In a bid to persuade a federal judge that there is a constitutional right to annoy, a San Francisco-based multimedia company that operates a site called annoy.com sued the U.S. Justice Department on Jan. 30, 1996, challenging an as-yet-untested component of the 1996 Communications Decency Act.

 
William Bennett Turner (State Bar No. 48801) Rogers, Joseph, O'Donnell 
& Quinn 311 California Street, 10th Floor San Francisco, CA 94104 
Telephone: (415) 956-2828  
 
Michael Traynor (State Bar No. 31474) 
Tsan Merritt-Poree (State Bar No. 183753) Cooley Godward LLP One 
Maritime Plaza San Francisco, CA 94111  
 
Attorneys for Plaintiff 
APOLLOMEDIA CORPORATION 
 
UNITED STATES DISTRICT COURT 
 
NORTHERN DISTRICT OF CALIFORNIA 
 
APOLLOMEDIA CORPORATION,  
 
Plaintiff, 
vs.  
 
JANET RENO, Attorney General of 
the United States,  
 
Defendant. 
 
 
Case No. 
 
MEMORANDUM OF POINTS AND 
AUTHORITIES IN SUPPORT OF 
MOTION FOR PRELIMINARY 
INJUNCTION 
 
Three-Judge Court, 28 U.S.C. Section 
 
INTRODUCTION 
 
This is an action challenging the provisions of the Communications 
Decency Act of 1996 ("CDA") that criminalize any "indecent" 
communication by computer intended to "annoy" another person and 
"knowingly permit[ting]" someone else so to communicate. 47 U.S.C. 
Sections 223(a)(1)(A)(ii) and (a)(2). These provisions impose felony 
penalties on constitutionally protected communications among adults, 
including public officials. Plaintiff ApolloMedia Corporation is a provider 
and user of computer communications systems and a creator and publisher 
of "content" for computer-mediated communications. It seeks a 
preliminary injunction because the CDA provisions are unconstitutional 
on their face and as applied to plaintiff.  
 
Two courts already have held related CDA provisions banning "indecent" 
or "patently offensive" speech unconstitutional on their face. ACLU v. 
Reno, 929 F. Supp. 824 (E.D. Pa. 1996), probable jurisdiction noted, 117 
S. Ct. ___ (Dec. 6, 1996); Shea v. Reno, 930 F. Supp. 916 (S.D.N.Y. 
1996). Both invalidated the ban against using an "interactive computer 
service" to "display" in a manner "available to" a minor "patently 
offensive" sexual speech (Section 223(d)(1)(B)), and ACLU also 
invalidated the ban against using a "telecommunications device" to 
communicate "indecent" speech to a minor (Section 223(a)(1)(B)(ii)). The 
CDA provisions challenged in the instant case are even less defensible 
because they do not serve any government interest in protecting children 
and because they have no "safe harbor" defenses.  
 
STATEMENT OF ISSUES TO BE DECIDED 
 
Whether 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2), as amended by the 
Communications Decency Act of 1996, violate the First Amendment on 
their face and as applied, to the extent they prohibit "indecent" 
communications made "with intent to annoy" another person, because they 
are impermissibly overbroad and vague.  
 
STATEMENT OF FACTS 
 
1. Plaintiff's Business 
 
The following facts are established by the declaration of Clinton Fein. 
Plaintiff ApolloMedia Corporation is a multimedia technology company 
located in San Francisco. Its business is entirely devoted to computer-
mediated communications. It designs and constructs sites on the World 
Wide Web, and it implements Internet systems to deliver and manage 
information. Plaintiff uses computers, modems and telephone lines to 
communicate "content" created by it and its clients and web site visitors.  
 
Plaintiff's web sites and some of its clients' web sites often communicate 
strong positions on public issues, using expression that may be considered 
"indecent" by some people in some communities. Its "annoy.com" web 
site (http://www.annoy.com) enables visitors to construct and send 
provocative email messages, anonymously, to various public officials and 
public figures, and transmits plaintiff's own and others' views on 
controversial matters. Plaintiff's online databases contain material of social 
or political value, some of which is sexually explicit or uses vulgar 
language. Plaintiff communicates -- and "knowingly permits" its clients 
and visitors to its sites to commmunicate -- material that might be 
considered "indecent" in some communities.  
 
Plaintiff and its clients wish freely to criticize public officials and public 
figures by using whatever language or imagery seems to them appropriate 
to the occasion and, whenever they wish, to "annoy" such persons by 
getting their attention, upsetting them and making them understand the 
depth of displeasure with their acts or political positions. For example, 
plaintiff and some of its clients or visitors wish to criticize President 
Clinton, Speaker Newt Gingrich, Senators Jesse Helms, Dianne Feinstein 
and James Exon, former Congressman Robert Dornan, Ralph Reed of the 
Christian Coalition, California Governor Pete Wilson, Justices of the 
Supreme Court, and others, using language that they may consider 
"indecent," with the intent to "annoy" them, because of their role in 
proposing, enacting and approving the CDA or because of their role or 
position in other public measures with which plaintiff vigorously 
disagrees. Examples are included in Exhibits A-M to the Fein declaration.  
 
2. Online Communication on the Internet 
 
Plaintiff requests that the Court judicially notice, under Fed. R. Evid. 
201(b), Findings of Fact 1 through 123 in ACLU v. Reno, 929 F. Supp. at 
830-49, most of which the government stipulated to. A copy of the 
decision is attached as Exhibit A to the accompanying Request to take 
Judicial Notice. The ACLU findings explain online communication and 
the uses of the Internet.  
 
3. The CDA Provisions at Issue 
 
In February, 1996, the President signed the Communications Decency Act. 
Section 502 amended 47 U.S.C. Section 223(a) to provide, in relevant 
part, as follows:  
 
"a) Whoever -- 
 
(1) in interstate or foreign communications --  
 
(A) by means of a telecommunications device knowingly --  
 
(i) makes, creates, or solicits, and 
 
(ii) initiates the transmission of, any comment, request, suggestion, 
proposal, image, or other communication which is obscene, lewd, 
lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or 
harass another person;...or  
 
(2) knowingly permits any telecommunications facility under his control 
to be used for any activity prohibited by paragraph (1) with the intent that 
it be used for such activity, shall be fined under title 18, United States 
Code, or imprisoned not more than two years, or both." (Emphasis added)  
 
This amendment changed former Section 223(a) by substituting the term 
"telecommunications device" for "telephone." Thus, the law now extends 
to communications by fax machine and computer modem as well as by 
telephone (see ACLU v. Reno, supra, 929 F. Supp. at 828, n.5), even 
though communications by computer are significantly less intrusive than a 
ringing telephone and are read only if the recipient chooses to read them. 
The amendment also rewrote the provision so that, in addition to 
traditional prohibitions against repeated or anonymous (including 
"breather") telephone calls, (which still are prohibited, subsections C, D 
and E), it is now unlawful to make any computer-assisted 
"communication" that is "indecent, with intent to annoy..." Significantly, 
unlike other provisions of the CDA, this prohibition is not limited to 
communications to or "available to" minors.  
 
Plaintiff does not here challenge the provisions outlawing threatening, 
harassing or obscene communications. Plaintiff's challenge concentrates 
on the criminalization of "indecent" communications "with intent to 
annoy." Unlike in other provisions of the CDA, Congress did not include 
any "safe harbor" defenses to this new felony. Compare Section 223(e)(5) 
(good faith and other measures to restrict communications to minors); 
Section 223(b)(3) (FCC-prescribed defenses restricting "indecent" 
commercial telephone communications to minors).  
 
4. Related Provisions of Section 223 
 
Section 223(a)(1)(B)(ii), which makes it a crime to communicate anything 
"indecent" to a minor using a "telecommunications device," was 
invalidated on its face by the three-judge court in ACLU v. Reno, 929 F. 
Supp. 824. Section 223(d)(1)(B), which makes it a crime to "display" in a 
manner "available to" a minor, by "interactive computer service," a 
communication that "depicts or describes, in terms patently offensive as 
measured by contemporary community standards, sexual or excretory 
activities or organs," was invalidated on its face by ACLU v. Reno and by 
the three-judge court in Shea v. Reno, 930 F. Supp. 916.  
 
Section 223(b)(1) prohibits using a telephone to make any "obscene" 
communication "for commercial purposes." Section 223(b)(2) prohibits 
using a telephone to make any "indecent" communication "for commercial 
purposes." These "dial-a-porn" provisions are subject to "safe harbor" 
defenses authorized by Section 223(b)(3) and provided by FCC 
regulations. The predecessor version of the dial-a-porn prohibition on 
"indecent" communications which, like the CDA provisions at issue in this 
case, contained no defenses limiting the provision to communications to 
minors, was invalidated by the Supreme Court in Sable Communications, 
Inc. v. FCC, 492 U.S. 115 (1989). The Sable Court upheld the prohibition 
on "obscene" communications in Section 223(b)(1).  
 
Section 223, on its face and as the courts have interpreted its provisions, 
distinguishes between "obscene" communications falling within the 
Supreme Court's definition of obscenity in Miller v. California, 413 U.S. 
15, 24 (1973), which the courts hold are not protected by the First 
Amendment, and "indecent" communications, which are constitutionally 
protected among adults but may in some circumstances be subject to 
regulation if communicated to minors. Sable, 492 U.S. at 126.  
 
ARGUMENT 
 
I. SECTIONS 223(a)(1)(A)(ii) AND (a)(2) ARE 
UNCONSTITUTIONALLY OVERBROAD BECAUSE THEY BAN A 
SUBSTANTIAL AMOUNT OF PROTECTED SPEECH  
 
A. Criminal prohibition of "indecent" speech  
 
The Supreme Court has never upheld a criminal statute outlawing either 
"indecent" or "patently offensive" speech that is not legally obscene. The 
First Amendment "does not countenance governmental control over the 
content of messages expressed by private individuals," and courts must 
"apply the most exacting scrutiny to regulations that suppress, 
disadvantage, or impose differential burdens upon speech because of its 
content." Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 
2458-59 (1994); accord, Simon & Schuster v. New York Crime Victims 
Bd., 502 U.S. 105, 117 (1991); Finley v. National Endowment for the 
Arts, 100 F.3d 671, 681 (9th Cir. 1996). Americans have a First 
Amendment right to use "indecent" language without fear of criminal 
punishment by their government. "Sexual expression which is indecent but 
not obscene is protected by the First Amendment." Sable 
Communications, supra, 492 U.S. at 126; ACLU v. Reno, supra, 929 F. 
Supp. at 866. "[A]nyone in America, artist or not, has a constitutional right 
to express himself indecently and offensively." Finley, supra, 100 F.3d at 
684 (Kleinfeld, J., dissenting).  
 
The distinction between "indecent" and "obscene" speech is important 
because, as in this case, "indecent" speech may have significant societal 
value. Justice Kennedy has explained: "In artistic or political settings, 
indecency may have strong communicative content, protesting 
conventional norms or giving an edge to a work by conveying `otherwise 
inexpressible emotions' ... Indecency often is inseparable from the ideas 
and viewpoints conveyed, or separable only with loss of truth or 
expressive power." Denver Area Educ. Telecommunications Consortium 
v. FCC, 116 S. Ct. 2374, 2415-16 (1996), quoting from Cohen v. 
California, 403 U.S. 15, 26 (1971); accord, Finley, supra, 100 F.3d at 684 
(Kleinfeld, J., dissenting).  
 
B. "With intent to annoy" 
 
"Indecent" communications do not lose their protection if they are made 
"with intent to annoy." Indeed, annoying conduct (not just speech) is 
constitutionally protected. In Coates v. City of Cincinnati, 402 U.S. 611 
(1971), the Supreme Court held unconstitutional a law making it a crime 
to assemble "in a manner annoying" to other persons. The law was 
overbroad "because it authorizes the punishment of constitutionally 
protected conduct." 402 U.S. at 614. A First Amendment right cannot be 
restricted "simply because its exercise may be `annoying' to some people." 
Id. at 615. In Cohen v. California, 403 U.S. 15 (1971), the Court 
invalidated a conviction based on the defendant's sporting a "Fuck the 
Draft" slogan on his jacket, worn to court in full view of all spectators, 
including children. The Court held that this expression was 
constitutionally protected even though highly "offensive" to most citizens. 
And in Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974), the Court 
invalidated on its face a law making it a crime "wantonly to curse or revile 
or to use obscene or opprobrious language" to a police officer. [1]/  
 
Following Coates and directly applicable here, the Fifth Circuit struck 
down a statute prohibiting, inter alia, "indecent" telephone calls that 
intentionally "annoy" the recipient. Kramer v. Price, 712 F.2d 174, 177-78 
(5th Cir. 1983), aff'd on other grounds on rehearing en banc, 723 F.2d 
1164 (5th Cir. 1984). Neither the "indecency" of the speech nor the "intent 
to annoy" the recipient, nor the combination of the two, strips speech of its 
First Amendment protection.  
 
C. Criticism of public figures and officials  
 
Use of crude or indecent language to criticize public officials or public 
figures is especially protected. In Hustler Magazine v. Falwell, 485 U.S. 
46 (1988), the Supreme Court held that the magazine's "patently 
offensive" fake ad accusing Rev. Falwell of having sex with his mother in 
an outhouse was constitutionally protected. 485 U.S. at 50. Even though 
the parody was "gross and repugnant in the eyes of most," and was found 
by a jury to be an "outrageous" and intentional infliction of emotional 
harm, it retained First Amendment protection. Accord, R.A.V. v. City of 
St. Paul, 112 S. Ct. 2538 (1992)(invalidating statute that prohibited cross 
burning that "arouses anger, alarm or resentment in others" because of 
race, religion, etc.); New York Times v. Sullivan, 376 U.S. 254, 273 
(1964) (neither falsity nor defamatory content deprives statements critical 
of public official of constitutional protection); Bridges v. California, 314 
U.S. 252 (1941)("outrageous" telegram to Secretary of Labor complaining 
of judge's decision held protected); Duran v. City of Douglas, 904 F.2d 
1372, 1378 (9th Cir. 1990)("while police, no less than anyone else, may 
resent obscene words and gestures directed at them" this "expression of 
disapproval" is "protected by the First Amendment").  
 
D. Use of "telecommunications device" 
 
The fact that a "telecommunications device" is used to say something 
"indecent" with intent to "annoy" does not salvage the statute. Traditional 
telephone harassment laws, including the predecessor of Section 223(a), 
have been upheld only because they are limited to "conduct and not 
protected speech." Thorne v. Bailey, 846 F.2d 241, 243, 244 (4th Cir.) 
("requires no inquiry into the content of the telephone conversation"), cert. 
denied, 488 U.S. 984 (1988); Gormley v. Director, Conn. State Dept. of 
Probation, 632 F.2d 938, 941 (2d Cir. 1980); United States v. Lampley, 
573 F.2d 783 (3d Cir. 1978)(10-12 calls a week to married woman's 
home). The conduct of making repeated or "breather" calls may be 
prosecuted, not the content of any communication. If such a law were 
construed "to prohibit any telephone call made `with intent to annoy,'. . . it 
would patently violate the First Amendment." Gormley, supra, 632 F.2d at 
944 (Mansfield, J., concurring). Compare Cal. Penal Code Section 653m, 
whose prohibition is limited to "obscene" telephone calls, "threat[s] to 
inflict injury" or "repeated" telephone calls "with intent to annoy," which 
are misdemeanors.  
 
Accordingly, statutes that prohibit "indecent" telephone calls, where the 
content of the communication is forbidden, have been held facially 
overbroad. E.g., Walker v. Dillard, 523 F.2d 3 (4th Cir.), cert. denied, 423 
U.S. 906 (1975); Radford v. Webb, 446 F. Supp. 608 (W.D.N.C. 1978), 
aff'd, 596 F.2d 1205 (4th Cir. 1979); cf. Kramer v. Price, supra, 712 F.2d 
174 (statute prohibiting "indecent" call that intentionally "annoys" 
recipient void for vagueness); Langford v. City of Omaha, 755 F. Supp. 
1460 (D. Neb. 1989), appeal dismissed, 978 F.2d 1263 (8th Cir. 1992) 
(ordinance prohibiting making noise "knowingly to cause . . . annoyance" 
invalid). Even if the language goes beyond annoying and can be called a 
"threat," it retains constitutional protection where the statute "makes no 
distinction between language which is abusive but merely hyperbole and 
that which can be construed as expressing an actual intention of inflicting 
injury." Radford, 446 F. Supp. at 611. [2]/  
 
E. Computer less intrusive than telephone  
 
When the CDA broadened Section 223 beyond telephones to 
communications transmitted by computer, it restricted a medium that is 
significantly less intrusive than the telephone. A ringing telephone 
intrudes into private space and carries the ability to harass or threaten even 
if no content is communicated, especially when the calls are repeated or 
come in the middle of the night. But computer communications are silent 
and, most importantly, they are read only if the recipient chooses to read 
them. Accordingly, any government interest in protecting individuals from 
abuse by telephone does not necessarily apply to content communicated 
by computer.  
 
F. No valid governmental interest to support the ban  
 
There is no conceivable government interest that could justify Section 
223's content prohibition of "indecent" speech, especially indecent speech 
with intent to "annoy" public officials and public figures. The government 
cannot even advance the interest in protecting children from exposure to 
"indecent" material -- the interest that it unsuccessfully urged to support 
the other provisions of the CDA already held unconstitutional. The 
provisions at issue here apply regardless of the age of the recipient, and 
govern communications among adults.  
 
G. No narrowing construction possible 
 
Nor can these provisions be saved by a narrowing construction. It is true 
that the language "obscene, lewd, lascivious, indecent, filthy or vile" in a 
different statute, 18 U.S.C. Section 1461 (proscribing obscenity in the 
mails), was limited to mean "obscene" within the meaning of Miller v. 
California, 413 U.S. 15 (1973). See Hamling v. United States, 418 U.S. 
87, 111-13 (1974), and cases cited. [3]/ This interpretation was necessary 
to save the statute from unconstitutionality. Id; accord, Osborne v. Ohio, 
495 U.S. 103, 115-16, 133 n. 7 (1990); United States v. 12 200-ft. Reels, 
413 U.S. 123, 130, n.7 (1973).  
 
Such a construction, however, is permissible only when the statute in 
question is easily susceptible of being so read, and the Court must "avoid 
judicial legislation" and forego "rewriting" the statute. United States v. 
National Treasury Employees Union, 115 S. Ct. 1003, 1009 (1995); 
Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 n. 15 (1975); George 
Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933) (Cardozo, J.). 
The Court should not attempt a saving construction where "Congress has 
sent inconsistent signals as to where the new line or lines should be 
drawn," as this would involve a "serious invasion of the legislative 
domain." National Treasury Employees Union, supra, 115 S. Ct. at 1019 
n.26. The court in Shea v. Reno expressly refused to give a saving 
construction of another provision of Section 223, pointedly stating that 
"there are limits on the extent to which the courts can salvage legislation 
through limiting interpretation." 930 F. Supp. at 949-50. The court in 
ACLU came to the same conclusion. 929 F. Supp. at 854- 55. [4]/ The 
Ninth Circuit in Finley v. NEA, supra, similarly refused to accept a 
narrowing construction proposed by the government that would have 
required the court to "rewrite" the statute to save it. 100 F.3d at 678.  
 
The term "indecent" in Section 223 is not "easily" susceptible of being 
read to mean "obscene" within the definition of Miller. Such a tortured 
construction of disjunctive statutory language violates standard canons of 
statutory construction (see authorities cited in point II.B, infra), ignores the 
structure and recent history of Section 223, disregards the government's 
own contentions regarding "indecency" and "obscenity" in recent cases as 
well as the FCC's distinction between these terms in its regulation of 
various media, conflicts with Congress's intention as expressed in the 
legislative history, and is completely inconsistent with the Supreme 
Court's recent treatment of the concepts. In short, "[t]he reasons supporting 
Hamling's construction of Section 1461 do not apply to" this statute. See 
FCC v. Pacifica Foundation, 438 U.S. 726, 741 (1978).  
 
It is impossible to read "indecent" in Section 223 as limited to material 
that is "obscene" under Miller. Two other parts of the same statute at issue 
here, Section 223, sharply distinguish material that is "obscene" from 
material that is merely "indecent." [5]/ Further, the government has 
consistently maintained that "indecent" speech is a much broader and more 
loosely defined category than Miller obscenity. It argued in both Pacifica 
and Sable Communications that Congress could validly restrict "indecent" 
speech that was not hard core obscenity, solely to protect children from 
exposure to "patently offensive" sexual speech. See Pacifica, 438 U.S. at 
739-41; Sable, 492 U.S. at 126-27. It made the same arguments about the 
CDA provisions invalidated in ACLU and Shea. See ACLU, 929 F. Supp. 
at 850, 854- 55; Shea, 930 F. Supp. at 934-35. Likewise, the FCC, in 
regulating the radio, television and "dial-a-porn" industries, has 
consistently maintained that it may restrict non-obscene "indecent" speech 
on those media for the purpose of shielding children from exposure to 
such speech. See, e.g., Pacifica, 438 U.S. at 739-41 ("the Commission has 
long interpreted [the indecency statute] as encompassing more than the 
obscene"); Action for Children's Television v. FCC, 58 F.3d 654, 660-61 
(D.C. Cir. 1995), cert. denied, 116 S. Ct. 701 (1996); Information 
Providers Coalition v. FCC, 928 F.2d 866, 874-75 (9th Cir. 1991). The 
FCC's definition of "indecent" consistently has included "patently 
offensive" sexual speech that is not obscene under Miller. See Shea, 930 F. 
Supp. at 934-35.  
 
Moreover, the Conference Report on the CDA expressly states that in the 
1996 Act "the term 'indecency'...has the same meaning as established in" 
Pacifica and Sable. Conf. Report at 188, reprinted in 1996 U.S. Code 
Congressional & Administrative News, at 201. In the CDA, Congress 
plainly meant to maintain the distinction between obscene and "indecent" 
material. [6]/  
 
 
Finally, the Supreme Court itself has sharply distinguished "indecent" 
speech from "obscene" speech in all of its recent cases. In Sable, the Court 
upheld the criminal prohibition of "obscene" "dial-a-porn" but invalidated 
the prohibition of "indecent" dial-a-porn. 492 U.S. at 124, 131. In Pacifica, 
the Court ruled that the FCC could regulate "indecent" speech that was not 
"obscene." 438 U.S. at 739-40. In Denver Area Educational 
Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996), the 
Court discussed the regulation of "indecent" speech on cable television, 
expressly pointing out the differences from Miller obscenity (serious 
literary or other value and "nonprurient" purpose). 116 S. Ct. at 2389-90.  
 
In sum, it is impossible to construe "indecent" as used in Section 
223(a)(1)(A)(ii) as meaning the same as "obscene." "Indecent" may mean 
many things to many people (see point II, infra), but at a minimum it 
includes a vast quantity of speech that is constitutionally protected for 
adults. Sable, 492 U.S. at 126. Because this provision flatly bans 
"indecent" speech, it is substantially overbroad and violates the First 
Amendment. E.g., ACLU v. Reno; Shea v. Reno; see Sable; City of 
Houston v. Hill, 482 U.S. 451, 458, 466-67 (1987); Erznoznik v. City 
Jacksonville, 422 U.S. 205, 215-16 (1975); Lewis v. City of New Orleans, 
415 U.S. 130 (1974); Finley v. NEA, supra, 100 F. 3d at 683, n.24.  
 
II. THE PROHIBITIONS OF "INDECENT" COMMUNICATIONS IN  
Sections 223(a)(1)(A)(ii) AND (a)(2) ARE UNCONSTITUTIONALLY 
VAGUE  
 
 
A. Governing Constitutional Principles 
 
In addition to being overbroad, Sections 223(a)(1)(A)(ii) and (a)(2) are 
invalid for the separate reason that they are unconstitutionally vague under 
the First and Fifth Amendments. The Due Process Clause of the Fifth 
Amendment "requires that a penal statute define the criminal offense with 
sufficient definiteness that ordinary people can understand what conduct is 
prohibited and in a manner that does not encourage arbitrary and 
discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 
(1983) (holding criminal statute facially invalid as unconstitutionally 
vague). [7]/ And where -- as here -- the penal statute threatens expression 
protected by the First Amendment, the law must provide more notice and 
allow less discretion -- greater insurance against arbitrary or 
discriminatory enforcement -- than for other activities. Smith v. Goguen, 
supra, 415 U.S. at 573 (1974); accord, Kolender, 461 U.S. at 358, n.8 
("[w]here a statute imposes criminal penalties, the standard of certainty is 
higher"); Grayned v. City of Rockford, supra, 408 U.S. at 108; Winters v. 
New York, 333 U.S. 507, 515 (1948); Finley v. NEA, supra, 100 F.3d at 
675. The particular evil of vague criminal prohibitions applied to 
expressive activity is that the uncertainty causes individuals to "steer far 
wider of the unlawful zone," Speiser v. Randall, 357 U.S. 513, 526 (1958), 
than if the boundaries were "clearly marked," Baggett v. Bullitt, 377 U.S. 
360, 372 (1964), thus suppressing speech that in fact enjoys constitutional 
protection. [8]/  
 
In Kramer v. Price, supra, 712 F.2d at 176-77, the Fifth Circuit applied 
these principles to strike down on its face a statute prohibiting, inter alia, 
"indecent" telephone calls that intentionally "annoy" the recipient. Accord, 
Langford v. City of Omaha, supra, 755 F. Supp. 1460. And in Finley v. 
NEA, the Ninth Circuit recently struck down on its face, as vague, a non- 
criminal statute requiring the NEA to consider "decency and respect" in 
making arts grants. 100 F.3d at 680-81.  
 
B. Prohibition of "Indecent" Speech 
 
Section 223(a)(1)(A)(ii) prohibits communicating any "indecent" speech 
(whether images or mere words) to anyone with intent to "annoy," without 
any definition of the term "indecent." The statute bans speech by 
telephone, fax machine or email, even when addressed to public officials 
or figures.  
 
 
Unfortunately for those who communicate by these means, "indecent" can 
mean many things to different people. For example, it might include 
descriptions of violence, or profanity, or blasphemy, all of which are 
considered "indecent" by some people. The word is defined in the 
dictionary as "1. offensive to good taste; unseemly. 2. offensive to public 
morals; immodest; indecent exposure -- See Synonyms at improper." 
American Heritage Dictionary of the English Language, 668 (1st ed. 
1969). The synonyms are "improper, unbecoming, unseemly, indelicate, 
indecent, indecorous. " Id. at 662.  
 
Plaintiff has found only one legislative definition of "indecent" in the 
federal Codes. 18 U.S.C. Section 1461, dealing with obscene materials in 
the mails, provides that: "The term indecent as used in this section 
includes matter of a character tending to incite arson, murder, or 
assassination." In United States v. Smith, 11 Fed. 663 (C.C.Ky. 1882), in 
quashing an information under this statute, the court ruled that "indecent" 
means "immodest, impure," not "coarse, or unbecoming, or even profane."  
 
Given these diverse definitions, "indecent" has no meaning sufficiently 
intelligible or coherent to make its prohibition criminally enforceable. 
Under a different provision of the CDA, the government has contended 
that "indecent" is not undefined and openended. Relying not on anything 
in the statute itself but on a conference report, the government has 
contended (in ACLU and Shea) that "indecent" in subsection (a)(1)(B)(ii) 
means "patently offensive" sexual speech as referred to in subsection 
(d)(1)(B). The conference report states that "The conferees intend that the 
term indecency (and the rendition of the definition of that term in new 
section 502) has the same meaning as established in FCC v. Pacifica 
Foundation, 438 U.S. 726 (1978), and Sable Communications of 
California v. FCC, 492 U.S. 115 (1989)...." Conf. Report at 188, reprinted 
in 1996 U.S. Code Congressional & Administrative News, at 201. [9]/ The 
Supreme Court, however, has never approved a criminal statute outlawing 
"patently offensive" speech that is not legally "obscene" under Miller v. 
California, 413 U.S. 15, 24 (1973).  
 
Any government attempt to salvage subsection (a)'s criminalization of 
undefined "indecent" communications by reference to a different term in a 
different provision of the statute must be rejected. If Congress uses 
language in one section of a statute but omits it in another, it is presumed 
that Congress acted intentionally and intended different meanings. 
Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991); Russello v. 
United States, 464 U.S. 16, 23 (1983). Further, to read "indecent" as 
redundant of "patently offensive" is to rob it of independent meaning in 
violation of the rule that a "statute must, if possible, be construed in such 
fashion that every word has some operative effect." United States v. 
Nordic Village, 503 U.S. 30, 36 (1992) (emphasis added); Bowsher v. 
Merci & Co., 460 U.S. 824, 833 (1983); Washington Market Co. v. 
Hoffman, 101 U.S. 112, 115 (1879). In Finley v. NEA, supra, the Ninth 
Circuit rejected the government's attempt to interpret a comparable 
"decency" statute as merely proscribing the funding of "obscene" art, 
pointing out that "the proposed construction would render redundant a 
separate prohibition against funding projects determined to be obscene." 
100 F.3d at 678.  
 
Plaintiff recognizes that one judge in ACLU v. Reno and the court in Shea 
v. Reno accepted the government's argument that the conference report 
supplied the missing definition of "indecent," and that "indecent" means 
"patently offensive." But neither considered the rules of statutory 
construction cited above. More importantly, the authorities on which they 
relied refer only to civil administrative uses of "indecent" as equivalent to 
"patently offensive" -- FCC regulations and decisions, Pacifica and the 
television cases following Pacifica. Since none of those authorities 
involved criminal statutes, the Court should not sanction their 
incorporation to salvage a defective criminal law. See generally Pope v. 
Illinois, 481 U.S. 497, 507-19 (1987) (Stevens, J., dissenting). [10]/ 
Further, for the reasons discussed in point IV below, even borrowing the 
"patently offensive" formulation cannot save the statute at issue here.  
 
Because Section 223(a)(1)(A)(ii) makes criminal a broad range of 
"indecent" speech, without defining the term, this provision of the CDA is 
void for vagueness. See, e.g., Kolender v. Lawson, 461 U.S. at 359, n.8; 
Grayned v. City of Rockford, 408 U.S. at 108- 09; Winters v. New York, 
333 U.S. at 515; ACLU v. Reno, 929 F. Supp. at 856, 858.  
 
C. Vagueness Compounded by "Intent to Annoy"  
 
Finally, the vagueness of "indecent" is compounded, not cured, by adding 
"with intent to annoy." Intent to "annoy" cannot serve as the line between 
criminal and non-criminal speech. In Coates v. City of Cincinnati, 402 US. 
611, 614 (1971), the Supreme Court invalidated a statute prohibiting 
conduct "annoying" to others "because it subjects the exercise of the right 
of assembly to an unascertainable standard." See Finley v. NEA, supra, 
100 F.3d at 680 (statutory requirement to consider "decency and respect" 
provides no "ascertainable standard" and is vague).  
 
"Annoy" also is an inherently subjective standard: someone must be 
annoyed. Just as in Coates, where the Court noted that enforcement against 
conduct "may entirely depend on whether or not a policeman is annoyed" 
(id.), here whether speech is criminal depends on whether the target of the 
speech (which by hypothesis is "indecent") is likely to be annoyed. In 
Kramer v. Price, supra, the court struck down as vague a statute 
prohibiting "indecent" telephone calls that intentionally "annoy" the 
recipient. The court reasoned that the "intent" requirement "does not save 
[the statute] from vagueness because the conduct which must be motivated 
by intent, as well as the standard by which the conduct is to be assessed, 
remain vague." 712 F.2d at 178. The same is true here, since both 
"indecent" and "annoy" suffer from "inherent vagueness." See id. at 178.  
 
III. NON-OBSCENE SPEECH MAY NOT BE CRIMINALIZED BY 
BORROWING ONE-THIRD OF THE MILLER V. CALIFORNIA TEST  
 
Even if, contrary to plaintiff's contention in point II, Section 223(a)'s 
prohibition of "indecent" speech is read to mean "patently offensive" 
sexual speech as prohibited by Section 223(d)(1)(B), the patently offensive 
proscription is itself unconstitutional. It bears emphasis again that the 
Supreme Court has never upheld a criminal statute outlawing "patently 
offensive" speech that is not legally "obscene" under the test of Miller v. 
California, 413 U.S. 15, 24 (1973).  
 
The Supreme Court struggled in the 1950's and 1960's with whether 
"obscene" speech could be either meaningfully defined or punished 
criminally. E.g., Roth v. United States, 354 U.S. 476 (1957); Jacobellis v. 
Ohio, 378 U.S. 184, 191 (1964); id. at 197 (Stewart, J.: "I know it when I 
see it"). In Miller the Court attempted to resolve these questions by 
establishing a three-part test for obscenity regulation: (1) the "work" must 
appeal to the "prurient" interest; (2) its depictions of sexual acts must be 
"patently offensive" as judged by community standards; and (3) the work 
must lack "serious literary, artistic, political or scientific value." 413 U.S. 
at 24. [11]/  
 
Each of the three parts of the Miller test must be met to criminalize even 
obscene speech. Cf. Pope v . Illinois, 481 U.S 497 (1987) (societal value 
part not to be judged by community standards, which govern offensiveness 
and prurient parts); id. at 507-08 (Stevens, J., dissenting: "prosecutor must 
prove each of these three elements beyond a reasonable doubt"). 
Obviously, absent any statutory goal of protecting children, there is no 
basis for using any lesser standard for criminalizing non-obscene speech. 
The CDA's borrowing one-third of the Miller guidelines to outlaw 
"patently offensive" speech on the Internet violates the First Amendment 
because it criminally punishes valuable speech and because, when it is 
uncoupled from the prurient-appeal and no-societal-value rules for 
obscene speech, the subjective patently offensive "test" becomes 
impermissibly vague for use in a criminal statute. In addition, judging 
offensiveness by geographic "community standards" means that Internet 
speech is barred everywhere if it is "offensive" in the least tolerant 
community in the nation, thus denying the speech to the vast majority of 
Americans to whom it is not offensive.  
 
A. Uncoupling "patently offensive" from the Miller obscenity test makes 
the law impermissibly overbroad, subjective and vague for criminal 
purposes  
 
Assuming that the CDA borrows one-third of the Miller test, the "patently 
offensive" part, it completely omits the other two parts: that the material's 
appeal be to the "prurient" interest and that the material not have "serious 
literary, artistic, political or scientific value." Accordingly, the CDA 
prohibits speech that, by definition, does not appeal to the prurient interest 
and that does have serious literary, artistic, political or scientific value. It 
is a "statute of unprecedented sweep," Shea, 930 F. Supp. at 922, the most 
sweeping restriction on the speech of ordinary citizens that Congress has 
ever attempted.  
 
Examples of patently offensive sexual speech that does have societal value 
-- and that are protected by the First Amendment -- can be found in 
Supreme Court decisions like Cohen v. California, 403 U.S. 15 (1971), 
and Hustler Magazine v. Falwell, 485 U.S. 46 (1988). Cohen's "Fuck the 
Draft" jacket was held to be protected even though highly "offensive" to 
most citizens. Hustler Magazine's vicious accusation that Rev. Falwell had 
sex with his mother in an outhouse was deemed "patently offensive" by 
the Court. 485 U.S. at 50. Even though the parody was "gross and 
repugnant in the eyes of most" (id.), and found by a jury to be an 
"outrageous" and intentional infliction of emotional harm, it was held 
protected. Both examples obviously would be deemed "patently offensive" 
in some communities and, if the communications had been done by 
computer rather than in public or print, would be felonies under the CDA. 
[12]/  
 
Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), is another 
example of speech held protected by the Court but subject to criminal 
punishment under the CDA. Bolger invalidated a statute prohibiting 
unsolicited mail advertising of contraceptives. The advertising -- "Plain 
Talk About Venereal Disease" and "Condoms and Human Sexuality" (463 
U.S. at 62, n.4) -- might well have been considered "patently offensive" by 
some recipients, especially those with religious scruples about 
contraceptives. The Court rejected the government's argument that the 
statute was needed to keep unsolicited sexual material out of the hands of 
children. Id. at 73-74. But communication of such material, if sent via 
computer, likely would be a felony in some communities. [13]/  
 
Moreover, "patently offensive" is an inherently subjective standard. The 
speech must be offensive to someone. This loose and variable "standard" 
is wholly inappropriate for a criminal statute of general application 
enforceable throughout the nation. As Chief Justice Rehnquist wrote for 
the Court in Hustler Magazine, supra, "`Outrageousness' in the area of 
political and social discourse has an inherent subjectiveness about it which 
would allow a jury to impose liability on the basis of the jurors' tastes or 
views, or perhaps on the basis of their dislike of a particular expression." 
485 U.S. at 55.  
 
If the government were to rely on Pacifica, its reliance would be 
completely misplaced. The court in ACLU properly rejected the notion 
that Pacifica -- involving administrative regulation of a government-
licensed broadcaster in a medium that is "uniquely accessible" to children 
and can "confront" listeners without warning (438 U.S. at 748) -- validates 
a criminal statute governing a completely different medium. See ACLU, 
929 F. Supp. at 862, 874-77. Pacifica involved only a mild declaratory 
order (not even a reprimand). 438 U.S. at 730. Moreover, in sharp contrast 
to the initiation of criminal proceedings under the CDA by any of 
hundreds of federal prosecutors who wish to do so, the  
 
FCC stated in Pacifica that it would not impose even an administrative 
sanction "without warning." Id. at 743.  
 
B. Using geographic "community standards" for a non-geographic 
medium means that speech offensive in any community is banned from all 
communities  
 
Miller's definition of obscene speech that enjoys no First Amendment 
protection attempted to minimize subjectivity by requiring that 
offensiveness be judged by "community standards." These standards have 
come to be geographic. Miller itself said that it was permissible to use the 
State of California as the relevant "community." 413 U.S. at 30-31. Other 
courts have approved the use of "community standards" of a county (e.g., 
United States v. Bagnell, 679 F.2d 826, 836-37 (11th Cir. 1982), cert. 
denied, 460 U.S. 1047 (1983)), and a federal district (e.g., United States v. 
Thomas, 74 F.3d 701, 710-11 (6th Cir.), cert. denied, 117 S. Ct. 74 
(1996)). But the Internet is a non- geographic medium, and online 
communications can and do circulate throughout the nation and the world, 
with the speaker commonly having no idea who might read his or her 
words or in what geographic community readers might live. [14]/ In other 
words, the assumption of Miller that "patent offensiveness" will be judged 
by the standards of a given geographic community, to which the defendant 
knowingly sends the offending film or book, simply does not work with 
the Internet. Applying geographic community standards to speech that is 
"available" everywhere reduces all speech to what is acceptable in the least 
tolerant community a prosecutor can find.  
 
Plaintiff recognizes that Sable Communications v. FCC, 492 U.S. 115 
(1989), rejected the argument of commercial "dial-a-porn" operators that 
they would be compelled to tailor their messages to the least tolerant 
community. 492 U.S. at 124. The argument was that Miller was violated 
because the telephone statute assertedly created an "impermissible national 
standard." The Court cited its cases upholding prohibitions against mailing 
or broadcasting obscene materials into certain communities. The Court 
said that a telephone pornographer was "free to tailor its messages, on a 
selective basis, if it so chooses, to the communities it chooses to serve," 
and that there was no constitutional impediment to imposing the costs of 
"screening the locale of incoming calls" on the commercial operator. 492 
U.S. at 125 (emphasis added). This reasoning cannot be applied here 
because the vast majority of Internet speakers (1) are not commercial 
enterprises, (2) do not "choose" to serve any geographic community, and 
(3) have no means of "screening" who might see their speech. As Judge 
Dalzell pointed out, "unlike other media, there is no technologically 
feasible way for an Internet speaker to limit the geographical scope of his 
speech (even if he wanted to), or to `implement[ ] a system for screening 
the locale of incoming' requests." ACLU, 929 F. Supp. at 878, quoting 
Sable. [15]/  
 
Miller was decided on the assumption that the Court was dealing with 
relatively fixed "works," like movies, books and magazines, that the 
publisher knowingly sells in a given geographic community. Miller was 
decided two decades before the Internet emerged. The Court plainly did 
not anticipate application of its "guidelines" to interactive speech, the 
kinds of computer- mediated human conversations that the Internet 
medium makes possible and that know no geographic boundaries.  
 
The Conference Report on the CDA states that a different section of the 
law, Section 223(f)(2), which preempts inconsistent state and local 
regulations, is "intended to establish a uniform national standard of 
content regulation for a national, and indeed a global, medium . . ." Conf. 
Report at 191, reprinted at 1996 U.S. Code Congressional & 
Administrative News, at 204. If this opaque reference was meant to 
establish "national" standards rather than local "community" standards for 
judging "patently offensive" speech, this is an odd and highly questionable 
legislative technique. See authorities cited in point II.B, supra. It also is 
contrary to Miller's flat rejection of a national standard. 413 U.S. at 30. 
The discrepancy between the Report and Miller and "the government's 
inability to identify the relevant community by whose standards the 
material will be judged," ACLU v. Reno, 929 F. Supp. at 856 (Sloviter, 
J.); id. at 863 (Buckwalter, J.), compound the vagueness of the patently 
offensive test.  
 
When uncoupled from Miller's context of "hard-core," prurient sexual 
"works" with no societal value, the "patently offensive" standard becomes 
an engine for the suppression of speech that prosecutors subjectively find 
objectionable. Nor is it irrelevant that enforcement of this criminal statute 
inevitably will involve widespread eavesdropping or other participation by 
government agents and vigilante groups in the online conversations of 
ordinary citizens. That is, unlike complaint-activated monitoring of public 
broadcasts by the FCC, enforcement of the CDA necessarily will involve 
reading, snooping on and recording the electronic communications of 
unsuspecting and wholly innocent citizens. For example, when a vigilante 
group tips law enforcement that a certain web site or newsgroup involves 
the "patently offensive" discussion of abortion, safe sex or erotic literature, 
Big Brother government will log on and listen to the conversation, 
recording at will. When a prosecutor thinks he or she can get a conviction 
in a particular community intolerant of such discussion, the conversation 
can be downloaded -- with a mouse click -- to that venue. Hundreds of 
persons' thoughts and ideas will become "evidence" in a criminal 
prosecution. This will happen even if the "patently offensive" material in 
fact has no impact whatever on the "community" whose standards will 
govern and would not even have been downloaded there except for the 
purpose of prosecution. [16]/ Thus, not only does the CDA's vagueness 
invite arbitrary and discriminatory enforcement (see Grayned v. City of 
Rockford, supra, 408 U.S. at 108-09), but the enforcement will include 
unseemly government surveillance of the private online conversations of 
ordinary innocent people.  
 
In short, the CDA cannot be rescued by borrowing from Pacifica which in 
turn borrowed part of Miller. The prohibition of speech that is "patently 
offensive" violates the First Amendment because it is overbroad and 
because it is too vague for a criminal law.  
 
IV. PLAINTIFF IS ENTITLED TO A PRELIMINARY INJUNCTION 
ENJOINING ENFORCEMENT OF THE PROHIBITION OF 
"INDECENT" SPEECH" WITH "INTENT TO ANNOY"  
 
In the Ninth Circuit, a plaintiff seeking preliminary injunctive relief must 
show "either (1) a combination of probable success on the merits and the 
possibility of irreparable injury, or (2) that serious questions are raised and 
the balance of hardships tips sharply in the [the plaintiff's] favor." E.g., 
EEOC v. Recruit U.S.A., Inc., 939 F.2d 746, 752 (9th Cir. 1991).  
 
Deprivation of First Amendment freedoms, even for minimal periods of 
time, necessarily and always constitutes irreparable injury. Elrod v. Burns, 
427 U.S. 347, 373 (1976); see Nebraska Press Assoc. v. Stuart, 423 U.S. 
1327, 1329 (1975) (Blackmun, J., staying order banning publication). A 
chilling effect on free expression is all that plaintiff must show to establish 
irreparable harm. See Virginia v. American Booksellers Ass'n, Inc., 484 
U.S. 383, 393 (1988); Dombrowski v. Pfister, 380 U.S. 479, 487 (1965). 
As in ACLU v. Reno, 929 F. Supp. at 870-72, plaintiff, its clients and web 
site visitors regularly engage in constitutionally protected speech that they 
reasonably fear may subject them to criminal liability under the CDA. See 
Fein Declaration. "[S]peakers who display arguably indecent material on 
the Internet must choose between silence and the risk of prosecution." 
ACLU at 849. The public, too, has a substantial interest in an uninhibited 
flow of constitutionally protected speech. Virginia Bd. of Pharmacy v. 
Virginia Consumer Council, 425 U.S. 748 (1976).  
 
Entry of the relief requested, pending final resolution of the merits, will 
cause defendant no significant harm, especially because there are other 
criminal provisions of the CDA that deal with "obscene" communications 
and prohibit genuinely threatening communications.  
 
As in ACLU v. Reno, 929 F. Supp. at 851, and Shea v. Reno, 930 F. Supp. 
at 935, 950, the requirements for enjoining the CDA provisions at issue 
are amply met. No bond should be required. Fed. R. Civ. P. 65(c); ACLU, 
929 F. Supp. at 884.  
 
CONCLUSION 
 
For the reasons stated, the Court should grant plaintiff's motion and enjoin 
enforcement of 47 U.S.C. Sections 223(a)(1)(A)(ii) and (a)(2).  
 
 
Respectfully submitted, 
 
Dated: January 30, 1997 
 
ROGERS, JOSEPH, O'DONNELL & QUINN 
 
By: ______________________________________  
 
William Bennett Turner 
 
COOLEY GODWARD LLP 
 
By: ______________________________________  
 
Michael Traynor 
 
Attorneys for Plaintiff APOLLOMEDIA CORPORATION  
 
-----------------------------------------------------------------  
 
Footnotes 
 
[1]. Speech does not lose protection because it might have "profound 
unsettling effects;" to be banned it must rise "far above public 
inconvenience, annoyance or unrest." Terminiello v. Chicago, 337 U.S. 1, 
4 (1949)(emphasis added). The First Amendment "does not permit 
government to decide which types of otherwise protected speech are 
sufficiently offensive to require protection for the unwilling listener or 
viewer." Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975).  
 
[2]. In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court 
reversed the conviction of a draft resister who threatened the President in a 
speech, construing 18 U.S.C. Section 871(a) as not forbidding "a kind of 
very crude offensive method of stating a political opposition to the 
President." 394 U.S. at 708. "True threats," that is, "direct threats of force 
and violence toward other persons," can be proscribed whether made on 
the telephone or otherwise. See United States v. Bellrichard, 994 F.2d 
1318, 1322 (8th Cir. 1993); Shackelford v. Shirley, 948 F.2d 935, 938, 
940 n.3 (5th Cir. 1991). On the assumption that "threaten" in Section 
223(a)(1)(A)(ii) means "true threats," plaintiff does not here challenge it 
but focuses on the CDA's prohibition of speech with intent to "annoy."  
 
[3]. Under Miller, obscenity means "hard core" sexual material that 
appeals to the prurient interest, is patently offensive under community 
standards and lacks serious literary or other value. See point III, infra.  
 
[4]. "The scope of the CDA is not confined to material that has a prurient 
interest or appeal, one of the hallmarks of obscenity, because Congress 
sought to reach farther. Nor did Congress include language that would 
define `patently offensive' or `indecent' to exclude material of serious 
value. It follows that to narrow the statute in the manner the government 
urges would be an impermissible exercise of our limited judicial function, 
which is to review the statute as written for its compliance with 
constitutional mandates." ACLU v. Reno, 929 F. Supp. at 855.  
 
[5]. Section 223(b)(1) prohibits "obscene" communications by telephone 
for commercial purposes and carries a sentence of two years 
imprisonment. Section 223(b)(2), however, prohibits "indecent" 
communications by telephone, when they are available to minors, and 
carries only a six-month sentence. In addition, Section 223(a)(1)(B)(ii), 
added by the same 1996 CDA as the provision at issue here, prohibits 
communications to minors that are "obscene or indecent."  
 
[6]. Cf. Finley v. NEA, supra, 100 F.3d at 678 (in NEA statute, "Congress 
adopted the `decency and respect' provision because it was broader and 
had a different meaning than the provision prohibiting the funding of 
obscene art").  
 
 
[7]. Accord, Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 
489 (1982); Smith v. Goguen, 415 U.S. 566 (1974); Grayned v. City of 
Rockford, 408 U.S. 104 (1972); Papachristou v. City of Jacksonville, 405 
U.S. 156 (1972).  
 
[8]. Plaintiff is not required to demonstrate that no set of circumstances 
exists under which the CDA would be valid. The Supreme Court has 
explained that the higher certainty requirement "invalidate[s] [for 
vagueness] a criminal statute on its face even when it could conceivably 
have had valid applications." Kolender, 461 U.S. at 358 n.8 (emphasis 
added); Finley v. NEA, supra,100 F.3d at 675, n.5. As noted, ACLU 
struck down Section 223(a)(1)(B)(ii) on vagueness as well as overbreadth 
grounds. 929 F. Supp. at 856 (Sloviter, J.), 858 (Buckwalter, J.). See 
Kramer v. Price, supra, 712 F.2d at 176-77.  
 
[9]. Even if the intention of the few "conferees" were relevant for the 
purpose of supplying a missing statutory definition, the report is inaccurate 
in stating that "indecency" is defined in Section 502; it is not. In fact, the 
CDA does not even use the noun "indecency." Further, contrary to the 
conference report, "indecency" under the CDA cannot have the "same 
meaning" as in Pacifica; the FCC's definition that the Court upheld for 
administrative (not criminal) purposes referred to patently offensive 
language "as measured by contemporary community standards for the 
broadcast medium . . . at times of the day when there is a reasonable risk 
that children may be in the audience." 438 U.S. at 732 (emphasis added).  
 
[10]. Justice Stevens was the author of Pacifica. His opinion in Pope 
explains at length why Pacifica-type administrative or civil speech 
regulation is entirely inappropriate for criminal prohibitions.  
 
 
[11]. Several members of the Supreme Court have expressed their 
dissatisfaction with the Miller test even as to obscenity. See, e.g., Pope v. 
Illinois, 481 U.S. 497, 505-06 (1987) (Scalia, J.) (need for "reexamination" 
of Miller, since whether material has literary or artistic value is matter of 
taste and "De gustibus non est disputandum"); id. at 516 and n.11 
(Stevens, J.) (criminal prosecution for obscenity involving consenting 
adults should not be permitted); Paris Adult Theatre I v. Slaton, 413 U.S. 
49, 84 (1973) (Brennan, J., dissenting); cf. Alexander v. United States, 509 
U.S. 544, 573 (1993) (Kennedy, J., dissenting, with Blackmun, Stevens 
and Souter, JJ.) (obscenity "separated from protected expression only by a 
`dim and uncertain line'").  
 
 
 
[12]. A wide variety of other examples of speech with societal value that 
the CDA makes criminal was identified in ACLU, 929 F. Supp. at 852, 
855, 871-72.  
 
[13]. In another context, Senator Helms declared that written "safe sex" 
educational materials were "obscene." 133 Cong. Rec. S14203 (daily ed. 
Oct. 14, 1987). If a prominent legislator believes that Bolger-type 
materials are "obscene," it is not farfetched to suggest that some 
prosecutors and juries will find them "patently offensive."  
 
[14]. "An individual sending a message that will be retransmitted by a 
mail exploder program has no way of knowing the e-mail addresses of 
other subscribers." Shea, 930 F. Supp. at 927. "[O]ne who posts an article 
to a news group has no way of knowing who will choose to retrieve it." Id 
at 928; ACLU, 929 F. Supp. at 845, 854, 878.  
 
[15]. In United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 
S. Ct. 74 (1996), the Sixth Circuit upheld an obscenity conviction 
involving pictures transmitted by computer from California to Memphis, 
Tennessee, rejecting the argument that it should "adopt a new definition of 
'community' for use in obscenity prosecutions involving electronic bulletin 
boards." 74 F.3d at 711. The court found "no need" to reconsider this 
aspect of the Miller test because the defendants in Thomas in fact "knew" 
that they were sending the pictures to a specific recipient in Tennessee 
who had submitted an application and been issued a password before 
requesting that the particular pictures be sent to Tennessee. Id. at 72.  
 
[16]. In United States v. Thomas, supra, the only person to download the 
defendant's electronic bulletin board's materials in Tennessee was the 
postal inspector who initiated the prosecution. 74 F.3d at 705. The 
defendants in that case knew that they were transmitting the material to 
Tennessee, because they required an application and password for any 
transmission. Id. at 705, 710, 711. But in most CDA cases, the 
unsuspecting speaker will have no idea where his or her communications 
are going, or to whom. See note 14, supra.