A coalition of online service providers -- including America Online, CompuServe and Prodigy -- as well as non-profit organizations, and professional associations filed a suit February 26, 1996 to block enforcement of the indecent material provisions of the Telecommunications Act of 1996. The suit will be combined with an earlier suit by the ACLU and other plaintiffs.

AMERICAN LIBRARY ASSOCIATION, INC.,
50 East Huron Street, Chicago, IL
60611, on behalf of its members and
their patrons,

AMERICA ONLINE, INC., 8619 Westwood
Center Drive, Vienna, VA 22182, on
behalf of itself and its subscribers,

AMERICAN BOOKSELLERS ASSOCIATION,
INC., 828 South Broadway, Tarrytown,
NY 10591, on behalf of its members,

AMERICAN BOOKSELLERS FOUNDATION FOR
FREE EXPRESSION, 828 South Broadway,
Tarrytown, NY 10591, on behalf of its
members,

AMERICAN SOCIETY OF NEWSPAPER EDITORS,
Post Office Box 4090, Reston, VA
22090, on behalf of its members,

APPLE COMPUTER, INC., One Infinite
Loop, Cupertino, CA 95014, on behalf
of itself and its subscribers,

ASSOCIATION OF AMERICAN PUBLISHERS,
INC., 1718 Connecticut Avenue, N.W.,
Washington, D.C. 20009, on behalf of
its members,

ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS, 1736 Franklin Street, 8th
Floor, Oakland, CA 94612, on behalf of
its members,

CITIZENS INTERNET EMPOWERMENT
COALITION, 1634 Eye Street, Suite
1100, Washington, D.C. 20006, on
behalf of its members,

COMMERCIAL INTERNET EXCHANGE
ASSOCIATION, 1039 Sterling Road, Suite
201, Herndon, VA 22070, on behalf of
its members,

COMPUSERVE INCORPORATED, 5000
Arlington Centre Blvd., Columbus, OH
43220, on behalf of itself and its
subscribers,

FAMILIES AGAINST INTERNET CENSORSHIP,
2135 Wickes Road, Colorado Springs, CO
80919, on behalf of its members,

FREEDOM TO READ FOUNDATION, INC., 50
East Huron Street, Chicago, IL 60611,
on behalf of its members,

HOTWIRED VENTURES LLC, 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,

INTERACTIVE SERVICES ASSOCIATION, 8403
Colesville Road, Silver Spring, MD
20910, on behalf of its members,

MICROSOFT CORPORATION, One Microsoft
Way, Redmond, WA 98052, on behalf of
itself,

MICROSOFT NETWORK, One Microsoft Way,
Redmond, WA 98052, on behalf of itself
and its subscribers,

NETCOM ON-LINE COMMUNICATIONS SERVICE,
INC., 3031 Tisch Way, San Jose, CA
95128, on behalf of itself and its
subscribers,

NEWSPAPER ASSOCIATION OF AMERICA, 1160
Sunrise Valley Drive, Reston, VA
22091, on behalf of its members,

OPNET, INC., 901 Glenbrook Avenue,
Bryn Mawr, PA 19010, on behalf of
itself and its subscribers,

PRODIGY SERVICES COMPANY, a New York
General Partnership, 445 Hamilton
Avenue, White Plains, NY 10601, on
behalf of itself and its subscribers,

SOCIETY OF PROFESSIONAL JOURNALISTS,
Post Office Box 77, Greencastle, IN
46135, on behalf of its members,

WIRED VENTURES, LTD., 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,

Plaintiffs,

v.

UNITED STATES DEPARTMENT OF JUSTICE,
10th and Constitution Avenue, NW,
Washington, D.C. 20530; and

JANET RENO, Attorney General of the
United States, United States
Department of Justice, 10th &
Constitution Ave., NW, Washington,
D.C. 20530,

Defendants.

COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF

PRELIMINARY STATEMENT

1. During much of this century the mass media, particularly radio and television, have been characterized by a limited number of speakers transmitting programming and information to essentially passive audiences. The communications medium of the twenty-first century -- the Internet and "cyberspace" generally -- is changing that, and will allow hundreds of millions of individuals to engage in interactive communication, on a national and global scale never before possible. The public square of the past -- with pamphleteering, soap boxes, and vigorous debate -- is being replaced by the Internet, which enables average citizens to participate in national discourse, publish a newspaper, distribute an electronic pamphlet to the world, and generally communicate to and with a broader audience than ever before possible. It also enables average citizens to gain access to a vast and literally world- wide range of information, while simultaneously protecting their privacy, because in this new medium individuals receive only the communications they affirmatively request.

2. In enacting the Communications Decency Act of 1996 (to be codified at 47 U.S.C. Section 223) (the "Act"), Congress acknowledged that the Internet represents "an extraordinary advance in the availability of educational and informational resources to our citizens," and acknowledged that interactive computer services "offer users a great degree of control over the information that they receive." Congress therefore declared "[i]t is the policy of the United States . . . to promote the continued development of the Internet and other interactive computer services; [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Act Section 509 (to be codified at 47 U.S.C. Section 230). Unfortunately, as we will show, provisions of the Act that were intended only to protect minors from communications deemed inappropriate for them will have the effect, perhaps unintended, of depriving adults of communications that are appropriate, and indisputably constitutionally protected, for them. Because of the way the Internet works, the Act's prohibition of communications that may be deemed "indecent" or "patently offensive" for minors will effectively ban those same communications between adults, reducing the adult population in cyberspace to only what is appropriate for minors. The banned speech includes valuable works of literature and art, information about health and medical issues, and examples of popular culture. It also includes robust human discourse about politics, current events, and personal matters that may at times include harsh, provocative, or even vulgar language, all of which is constitutionally protected for adults.

3. Plaintiffs represent a broad range of individuals and entities from the computer and communications industries and the general public who are harmed by the Act. Plaintiffs include publishers and creators of content on the Internet; "online services," "Internet service providers," libraries, and others who provide access or connection to the Internet; and speakers, listeners, and users on the Internet. The Act's effective ban of a broad category of communication that is constitutionally protected for adults directly harms the First Amendment rights of plaintiffs, and of the tens of millions of adult speakers and listeners who are "online" and linked through this new communications medium. Plaintiffs also include parents, who seek to protect the rights of parents to decide what is appropriate for their children to receive through interactive computer communications.

4. The speech at issue in this case does not include obscenity, child pornography, harassing speech, speech intended to entice or lure minors into inappropriate activity, or other speech that lacks First Amendment protection even for adults. This complaint does not challenge governmental regulation of those categories of non-protected speech, and the relief sought herein will not affect the government's ability to prosecute the communication of those categories of speech, all of which are already prohibited by existing law.

5. The most sweeping provision of the Act, Section 502(2) (to be codified at 47 U.S.C. Section 223(d)), prohibits the "display" of material deemed "patently offensive" "in a manner available to a person under 18 years of age" (emphasis added). That provision is subject to certain defenses, which the sponsor of the Act and Congress apparently believed would enable speakers to restrict access by minors while simultaneously permitting access by adults. But those defenses, which were merely lifted from the "dial-a-porn" laws, simply do not work in the quite different medium of cyberspace. Because of the manner in which information is stored, transmitted, and received on the Internet, this provision has the (perhaps unintended) result of banning speech between adults that is suitable and constitutionally protected for adults.

6. The Act is also unconstitutional because there are alternative ways of protecting minors from material inappropriate for them that would not abridge the First Amendment rights of adults, and would be more effective in protecting minors than the mechanism Congress imposed. The speaker-based blocking required by the Act will not protect minors from access to words and images posted on the Internet abroad by foreign speakers, who are not effectively subject to prosecution under the Act, or even by domestic speakers who intentionally or inadvertently violate the Act. But user-based blocking technology enables parents and other users to block or screen whatever words or images they deem inappropriate, regardless of where posted, at little or no cost. For these reasons, every application of the Act unnecessarily and unconstitutionally abridges the First Amendment rights of adults, and does so even though there are less drastic alternatives that would be more protective of minors.

JURISDICTION AND VENUE

7. This case arises under the Constitution and laws of the United States and presents a federal question within this Court's jurisdiction under Article III of the Constitution and 28 U.S.C. Section 1331.

8. This Court has authority to grant declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. Section 2201.

9. Under Section 561 of the Telecommunications Act of 1996 ("Telecommunications Act"), of which the Communications Decency Act is a part, this action is required to be heard by a three- judge court convened pursuant to 28 U.S.C. Section 2284.

10. Venue is proper in this Court under 28 U.S.C. Section 1391(e).

PARTIES

11. The named plaintiffs are briefly identified below. Their interests and involvement with the Internet and interactive computer communications are described more fully in paragraphs 122-137.

12. Plaintiff AMERICAN LIBRARY ASSOCIATION, INC. ("ALA"), founded in 1876, is a non-profit, educational organization committed to the preservation of the American library as a resource indispensable to the intellectual, cultural, and educational welfare of the Nation. The ALA's direct membership includes over 3,000 libraries, over 55,000 librarians, and other individuals. Plaintiff FREEDOM TO READ FOUNDATION ("FTRF") is a non-profit membership organization established in 1969 by the ALA to promote and defend First Amendment rights; to foster libraries as institutions fulfilling the promise of the First Amendment for every citizen; to support the rights of libraries to include in their collections and make available to the public any work they may legally acquire; and to set legal precedent for the freedom to read on behalf of all citizens.

13. Plaintiffs AMERICA ONLINE, INC. ("AOL"), COMPUSERVE INCORPORATED ("COMPUSERVE"), MICROSOFT NETWORK ("MSN"), and PRODIGY SERVICES COMPANY ("PRODIGY") are the four leading commercial online services in the United States, each providing online services (including access to and content on the Internet) to millions of customers worldwide.

14. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION, INC. ("ABA"), organized in 1900, is the leading association of general interest bookstores in the United States. ABA has over 5500 members, including 4300 bookstores, which do business in over 7000 locations across the country. AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION ("ABFFE") was organized in 1990. The purpose of the ABFFE is to inform and educate booksellers, other members of the book industry, and the public about the dangers of censorship and to promote and protect the free expression of ideas, particularly freedom in the choice of reading materials.

15. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS ("ASNE") is a nonprofit professional organization of more than 850 individuals who hold positions as directing editors of daily newspapers throughout the United States. For over 50 years, ASNE has worked to provide an effective and unfettered press in the service of the American people by exercising and defending the First Amendment rights of the press to gather and publish news.

16. Plaintiff APPLE COMPUTER, INC., is a global and innovative leader in developing personal computers, personal computer software, and server hardware and software for the Internet. The company offers a wide range of products and services for business and personal computer and data communication. Apple's current and announced products include hardware and software for accessing the Internet, hardware and software for implementing and maintaining Internet servers and other services such as operating system and database storage and retrieval, and content software particularly for education, business and home computing, and communication. In addition, Apple maintains eWorld which provides online services including access to the Internet.

17. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC. ("AAP") is the major national association in the United States of publishers of general books, textbooks, and educational materials. Its approximately 200 members include most of the major commercial book publishers in the U.S. and many smaller or non-profit publishers, including university presses and scholarly associations. AAP's members publish most of the general, educational, and religious books produced in the United States, and are particularly active in all facets of the electronic medium, including publishing a wide range of electronic products and services.

18. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND WRITERS is an unincorporated association of publishers, editors and individual writers who publish their materials both in print and online. Brought together by a common interest in protecting the right to free expression, its members write, edit and publish works on a wide range of subjects, including politics, techno- logy, finance, education, human sexuality and the arts. As producers and consumers of online content, its members will be directly subject to or affected by the Act.

19. Plaintiff COMMERCIAL INTERNET EXCHANGE ASSOCIATION ("CIX") is the nation's largest trade association of commercial Internet service providers ("ISPs") and access providers. CIX members provide carriage for approximately 75% of the world's Internet traffic, constituting millions upon millions of electronic messages each day. In addition to serving as passive carriers, many CIX members also provide Internet content, and assist customers in presenting content on the Internet through "World Wide Web," "gopher," and other Internet sites.

20. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP ("FAIC") is a voluntary, non-profit organization of parents across the country. FAIC was founded on the belief that parents are the people best suited to decide what their children should and should not see. To be a member of FAIC, one must (1) oppose censorship, (2) have an electronic mail address, and (3) have at least one child living at home.

21. Plaintiff HOTWIRED VENTURES LLC, a California limited liability company, is the creator of HotWired, a cyberstation on the World Wide Web offering interactive information about culture, lifestyle, and technology to over 300,000 subscribers.

22. Plaintiff INTERACTIVE SERVICES ASSOCIATION, formed in 1981, is the leading association devoted exclusively to promoting and developing consumer interactive services worldwide. ISA's several hundred members span the entire interactive industry, and include numerous commercial online services and other Internet content and service providers.

23. Plaintiff MICROSOFT CORPORATION is a worldwide leader in software for personal computers. The company offers a wide range of products and services for business and personal use. Microsoft's current and announced products include software for accessing the Internet, software for implementing and maintaining Internet servers and other services such as operating system and database storage and retrieval, and content software including compilations of musical, artistic, literary, encyclopedic, technical, statistical, and general business and specialized news information.

24. Plaintiff NETCOM ON-LINE COMMUNICATIONS SERVICE, INC., is an Internet service provider. The Company's core business is providing dial-up accounts for individuals and high- speed dedicated connections for businesses. NETCOM operates its own digital network and provides e-mail, NetNews, and web services for its customers. Many of NETCOM's customers connect to the Internet using the Netcruiser access software that NETCOM developed and produced.

25. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA is a nonprofit organization representing the interests of more than 1,500 newspapers that account for approximately 85 percent of the daily newspaper circulation in the United States. Approximately 175 member newspapers in North America currently make their editions available on the Internet.

26. Plaintiff OPNET, INC., is an Internet access provider located in Bryn Mawr, Pennsylvania. OpNet provides access to the Internet to individuals and businesses throughout the Philadelphia area. OpNet also provides World Wide Web site maintenance, file storage, and server support to organizations which seek to put information on the World Wide Web.

27. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS is a voluntary, non-profit organization of nearly 14,000 members. The Society is the largest and oldest organization of journalists in the United States, representing every branch and rank of print and broadcast journalism, and for more than 80 years has been dedicated to perpetuating a free press. Many of the members of the Society write news stories, articles, and columns made available over the Internet and other interactive computer networks.

28. Plaintiff WIRED VENTURES, LTD., a California limited partnership, publishes Wired, a monthly magazine that addresses the cultural implications of the digital revolution, focusing on the impact of new technologies on our society. In addition to being distributed in printed format, the editorial content of Wired magazine is available on the Internet through HotWired (a cyberstation on the World Wide Web) and elsewhere.

29. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION ("CIEC") is an unincorporated coalition of parents, individuals, private companies, and non-profit organizations, sharing the common goals of promoting the continued development of the Internet as a forum for the free exchange of valuable information and ideas, and promoting the ability of parents to supervise and assist their children in the appropriate use of the resources of this global communications medium, free from improper governmental censorship. Coordinated by the Center for Democracy and Technology, the American Library Association, and America Online, CIEC's members include providers of both Internet content and access services, as well as public interest organizations. As users of the Internet, as providers of Internet content and services, and as organizations that include parents and other individuals who themselves use the Internet, CIEC's members are directly subject to or affected by the Act. Among CIEC's current members -- in addition to the named plaintiffs -- are AMERICAN ASSOCIATION OF STATE COLLEGES AND UNIVERSITIES, AMERICANS FOR TAX REFORM, ASSOCIATION OF AMERICAN UNIVERSITIES, ASSOCIATION OF AMERICAN UNIVERSITY PRESSES, ASSOCIATION OF NATIONAL ADVERTISERS, ASSOCIATION OF RESEARCH LIBRARIES, CENTER FOR DEMOCRACY AND TECHNOLOGY, COALITION FOR NETWORKED INFORMATION, MEDIA ACCESS PROJECT, MEDIA INSTITUTE, MICROSYSTEMS, INC., NATIONAL ASSOCIATION OF STATE UNIVERSITIES & LAND-GRANT COLLEGES, PEOPLE FOR THE AMERICAN WAY, RECORDING INDUSTRY ASSOCIATION OF AMERICA, SPECIAL LIBRARIES ASSOCIATION, SURFWATCH, INC., and THE UNIVERSITY OF CALIFORNIA SANTA BARBARA LIBRARY.

30. Defendant UNITED STATES DEPARTMENT OF JUSTICE is a federal executive agency, authorized to conduct federal criminal investigations and prosecutions on behalf of the United States Government throughout the United States. Defendant JANET RENO is the Attorney General of the United States. She is the chief executive officer of defendant UNITED STATES DEPARTMENT OF JUSTICE and is authorized to conduct federal criminal investigations and prosecutions throughout the United States. Defendants have responsibility for enforcing the Act, including initiating criminal prosecutions.

FACTS

Creation of the Internet and the Development of Cyberspace

31. The Internet is not a physical or tangible entity. It is a giant network which interconnects innumerable smaller groups of linked computer networks: 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. In the language of the Act, these networks would each be termed an "interactive computer service."

32. Some networks are "closed" networks, not linked to other computers or networks (although the Act still directly applies to such closed local area 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 the Internet.

33. This amalgam of computers and computer networks -- some owned by governmental and public institutions, some owned by non-profit organizations, and some privately owned -- lacks any central control or supervision. The resulting whole is a decentralized, unrestricted global medium of communications -- or "cyberspace" -- that links individuals, institutions, corporations, and governments around the world. This communications medium allows any of the literally tens of millions of people with access to the Internet to exchange ideas, research, software, poetry, images, literature, sound, or simple electronic mail with others on the Internet. These communications can occur virtually instantaneously, and can be directed either to specific individuals, to a broader group of individuals interested in a particular subject, or to the world as a whole.

34. The Internet had its origins in 1969 as an experimental project of the Advanced Research Project Agency ("ARPA"). First called ARPANET, the 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 individuals around the world, the ARPANET came to be called the "DARPA Internet," and finally just the "Internet."

35. 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, self- healing system of linked computers was designed to allow vital research and communications to continue even if portions of the network were damaged.

36. 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 would in turn be linked to numerous other computers, which themselves would be linked to other computers.

37. A communication sent over this redundant series of linked computers could travel any of dozens 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.

38. At the same time that ARPANET was maturing (it subsequently ceased to exist), similar decentralized 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 were overlapping) 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 commonly known today as the Internet.

39. No entity -- academic, corporate, governmental, or non-profit -- controls, governs, or runs the Internet. It exists and functions solely as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use a common data transfer protocol 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 be impossible for any single entity to regulate the information conveyed on the Internet.

40. The nature of the Internet is such that it is impossible to determine its size. However, it is indisputable that the Internet has experienced extraordinary growth in the past few 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, however, over 1,000,000 computers were linked. Today, it is estimated that over 9,400,000 host computers worldwide are linked to the Internet, and this count does not include the tens of millions of personal computers used by individuals to access the Internet using modems (as detailed below). In all, reasonable estimates are that over 40 million individuals around the world can and do access the enormously flexible communication medium of the Internet. That figure is expected to grow to 200 million Internet users by the year 1999.

How Individuals Access the Internet

41. 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, an individual 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, an individual 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 individuals by a wide variety of academic, governmental, or commercial entities.

42. 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. Internet access is considered to be so important to the modern educational process that many 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.

43. 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 is especially important, for example, to any corporation involved in scientific or medical research or manufacturing to enable corporate employees to exchange information and ideas with academic researchers in their fields.

44. Individuals 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.

45. 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 are using library services and resources without ever physically entering the library itself. Such direct or modem access is typically provided by libraries at no cost to the individual user.

46. 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.

47. 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 modest 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, an increasing number of trade or other non-profit associations offer Internet access as a service to members.

48. Another simple and common way that individuals can access the Internet is through one of the major national commercial "online services" such as America Online, Apple's eWorld, 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.

49. 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 individuals a nominal fee for access, while many others are free to the individual users.

50. Although commercial access to the Internet is growing rapidly, many individual users of the Internet -- such as college students and staff -- do not individually pay for access (except to the extent, for example, the cost of computer services is a component of college tuition). These and other Internet users can access the Internet without any requirement that they provide a credit card or other form of payment.

51. In part because the Internet is an unregulated "network of networks" with literally millions of access points and tens of millions of users, individual Internet users often do not have their own "username" or identification code that would indicate to others on the Internet the identity of the user. Many users access the Internet anonymously or through a method that would not allow for clear identification by a remote content provider.

Methods to Communicate over the Internet

52. Once an individual has access to the Internet, there are a wide variety of different methods of communication and information exchange over the network. These numerous 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: one-to-one messaging (such as "e-mail"), one-to-many messaging (such as "listserv"), distributed message databases (such as "USENET newsgroups"), real time communication (such as "Internet Relay Chat"), real time remote computer utilization (such as "telnet"), and 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, or visual images.

53. One-to-one messaging. The simplest method of communication on the Internet is via electronic mail, or "e- mail," the modern equivalent to a first class letter. An individual can address and transmit a message to one or more specific other individuals. E-mail on the Internet is not routed through any central control point, and can take numerous and varying paths to the recipients. Unlike postal mail, simple e- mail is not "sealed" or secure, and can be accessed or viewed on intermediate computers between the sender and recipient (unless the message is encrypted).

54. One-to-many messaging. The Internet also contains automatic mailing list services (such as "listserv") that allow simple and efficient communications about particular subjects of interest. For example, individuals can subscribe to a "listserv" mailing list on a particular topic of interest to them. The individual can submit messages on the topic to the listserv that are automatically forwarded (via e-mail) 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.

55. Distributed message databases. Similar in function to listservs -- but quite different in how communications are transmitted -- are distributed message databases such as "USENET newsgroups." 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. An individual user can post a message to a newsgroup, and the message is then automatically forwarded to all other computers that furnish access to the newsgroups (but not to any individual users). The messages are temporarily stored on each receiving computer, where they are available for review and response. The messages are automatically and periodically purged from each system to make room for new messages. Responses to messages -- like the original messages -- are automatically distributed to all other computers receiving the newsgroup. 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. Messages posted to newsgroups are not stored on or channelled through any central computer or location.

56. 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 individuals on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" allows two or more individuals to type messages to each other that almost immediately appear on the other individuals' computer screens. In addition, commercial online services such as America Online, CompuServe, eWorld, the Microsoft Network, and Prodigy have their own "chat" systems allowing their members to converse.

57. Real time remote computer utilization. Another method to utilize information on the Internet is to access and control remote computers using "telnet." For example, using telnet, a researcher at a university would be able to utilize 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. Or, individuals can link via telnet to a computer to interact directly and communicate with other users linked to the same computer. Accessing a computer via telnet occurs in "real time," and content and communication accessed via telnet is often created only at the time of the communication.

58. Remote information retrieval. The final major category of communication may be the most important and well known use of the Internet -- the search for and retrieval of information located on remote computers. There are numerous methods to locate and retrieve information on the Internet. 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. Another approach uses a program and format named "gopher" to guide an individual's search through the resources available on a remote computer. 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, and sound. 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, an individual 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 individuals to locate and efficiently view related information even if the information is stored on numerous computers all around the world.

59. With the exception of point-to-point mail, no information flows through cyberspace to a particular individual unless the individual requests the information. Listservs, newsgroups, chat lines, telnet, ftp, gopher and the World Wide Web all require an affirmative request by the Internet user prior to the user receiving information over the Internet. Further- more, when a user makes such an affirmative request it is usually clear what type of content will be delivered. Thus, unlike radio or television, there is no significant risk that a user will be "assaulted" with unsolicited and undesired content.

60. The vast majority of transmissions of content from specific sites on the Internet are in response to electronic requests the user could not have anticipated more than a few seconds or moments before making the request. Because information is located on millions of computers around the world, with no central organization or control, a user cannot possibly know which computers might have useful information until starting a search. Instead, the user could access any of dozens of different search databases, obtain a list of sites that might be of interest, and then immediately link to one or more of the sites. Indeed, the very theory of "hyperlinks" and the hypertext markup language (HTML) (the foundation of the World Wide Web) is that the user can jump from site to site to site without ever needing to know where physically in the world the next site is located. Thus, there is no way for a user to pre-register with every computer that might contain useful content on a particular topic. Moreover, when an individual is researching a topic on the Internet, he or she might access dozens of newsgroups, telnet computers, and ftp, gopher, and Web sites around the world in a matter of minutes. If a researcher was required to request access from content providers prior to actually viewing the information (and prove to the provider that the researcher was not a minor), the Internet would be transformed from a dynamic and instantaneous content searching tool into a cumbersome, multi-step, much slower, and much less useful research tool. The vibrancy and immediacy that sparked the Internet's recent extraordinary expansion and development would be lost.

61. The inability to predict where on the Internet a user would want to access information is not limited to research, and applies equally to any attempt by a user to access information on the Internet when the individual does not know in advance the precise location of that information. There are millions of computers on the Internet that contain content, and it would be practically and economically impossible for the tens of millions of Internet users to pre-register with each of those millions of content sites, and equally impossible for those millions of content sites to maintain and instantaneously update lists of registered users.

62. For both the speaker and the listener, communications on the Internet bear virtually no similarity to communications on television and radio. With radio and television, the number of speakers is limited by the available spectrum, the ability to speak is limited by the high cost of speaking, and listeners are merely passive recipients of the communications. With the Internet, the number of speakers is boundless, anyone can speak for pennies a day (or for free at his or her public library), and listeners can respond and engage the speaker in an interactive and on-going dialogue. Furthermore, unlike television and radio, on the Internet viewers and listeners generally receive only the communications they affirmatively request, and are not a passive or "captive" audience. Moreover, unlike with television and radio, on the Internet a speaker can reach the entire world (at no additional cost) yet at the same time can direct his or her speech to individuals who share an interest in a particular subject. In the twenty-first century, the Internet -- if allowed to flourish unhindered by government censorship -- can revive the now-little- used public square and convert it into a global medium of communication and discourse.

Content on the Internet

63. The diversity of content on the Internet is as broad as the Internet itself. Content can be found on millions of computers worldwide, and ranges from academic research to art to humor to literature to medical information to music to news to virtually anything else. Moreover, at any one time, the Internet serves as the communication medium for literally tens of thousands of global conversations, political debates, and social dialogues. For example, on the Internet, one can view the full text of the Bible, all of the works of Shakespeare, and numerous other classic works of literature. One can browse through paintings from museums around the world, or view in close-up detail the ceiling of the Sistine Chapel, or see the latest photographs transmitted by the Jupiter space probe. One can even hear pieces of music or view clips of movies and videos over the Internet.

64. There is a significant amount of content on the Internet that could be considered "indecent" for minors in some communities in the United States, but which most people would consider to be extremely valuable and appropriate for adults, and which, in any event, is constitutionally protected for adults. Such content includes, for example, great works of art and literature (containing depictions and descriptions of nudes and sexual conduct), examples of modern popular culture (containing popular music, lyrics, movie images, or literature with sexual content), medical information (containing depictions and descriptions relating to child birth, sexually transmitted diseases, and sexually related medical conditions), and historical and scientific information (containing, for example, accounts of historic criminal trials or other historical, sociological, and anthropological works). Such content, and other content typically provided by non-commercial providers, is effectively banned by the Act.

65. The fear that some communities in the United States would conclude that this type of valuable material is "indecent" for minors is well founded. Communities across the country have banned or sought to ban classic works of literature, such as Of Mice and Men by John Steinbeck, As I Lay Dying by William Faulkner, The Adventures of Huckleberry Finn by Mark Twain, The Adventures of Tom Sawyer by Mark Twain, Catcher in the Rye by J.D. Salinger, and I Know Why The Caged Bird Sings by Maya Angelou, as "indecent" for minors. Even the American Heritage Dictionary and parts of the Bible have been attacked as being "indecent" for minors. All of these works (some of which are available in whole or in part on the Internet), and works with similar content, are effectively banned by the Act.

66. In addition to the above type of content that is banned by the Act, a tremendous amount of common human discourse is banned by the Act. In the course of conversations, discussions and debates, many citizens use language and imagery that in some communities would be viewed as "indecent" for minors. Vigorous and heated debate often occurs with harsh or vulgar words. Many people, and many speakers on the Internet, use in common discourse words that describe "sexual or excretory activities or organs" in terms that might be deemed to be "patently offensive" for minors. The use of vulgar words in a dialog with friends -- which would be perfectly legal over the telephone or in a letter or on a basketball court -- would be illegal under the Act if sent over the Internet.

67. There are many examples on the Internet of valuable content that can be displayed only subject to the threat of criminal liability and prosecution.

68. For example, a content provider would reasonably fear prosecution under the Act for the unrestricted display of written descriptions of sexual intercourse.

69. There are available on the Internet important works of literature that include descriptions of sexual intercourse.

70. Similarly, a content provider would reasonably fear prosecution under the Act for the unrestricted display of images of nude men and/or women.

71. There are available on the Internet numerous important works of art -- paintings, drawings and photographs by great masters and modern artists alike -- that depict nude men and/or women. An example of such a work of art is Manet's Olympia.

72. Similarly, content providers would reasonably fear prosecution under the Act for engaging in a vigorous online debate in which there is repeated use of the "seven dirty words" at issue in the decision in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

73. There are on the Internet -- on a daily basis -- vigorous political, social, and other dialogues and debates that include unrestricted use of one or more of the "seven dirty words."

74. Similarly, a content provider would reasonably fear prosecution under the Act for the display on a World Wide Web "home page" of vulgar statements of the type at issue in Cohen v. California, 403 U.S. 15 (1971).

75. The Supreme Court has specifically held that the use of the vulgar statement in Cohen is protected expression, even when displayed in public areas when children are present.

76. Similarly, a content provider would reasonably fear prosecution under the Act for the display of a parody that makes explicit assertions about the "sexual or excretory activities or organs" of a well known public figure, as was at issue in Hustler Magazine v. Falwell, 485 U.S. 46 (1988).

77. The Supreme Court specifically held in Falwell that a parody that made explicit assertions about the "sexual or excretory activities or organs" of a well known public figure is protected expression.

78. Similarly, a content provider would reasonably fear prosecution under the Act for the unrestricted display of detailed information concerning birth control and the transmission of sexually transmitted diseases.

79. The Supreme Court specifically held in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), that such communications are protected expression and can be mailed, unsolicited, into homes.

80. There is a tremendous amount of valuable content on the Internet that is constitutionally protected for adults, but is nevertheless subject to prosecution under the Act.

The Statutory Language At Issue

81. Signed into law on February 8, 1996, the Communications Decency Act criminalizes the display and distribution of constitutionally protected expressive material.

82. The Act contains two primary criminal provisions. Violation of either provision is a felony, punishable by as much as two years in prison and substantial fines.

83. Section 502(2) of the Act, to be codified at 47 U.S.C. Section 223(d), broadly prohibits knowingly using any "interactive computer service" to send to a specific person or persons under 18 years of age, or to "display," "in a manner available to" a person under 18, certain "patently offensive" communications. Section 502(2) provides, in pertinent part: (d) Whoever--

(1) in interstate or foreign communications knowingly--

(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or

(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

Act Section 502(2).

84. "Interactive computer service" is defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." Act Section 502(2) (to be codified at 47 U.S.C. Section 223(h)(2)) referring to Act Section 509 (to be codified at 47 U.S.C. Section 230(e)(2)).

85. The terms "patently offensive," "contemporary community standards," and "display" are nowhere defined in the Act.

86. Another section of the Act, Section 502(1), to be codified at 47 U.S.C. Section 223(a)(1)(B), prohibits and criminalizes the use of a "telecommunications device" knowingly to make or create and "initiate[] the transmission of, any comment, request, suggestion, proposal, image, or other communication which is . . . indecent, knowing that the recipient of the communication is under 18 years of age." Another provision of the same section makes it a crime to "knowingly permit[] any telecommunications facility under [a person's] control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity." Act Section 502(1) (to be codified at 47 U.S.C. Section 223(a)(2)).

87. "Telecommunications device" is defined to exclude an "interactive computer service." Act Section 502(2) (to be codified at 47 U.S.C. Section 223(h)(1)(B)).

88. The term "indecent" is not defined.

89. The Act establishes several defenses a defendant may assert in a criminal prosecution under the Act. First, no person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication.

Act Section 502(2) (to be codified at 47 U.S.C. Section 223(e)(1)).

90. The phrase "not under that person's control" is nowhere defined in the Act.

91. This defense is not available "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 communications." Id. (to be codified at 47 U.S.C. Section 223(e)(2)). Nor is this defense available to "a person who provides access or connection to a facility, system, or network engaged in the violation codified at 47 U.S.C. Section 223(e)(3)). The level or nature of control is not defined.

92. In addition, the Act provides a defense to a criminal prosecution under (a)(1)(B) or (d), or under (a)(2) for use of a facility for an activity under (a)(1)(B), if the defendant (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 identification number.

Id. (to be codified at 47 U.S.C. Section 223(e)(5)). Congress did not provide any details as to what might be considered a "good faith, reasonable, effective, and appropriate action[]." Congress did allow the Federal Communications Commission ("FCC") to promulgate nonbinding guidelines as to what might be an "appropriate action," but it now appears that even those guidelines will not be issued until sometime in 1997 at the earliest, and compliance with the guidelines will not insulate speakers from prosecution or conviction under the Act.

93. Congress made no findings in connection with enacting Section 502 of the Act. Congress made no findings as to its purpose or interest in criminalizing online communication of "indecent" or "patently offensive" materials to, or that would be available to, persons under age 18. In considering the Act, Congress made no inquiry into or findings regarding the extent to which such materials were available to persons under 18. Congress made no inquiry into or findings whether the means Congress chose to address whatever interest it had would substantially further that interest. Congress made no inquiry into or findings whether any less restrictive means would substantially further its interest.

94. In another section of the Act, however, Congress did make the following relevant findings: (1) The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.

(2) These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

(4) The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.

Act Section 509 (to be codified at 47 U.S.C. Section 230(a)) (emphasis added).

The Impact of the Act on the Internet

95. Because of the realities of the Internet, the Act effects a total ban on certain constitutionally protected speech to adults. The Act reduces discourse on major portions of the Internet to that which is appropriate for a young child.

96. Virtually all of the tens of millions of users of the Internet -- except those who at all times stand mute in the discourse that occurs on the Internet -- are content providers who are subject to the terms of the Act. An individual is a content provider subject to the Act if he sends a single e-mail, or participates in a listserv discussion, or contributes to a USENET newsgroup, or responds to a survey on the World Wide Web, or establishes a personal "home page" on the Web, or converses with a friend through a real time service, or simply places a file in a publicly available area of a computer or network.

97. In other words, virtually any use of the Internet makes someone a content provider subject to the criminal penalties of the Act. Commercial content providers -- who typically require a credit card for users' payment -- may be able to use the credit card defense allowed by the Act. But for non- commercial content providers, who are responsible for a major part of communications on the Internet, there is no practical way the speaker can control who can access the message. Thus, for the vast majority of speech on the Internet, it is impossible for the speaker to prevent the speech from being "display[ed] in a manner available" to a person under 18. Act Section 502(2).

98. Because of this impossibility, Section 502(2) of the Act effectively requires that almost all discourse on the Internet be at a level suitable for young children. This provision has the effect of a flat ban on an entire category of constitutionally protected speech between adults.

99. As used by millions of people daily, the primary methods to access information on the Internet do not permit individual or non-commercial content providers to control who on the Internet can access their content. From the perspective of the content provider, information that is publicly available on the Internet is available to all users of the Internet, even users who might be minors.

100. None of the major methods of accessing information -- including electronic mail, listservs, newsgroups, chat lines, telnet, ftp, gopher, and the World Wide Web -- has the ability to track the millions of individuals who access the Internet and screen out those who are under eighteen years of age. Although password-required access to content is possible (and is used in some circumstances), a password-access system would effectively remove from public access an enormous volume of valuable content on the Internet, and would reduce the information available to adults on the Internet to only content deemed suitable for minors.

101. The vast majority of content providers on the Internet are individuals who post messages to newsgroups and listservs, and who create content on the World Wide Web. Those individual content providers could not possibly create and maintain a database of specific Internet users who request access to the content and who prove they are 18 or older. Nor could individuals or other non-commercial content providers practically administer or economically afford an instantaneous credit card verification system. Such a requirement would effectively preclude any communications by those content providers that could be deemed "indecent" or "patently offensive" for minors.

102. Even larger organizations that provide content on the Internet cannot practically or economically track the millions of Internet users to determine whether those users are minors or adults.

103. Moreover, even if pre-registration by content users were practically or economically possible, the value of the content would be dramatically diminished because so few content users would anticipate the need to pre-register for a particular site. A huge percentage of Internet traffic is by users engaged in spontaneous and unpredictable research or searches for content, and a pre-registration requirement would effectively end this type of search.

104. As described above, the World Wide Web is a spontaneous and serendipitous communications medium, in which a user can jump from site to site to site depending on what content looks most useful or interesting, without any pre-registration or advance request. Requiring pre-registration for all sites that might contain content arguably covered by the Act (if such pre- registration were practically possible) would drastically reduce the usefulness of the World Wide Web.

105. For other methods of providing content on the Internet, it is flatly impossible for a content provider to control who can access the content. With USENET newsgroups, for example, once a content provider posts a message to a newsgroup, that message is automatically distributed to over 190,000 computers around the world, and the individual content provider has no ability whatsoever to control who is permitted to access the content on those 190,000 computers. Under the Act, all content posted to USENET newsgroups must be reduced to a level appropriate for young children. Similarly, Internet mailing list services such as "listserv" also do not allow the speaker to control who receives the communication, and thus speech via a mailing list service would also be reduced to the level appropriate for young children.

Ineffectiveness of the Act and Effectiveness of Alternative Means

106. The overwhelming majority of content on the Internet is non-sexual in nature, and is not even arguably "indecent" or "patently offensive," even for minors. However, a significant amount of the content on the Internet could arguably be deemed "indecent" or "patently offensive" for minors in some communities, and the Act bans or burdens all of that content.

107. Although imposing extreme burdens on the Internet, the Act will in fact have very little impact on the availability to persons under 18 of "indecent" or "patently offensive" images or communications on the Internet. At least in part because Congress held no hearings on the Act, did not collect information about how the Internet works, and only haphazardly reviewed the content on the Internet, the Act does not accomplish or even significantly further the ostensible goal of limiting access by persons under 18 to "indecent" or "patently offensive" images. There are at least two reasons why implementation of the Act will be highly ineffective as a limitation on such access.

108. First, a high percentage of sexual content on the Internet originates outside of the United States, and it is not possible to prevent that content from being "available" in the United States. To the extent the Act imposes any burdens on domestic commercial providers of such communications, those providers will have the option of moving their operations overseas.

109. Second, the existence of "anonymous remailers" means that any content -- indecent or otherwise -- can be placed onto the Internet anonymously, and the government would be unable to identify the content provider. Anonymous remailer systems -- which often are located overseas -- will automatically receive a communication and forward it to a destination after having removed all trace of the origin of the communication.

110. At bottom, therefore, the Act does little to limit the ability of commercial or non-commercial entities to provide "indecent" or "patently offensive" images on the Internet.

111. A critical difference between the Act's attempt to regulate indecency on the Internet and prior governmental attempts to regulate indecency (over radio, television, and telephone sex lines, for example) is that there are tens of millions of speakers on the Internet, with no bottleneck through which all of the speech must pass.

112. There are alternative means that are far more effective in limiting a minor's access to "indecent" or "patently offensive" communications. The only place where it is practically possible to screen out commercial indecency, non- commercial indecency, domestic indecency, overseas indecency, intentional indecency, inadvertent indecency, and anonymous indecency is in the computer that is attempting to receive the speech.

113. The government's legitimate interest in aiding parental control over the Internet material their children access may be served by several means that are both less restrictive and more effective than a blanket ban on "indecent" or "patently offensive" communications. Parents have control over their children's access to communications through interactive computer services. For example, parents can deny their child access to the computer; parents can supervise their child's use of interactive computer services; parents can decline to subscribe to interactive computer services until their child is older; parents can take advantage of the free screening and blocking options available at no extra charge from commercial online services; and parents can obtain software (some of it free, and most of it for a very modest cost) for their home computers to screen material they find objectionable.

114. Commercial online services such as America Online, CompuServe, the Microsoft Network, and Prodigy offer technologies that allow parents to block their children's access to certain online forums and areas where children might be exposed to inappropriate content. These online services, for example, include a feature that allows parents to prevent their children from accessing interactive discussion forums (chat rooms). They also offer parents the ability to block access to all or portions of the Internet, including the World Wide Web and USENET newsgroups, based on keywords, subject matter, or specific newsgroups. These tools can be configured to block access to groups based on any keyword.

115. In addition, a variety of software providers have developed applications to use in conjunction with commercial online services, over and above the parental control features provided by commercial services, while others are designed specifically for direct access. SurfWatch, for example, allows parents to block their child's access to USENET newsgroups, World Wide Web, gopher, and ftp sites with sexually explicit content. When activated with a private password held only by a parent, SurfWatch completely prevents any user from accessing these areas. The service automatically updates the list of blocked sites, without any intervention required from the user. NET NANNY, another example, contains a dictionary in which the parent can enter the names of sites that contain sexually explicit or other material. Parents may also enter phrases which if transmitted or received will automatically disconnect the network. Among other things, the program also keeps a log of all activity that occurs on the computer, allowing parents to monitor their children's use of the computer.

116. Products such as the Netscape Proxy Server and WEBTrack provide schools and businesses the ability to block specific sites from access by all users on the network, and to track and monitor use of the Internet.

117. Because the Internet is a global network with millions of users, speaker-based content restrictions cannot effectively control the availability of materials inappropriate for children. The only effective way to protect children from inappropriate material on the Internet is to encourage the continued development and deployment of user-based tools that empower parents to control their children's online activities based on the parents' views of what is appropriate for their children. The products described here, and others like them, provide parents these tools, and can do so without the need for criminalizing or banning the distribution to adults of constitutionally protected communications.

Speech of the Plaintiffs and the Impact of the Act

118. The plaintiffs (and the plaintiffs' members, subscribers, patrons, and customers) interact with and use the Internet, and cyberspace generally, in a wide variety of ways, and they are burdened by the Act in an equally wide variety of ways. Plaintiffs include content providers on the Internet, access providers to the Internet, and users of the content on the Internet. The Act burdens plaintiffs in all of these capacities.

119. Plaintiffs who are content providers (or whose members or customers are content providers) are expressly subject to the Act. Under the Act, anyone who speaks on the Internet is a content provider. These plaintiffs do not understand what standard for indecency should be used under the Act, how the standard applies to the plaintiffs' speech, or how numerous other provisions of the Act are to be understood and applied. These plaintiffs provide content that would likely or possibly be found to be indecent as to a young child in some communities. Accordingly, they are subject to prosecution under the Act. These plaintiffs will either self-censor their speech or will continue to speak under the threat of prosecution.

120. Plaintiffs who are, or whose members are, access providers (including "Internet service providers" or "ISPs") are expressly subject to the Act. As access providers these plaintiffs enable their customers and users to use plaintiffs' facilities to link to the Internet. Although the Act provides defenses for access providers, access providers reasonably fear that these defenses will not be construed and applied as broadly as Congress intended, and they therefore fear they may be directly subject to prosecution under the Act. These plaintiffs will continue to provide access under the threat of prosecution.

121. All plaintiffs (and their members and customers) are users of the Internet. These plaintiffs and other users have a right to engage in ordinary human discourse free from the threat of prosecution created by the Act. In particular, these plaintiffs and other users have a right to receive content that is criminalized under the Act.

122. Plaintiffs AMERICAN LIBRARY ASSOCIATION ("ALA") and FREEDOM TO READ FOUNDATION ("FTRF") sue on behalf of themselves, their members, who are libraries and librarians across the country, and their members' patrons. These libraries recognize that the Internet offers their patrons a unique opportunity to access information, and many libraries provide their patrons with facilities the patrons can use to access the Internet. Many libraries also have their own World Wide Web sites on the Internet. Thus, in addition to providing patrons with access to the Internet, where they can access information posted by third parties, libraries post their own material on the Internet. Many libraries post their card catalogues, post information about current events, sponsor chat groups, post textual information or art on the library Web site, or post licensed online versions of reference and other materials from their library collections. Patrons could, for example, access the Web site of a library anywhere in the country to peruse its card catalogue, review an encyclopedia reference, or check a definition in the dictionary. These libraries and librarians are injured by the Act. Because of fear of prosecution, they will be chilled from posting materials on the Internet that might be deemed "patently offensive" or "indecent" for minors by some communities. Given the global and unrestricted nature of the Internet, the lack of precision in the definition of "indecency," and the past attempts by some persons to ban literature and reference items from library collections, many of ALA's and FTRF's members may choose not to post a substantial amount of expressive material at all -- material that many adults might consider useful for themselves or their own children -- rather than risk prosecution for posting material that someone in some other part of the nation might deem "indecent" or "patently offensive" for minors. As a result of the Act, the library patrons ALA and FTRF members serve will be limited in the constitutionally protected information that would otherwise be available to them on the Internet. These plaintiffs (and their members) sue in their capacity as content providers, access providers, and users of the Internet, and on behalf of their patrons who are content providers and users of interactive computer services.

123. Plaintiffs AOL, COMPUSERVE, MSN, and PRODIGY sue on their own behalf and on behalf of their subscribers. As online service providers, these plaintiffs are content providers and access providers, and their customers are content providers and users of the Internet. These plaintiffs create content and make it available both to their customers and to the entire world of Internet users. They also allow their customers to create content on the Internet (including the creation of personal Web pages). As speakers, these plaintiffs and their customers are chilled by the Act in what they can say on the Internet and on their own online services. As access providers, these plaintiffs fear they may be at risk of prosecution under the Act for what others say. And as users, these plaintiffs and their customers are limited by the Act to the ability to access only content that is suitable for a young child.

124. Plaintiff MICROSOFT CORPORATION ("Microsoft") sues on its own behalf as a content provider, access software provider, and user of the Internet. Microsoft provides content on the Internet through MSN, on its own Web sites, and through postings, messages, and other contributions to the Internet. Microsoft's diverse content includes compilations of musical, artistic, literary and encyclopedic information, news and current events, and other content. Some of this content might be considered "indecent" or "patently offensive" in some community in the nation, exposing Microsoft to the risk of prosecution under the Act. As an access software provider, Microsoft sells or plans to sell software for accessing and exploring the Internet, for establishing and maintaining Internet servers and related services, and for creating Web sites and other Internet content. As users, Microsoft and its employees are chilled in what they can say and the frankness of their discussion in communications posted to or transmitted over the Internet, and are exposed to a risk of prosecution under the Act. Microsoft believes that the defenses provided in Section 502(2) of the Act are provided only to access providers, not to content providers and/or users, and that as to access providers, including access software providers, they are inadequate, incomplete, and expose Microsoft to potential prosecution under the Act. In addition, the chilling effect of the Act on other content providers and users of the Internet will damage Microsoft by reducing the market for access software, services software, and content- creation software.

125. Plaintiff APPLE COMPUTER, INC. ("Apple") sues on its own behalf as a content provider, access software provider and user of the Internet. Apple provides content on the Internet through eWorld, on its own Web sites, and through postings, messages and other contributions to the Internet. Because of the vagueness of the Act, Apple is uncertain whether some of this content might be considered "indecent" or "patently offensive" in some community in the nation, exposing Apple to the risk of prosecution under the Act. As users, Apple and its employees are chilled in what they can say and the frankness of their discussion in communications posted to or transmitted over the Internet, and are exposed to a risk of prosecution under the Act. In addition, the chilling effect of the Act on other content providers and users of the Internet will damage Apple by reducing the market for Internet software.

126. Plaintiff COMMERCIAL INTERNET EXCHANGE ASSOCIATION ("CIX") sues on behalf of its member Internet service providers ("ISPs") and the customers of their members. CIX members typically serve as passive carriers who offer access or transmission, and related incidental capabilities, for the Internet transmissions of others; as such they are clearly covered by the defense of Section 223(e)(1). However, because of ambiguity in this defense, CIX members who operate news servers that carry USENET content are uncertain whether they may be held liable for the content of others that resides temporarily on members' USENET news servers, and is accessed by users from such servers. In addition, many CIX members also assist content providers in establishing and operating Web sites. In this capacity CIX members will often be at risk of prosecution under the Act for what others say. Due to fear of prosecution, CIX members are chilled from assisting providers of valuable content that may be deemed indecent. Furthermore, CIX members have a strong interest in the continued growth of the Internet as a means of communication, and in their subscribers' rights to free expression over the Internet. The Act undermines both interests.

127. Plaintiff NETCOM ON-LINE COMMUNICATION SERVICES, INC. ("NETCOM") sues on its own behalf and on behalf of its subscribers. As a provider of Internet access and services, NETCOM is both a content provider and an access provider. NETCOM's individual subscribers create content on the Internet, such as through the posting of personal web pages, and make that content available both to their own customers and to the entire world of Internet users. As speakers, NETCOM and its subscribers are chilled in what they can say on the Internet and on their own Internet sites. As an access provider, NETCOM cannot control what others say, yet faces the risk of prosecution under the Act for the speech of others made available through its systems. As users of the Internet, NETCOM and its subscribers are limited by the Act to accessing and producing only content that is suitable for a young child.

128. Plaintiff OPNET, INC. ("OpNet") sues on its own behalf and on behalf of its subscribers. As a provider of Internet access and services to subscribers, OpNet faces uncertainty as to the applicability of the Act's defenses. OpNet also fears that it will be construed to have liability for content posted by third parties through its systems.

129. Plaintiff INTERACTIVE SERVICES ASSOCIATION ("ISA") sues on behalf of its members, who include the major commercial online services, and other content providers, access providers, and users of the Internet. As with the online services, ISA's members risk prosecution for engaging in, or serving as a conduit for, constitutionally protected speech that might be deemed indecent. Accordingly, the Act will chill ISA members from exercising their First Amendment rights.

130. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS ("AAP") sues on behalf of its members, who are content providers on, and users of, the Internet. Although rooted in print publishing, AAP's members are very actively involved in the Internet. AAP's members create electronic products to accompany and supplement their printed books and journals; create custom educational material on the Internet, publishing on and to demand; communicate with authors and others, receiving manuscripts, and editing, typesetting, and designing books electronically; transmit finished product to licensed end-user customers; communicate with bookstores and other wholesale and retail accounts; and promote authors and titles online. Many of AAP's members have Web sites and provide content to the world on the Internet. Some of the content provided by AAP's members might be considered "indecent" or "patently offensive" for minors in some communities (as most of the efforts to ban books in communities have been directed at books published by AAP's members).

131. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS ("ASNE") sues on behalf of its members, who are editors of daily newspapers throughout the United States that, in addition to publications in print form, are now or soon will be published in electronic formats available to the public on the Internet or through online service providers. Historically, the First Amendment guarantee of "freedom of the press" has protected newspapers from government-imposed content restrictions which, like those in the Act, prohibit and punish the dissemination of materials considered "indecent" or "patently offensive" with respect to non-adult readers. By its terms, however, the Act can be applied to the press in the same manner that it can be applied to any other person. ASNE members, who make the editorial decisions regarding what content will be published in the daily editions of their newspapers, are concerned that the Act will require them to censor the online version of their print editions according to these vague and overbroad statutory standards, thereby restricting the content of the "electronic" edition of the daily newspaper in ways that the First Amendment does not tolerate with respect to the traditional hard-copy print edition. For this reason, ASNE believes the Act imposes an unprecedented but very real threat of unconstitutional press censorship which could throttle the Internet's potential to greatly enhance the diversity, availability, timeliness, quality, and utility of daily newspapers by creating a powerful disincentive for publication through the use of interactive media technologies.

132. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA ("NAA") files this lawsuit on behalf of its members, a majority of which are daily newspapers in the United States. Approxi- mately 175 daily newspapers in North America are currently available on the Internet, via commercial online services or through local bulletin board services. As content providers, newspapers have utilized the Internet to provide electronic versions of their printed product. In fact, many newspapers provide archives of their print product online. As access providers, newspapers have established electronic forums for local communities to communicate and to conduct business. While the content in newspapers is considered neither indecent nor patently offensive when published on newsprint, it now may be when published electronically. The dual standard imposed by the Act will force newspapers to edit out content from publications offered on the Internet -- content that is constitutionally protected and not subject to challenge in printed form. In many cases, newspaper publishers will be forced to edit content contained in the archived electronic version of the newspaper already placed on the Internet long before the Act went into effect. Thus, the Act will seriously infringe upon the rights of NAA members to publish constitutionally protected news and information.

133. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND WRITERS ("APEW") sues on behalf of its members, who write and publish in print and online. Members of APEW include the San Francisco Guardian, the largest and oldest independently owned alternative newsweekly in the United States; the Internet Press Guild, an unincorporated association of writers, authors and journalists who publish their works online; the California First Amendment Coalition, a nonprofit, public interest corporation whose membership comprises approximately 700 individuals and organizations, including most of California's daily newspapers, many weekly and student newspapers, broadcasters, law firms and others; and individual writers and editors including Jim Warren, a columnist and advocate for open government, and owner and editor of the listserv GovAccess; Professor David Farber of the University of Pennsylvania; John Quarterman, a columnist and Secretary of Matrix Information and Directory Services, Inc.; T. Bruce Tober, a freelance writer who researches and writes about the Internet for a variety of print and online publications; Stephanie Stefanac, Editor of MacWorld Online, a monthly trade publication for users of the Macintosh computer manufactured by Apple Computer Co.; and Rogier van Bakel, a Contributing Editor to Wired Magazine. The members of APEW face criminal prosecutions under the Act for the online publication of works which some communities might find "indecent" or "patently offensive." The vagueness of the Act leaves APEW members uncertain whether the publication of their works over the Internet would be a crime.

134. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS sues on its own behalf and on behalf of its members. The Society's membership produces a tremendous volume of content made available over the Internet: news stories, special interest articles, columns, and opinion pieces, among many others. Each year brings a dramatic increase in the importance of electronic media as a venue for distributing the news and opinion pieces produced by professional journalists. The members of the Society fear that their right and ability, traditionally protected by the First Amendment, to engage in an unfettered marketplace of ideas and expression will be severely compromised by the Communications Decency Act. In addition, the Society operates a listserve called "SPJ-L," a forum among more than 1,000 Internet users (both Society members and non-members) from roughly 25 countries to discuss and debate primarily journalism-related issues. Though, or perhaps because, it typically addresses topics of the utmost seriousness and importance for journalists, the language used in messages posted on SPJ-L can be offensive, harsh, and vulgar. The Society does not edit these messages for content. By continuing to provide this forum for discussion and debate, the Society risks prosecution under the Act. Its members, whose writings and other speech would be protected by the First Amendment in the context of other media, will be chilled by the Act from engaging in constitutionally protected speech over the Internet.

135. Plaintiff HOTWIRED VENTURES LLC ("HotWired Ventures") sues on its own behalf and on behalf of its subscribers. HotWired Ventures operates an online magazine named Hotwired. Some of HotWired's editorial content might be considered "indecent" or "patently offensive" for minors in some communities. HotWired features articles containing facts about and opinions on popular culture. These articles sometimes contain vulgar language and references to, inter alia, sexual acts and sexual organs. One area of HotWired's editorial focus is cyberspace-related issues, including governmental attempts to censor and regulate the Internet. These articles sometimes employ vulgar language in expressing opinions about this topic, and may contain references to, and discussions of, examples of material that might be deemed "patently offensive" or "indecent" under the Act. In addition, HotWired operates a regular section called Piazza, an interactive discussion area where members can communicate with each other both through asynchronous postings called "threads" and in real time "chat rooms," sharing opinions and engaging in outspoken discourse which can involve vulgar language and may involve sexually explicit subject matter. Plaintiff WIRED VENTURES, LTD. ("Wired Ventures") sues on its own behalf and on behalf of its subscribers. Wired Ventures publishes Wired Magazine, a print publication. Like HotWired, Wired publishes articles and short fiction that sometimes contain vulgar language and references to sexual acts or sexual organs. Many articles published in Wired are also published online by HotWired. Thus, some articles that are perfectly legal for minors or adults in print form are nevertheless banned from the Internet. The Act creates the anomalous situation that a publication that is a leading commentator on issues and events online may not under the Act be able to publish online articles about the Internet that can be published in print. HotWired Ventures and Wired Ventures believe that the Act would severely infringe their right to publish constitutionally protected material and their readers' right to choose to read such material.

136. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION ("ABA") sues on behalf of its member bookstores (as content providers and users) and their patrons (as users of the Internet). Although ABA's members are not "adult bookstores," many of ABA's members sell materials that deal frankly with the subject of human sexuality. Some member bookstores have their own Web pages that discuss the content of books the stores sell. Most member bookstores use the Internet and electronic communications to obtain information and excerpts of books from publishers. ABA members' right to learn about, acquire, and distribute constitutionally protected materials, and their patrons' right to purchase such constitutionally protected materials, will be seriously infringed by the Act.

137. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP ("FAIC") is a national organization of parents dedicated to the proposition that they, not the government, should decide what their children should be able see or receive. FAIC sues on behalf of its members. As parents, FAIC's members are deprived of the opportunity to raise their children as they see fit. As users of the Internet, the Act violates FAIC's members' rights to receive material suitable for adults.

138. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION ("CIEC") sues on behalf of its members as content providers, access providers, and users of the Internet. In particular, CIEC and its members are injured because the Act deprives parents of the ability to determine the content their children, including older teenagers, should have access to on the Internet.

139. Notwithstanding the defenses set forth in the Act, and the fact that Congress expressly directed courts to construe those defenses broadly, plaintiffs reasonably fear prosecution under 47 U.S.C. Section 223(d)(1)(B), as enacted by Section 502(2), for knowingly permitting their services or computers to be used to display indecent material in a manner available to persons under age 18, or to transmit such material to specific persons under age 18. Unless and until the defendants or the Courts make clear that these defenses must be broadly construed, there is nothing to prevent an aggressive prosecutor, in a particularly intolerant community, from bringing a prosecution and urging that the defenses be construed more narrowly than plaintiffs believe Congress intended.

140. For these reasons, plaintiffs reasonably fear that the defense in 47 U.S.C. Section 223(e)(1) may not protect online service providers from criminal conviction for indecent expression by third parties when that expression is located on the providers' computers (such as when an individual computer user posts a vulgar message to an online discussion). Plaintiffs reasonably fear that the defense may apply only to the extent an online service acts as a mere conduit to enable its subscribers to gain access to another network.

141. The speech at issue in this case is fully protected by the First Amendment. "Indecent" speech or "patently offensive" communications, while considered by some to be offensive or sexually suggestive, are not obscene. Such speech can have serious literary, artistic, political or other merit, and thus has considerable value to adults and to society as a whole.

142. The Internet, and cyberspace generally, carries a significant amount of communications, images and text that might be deemed inappropriate, "indecent" or "patently offensive" for younger children (for example, in elementary school), but which would not, under the same community standards, be deemed inappropriate, "indecent" or "patently offensive" for older minors (for example, in high school or early college). The Act makes no distinction between these age groups, and would criminalize a university professor's distribution -- using the university's interactive computer service -- of "indecent" but classic works of literature to a 17-year-old freshman.

143. Dissemination of many of the same communications whose dissemination via interactive computer services is made criminal by the Act would not be unlawful if disseminated by traditional print media (e.g., newspaper or magazine) or by using the United States mail. Thus, many of the very same communications the Act makes it unlawful to make available to minors through interactive computer services can lawfully be made available through other media, and are, in fact, so available.

144. Any government regulation of "indecent" or "patently offensive" speech may withstand constitutional scrutiny only if it both serves a "compelling interest" and is "the least restrictive means" to advance that interest, and only if the benefit gained from the Act outweighs the loss of constitutionally protected rights.

145. The government has no legitimate, much less "compelling," interest in preventing adults from sending or receiving "indecent" or "patently offensive" speech. The government has no legitimate, much less "compelling," interest in preventing older children from sending or receiving speech that would only be deemed "indecent" or "patently offensive" if communicated to younger children.

146. One legitimate interest the government does have -- and the only interest articulated in the Act (Section 509, to be codified at 47 U.S.C. Section 230) -- is to assist parents in supervising their children's access to expressive materials. The Act does not, however, further that interest. Indeed, the Act interferes with that interest because parents who decide their children, whether 7 or 17, should have access to some materials that some community might deem "indecent" or "patently offensive" for those children are prevented from exercising their parental judgment by the Act's blanket prohibition on all access by all persons under 18 to all such materials.

147. Even if the government had a legitimate interest, more broadly, in preventing interactive computer service access by all persons under 18 to communications that some community might deem "indecent" or "patently offensive" to them, the Act would not materially further that interest. Among other things, communications of foreign origin are freely accessible on the Internet, and the United States government has no means to prosecute foreign content-providers for violation of the Act, or to deter such postings. Furthermore, existing statutes and other provisions in the Act already prohibit the use of computers to disseminate obscenity, child pornography, harassing speech, enticing or luring minors into inappropriate activities, and other speech that is not protected even for adults.

148. Even if the Act could be viewed as substantially furthering a compelling governmental interest in protecting minors from "indecent" or "patently offensive" communications, it is not the least restrictive means of achieving that interest. The screening and blocking tools described above achieve that interest far more effectively than does the Act itself, and with no adverse impact on the constitutional rights of adults. Efforts by government to spur the further development of such tools would further the claimed governmental interest more directly and materially than does the Act.

149. Even if the Act could be viewed as the least restrictive means to further a compelling governmental interest in protecting minors from "indecent" or "patently offensive" communications, any benefit gained from the Act would be far outweighed by the loss of constitutionally protected rights of adults, because only some applications of the Act will in fact protect minors, but every application of the Act will punish or deter speech that is constitutionally protected for adults.

CAUSES OF ACTION

COUNT 1

150. Plaintiffs repeat and reallege paragraphs 1-149.

151. With respect to constitutionally protected communications which might be deemed "indecent" or "patently offensive" for persons under 18, the Act, in plain terms and practical effect, bans a substantial amount of speech by and to adults, including speech by and to plaintiffs, their members, and their subscribers, patrons and customers, in violation of the First Amendment of the United States Constitution.

COUNT 2

152. Plaintiffs repeat and reallege paragraphs 1-149.

153. With respect to constitutionally protected communications which might be deemed "indecent" or "patently offensive" for persons under 18, the Act, in plain terms and practical effect, unduly burdens and deters a substantial amount of speech by and to adults, including speech by and to plaintiffs, their members, and their subscribers, patrons, and customers, in violation of the First Amendment of the United States Constitution.

COUNT 3

154. Plaintiffs repeat and reallege paragraphs 1-149.

155. Sections 502(1) and 502(2) of the Act unduly chill and compel self-censorship of constitutionally protected speech of plaintiffs, their members, and their subscribers, patrons, and customers, in violation of the First Amendment of the United States Constitution.

COUNT 4

156. Plaintiffs repeat and reallege paragraphs 1-149.

157. Section 502(2) of the Act, 47 U.S.C. Section 223(d), is fatally overbroad. In particular, it bans, burdens, and criminalizes speech that is constitutionally protected for adults, and for older minors, restricting both adults and 17 year-olds to communications appropriate for 7 year olds. And it bans, burdens, and criminalizes a much broader range of constitutionally protected expression than is constitutionally permissible. Accordingly, the provision violates the First Amendment.

COUNT 5

158. Plaintiffs repeat and reallege paragraphs 1-149.

159. Any blocking system to be imposed by the content provider/speaker would require advance identification of those seeking access to a particular Web site, chat room, discussion group, or other online forum that might potentially contain communications that could be deemed "indecent" or "patently offensive" to persons under 18. See 47 U.S.C. Section 223(e)(5)(B). A requirement of advance identification would make it impossible for users to engage in constitutionally protected anonymous speech on matters of public and private importance. For many users, such anonymity is critical to their participation in the speech.

160. For such users, the Act will require them to choose between anonymity and losing access to such communications. As a result, in many cases, their First Amendment rights to read and view constitutionally protected text and images will be infringed.

161. Section 502(2) accordingly violates the First Amendment.

COUNT 6

162. Plaintiffs repeat and reallege paragraphs 1-149.

163. Plaintiffs are unable to determine with reasonable certainty which constitutionally protected expression Congress sought to proscribe in SectionSection 223(a)(1)(B) and (d). In particular, the terms "indecent" and "patently offensive as measured by contemporary community standards" are entirely subjective; as a matter of law depend on the context in which the communications arise; are undefined and undefinable in the cyberspace context; have entirely different meanings depending upon the age of the recipient even though the Act treats all minors of all ages the same; and give no indication as to which community governs the inquiry. In these, and other ways, the Act does not put reasonable persons on notice of what communications are prohibited. As a consequence, plaintiffs, their members, and subscribers, patrons, and customers are forced to guess at which speech on interactive computer services may give rise to criminal prosecution.

164. The vagueness of the terms "indecent" and "patently offensive as measured by contemporary community standards," and of other provisions of the Act, and the draconian penalties for a wrong guess, will force plaintiffs, their members, and their subscribers, patrons, and customers, and substantial numbers of other providers of content to the Internet, to self-censor far more speech than would in fact be prohibited in order to comply with their understanding of the Act's requirements, or to avoid potential criminal prosecution, and will thus chill constitutionally protected expression.

165. The vagueness of the terms "indecent" and "patently offensive as measured by contemporary community standards," and of other provisions of the Act, invites arbitrary enforcement.

166. The Act is, accordingly, so vague as to violate the First and Fifth Amendments.

COUNT 7

167. Plaintiffs repeat and reallege paragraphs 1-149.

168. Plaintiffs reasonably fear that the defenses under the Act will not be construed as broadly as Congress intended, and will therefore subject their dissemination or facilitation of constitutionally protected speech to criminal prosecution and conviction in several significant contexts.

169. The "good faith defense," which is the only defense even arguably available to non-commercial content- providers, gives insufficient guidance to content-providers as to whether their dissemination of constitutionally protected speech is prohibited. Plaintiff content-providers have no means of ascertaining whether a jury will determine that they have taken "reasonable, effective, and appropriate actions under the circumstances" to restrict minors' access to material that is "indecent" or "patently offensive as measured by contemporary community standards." Act 502(2), to be codified at 47 U.S.C. Section 223(e)(5)(A).

170. Similarly, service providers who host Web sites or other online sites, without controlling content, but on whose facilities others' communications reside, reasonably fear an aggressive prosecutor will argue, contrary to plaintiffs' understanding of Congressional intent, that such actions will constitute a "display" of such communications under Section 223(d)(1)(B), and that such services are not protected by the "access provider" defense, even though the service providers' role clearly "does not include the creation of the content of the communication." Section 223(e)(1).

171. For similar reasons, plaintiffs cannot with reasonable certainty rely on the access provider defense, Section 223(e)(1), to exempt access providers' operation of USENET news servers that automatically store content posted by users, which remains on their servers for a number of days and is available to subscribers.

172. For similar reasons, plaintiffs cannot with reasonable certainty determine whether the defense, Section 223(e)(1), applies to ISPs who assist content providers in establishing or operating Web pages or other online sites, and who, although having no control of content, might be deemed to be a "conspirator" under Section 223(e)(2) if they knowingly arrange for access to valuable, constitutionally protected material that may be deemed "indecent."

173. As a consequence, plaintiffs, their members, and their subscribers, patrons, and customers, are forced to guess at whether their activities may give rise to criminal prosecution.

174. The uncertainty of how prosecutors or the courts will construe the defenses, the fact that they are only defenses, which must be raised and proved after a defendant has already been subjected to the humiliation, stigma, and expense of a criminal prosecution, and the draconian penalties for a wrong guess, will force plaintiffs, their members, and their subscribers, patrons, and customers, and a substantial number of other providers of content to the Internet, to self-censor speech protected by the First Amendment in order to comply with their understanding of the Act's requirements, or to avoid potential criminal prosecution, and will thus chill constitutionally protected expression.

175. The vagueness of these provisions invites arbitrary enforcement.

176. Sections 502(1) and (2), accordingly, are so vague as to violate the First and Fifth Amendments.

COUNT 8

177. Plaintiffs repeat and reallege paragraphs 1-149.

178. Sections 502(1) and (2) of the Act violate the First Amendment rights of plaintiffs, their members, and their subscribers, patrons, and customers, insofar as they single out for special bans or burdens speakers engaged in one class of constitutionally protected speech by one specific medium, and do not similarly ban or burden speakers engaged in other classes of speech, or in the same speech via other mediums, without sufficient justification. WHEREFORE, plaintiffs respectfully pray that this Court:

A. Declare that Sections 502(1) and (2) of the Communications Decency Act of 1996, 47 U.S.C. SectionSection 223(a)(1)(B), 223(a)(2), and 223(d), are unconstitutional;

B. Preliminarily and permanently enjoin defendants from enforcing those provisions.

C. Award plaintiffs such costs and fees as are allowed by law; and

D. Grant plaintiffs such other and further relief as the Court deems just and proper.

Respectfully submitted,

_____________________________

Bruce J. Ennis, Jr.
Donald B. Verrilli, Jr.
Ann M. Kappler
John B. Morris, Jr.
JENNER & BLOCK
601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6000

____________________________

Ronald P. Schiller
(Atty ID 41357)

David L. Weinreb
(Atty ID 75557)

PIPER & MARBURY, L.L.P.
3400 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
(215) 656-3365

COUNSEL FOR ALL PLAINTIFFS

Ellen M. Kirsh
William W. Burrington
America Online, Inc.
COUNSEL FOR AMERICA ONLINE, INC.

Richard M. Schmidt, Jr.
Allan R. Adler
Cohn & Marks
COUNSEL FOR AMERICAN SOCIETY OF NEWSPAPER EDITORS

Bruce Rich
Weil, Gotschal & Manges
COUNSEL FOR ASSOCIATION OF AMERICAN
PUBLISHERS, INC.

James Wheaton
First Amendment Project
COUNSEL FOR ASSOCIATION OF PUBLISHERS, EDITORS AND WRITERS

Jerry Berman
Center for Democracy and Technology

Elliot M. Mincberg
Jill Lesser
People for the American Way
COUNSEL FOR CITIZENS INTERNET EMPOWERMENT COALITION

Ronald Plesser
Jim Halpert
Piper & Marbury
COUNSEL FOR COMMERCIAL INTERNET EXCHANGE ASSOCIATION

Steve Heaton
Compuserve Incorporated
COUNSEL FOR COMPUSERVE INCORPORATED

Thomas W. Burt
Microsoft Corporation
COUNSEL FOR MICROSOFT CORPORATION AND MICROSOFT NETWORK

Melissa A. Burke
Pillsbury, Madison & Sutro
COUNSEL FOR NETCOM ONLINE COMMUNICATIONS SERVICE, INC.

Rene Milam
Newspaper Association of America
COUNSEL FOR NEWSPAPER ASSOCIATION OF AMERICA

Marc Jacobson
Prodigy Services Company

Robert J. Butler
Clifford M. Sloan
Wiley, Rein & Fielding
COUNSEL FOR PRODIGY SERVICES COMPANY

Bruce W. Sanford
Henry S. Hoberman
Robert D. Lystad
Baker & Hostetler
COUNSEL FOR SOCIETY OF PROFESSIONAL JOURNALISTS

Michael Traynor
John W. Crittenden
Kathryn M. Wheble
Cooley, Godward, Castro, Huddleson & Tatum
COUNSEL FOR HOTWIRED VENTURES LLC AND WIRED VENTURES, LTD.

Dated: February 26, 1996