 131.
Sable narrowed Pacifica in two ways. First, the Court implicitly rejected Pacifica's nuisance rationale for dial-a-porn, holding instead that the Government could only regulate the medium "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms". Id. at 126 (citation omitted). Under this strict scrutiny, "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Id.; see also Fabulous Assoc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784-85 (3d Cir. 1990).
Second, the Court concluded that the law, like a law it had struck down in 1957, "denied adults their free speech rights by allowing them to read only what was acceptable for children". Sable, 492 U.S. at 126 (citing Butler v. Michigan, 352 U.S. 380 (1957)). Thus, any regulation of dial-a-porn would have to give adults the opportunity to partake of that medium. Id. This conclusion echoes Bolger. See Bolger, 463 U.S. at 74 ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.").50
Finally, in Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445
(1994), the Supreme Court implicitly limited Pacifica once again when it
declined to adopt the broadcast rationale for the medium of cable television.
The Court concluded that the rules for broadcast were "inapt"
for cable because of the "fundamental technological differences between
broadcast and cable transmission". Id. at 2457.
The legal significance to this case of Turner's refusal to apply the
broadcast rules to cable television cannot be overstated. Turner's holding
confirms beyond doubt that the holding in Pacifica arose out of the scarcity
rationale unique to the underlying technology of broadcasting, and not
out of the end product that the viewer watches. That is, cable television
has no less of a "uniquely pervasive presence" than broadcast
television, nor is cable television more "uniquely accessible to children"
than broadcast. See Pacifica, 438 U.S. at 748-49. From the viewer's perspective,
cable and broadcast television are identical: moving pictures with sound
from a box in the home. Whether one receives a signal through an antenna
or through a dedicated wire, the end result is just television in either
case. In declining to extend broadcast's scarcity rationale for cable,
the Supreme Court also implicitly limited Pacifica, the holding of which
flows directly from that rationale.51
Turner thus confirms that the analysis of a particular medium of mass
communication must focus on the underlying technology that brings the information
to the user. In broadcast, courts focus on the limited number of band widths
and the risk of interference with those frequencies. See, e.g., Turner,
114 S. Ct. at 2456-57. In cable, courts focus on the number of channels,
the different kinds of cable operators, and the cost to the consumer. Id.
I draw two conclusions from the foregoing analysis. First, from the
Supreme Court's many decisions regulating different media differently,
I conclude that we cannot simply assume that the Government has the power
to regulate protected speech over the Internet, devoting our attention
solely to the issue of whether the CDA is a constitutional exercise of
that power. Rather, we must also decide the validity of the underlying
assumption as well, to wit, whether the Government has the power to regulate
protected speech at all. That decision must take into account the underlying
technology, and the actual and potential reach, of that medium. Second,
I conclude that Pacifica's holding is not persuasive authority here, since
plaintiffs and the Government agree that Internet communication is an abundant
and growing resource. Nor is Sable persuasive authority, since the Supreme
Court's holding in that case addressed only one particular type of communication
(dial-a-porn), and reached no conclusions about the proper fit between
the First Amendment and telephone communications generally. Again, plaintiffs
and the Government here agree that the Internet provides content as broad
as the imagination.
3. The Effect of the CDA and the Novel Characteristics of Internet Communication
Over the course of five days of hearings and many hundreds of pages
of declarations, deposition transcripts, and exhibits, we have learned
about the special attributes of Internet communication. Our Findings of
fact -- many of them undisputed -- express our understanding of the Internet.
These Findings lead to the conclusion that Congress may not regulate indecency
on the Internet at all.
Four related characteristics of Internet communication have a transcendent
importance to our shared holding that the CDA is unconstitutional on its
face. We explain these characteristics in our Findings of fact above, and
I only rehearse them briefly here. First, the Internet presents very low
barriers to entry. Second, these barriers to entry are identical for both
speakers and listeners. Third, as a result of these low barriers, astoundingly
diverse content is available on the Internet. Fourth, the Internet provides
significant access to all who wish to speak in the medium, and even creates
a relative parity among speakers.
To understand how disruptive the CDA is to Internet communication, it must be remembered that the Internet evolved free of content-based considerations. Before the CDA, it only mattered how, and how quickly, a particular packet of data travelled from one point on the Internet to another. In its earliest incarnation as the ARPANET, the Internet was for many years a private means of access among the military, defense contractors, and defense-related researchers. The developers of the technology focused on creating a medium designed for the rapid transmittal of the information through overlapping and redundant connections, and without direct human involvement. Out of these considerations evolved the common transfer protocols, packet switching, and the other technology in which today's Internet users flourish. The content of the data was, before the CDA, an irrelevant consideration.
It is fair, then, to conclude that the benefits of the Internet to private speakers arose out of the serendipitous development of its underlying technology. As more networks joined the "network of networks" that is the Internet, private speakers have begun to take advantage of the medium. This should not be surprising, since participation in the medium requires only that networks (and the individual users associated with them) agree to use the common data transfer protocols and other medium-specific technology. Participation does not require, and has never required, approval of a user's or network's content.
After the CDA, however, the content of a user's speech will determine
the extent of participation in the new medium. If a speaker's content is
even arguably indecent in some communities, he must assess, inter alia,
the risk of prosecution and the cost of compliance with the CDA. Because
the creation and posting of a Web site allows users anywhere in the country
to see that site, many speakers will no doubt censor their speech so that
it is palatable in every community. Other speakers will decline to enter
the medium at all. Unlike other media, there is no technologically feasible
way for an Internet speaker to limit the geographical scope of his speech
(even if he wanted to), or to "implement a system for screening
the locale of incoming" requests. Sable 492 U.S. at 125.
The CDA will, without doubt, undermine the substantive, speech-enhancing
benefits that have flowed from the Internet. Barriers to entry to those
speakers affected by the Act would skyrocket, especially for non-commercial
and not-for-profit information providers. Such costs include those attributable
to age or credit card verification (if possible), tagging (if tagging is
even a defense under the Act52), and monitoring or review of one's content.
The diversity of the content will necessarily diminish as a result.
The economic costs associated with compliance with the Act will drive from
the Internet speakers whose content falls within the zone of possible prosecution.
Many Web sites, newsgroups, and chat rooms will shut down, since users
cannot discern the age of other participants. In this respect, the Internet
would ultimately come to mirror broadcasting and print, with messages tailored
to a mainstream society from speakers who could be sure that their message
was likely decent in every community in the country.
The CDA will also skew the relative parity among speakers that currently exists on the Internet. Commercial entities who can afford the costs of verification, or who would charge a user to enter their sites, or whose content has mass appeal, will remain unaffected by the Act. Other users, such as Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web sites before the CDA were as equally accessible as the most popular Web sites, will be profoundly affected by the Act. This change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence.
Perversely, commercial pornographers would remain relatively unaffected
by the Act, since we learned that most of them already use credit card
or adult verification anyway. Commercial pornographers normally provide
a few free pictures to entice a user into proceeding further into the Web
site. To proceed beyond these teasers, users must provide a credit card
number or adult verification number. The CDA will force these businesses
to remove the teasers (or cover the most salacious content with cgi scripts),
but the core, commercial product of these businesses will remain in place.
The CDA's wholesale disruption on the Internet will necessarily affect
adult participation in the medium. As some speakers leave or refuse to
enter the medium, and others bowdlerize their speech or erect the barriers
that the Act envisions, and still others remove bulletin boards, Web sites,
and newsgroups, adults will face a shrinking ability to participate in
the medium. Since much of the communication on the Internet is participatory,
i.e., is a form of dialogue, a decrease in the number of speakers, speech
fora, and permissible topics will diminish the worldwide dialogue that
is the strength and signal achievement of the medium.
It is no answer to say that the defenses and exclusions of Sec. 223(e) mitigate the disruptive forces of the Act. We have already found as facts that the defenses either are not available to plaintiffs here or would impose excessive costs on them. These defenses are also unavailable to participants in specific forms of Internet communication.
I am equally dubious that the exclusions of Sec. 223(e) would provide
significant relief from the Act. The "common carrier" exclusion
of Sec. 223(e)(1), for example, would not insulate America Online from
liability for the content it provides to its subscribers. It is also a
tricky question whether an America Online chat room devoted to, say, women's
reproductive health, is or is not speech of the service itself, since America
Online, at least to some extent, "creat[es] the content of the communication"
simply by making the room available and assigning it a topic. Even if America
Online has no liability under this example, the service might legitimately
choose not to provide fora that led to the prosecution of its subscribers.
Similarly, it is unclear whether many caching servers are devoted "solely"
to the task of "intermediate storage". The "vicarious liability"
exclusion of Sec. 223(e)(4) would not, for example, insulate either a college
professor or her employer from liability for posting an indecent online
reading assignment for her freshman sociology class.
We must of course give appropriate deference to the legislative judgments of Congress. See Sable, 492 U.S. at 129; Turner, 114 S. Ct. at 2472-73 (Blackmun, J., concurring). After hearing the parties' testimony and reviewing the exhibits, declarations, and transcripts, we simply cannot in my view defer to Congress's judgment that the CDA will have only a minimal impact on the technology of the Internet, or on adult participation in the medium. As in Sable, "[d]eference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Sable, 492 U.S. at 129 (citation omitted). Indeed, the Government has not revealed Congress's "extensive record" in addressing this issue, Turner, 114 S. Ct. at 2472 (Blackmun, J., concurring), or otherwise convinced me that the record here is somehow factually deficient to the record before Congress when it passed the Act.
4. Diversity and Access on the Internet
Nearly eighty years ago, Justice Holmes, in dissent, wrote of the ultimate constitutional importance of the "free trade in ideas": [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . . Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
For nearly as long, critics have attacked this much-maligned "marketplace" theory of First Amendment jurisprudence as inconsistent with economic and practical reality. Most marketplaces of mass speech, they charge, are dominated by a few wealthy voices. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248-50 (1974). These voices dominate -- and to an extent, create -- the national debate. Id. Individual citizens' participation is, for the most part, passive. Id. at 251. Because most people lack the money and time to buy a broadcast station or create a newspaper, they are limited to the role of listeners, i.e., as watchers of television or subscribers to newspapers. Id.
Economic realities limit the number of speakers even further. Newspapers
competing with each other and with (free) broadcast tend toward extinction,
as fixed costs drive competitors either to consolidate or leave the marketplace.
Id. at 249-50. As a result, people receive information from relatively
few sources: The elimination of competing newspapers in most of our large
cities, and the concentration of control of media that results from the
only newspaper's being owned by the same interests which own a television
station and a radio station, are important components of this trend toward
concentration of control of outlets to inform the public.
The result of these vast changes has been to place in a few hands the
power to inform the American people and shape public opinion. Id. at 249.
The Supreme Court has also recognized that the advent of cable television has not offered significant relief from this problem. Although the number of cable channels is exponentially greater than broadcast, Turner, 114 S. Ct. at 2452, cable imposes relatively high entry costs, id. at 2451-52 (noting that the creation of a cable system requires "[t]he construction of [a] physical infrastructure").
Nevertheless, the Supreme Court has resisted governmental efforts to
alleviate these market dysfunctions. In Tornillo, the Supreme Court held
that market failure simply could not justify the regulation of print, 418
U.S. at 258, regardless of the validity of the criticisms of that medium,
id. at 251. Tornillo invalidated a state "right-of-reply" statute,
which required a newspaper critical of a political candidate to give that
candidate equal time to reply to the charges. Id. at 244. The Court held
that the statute would be invalid even if it imposed no cost on a newspaper,
because of the statute's intrusion into editorial discretion: A newspaper
is more than a passive receptacle or conduit for news, comment, and advertising.
The choice of material to go into a newspaper, and the decisions made as
to limitations on the size and content of the paper, and treatment of public
issues and public officials -- whether fair or unfair -- constitute the
exercise of editorial control and judgment. Id. at 258.
Similarly, in Turner, the Supreme Court rejected the Government's argument
that market dysfunction justified deferential review of speech regulations
for cable television. Even recognizing that the cable market "suffers
certain structural impediments", Turner, 114 S. Ct. at 2457, the Court
could not accept the Government's conclusion that this dysfunction justified
broadcast-type standards of review, since "the mere assertion of dysfunction
or failure in a speech market, without more, is not sufficient to shield
a speech regulation from the First Amendment standards applicable to nonbroadcast
media." Id. at 2458. "[L]aws that single out the press, or certain
elements thereof, for special treatment 'pose a particular danger of abuse
by the State,' and so are always subject to at least some degree of heightened
First Amendment scrutiny." Id. (citation omitted).53 The Court then
eloquently reiterated that government-imposed, content-based speech regulations
are generally inconsistent with "[o]ur political system and cultural
life": At 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. Our political system and cultural
life rest upon this ideal. Government action that stifles speech on account
of its message, or that requires the utterance of a particular message
favored by the Government, contravenes this essential right. Laws of this
sort pose the inherent risk that the Government seeks not to advance a
legitimate regulatory goal, but to suppress unpopular ideas or information
or manipulate the public debate through coercion rather than persuasion.
These restrictions "rais[e] the specter that the Government may effectively
drive certain ideas or viewpoints from the marketplace." Id. (citation
Both Tornillo and Turner recognize, in essence, that the cure for market
dysfunction (government-imposed, content-based speech restrictions) will
almost always be worse than the disease. Here, however, I am hard-pressed
even to identify the disease. It is no exaggeration to conclude that the
Internet has achieved, and continues to achieve, the most participatory
marketplace of mass speech that this country -- and indeed the world --
has yet seen. The plaintiffs in these actions correctly describe the "democratizing"
effects of Internet communication: individual citizens of limited means
can speak to a worldwide audience on issues of concern to them. Federalists
and Anti-Federalists may debate the structure of their government nightly,
but these debates occur in newsgroups or chat rooms rather than in pamphlets.
Modern-day Luthers still post their theses, but to electronic bulletin
boards rather than the door of the Wittenberg Schlosskirche. More mundane
(but from a constitutional perspective, equally important) dialogue occurs
between aspiring artists, or French cooks, or dog lovers, or fly fishermen.
Indeed, the Government's asserted "failure" of the Internet
rests on the implicit premise that too much speech occurs in that medium,
and that speech there is too available to the participants. This is exactly
the benefit of Internet communication, however. The Government, therefore,
implicitly asks this court to limit both the amount of speech on the Internet
and the availability of that speech. This argument is profoundly repugnant
to First Amendment principles.
My examination of the special characteristics of Internet communication,
and review of the Supreme Court's medium-specific First Amendment jurisprudence,
lead me to conclude that the Internet deserves the broadest possible protection
from government-imposed, content-based regulation. If "the First Amendment
erects a virtually insurmountable barrier between government and the print
media", Tornillo, 418 U.S. at 259 (White, J., concurring), even though
the print medium fails to achieve the hoped-for diversity in the marketplace
of ideas, then that "insurmountable barrier" must also exist
for a medium that succeeds in achieving that diversity. If our Constitution
"prefer[s] 'the power of reason as applied through public discussion'",
id. (citation omitted), "[r]egardless of how beneficent-sounding the
purposes of controlling the press might be", id., even though "occasionally
debate on vital matters will not be comprehensive and . . . all viewpoints
may not be expressed", id. at 260, a medium that does capture comprehensive
debate and does allow for the expression of all viewpoints should receive
at least the same protection from intrusion.
Finally, if the goal of our First Amendment jurisprudence is the "individual
dignity and choice" that arises from "putting the decision as
to what views shall be voiced largely into the hands of each of us",
Leathers v. Medlock, 499 U.S. 439, 448-49 (1991) (citing Cohen v. California,
403 U.S. 15, 24 (1971)), then we should be especially vigilant in preventing
content-based regulation of a medium that every minute allows individual
citizens actually to make those decisions. Any content-based regulation
of the Internet, no matter how benign the purpose, could burn the global
village to roast the pig. Cf. Butler, 352 U.S. at 383.
5. Protection of Children from Pornography
I accept without reservation that the Government has a compelling interest in protecting children from pornography. The proposition finds one of its clearest expressions in Mill, who recognized that his exposition regarding liberty itself "is meant to apply only to human beings in the maturity of their faculties": We are not speaking of children or of young persons below the age which the law may fix as that of manhood or womanhood. Those who are still in a state to require being taken care of by others must be protected against their own actions as well as against external injury. John Stuart Mill, On Liberty 69 (Gertrude Himmelfarb ed., Penguin Books 1982) (1859), cited in Harry Kalven Jr., A Worthy Tradition 54 (Jamie Kalven ed. 1988).
This rationale, however, is as dangerous as it is compelling. Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship. Regulations that "drive certain ideas or viewpoints from the marketplace" for children's benefit, Simon & Schuster, 502 U.S. at 116, risk destroying the very "political system and cultural life", Turner, 114 S. Ct. at 2458, that they will inherit when they come of age. I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional. Tornillo, 418 U.S. at 258. Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. Butler, 352 U.S. at 383. There is no question that a Village Green Decency Act, the fruit of a Senator's overhearing of a ribald conversation between two adolescent boys on a park bench, would be unconstitutional. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. Bolger, 463 U.S. at 73. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny.
The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.
Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar -- in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.
Moreover, the CDA will almost certainly fail to accomplish the Government's
interest in shielding children from pornography on the Internet. Nearly
half of Internet communications originate outside the United States, and
some percentage of that figure represents pornography. Pornography from,
say, Amsterdam will be no less appealing to a child on the Internet than
pornography from New York City, and residents of Amsterdam have little
incentive to comply with the CDA.54
My analysis does not deprive the Government of all means of protecting
children from the dangers of Internet communication. The Government can
continue to protect children from pornography on the Internet through vigorous
enforcement of existing laws criminalizing obscenity and child pornography.
See United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995). As we
learned at the hearing, there is also a compelling need for public education
about the benefits and dangers of this new medium, and the Government can
fill that role as well. In my view, our action today should only mean that
the Government's permissible supervision of Internet content stops at the
traditional line of unprotected speech.
Parents, too, have options available to them. As we learned at the hearing,
parents can install blocking software on their home computers, or they
can subscribe to commercial online services that provide parental controls.
It is quite clear that powerful market forces are at work to expand parental
options to deal with these legitimate concerns. More fundamentally, parents
can supervise their children's use of the Internet or deny their children
the opportunity to participate in the medium until they reach an appropriate
age. See Fabulous, 896 F.2d at 788-89 (noting that "our society has
traditionally placed" these decisions "on the shoulders of the
Cutting through the acronyms and argot that littered the hearing testimony,
the Internet may fairly be regarded as a never-ending worldwide conversation.
The Government may not, through the CDA, interrupt that conversation. As
the most participatory form of mass speech yet developed, the Internet
deserves the highest protection from governmental intrusion.
True it is that many find some of the speech on the Internet to be offensive,
and amid the din of cyberspace many hear discordant voices that they regard
as indecent. The absence of governmental regulation of Internet content
has unquestionably produced a kind of chaos, but as one of plaintiffs'
experts put it with such resonance at the hearing: What achieved success
was the very chaos that the Internet is. The strength of the Internet is
Just as the strength of the Internet is chaos, so the strength of our
liberty depends upon the chaos and cacophony of the unfettered speech the
First Amendment protects.
For these reasons, I without hesitation hold that the CDA is unconstitutional on its face.
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