On July 29, 1996, a three-judge panel from the Second Circuit concurred with the recent ruling in ACLU v. Reno that the Communications Decency Act is unconstitutional.
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
JOE SHEA, on behalf of
THE AMERICAN REPORTER,
Plaintiff,
v.
JANET M. RENO, ATTORNEY GENERAL OF THE UNITED
STATES OF AMERICA,
Defendant.
96 Civ. 0976 (DLC)
(Submitted: June 13, 1996
Decided: July 29, 1996)
Before: CABRANES, Circuiit Judge,* SAND ** and COTE,.***.
District Judges. The plaintiff, an editor, publisher, and part-owner of
a newspaper distributed exclusively through electronic means, brings
this First Amendment challenge to Section 223(d) of the
Communications Decency Act of 1996 ("CDA") criminalizing the use
of interactive computer services to display "patently offensive"
sexually explicit material such that it is available to persons under the
age of eighteen. The plaintiff seeks a preliminary injunction barring
application of the section. The three-judge panel, appointed pursuant
to 28 U.S.C. Section 2284, held that: (1) plaintiff has not sustained
his burden of demonstrating a likelihood of success on his claim thee
Section 223(d) is unconstitutionally vague, but that (2) the plaintiff
has demonstrated a likelihood of success on his claim thee Section
223(d) is unconstitutionally overbroad in that it bans protected
indecent communication between adults. On this second point, the
court concluded that most content providers' ability to comply with
the requirements of the affirmative defenses set out in the statute
depends on the actions of third parties, such as software
manufacturers, whose cooperation is not required under the statute or
otherwise mandated. The technological impossibility of independent
compliance with the affirmative defenses renders Section 223(d)
unconstitutional as an overbroad prohibition on constitutionally
protected indecent speech between adults. RANDALL J. BOE,
JAMES K. STRONSKI, (Jill R. Newman, Fabienne M. Clermont,
Wayne H. Matelski, Arent Fox Kintner Plotkin & Kahn, New York,
New York, and Washington, D.C.), for the plaintiff.
WILLIAM J. HOFFMAN, Mary Jo White, United States Attorney,
Marla Alhadeff, John McEnany, Assistant United States Attorneys),
for the defendant. (Cathleen A. Cleaver, Pamily Research Counsel;
Bruce A. Taylor, Jana M. LaRue, National Law Center for Children
and Families; Paul J. McGeady, Robert W. Peters, of counsel, for
amica curiae National Law Center for Children and Families, Family
Research Council, "Enough Is Enough!" Campaign, National
Coalition for the Protection of Children & Families, and Morality in
Media.)
MEMORANDUM AND ORDER
JOSE A. CABRANES, Circuit Judge:
We address here the constitutionality of a provision of the
Communications Decency Act of 1996 ("CDA") with an undeniably
worthy goal: to limit the exposure of children to sexually explicit,
though not legally obscene, materials available "on line"-that is,
capable of being displayed and "accesses" by increasingly common
interactive computer services. 47 U.S.C. Section 223(d), as added
by the CDA on February 8, 1996, criminalizes the use of an
interactive computer service to display, in a manner available to
persons under eighteen, sexually explicit material that is "patently
offensive" by contemporary community standards. Plaintiff Joe
Shea, the editor, publisher, and part-owner of a newspaper
distributed solely by electronic means, filed this action on February
8, 1996, claiming thee Section 223(d) is (1) void for vagueness, in
that it fails to give ordinary citizens sufficient notice of what conduct
will subject them to prosecution or criminal liability; and (2)
substantially overbroad, in that it targets a broader category of speech
than necessary to achieve the government's goal and constitutes a ban
on certain constitutionally protected speech between adults.
As editor of an on-line newspaper, the plaintiff is one of a growing
number of citizens who employ an array of widely accessible and
constantly evolving media technologies to gather and disseminate
information and ideas. In passing the CDA, Congress explicitly
recognized that these technologies foster "ewe diversity of political
discourse, unique opportunities for cultural development, and myriad
avenues for intellectual activity." Pub. L. No. 104-104, Section
509(a)(3), 110 Stat. 56, 138 (1996) (to be codified at 47 U.S.C.
Section 230(a)(3)). The range of tools and forums available for users
of interactive computer services is astounding: with access to the web
of computer networks known as the Internet, a scholar can contact a
distant computer and make use of its capabilities; a researcher can
peruse the card catalogs of libraries across the globe; users around
the world can debate politics, sports, music, and literature. However
trivial some of their uses might seem, emerging media technologies
quite simply offer an unprecedented number of individual citizens an
opportunity to speak and to be heard-at very little cost-by audiences
around the world. In that sense, we are encountering a
communications medium unlike any we have ever known.
In an attempt to limit the availability of certain materials in interactive
computer services, Congress enacted a statute of unprecedented
sweep: the new Section 223(d) purports to regulate not only how
commercial purveyors of obscene or pornographic materials may
advertise and sell their products on line, but also how private
individuals who choose to exchange certain constitutionally protected
communications with one another can do so. The question presented
is whether our Constitution tolerates this level of governmental
intrusion into how adults speak to one another.
We conclude, first, that the plaintiff has not sustained his burden of
demonstrating a likelihood of success on his claim that Section
223(d) is unconstitutionally vague. The definition of material
regulated by this section is a familiar one, repeatedly upheld against
vagueness challenges in a line of jurisprudence concerning television
and radio broadcasting, cable programming, and commercial
telephone services. We do, however, conclude that the plaintiff has
demonstrated a likelihood of success on his overbreadth claim, that
Section 223(d) would serve as a ban on constitutionally protected
indecent communication between adults. The Government concedes
that strict scrutiny is appropriately applied to this claim and that
Section 223(d) would, on its own, act as an unconstitutional total ban
on indecent communication, protected and unprotected alike, but
argues that two affirmative defenses set out in Section 223(e)(5)
serve to shield adults engaging in constitutionally protected indecent
communication from criminal liability.
The evidentiary record in this case compels the conclusion that, given
the current state of technology, most adult content providers wishing
to engage in constitutionally protected indecent speech will be unable
to avail themselves of these affirmative defenses. Only a limited
subset of on-line content providers, commercial providers on the
World Wide Web, can avail themselves of the defense set out in
Section 223(e)(5)(B), leaving both noncommercial providers of Web
content and content providers using all other modes of online
communication unprotected. The evidence further demonstrates that
content providers' ability to comply with the terms of the second
defense-the so called good-faith defense depends on the actions of
third parties, such as software manufacturers, whose cooperation is
not required under the CDA or otherwise mandated. There is no
feasible means, with our current technology, for someone to provide
indecent content on line with
any certainty that even his best efforts at shielding the material from
minors will be "effective," as the language of the good-faith defense
requires.
Because neither of the affirmative defenses set out in Section
223(e)(5) can, with our current technology, effectively protect adult
content providers wishing to engage in constitutionally protected
indecent communication, we reach the inescapable conclusion that
Section 223(d) will serve to chill protected speech. We therefore find
that the plaintiff has demonstrated a likelihood of success on the
merits of his claim that Section 223(d) is unconstitutionally
overbroad.
We are mindful of our obligation to construe a federal statute to avoid
constitutional problems if it is possible to do so, but we are equally
mindful of the limits of the judicial power under our Constitution and
we decline the Government's invitation to perform radical surgery on
a statute dealing with a difficult problem in a rapidly changing area of
technology; in sum, we respectfully decline the invitation to legislate
from the bench.
In setting aside the challenged provisions, we do not question the
legitimacy of the government's interest in safeguarding children from
exposure to certain materials available on line nor suggest that other
legislation on another day, carefully tailored to technological realities,
may not pass constitutional muster. We also do not consider, nor
attempt to delineate, the range of circumstances, if any, in which
Congress could now or in the future constitutionally impose content-
based restrictions upon communications in the developing medium
we explore here.
I. BACKGROUND
Plaintiff Joe Shea is the editor-in-chief, pare-owner, and publisher of
the American Reporter, a daily newspaper distributed solely by
electronic means. On February 8, 1996, following the signing of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
56, the American Reporter published an editorial, (Complaint, Ex. 1)
criticizing Title V of the Act, known as the Communications Decency
Act of 1996 ("CDA"). The editorial contained language arguably
falling within the scope of a provision of the CDA criminalizing the
transmission or display of certain content in a manner available to
minors:
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 Berms 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; . . .
shall be fined under title 18, United States Code, or imprisoned not
more than two years, or both. Pub. L. No. 104-104, Section
502(2)(d), 106 Steel at 133 (eo be codified at 47 U.S.C. Section
223(d)). Also on February 8, the plaintiff filed this action on behalf
of the American Reporter, seeking a declaration that 47 U.S.C.
Section 223(d) is unconstitutionally overbroad and vague. On
February 17, the plaintiff moved for preliminary injunctive relief to
prevent the Department of Justice from enforcing the provision in
question.
Pursuant to Section 561(c) of the Telecommunications Act and 28
U.S.C. Section 2284, the Chief Judge of the United States Court of
Appeals for the Second Circuit designated this three-judge district
court to consider the plaintiff's facial challenge to the constitutionality
of Section 223(d). The Court heard opening arguments on April 3,
1996. Because the plaintiff's facial challenge to Section 223(d) raised
the question of whether Internet users can, under current technology,
meet the requirements for certain defenses provided for in the Act,
the Court concluded that an evidentiary hearing would be
appropriate. In light of the pendency of consolidated proceedings for
preliminary injunctive relief before a three judge court in the Eastern
District of Pennsylvania raising, among ocher claims, a facial
challenge to Section 223(d), see Complaint, American Civil Liberties
Union v. Reno, No. 96-963 (E.D. Pa. filed Feb. 8, 1996);
Complaint, American Library Ass'n v. US. Dep't of Justice, No. 96-
1458 (E.D. Pa. filed Feb. 27, 1996) (collectively "the Philadelphia
litigation"), the Court directed the parties to consider methods of
easing the fact-finding process by entering into a range of stipulations
regarding the current state of technology and incorporating relevant
portions of the record in the Philadelphia litigation. The Court
received additional demonstrative and testimonial evidence on April
29, April 30, and May 6, and heard closing arguments on June 3,
1996. Following supplemental briefing by the parties, the plaintiff's
motion for preliminary injunctive relief was submitted for decision on
June 13, 1996.
On June 11, 1996, the three-judge court in the Philadelphia litigation
concluded, inter alia, that the provision of the CDA here challenged
by the plaintiff does not withstand constitutional scrutiny. American
Civil Liberties Union v. Reno, No. Civ. A. 9
963, 1996 WL 311865, at *27 (E.D. Pa. June 11, 1996)
("ACLU/ALA"). All three judges agreed that the CDA is substantially
overbroad, in that it effectively forces many Internet users
(specifically, non-commercial, not-for-profit entities and "even many
commercial organizations") to forgo constitutionally protected speech
or risk criminal prosecution. Id. at .32-*33 (Slovieer, C.J.); id. ae
.37 (Budkwaleer, J.); id. ae *49 0)alzell, J.). Additionally, two of
the judges conduded ehat Section 223(d)'s definition of covered
speech is unconstitutionally vague. Id. at *36 (Sloviter, CJ.); id. at
*37 (Buckwalter, J.). The decision in the Philadelphia litigation does
not preclude this Court from deciding the issues presented, /FN1 to
which we now turn.
II. FINDINGS OF FACT
We enter the following findings of fact, many of which are
undisputed, the subject of stipulations by the parties, or submitted by
the defendant and adopted by us, pursuant to Rule 52(a) of the
Federal Rules of Civil Procedure. Although we here consider a so-
called facial challenge to a statute, we deemed it appropriate and
necessary in the unusual circumstances presented here, and a
reasonable exercise of our discretion, tO establish a basic record of
the facts regarding the new and evolving communications media that
is the subject of this legislation.
Section 223(d) targets the use of an "interactive computer service" to
send or display patently offensive materials. Although Section 223
itself contains no definition of that Berm, the definition applicable to
the new 47 U.S.C. 6 230--also added by the CDA-make clear that
the term encompasses means of making "content"2 available to
multiple users both on the vast web of linked networks popularly
known as "the Internet" and on ocher information systems (such as
electronic bulletin boards maintained by educational institutions or
nonprofit organizations) not physically linked to the Internet. See
Pub. L. No. 104-104, Section 509(e)(2), 110 Stat. at 139 (to be
codified at 47 U.S.C. Section 230(e)(2)). We draw upon the
stipulations of the parties and the testimony adduced at the three-day
evidentiary hearing to describe: (1) the nature of the medium targeted
by Section 223(d), focusing in part on the degree of control that
those who transmit content have over who will receive it; (2) the
availability of certain categories of potentially objectionable material
on line; (3) the development of software and labeling standards
enabling parents to limit their children's exposure to objectionable
on-line content; and (4) the potential for tagging and verification
procedures that content providers can use in an effort to shield
minors from sexually explicit content that they provide.3 As we do
so, we unavoidably-and with apologies to all others with a similar
aversion to "cyberspeak"-adopt some of the terminology that has
developed in conjunction with this technology. We endeavor, to the
extent possible, to avoid the jargon of this field, and to define our
terms wherever possible, for the sake of the clarity of this record and
this opinion, as well as for the benefit of any reader required to
review our work.
A. The Development of the Internet
Although "the Internet" now formally describes a collection of more
than 50,000 networks linking some nine million hose computers in
ninety countries, it has existed for nearly three decades on a much
smaller scale. What we now refer to as the Internet grew out of an
experimental project of the Department of Defense's Advanced
Research Projects Administration ("ARPA") designed to provide
researchers with direct access to supercomputers at a few key
laboratories and to facilitate the reliable transmission of vital
communications. (Declaration of William J. Hoffman ("Hoffman
Decl."), Ex. 4, at 11-12) ARPA supplied funds to link computers
operated by the military, defense contractors, and universities
conducting defense-related research through dedicated phone lines,
creating a "network" known as ARPANet. (Parties' Stipulations in
Preparation for Preliminary Injunction Hearing ("Joint Stip.") Paras.
6-7; Hoffman Decl., Ex. 3, at 3; id. Ex. 4, at 11) Programs on the
linked computers implemented a technical scheme known as "packet-
switching," through which a message from one computer to another
would be subdivided into smaller, separately addressed pieces of
data, known as "packets," sent independently to the message's
destination and reassembled upon arrival. (Joint Stip. 19) Each
computer on the network was in turn linked to several other
computers, creating any number of routes that a communication from
one computer could follow to reach its destination. If part of the
network were damaged, a portion of the message could be re-routed
automatically over any other path to its ultimate destination, a
characteristic of the network intended initially to preserve its
operability in the event of enemy attack. (Id. 11 7-8; Hoffman Decl.,
Ex. 3, at 3; id, Ex. 4, at 12)
Having successfully implemented a system for the reliable transfer of
information over a computer network, ARPA began to support the
development of communications protocols for transferring data
between different types of computer networks. Universities, research
facilities, and commercial entities began to develop and link together
their own networks implementing these protocols; these networks
included a high-speed "backbone" network known as NSFNet,
sponsored by the National Science Foundation, smaller regional
networks, and, eventually, large commercial networks run by
organizations such as Sprint, IBM, and Performance Systems
International (commonly known as "PSI"). (Hoffman Decl., Ex. 3,
at 3; id Ex. 4, at 13-14) As faster networks developed, most network
traffic shifted away from ARPANet, which formally ceased
operations in 1990. (Id Ex. 3, at 3) What we know as "the Internet"
today is the series of linked, overlapping networks that gradually
supplanted ARPANet. Because the Internet links together
independent networks that mercy use the same data transfer
protocols, it cannot be said that any single entity or group of entities
controls, or can control, the content made publicly available on the
Internet or limits, or can limit, the ability of others to access public
content. Rather, the resources available to one with Internet access
are located on individual computers around the world. (Joint Stip.
Para.11)
It is estimated that as many as forty million individuals have access to
the information and cools of the Internet, and that figure is expected
to grow to 200 million by the year 1999. (Id 1 3) Access to the
Internet can take any one of several forms. First, many educational
institutions, businesses, libraries, and individual communities
maintain a computer network linked directly to the Internet and issue
account numbers and passwords enabling users to gain access to the
network directly or by modem.4 (Id 1112-14) Second, "Internet
service providers," generally commercial entities charging a monthly
fee, offer modem access to computers or networks linked directly to
the Internal (Id. 116) Third, national commercial "on-line services"-
such as America Online, CompuServe, Prodigy, and Microsoft
Network-allow subscribers to gain access to the Internet while
providing extensive content within their own proprietary networks.
(Id Para. 17) Finally, organizations and businesses can offer access
to electronic bulletin-board systems-which, like national on-line
services, provide certain proprietary content; some bulletin-board
systems in turn offer users links to the Internet. (Id. 1 18)
B. Categories of Internet Use
For our purposes, there are two loose and overlapping categories of
Internet use. First, an individual who has secured access to the
Internet can correspond or exchange views with one or many other
Internet users. Second, a user can locate and retrieve information
available on ocher computers. We explore these categories in greater
detail below. As will become clear, distinctions in how Internet
content is transmitted affect the degree of control that providers of
content have over who will be able to gain access to their
communications;5 we will return to the legal significance of these
distinctions at a later juncture. For any communication to take place
over the Internet, two pieces of software,6 adhering to the same
communications protocol, are required. A user must have access to
certain kinds of "client" software, which enables his computer to
communicate with and make requests of remote computers where
information is stored; these remote computers muse be running
"server" software, which provides information in response to
requests by client software. (Declaration of Dr. Dan R. Olsen, Jr.
("Olsen Decl."), 11 1314)7
1. Communicating with Other Internet Users
Perhaps the most widely used Internet service is electronic mail, or
"e-mail." Using any one of dozens of available "mailers"-client
software capable of reading and writing e-mail-a user is able to
address and transmit a message to one or more specific individuals.
Joint Stip. 121) A user can also "subscribe" to an electronic mailing
list on a topic of interest; the user receives a copy of messages posted
by ocher subscribers and, in Burn, can pose messages for
forwarding to the full mailing rise. Once a mailing list is established,
it is typically maintained using a "mail exploder"-a program such ;
"listserv" running on the server on which the list resides-that
automatically (i.e., without human intervention) responds to a user's
request to be added eo or removed from the list of subscribers and
retransmits messages posted by a subscriber to others on the mailing
list. (Id. 122) Some mailing lists are "closed": a user's request to join
the list requires the approval of an individual who maintains the list.
(Id.) Mailing lists (both open and dosed) may also be "moderated":
all messages posted to the list are forwarded to a moderator, who
approves certain messages and retransmits them to subscribers. (Id)
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. (Olsen Decl. 1 19; Testimony of Gordon C.
Galligher, Jr., Tr. at 181) Even if the user could obtain an e-mail
address for each subscriber to a particular list, those addresses alone
would provide no authoritative information about subscribers. There
is no directory that identifies persons using a certain e-mail address.
In addition, a user can avoid disclosing his true e-mail address by
developing an e-mail "alias" or by using an "anonymous remailer"-a
server that purges identifying information from a communication
before forwarding it to its destination. (Defendant's Response to
Plaintiff's Request for Admissions ("Defendant's Adm.") No. 22;
Galligher Test. at 173)
Internet users may also transmit or receive "articles. posted daily to
thousands of discussion groups, arranged by subject matter and
known as "newsgroups," available through an electronic bulletin-
board system known as "Usenet." When a user with access to a
Usenet server-that is, a computer participating in the Usenet system-
poses an article to a particular newsgroup, the server automatically
forwards the article to adjacent Usenet servers, which in turn forward
it to ocher servers, until the article is available on all Usenet sites that
furnish access to the newsgroup in question. (Joint Stip. Para. 23)
Once a message reaches a particular Usenet site, it is temporarily
stored there so that individual users-running client software, known
as a "newsreader," capable of sorting articles according to header
information identifying the newsgroup to which the article was
posted-can review and respond tO the message. (Id.; Hoffman Decl.,
Ex. 4, at 129) Some Usenet newsgroups are moderated; messages to
the newsgroup are forwarded to an individual who selects those
appropriate for distribution. (Joint Stip. Para. 23) Because Usenet
articles are distributed to (and made available on) multiple servers,
one who posts an article to a newsgroup has no way of knowing
who will choose to retrieve it, whether or not the newsgroup is
moderated. (Galligher Test., Tr. at 170, 174-75) There is no
newsgroup equivalent of a "closed" mailing list: access to a particular
newsgroup can only be limited by restricting the number of servers
participating in the newsgroup. (Testimony of Clay Shirky, Tr. at
251)
The Internet also offers opportunities for multiple users to interact in
real time. Using a program called "Talk," two users can exchange
messages while they are both on line; a message typed on one user's
computer will appear almost immediately on the other's screen. (Joint
Stip. Para. 25) Servers running so called "chat" software, such as
Internet Relay Chat ("IRC"), permit multiple users to converse by
selecting one of many discussion "channels" active at any time.
Commercial on-line services such as America Online, CompuServe,
Prodigy, and the Microsoft Network offer their own chat systems for
their members. (Id 126) Having joined a channel, the user can see
and read messages transmitted by ocher users, each identified by a
name the user selects upon joining the channel. (Id. 125) Individual
participates in IRC discussions know ocher participants only by the
names they choose upon entering the discussion; users can participate
anonymously by using a pseudonym.
2. Locating and Retrieving Information on the Internet
Individuals with Internet access can take advantage of a number of
tools for locating and retrieving information and resources stored on
remote computers. One who wishes to make certain articles, files, or
software available to other users will set up a server, adhering to
certain communications protocols, capable of retrieving and
presenting scored information in response to a request from client
software using the same communications protocol. (Olsen Decl.
1113, 16; Galligher Test., Tr. at 131)
a. File Transfer Protocol ("FTP")
One type of software implements a set of conventions for copying
files from a hose computer known as "file-transfer protocol"
("FTP"). With appropriate client software, a user with an account on
the host computer can contact the server, view a directory of available
files, and copy one or more of chose files to his own computer. In
addition to making files available to users with accounts, thousands
of content providers also make files available for "anonymous"
retrieval by users who do not possess an account on the host
computer.' (Hoffman Decl., Ex. 3, at 1-2, 5; id Ex. 4, at 187; Joint
Stip. at 29) A content provider who makes files available for retrieval
by anonymous PIP has no way of discerning who gains access to the
files.
b. "Gopher" Servers
A second type of server software capable of making available the
resources of a host computer is known as a "gopher" program. (Joint
Stip. 130, Hoffman Decl., Ex. 3, at 5) A gopher server presents
information in a set of menus, enabling a user who gains access to
the server to select a series of increasingly narrow menu items before
locating a desired file that can be displayed on or copied to the user's
computer.9 (Galligher Test., Tr. at 122; Hoffman Decl., Ex. 3, at 5)
A content provider who maintains a gopher server ordinarily has no
way of knowing who will gain access to the information made
available.
c. The World Wide Web
The third and perhaps best known method of locating and accessing
information on the Internet is by exploring the World Wide Web.
Documents available on the Web are not collected in any central
location; rather, they are scored on servers around the world running
Web server software.( Joint Stip. Paras. 31, 38, 40) To gain access
to the content available on the Web, a user must have a Web
"browser"-client software, such as Netscape Navigator, Mosaic, or
Internet Explorer, capable of displaying documents formatted in
"hypertext markup language" ("HTML"), the standard Web
formatting language. (Galligher Test., Tr. at 125; Joint Stip. 1131,
43) Each document has an address, known as a Uniform Resource
Locator ("URL"), identifying, among other things, the server on
which it resides; most documents also contain "links"-highlighted
text or images that, when selected by the user, permit him to view
another, related Web document. Joint Stip. 134) Because Web
servers are linked to the Internet through a common communications
protocol, known as hypertext transfer protocol ("HTTP"), a user can
move seamlessly between documents, regardless of their location;
when a user viewing a document located on one server selects a link
to a document located elsewhere, the browser will automatically
contact the second server and display the document. (Joint Stip.
Paras. 34, 37) Some types of Web client software also permit users
to gain access to resources available on FTP and gopher sites.
A number of "search engines"-such as Yahoo, Magellan, Alta Vista,
WebCrawler, and Lycos-are available to help users navigate the
World Wide Web./fn10 For example, the service Yahoo maintains a
directory of documents available on various Web servers. A user can
gain access to Yahoo's server and type a string of characters as a
search request. Yahoo returns a list of documents whose entries in
the Yahoo directory match the search string and organizes the list of
documents by category. (Galligher Test., Tr. at 134; Plaintiffs Ex. 3)
Search engines make use of software capable of automatically
contacting various Web sites and extracting relevant information.
Some search engines, such as Alta Vista, score the information in a
database and return it in response to a user request. Others, such as
Yahoo, employ a group of individuals to determine whether and how
a site should be categorized in the Yahoo directory. (Galligher
Testimony, Tr. at 137; Supplemental Declaration of William J.
Hoffman (aHoffman Supp. Decl.") Ex. A, at 39-42 (Testimony of
Donna L. Hoffman in ACLU/ALA))
As the growth in Internet use and the wide availability of tools and
resources to chose with access to the Internet suggest, the Internet
presents extremely low entry barriers to chose who wish to convey
Internet content or gain access to it. In particular, a user wishing to
communicate through e-mail, newsgroups, or Internet Relay Chat
need only have access to a computer with appropriate software and a
connection tO the Internet, usually available for a low monthly fee.
The user then in a sense becomes a public "speaker," able to convey
content, at relatively low cost, tO users around the world to whom it
may be of interest. Those who possess more sophisticated equipment
and greater technical expertise can make content available on the
Internet for retrieval by others known or unknown) by running a
server supporting anonymous FTP, a gopher server, or a Web
server. Yet content providers need not necessarily run their own
servers or have the programming expertise to construct their own
sites; they can lease space on a Web server from another or create a
"home page" through an on-line commercial service.
The ease of entry of many speakers sets interactive computer systems
apart from any ocher more traditional communications medium that
Congress has attempted to regulate in the past. With one-way media
such as radio ant television broadcasting or cable programming, a
user is merely a listener or viewer; in the CDA, Congress sought to
target "interactive" computer systems through which a listener or
viewer, by definition, has the power to become a speaker. The
relative ease of speaker entry and the relative parity.
among speakers accounts for the unprecedented and virtually
unlimited opportunities for political discourse, cultural development,
and intellectual activity that Congress found to characterize emerging
communication technologies.
In seeking to describe the range of tools and opportunities for
Internet users to "speak," we recognize that the categories we
delineate are far from clean and the technology is far from static.
Indeed, by all indications, the way that we conceptualize various
media that we have traditionally viewed as distinct-such as cable
television, telephones, and computer networks-will change
dramatically as these media "converge" into common forms of
communication. See Denver Area Educ. Telecommunications
Consortium v. FCC ("Denver Area Consortium"), No. 95-124, 1996
WL 354027, at .31 & n.4 (U.S. June 28, 1996) (Souter, J.,
concurring); see also Jerry Berman & Daniel J. Weitzner, Abundance
and User Control: Renewing the Democratic Heart of the First
Amendment in the Age of Interactive Media, 104 Yale L.J. 1619,
1619 n.1 (1995); Art Kramer, Netwatch,: The AJC's Daily Online
Guide, Atl. J. & CONST., May 29, 1996, at B04 (describing cable
modem technology designed to offer Internet access through existing
cable television connections) (Hoffman Supp. Decl., Ex. C, at 3-4.).
Of course, our findings of fact are necessarily time-bound. We can
only determine whether the statutory provision at issue here, in light
of the technology available during the pendency of this case,
comports with the First Amendment.
Sexually Explicit Content on the Internet
It is undisputed that there exists some content on the Internet that is-
to use the Government's phrase-"sexually explicit." "Defendant's
Memorandum of Law, filed March 19, 1996, at 11) The term
"sexually explicit" is descriptive rather than legal and does not appear
in the statutory provision at issue, but the Government employs it as
a shorthand to describe Internet content depicting "sexual or
excretory activities or organs"-possibly though not necessarily in a
patently offensive way. Defendant's Supplemental Memorandum of
Law ("Defendant's Supp. Memo."), filed June 7, 1996, at 9) That is,
the Government does not contend that all sexually explicit material is
"patently offensive" and therefore within the scope of the CDA, but
claims that there is certainly content available on the Internet that is
both sexually explicit and patently offensive.
The testimony and demonstration of one of the Government's expert
witnesses, Howard Schmidt, Director of the Air Force Office of
Special Investigations, amply confirmed the availability of sexually
explicit material on line. Nevertheless, there is no persuasive
evidence in the record to suggest, much less prove, that sexually
explicit material easily "assaults" an unknowing user-as in other
media, most notably television and radio-or that any substantial
proportion of Internet content is sexually explicit.
1. Ease of Access to Sexually Explicit Content
The Government urges us to conclude that an Internet user can easily
stumble upon sexually explicit material. (Defendant's Post-Hearing
Memorandum of Law ("Defendant's Post-Hearing Memo"), filed
May 28, 1996, at 31-32) It is important to begin with the general
observation that, with the exception of e-mail, no content appears on
a user's screen without the user having first taken some affirmative
step. One wishing to read articles posted to a newsgroup must
connect to a Usenet server and select the relevant group. To retrieve a
file through anonymous FTP or access a gopher server, the user
must search for or know the address of a particular server. To gain
access to content on the World Wide Web, a user must know the
URL of a relevant site or type a keyword into one of several available
search engines.
Schmidt's demonstration focused mainly on the availability of
sexually explicit content on the World Wide Web. In the absence of
any screening software or filter, a user determined to view a site
containing sexually explicit material can certainly do so, either by
typing a known URL or by searching for key words. One sexually
explicit site may, in turn, contain "links" to other such sites.
(Defendant's Exs. 13, 16, 17, 26, 29, 32; Schmidt Test., Tr. at 401-
02) While ordinarily a user must affirmatively seek sexually explicit
material to view it, on occasion a search not intended to retrieve
sexually explicit material may retrieve a link to a sexually explicit site.
For example, Schmidt's searches of "Sleeping Beauty," "Babe," and
"Little Women. produced a handful of links to sexually explicit sites.
(Defendant's Exs. 15, 18, 27, 31, 38) This demonstration revealed
the inevitable imprecision of search engines-a broad search will
almost always return some irrelevant results. In the vase majority of
cases, the character of a sexually explicit site will be clear from the
entry or link that a search engine returns. Nevertheless, there is
potential for occasional accidental viewing of sexually explicit
material. For example, if a user were to view entries in a
WebCrawler search using that program's standard format as preset
by the
manufacturer, he would see no summary of the sites' contents.
(Defendant's Ex. 18; Shirky Test., Tr. at 237-38) One of Schmidt's
searches of "Sleeping Beauty" returned an entry offering a link to a
site containing sexually explicit material; the entry (when viewed
apart from other entries on the same page with similar addresses)
gave little indication of the site's contents. (Defendant's Ex. 15;
Shirky Test., Tr. at 238) It is difficult to know how often accidental
viewing can occur, but there is no basis in the record for concluding
that a user not seeking out sexually explicit material on the Internet
will encounter it with any particular frequency.
2. The Availability of Sexually Explicit Content
Although Schmidt's demonstration focused on the World Wide Web,
sexually explicit content is available on the Internet through almost
any form of Internet communication. Yet there is no evidence that
sexually explicit content constitutes a substantial-or even significant-
portion of available Internet content. While it is difficult to ascertain
with any certainty how many sexually explicit sites are accessible
through the Internet, the president of a manufacturer of software
designed to block access to sites containing sexually explicit material
testified in the Philadelphia litigation that there are approximately
5,000 to 8,000 such sites, with the higher estimate reflecting the
inclusion of multiple pages (each with a unique URL) attached to a
single site. (Stipulated Portions of Record in ACLU/ALA
("Stipulated Record"), Ex. M, at 139-40 Testimony of Ann W.
Duvall in ACLU/ALA)) The record also suggests that there are at
least thirty-seven million unique URLs. (Galligher Test. at 144)
Accordingly, even if there were twice as many unique pages on the
Internet containing sexually explicit materials as this undisputed
testimony suggests, the percentage of Internet addresses providing
sexually explicit content would be well less than one tenth of one
percent of such addresses.
It is not disputed that some of the sexually explicit materials that the
CDA attempts to keep away from minors originates abroad. This is
not surprising inasmuch as forty percent of all host computers are
located outside the United States. Joint Stip. Para. 3) Although only
a tentative approximation is possible, the record suggests that as
much as thirty percent of the sexually explicit material currently
available on the Internet originates in foreign countries. (Stipulated
Record, Ex. L, 141; id Ex. M, at 161-62 (Duvall Test.))
D. The Development of Blocking Tools and Labeling Schemes
As the Internet has become accessible to more households, several
commercial on-line services and software companies have developed
features and packages designed to enable parents to limit children's
exposure to potentially inappropriate Internet material. For example,
America Online, Prodigy, and Microsoft Network, which permit
their subscribers to obtain access to Internet material, offer parental
control options free of charge to their members. (Joint Stip. 167)
America Online, for example, allows parents eo establish a separate
account for their children limited to the service's own proprietary
content. (Id.) In addition, at lease one type of screening software,
SurfWatch, has a feature allowing parents to block access to all
Internet sites except for chose that parents choose tO make available
to their children (Stipulated Record, Ex. M, at 131 (Duvall Test.))
The Government offered testimony and a demonstration regarding
SurfWatch (configured to act as a screening tool, rather than to block
all Internet access) and a second type of screening software, Cyber
Patrol. SurfWatch and Cyber Patrol maintain lists of sites known to
contain sexually explicit material; when operating while a user
attempts to retrieve Internet material, access tO sites identified on
their programs will be blocked. In addition, the programs block
access to sites whose URLs contain particular character patterns or
words, such as "xxx" or "sex," and block any searches including
those character patterns or words.
Because of the constant change in the number and location of Internet
sites, both SurfWatch and Cyber Patrol offer regular subscription or
update services. But even where a parent has properly installed
screening software and the software is operational (and configured to
block access to certain sites rather than to the entire Internet), it is
possible to retrieve some sexually explicit material. The
Government's witness was able to run searches using "Babe" and
"Little Women" as key words with screening software running in the
background. As with searches performed in the absence of screening
software, the searches returned links to sexually explicit materials.
Some of the links were not blocked by the screening cool. In
addition, the Government's witness obtained access to sexually
explicit material by directly entering URLs obtained from earlier
searches conducted without blocking software in the background.
The record also shows that blocking software is not widely owned
by or used in households with access to the Internet: nearly seventy
percent of SurfWatch's 1,500 subscribers are schools rather than
individual households. (Id. at 163-65)
Other efforts to assist parents in filtering and screening material that
their children can view on the Internet are under way. The World
Wide Web Consortium ("W3C") has launched the Platform for
Internet Content Selection ("PICS") to develop technical standards
for attaching electronic ratings to Internet addresses. (Joint Stip.
1147-49; Stipulated Record, Ex. J., at 1; id Ex. G, at 2-3
"Declaration of Albert Vezza in ACLU/ALA)) When the system is
fully implemented, PICS-compatible client software (including
browsers, newsgroup readers, and mail readers); Internet service
providers; and commercial on-line services will be able to detect
PICS tags and block content based on how a parent has configured
the software. (Joint Stip. 148; Stipulated Record, Ex. G., at 3 (Vezza
Ded.)) PICS will thus enable parenes to design from an array of
categories blocking criteria that suit the parents' values or needs. The
PICS program envisages both rating by content providers and rating
by third parties. Joint Stip. 148) The vast majority of Internet sites
currently remain unrated. Nevertheless, Microsystems Software, Inc.
(which manufactures Cyber Patrol) introduced a PICS ratings server
in February 1996. (Id 154) Cyber Patrol is itself now PICS-
compatible; it can screen out material based on its PICS tag. (Id.) In
addition, Microsoft released the first PICS-compatible Web browser,
Internet Explorer 3.0, on May 28, 1996. The browser allows parents
to block children's access to all unrated Internet sites and to specify
appropriate levels of violence or nudity at rated sites. (Hoffman
Supp. Decl., Ex. C, at 1-3)
In addition to PICS tags, the Government's expert witness, Dr. Dan
Olsen, testified thee content providers wishing to transmit or make
available material potentially falling within the scope of the CDA
could develop a general practice of inserting a "Tag" or "label"-a
string of characters, such as "-L18" (for "not less than 18 years")-
into the address or name of a particular site so as to clearly identify
the site as unsuitable for minors. To transmit or gain access to
Internet content, a user must specify a textual name: one cannot send
e-mail without an e-mail address or the name of a mailing list; post an
article to a newsgroup without specifying the name of the group;
participate in the Internet Relay Chat without specifying a "channel";
or access a file without its address. (Olsen Decl. Paras. 22-26)
Accordingly, content providers using all significant modes of Internet
communication could use a tag to identify their content as "covered"
content. For example, when a sender transmits an e-mail message,
the message is accompanied by the sender's address, which contains
a "user name" identifying a particular user and a "domain name"
assigned to a computer or set of computers." (Olsen Decl. Paras. 25,
60) If the string -L18 were added to the domain name, all e-mail
originating from that site-regardless of the particular user who
transmitted it-would be identified as containing material falling within
the scope of the CDA.'2 In the alternative, a particular user name-
rather than a domain name-could contain the "-L18" tag; only e-mail
originating under that user name would be tagged.'3 Finally, a tag
could be placed in a textual subject line, so as to identify only
particular messages (rather than all e-mail sent under a certain user
name or from a certain computer) as containing content potentially
within the scope of the CDA. (Id Paras. 60-62)
Similarly, a tag such as "-L18" could be added to the name of a
newsgroup; an individual user wishing to post an article potentially
falling within the scope of the CDA to a newsgroup that does not as a
general matter contain such material could insert a tag in the subject
line accompanying the article. (Id Paras. 64-65) A tag could also be
placed in the name of an IRC channel.
Turning to means of making files available for retrieval or viewing by
remote users-using an FTP, gopher, or Web server-content providers
could insert a specific tag such as "-L18" in a domain name or site
name. Thus, as the Government's expert witness testified, an owner
of a Web site named "www.cyberporn.com" could rename the site
"www-L18.cyberporn.com". (Id 151) If a site only contained
specific files falling within the scope of the CDA, a content provider
could identify those files by adding a tag to the name of the directory
in which the file resides or to the file name itself. That is, a file
identified with the address "http://www.adult.com/picture1.html/"
could be renamed "http://www.adult.com/picture1-L18.html/"; in the
alternative, a content provider could place all covered files within a
specific directory, such as "http://www.adult.com/pictures-L18/."
(Id.Paragraphs 51-54) A content provider who did not wish to tag an
entire file available on a Web server as unsuitable for minors could
place a tag within the HTML source code of the file, thus identifying
a particular section as subject to the CDA. (Id Paragraph 58) In any
of these approaches, tagging content is, in a technical sense, a trivial
act. (Id Paragraphs 59, 62; Stipulated Record, Ex. B, at 56
(Testimony of Scott O. Bradner in ACLU/ALA))
There is an alternative means to shield minors from sexually explicit
content available uniquely to content providers on the World Wide
Web: verification of a user's "adulthood" before allowing him access
to a site. A content provider operating a Web server can create and
display an electronic form to retrieve information from a user visiting
the Web site; after processing the information by using a program
such as a Common Gateway Interface ("cgi") script, the server could
grant or deny access to the site. (Shirley Decl. 121) Not all content
providers who make material available on the Web, however, can use
programs such as cgi scripts; for example, commercial on-line
services such as America Online and CompuServe provide
subscribers with the opportunity to post content by configuring their
own Web pages but do not permit subscribers to use cgi scripts.
(Olsen Test., Tr. at 345) For Web content providers who lack access
to cgi scripts, there is no means of age verification.
Although some Web providers can query the user of a site for a credit
card number, the cost of verification is significant, ranging from
sixty cents per transaction tO more than a dollar per transaction. (Id.
at 341-42) To take advantage of adult access code or adult
identification code verification, a content provider would either have
to establish and maintain a registration and verification system (or
hire someone else tO do so) and issue access codes tO users-after
verifying their ages-or associate with one of several adult verification
services, such as Adult Check, Adult Verification System, First
Virtual, Validate, or VeriSign. (Olsen Decl. 186 8: Ex. I; Schmidt
Test., Tr. at 203-14; Defendant's Exs. 6, 7, 8 86 9) Although neither
of the Government's expert witnesses had any firsthand familiarity
with adult verification services, advertising materials suggest that an
adult can obtain an identification number from a particular service and
access any site registered with the service. For example, a user can
register with Adult Check for an annual fee of $9.95; when the user
attempts to access any site registered with Adult Check, the user is
prompted to enter an Adult Check identification number that is
checked against the service's database. (Defendant's Ex. 6, at 1) If
the number is valid, the user is automatically admitted to the site.
(Id.) Although most verification services do not charge content
providers to register their sites (Id Exs. 6-8), at least one service does
impose a fee on site owners registered with it. (Id Ex. 9, at 1)
Having explored various means of Internet communication, the
availability and accessibility of sexually explicit content, the
development of blocking software and rating schemes designed to
enable parents tO shield their children from inappropriate material,
and the potential for tagging and verification procedures that content
providers can themselves employ in an effort to shield minors from
sexually explicit content that they provide, we turn to the
governmental regulation in question.
III. DISCUSSION
47 U.S.C. Section 223(d), as added by the CDA, targets persons
who send or display material that, "in context, depicts or describes,
in terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs." The language of
Section 223(d) parallels the definition of "indecency" adopted by the
FCC in 1975 in the broadcast context, /FN14 see FCC v. Pacifica
Found., 56 F.C.C.2d 94, 98 (1975); an application of this definition
to a radio broadcast of the deliberately provocative George Carlin
"Filthy Words" monologue was upheld by the Supreme Court in
FCC v. Pacifica Found., 438 U.S. 726, 751 (1978). Following
Pacifica, the FCC applied the indecency standard only narrowly-
taking no enforcement action unless material "involved the repeated
use, for shock value, of words similar or identical to those satirized
in the Carlin . . . monologue"-with the result that no broadcasts were
found actionable between 1975 and 1987. Action for Children's
Television u FCC (A CT-J, 852 F.2d 1332, 1338, 1336 (D.C. Cir.
1988) (quotation marks omitted). In 1987, however, the FCC, in
three rulings in the broadcast context, interpreted its indecency
standard more broadly, extending it beyond the particular language at
issue in Pacifica. See Infinity Broadcasting Corp., 2 F.C.C.R. 2705
(1987; Regents of the Universiry of California, 2 F.C.C.R. 2703
(1987); Pacifica Found., Inc., 2 F.C.C.R. 2698 (1987)./FN15 The
same standard was imported, by statute and by regulation, into other
contexts, and applies to commercial telephone messages, see Dial
Info. Servs. Cop. v. Thornburghf, 938 F.2d 1535, 1540-41 (2d
Cir.1991) (quoting Regulations Concerning Intecent
Communications by Telephone, 5 F.C.C.R. 4926, 4927 (1990)),
cert. denied, 502 U.S. 1072 (1992), and cable programming, see 47
U.S.C. 532O; 47 C.F.R. Sections 76.701(g), 76.702 (1995);
Alliance for Communiry Media u FCC (-Alliance.), 56 F.3d 105,
129 (D.C. Cir. 1995) (in banc), aff'd in part and rrv'd in part sub
nom. Denver Area Consortium, 1996 WL 354027 (U.S. June 28,
1996).
The plaintiff claims principally that Section 223(d), as added by the
CDA, is unconstitutional on itS face because it is vague and
substantially overbroad. Where a plaintiff seeks to "stay government
action taken in the public interest pursuant to a statutory or regulatory
scheme,. he must demonstrate a likelihood of success on the merits
of his claims and that he will suffer irreparable harm in the absence of
an injunction. Able u United States, 44 F.3t 128, 131 (2d Cir. 1995)
(per curiam) (internal quotation marks omitted). It is well settled that
"[t]he loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Elrod v.
Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Accordingly, a
finding of irreparable harm flows from a court's conclusion that a
governmental regulation has a chilling effect on free expression. We
examine the plaintiff's vagueness and overbreadth challenges in turn.
A. Vagueness
We consider first the plaintiff's claim that Section 223(t) is
unconstitutionally vague-that it fails to convey to persons of ordinary
intelligence reasonable notice of what conduct is prohibited and
creates a danger of arbitrary and discriminatory enforcement. See
Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Where
a federal statute or regulation fails to supply a fair warning of what
will give rise to criminal liability, it violates the Due Process Clause
of the Fifth Amendment; where a statute or regulation purports to
limit freedom of expression, its vagueness will also "operate[] to
inhibit the exercise" of that freedom and violate the First Amendment.
Id. (internal quotation marks omitted).
As previously noted, Section 223(d) essentially codifies the FCC
definition of indecency sustained in a particular factual context by the
Supreme Court in Pacifica. Although the Pacifica Court never
specifically addresses whether the FCC's definition was
unconstitutionally vague, the Court's conclusion that the broadcast at
issue in Pacifica was "indecent" and the fact that the Court quoted
elements of the FCC's indecency definition with approval, see 438
U.S. at 739, has been read to foreclose a vagueness challenge to the
FCC's definition for indecency in the broadcast medium. See ACT I,
852 F.2d at 1339-40 ("[I]f acceptance of the FCC's generic
definition of 'indecent' as capable of surviving a vagueness challenge
is not implicit in Pacifica, we have misunderstood Higher Authority
and welcome correction."); see also Action for Children's Television
v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) ("ACT II"), cert
denied sub nom. Children's Legal Found. v. Action for Children's
Television, 503 U.S. 913 (1992); Action for Children's Television
v. FCC, 58 F.3d 654, 659 (D.C. Cir. 1995) (in banc) ("ACT III"),
cert. denied sub nom. Pacifica Found v. FCC, 116 S.Ct. 701
(1996). Relying on the reasoning of Pacifica and ACT I, the courts
of appeals have found vagueness challenges to analogous FCC
definitions reaching commercial telephone communications and cable
programming unavailing. See Dial Info. Servs., 938 F.2d at 1540-41
(indecent commercial telephone messages); Information Providers'
Coalition for the Defense of the First Amendment v. FCC, 928 F.2d
866, 874-76 (9th Cir. 1991) (same); Alliance, 56 F.3d at 129 (cable
programming). Most recently, the Alliance court's approach on this
question was affirmed by a plurality of the Supreme Court. Denver
Area Consortium, 1996 WL 354027, at *16-*17.
In light of Supreme Court and other precedent rejecting claims that
the language used by the FCC to define indecency is
unconstitutionally vague, we cannot conclude that the plaintiff has
demonstrated a likelihood of success on his claim that the
incorporation of a virtually identical verbal formula into Section
223(d) renders that statute fatally vague. The plaintiff appears to
concede that a challenge based solely on the "patently offensive"
language is foreclosed, but calls our attention to other purported
defects in the statutory language. First, the plaintiff contends that
assessment of a work's "context" in determining whether it is
"patently offensive" is highly unpredictable and subjective.
"Plaintiff's Memorandum of Law, filed Feb. 17, 1996, at 23)
Second, Section 223(d) requires content providers to judge what
content will and will not subject them to criminal liability by reference
to the "standards" of an unidentified or fictitious "community."
(Plaintiff's PostHearing Memorandum of Law ("Plaintiff's Post-
Hearing Memo"), filed May 21, 1996, at 37)
We conclude that neither argument supports a conclusion that Section
223(d) is unconstitutionally vague. In addition, we address briefly
the basis for our disagreement with the contrary conclusion reached
by two of the judges in the Philadelphia litigation.
We first address the inclusion in Section 223(d) of the phrase "in
context." While the FCC definition that has been applied to television
broadcasting since 1987-the subject of unsuccessful vagueness
challenges-has included this phrase, see Infinity Broadcasting Grp.,
2 F.C.C.R. at 2705, definitions employed by the FCC with respect
to other media have not explicitly included this phrase. See Dial Info.
Servs., 938 F.2d at 1540 (indecent commercial telephone messages);
Information Providers' Coalition, 928 F.2d at 869 (same); Alliance,
56 F.3d at 105 (cable programming). Nevertheless, an assessment of
a work's context has always been a component of indecency analysis
regardless of the medium; the incorporation of the phrase "in context"
mercy follows the approach of Pacifica and later cases. See Pacifica,
438 U.S. at 744 (plurality opinion); id. at 750 (majority opinion);
Information Providers' Coalition, 928 F.2d at 876; cf. ACT I, 852
F.2d at 1340 (discussing relevance of social value of material as
factor in determining whether material is patently offensive); S.
CONG. REP. 230, 104th Cong., 2d Sess. 189 ("The gravamen of
the indecency concept is 'patent offensiveness.' Such a determination
cannot be made without a consideration of the context of the
description or depiction at issue."). We cannot see how importing
certain language that has been used by various courts considering
challenges to the definition of indecency renders the CDA
unconstitutionally vague.
The plaintiff's second point concerns the ability (or inability) of an
Internet content provider to assess what "community standards"
govern the transmission or display of patently offensive materials. A
communication posted by an individual in New York City to a
Usenet server and thereby made available to countless subscribers
around the world might indisputably fall outside the scope of what is
"indecent" by the standards of New York City, but might subject the
individual to criminal prosecution in other federal districts.
Nevertheless, in light of the fact that modern communications have
long transcended community borders, this problem is not a novel
one. Indeed, the definition of obscenity requires a publisher or
distributor of arguably obscene material to look to contemporary
community standards in various localities into which materials are
distributed. See, e.g., Sable Communications, 492 U.S. at 125-26
(concluding that failure to apply uniform national standard of
obscenity does not render statute unconstitutional; "If [the provider's]
audience is comprised of different communities with different local
standards, [the provider] ultimately bears the burden of complying
with the prohibition on obscene messages."); see also Miller, 413
U.S. at 24 (holding that factfinder's inquiry in obscenity context
focuses in part on whether "the average person, applying
contemporary community standards, would find that the work, taken
as a whole, appeals to the prurient interest" (internal quotation marks
omitted)).
The plaintiff attempts to distinguish past cases rejecting vagueness
challenges to indecency definitions incorporating "community
standards" language on two grounds. First, the plaintiff contends that
Internet content providers are less well equipped to assess
community indecency standards than those within the reach of
previous statutes and regulations governing indecency; while entities
engaging in the commercial traffic of pornographic materials (such as
obscene or indecent telephone messages) may have legal staff to
monitor FCC pronouncements on what is ant is not patently
offensive in communities across America, we are told, individuals
engaged in an exchange of ideas over the Internet do not. (Oral
Argument, June 3, 1996, Tr. at 24-25) Second, the plaintiff claims
that even if those who use other communications media can tailor
their messages to a particular community-as suggested by the
Supreme Court in Sable Communications-Internet content providers
simply cannot restrict the geographic area within which their
messages are received. (Plaintiff's Post-Hearing Memo. at 39)
We are not persuaded. The plaintiff has offered no authority for the
proposition that, so long as the providers of content targeted by a
statute are private individuals, Congress cannot constitutionally link
proscribed conduct to the community standards of various localities.
While it is true that congressional action has directly targeted
commercial dial-a-porn services, and restrictions on indecency in
radio and television broadcasting or cable programming mainly affect
for-profit enterprises, liability for violation of indecency restrictions
has not been tied to the ability of a content provider to marshal its
resources to explore various community indecency standards.
Distributors of allegedly obscene materials may also be subjected to
varying community standards; we know of no exemption for
individuals whose primary motive is non-economic. Due process
requires that a criminal statute "give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly," Grayned, 408 U.S. at 108; it does not
require "mathematical certainty," id at 110, or "'impossible
standards' of clarity," Kolender v. Lawson, 461 U.S. 352, 361
(1983) (quoting United States v. Petrillo, 332 U.S. 1, 7-8 (1947)).
We have no basis for concluding that Internet content providers are
any less capable than those subject to obscenity laws or other
indecency restrictions to acquire a general familiarity with the relevant
standards; indeed, one might conclude that a content provider's
contact with others around the country and around the world through
interactive computer services would cultivate a heightened awareness
of regional and cultural differences.
We turn to the plaintiff's claim that, even assuming a content
provider can discern the appropriate community standards, the
provider has no choice but to gear his message toward the least
tolerant community. More specifically, unlike a provider of obscene
or indecent telephone communications or cable programming, who
might be able to prevent a message from being transmitted to certain
geographical areas, an Internet content provider has no way of
identifying the receiving community. It follows that, to comply with
the CDA, a content provider must take steps to limit minors' access
to all material that would be considered patently offensive in any
community; only then could the content provider be sure that material
considered inappropriate under the standards of a particular
community is not available to minors in that community.
The problem that the plaintiff presents appears to raise questions of
overbreadth rather than vagueness. In light of our other conclusions
infra and in the absence of even a preliminary showing in this record
by either party regarding distinctions in community standards, we
decline to address whether any overbreadth in this respect is
"substantial."
As noted, two of the judges in the Philadelphia litigation concluded
that the provision of the CDA challenged by the plaintiff is
unconstitutionally vague. That conclusion rests in part on the fact that
the indecency definitions upheld in past cases defined indecency by
reference to community standards for a particular medium. For
example, the FCC definition of indecency upheld in Dial Info.
Servs., 938 F.2d at 1540, contained a reference to what is patently
offensive as measured by contemporary community standards "for
the telephone medium." See ACLU/ALA, 1996 WL 311865, at *42
(Buckwalter, J.). We can find no authority discussing the
significance of the definition's reference to the telephone medium or
of analogous references to the broadcast or cable media.16
Particularly in light of the fact that no court addressing an indecency
challenge has focuses on any of these references, it is unclear how
Pacifica and its progeny can be thought to require its existence, or
how the absence of a reference to the particular communications
medium targeted by the CDA renders the statute unconstitutionally
vague.
Finally, we address the slightly different argument raises by the same
two judges in the Philadelphia litigation-that the CDA is vague not
only because it fails to provide the requisite guidance to those seeking
to avoid criminal liability, but also because it leaves open the
possibility of arbitrary enforcement. This conclusion stems in part
from the Government's apparent representation in that case that the
challenged provisions of the CDA will be applied only to
"pornographic" material. We note that the Government has made no
such representation here, and dearly contemplates the application of
the CDA to material that is patently offensive although not necessarily
pornographic. While we are properly required to approach the
question of whether a criminal statute is vague with great skepticism
that prosecutorial good faith can cure an identified defect, see Baggett
v. Bullitt, 377 U.S. 360, 373-74 (1964) ("Well-intentioned
prosecutors and judicial safeguards do not neutralize the vice of a
vague law."), we are constrained to conclude that this statute is not
vague, and does not leave in the hands of prosecutors the sole
discretion to delineate its contours. Congress did not fashion the
"patently offensive" provision of Section 223(d) out of whole cloth.
To the extent that the FCC and courts have, in construing similarly
worded indecency provisions against the backdrop of the First
Amendment, previously drawn distinctions between serious
discussions of sexual issues and material in which sexuality is
portrayed in a purposefully offensive manner, Congress's choice of
language in Section 223(d) cabins prosecutorial discretion by
incorporating FCC and court rulings reflecting those distinctions.
Compare Letter to Mr. Peter Branton, 6 F.C.C.R. 610 (1991)
(dismissing indecency complaint regarding radio news story
including broadcast of wiretap in which John Gotti repeatedly used
an expletive; concluding that "the program segment, when considered
in context, was an integral part of a bona fide news story concerning
organized crime"); In re King Broadcasting Co., 5 F.C.C.R. 2971
(1990) (dismissing indecency complaint regarding broadcast of
program "Teen Sex, What About the Kids?"; concluding that
"[a]lthough the program dealt with sexual issues, the material
presented was clinical or instructional in nature and not presented in a
pandering, titillating or vulgar manner or in any way that we would
consider patently offensive.), with In re Sagittarius Broadcasting
Corp., 7 F.C.C.R. at 6874 (upholding finding of indecency with
respect to broadcast making "frequent, explicit, patently offensive
references to sexual intercourse, orgasm, masturbation, and other
sexual conduct, as well as to breasts, nudity, and male and female
genitalia"). Enforcement of Section 223(d) does not depend upon
prosecutorial whim, but upon prosecutorial fidelity to distinctions
that Congress sought, through codification of a definition of
indecency that has been authoritatively construed for a variety of
media in recent years, to incorporate into the CDA. See S. CONF.
REP. 230, 104th Cong., 2d Sess. 189 (1996).
In sum, we conclude that Section 223(d) is not unconstitutionally
vague.
B. Substantial Overbreadth
The plaintiff also claims that Section 223(d) is substantially
overbroad and therefore facially invalid. The doctrine of overbreadth
recognizes that an unconstitutional restriction of freedom of
expression may deter parties not before the court from engaging in
protected speech and thereby escape judicial review. See Broadrick
v. Oklahoma, 413 U.S. 601, 612-13 (1973); Gooding v. Wilson,
405 U.S. 518, 520-21 (1972). Accordingly, an overbreadth
challenge can be raised "with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by
a statute drawn with the requisite specificity." Dombrowski v.
Pfister, 380 U.S. 479, 486 (1965). That is, even if a statute could be
validly applied to the plaintiff and others, it may be so broad as to
inhibit the constitutionally protected speech of third parties not before
the Court. Invalidation of a statute on overbreadth grounds is "strong
medicine," and is inappropriate unless the overbreadth is substantial
and no limiting construction could be placed upon the challenged
statute. Broadrick, 413 U.S. at 613, 615; see also Forsyth County v.
Nationalist Movement, 505 U.S. 123, 130 (1992) (noting that Court
has permitted overbreadth challenges "where [a statute] sweeps too
broadly, penalizing a substantial amount of speech that is
constitutionally protected"); New York State Club Ass'n v. City of
New York, 487 U.S. 1, 11, 14 (1988) (noting that an overbreadth
challenge is justified only if "a substantial number of instances exist
in which [the statute] cannot be applied constitutionally"); City of
Houston v. Hill, 482 U.S. 451, 458 (1987) ("[In an overbreadth
challenge], a court's first task is to determine whether the enactment
reaches a substantial amount of constitutionally protected conduct."
(internal quotation marks omitted)); Members of the City Counsel v.
Taxpayers for Vincent, 466 U.S. 789, 801 (1984) (noting that an
overbreadth challenge will succeed only if there is "a realistic danger
that the statute itself will significantly compromise recognized First
Amendment protections of parties not before the Court").
Applying these principles, we must determine whether Section
223(d) unconstitutionally restricts freedom of expression, and, if so,
whether the statute criminalizes a category of protected speech that is
substantial in relation to the category that could legitimately be
proscribed. Section 223(d) constitutes a content-based regulation of
speech; in most contexts, such a regulation would be subject to the
strictest judicial scrutiny and therefore would be impermissible absent
a showing that the regulation is supported by a compelling interest
and is narrowly tailored to achieve that interest. See Sable
Communications, 492 U.S. at 126. At oral argument, the
Government's counsel conceded that strict scrutiny analysis is
appropriate for purposes of this Court's adjudication of the plaintiff's
motion for preliminary injunctive relief; nonetheless, we pause to
consider this question in greater detail in light of the Supreme Court's
recent decision in Denver Area Consortium, 1996 WL 354027. There
a plurality of the Court assessed the constitutionality of statutory
provisions (1) granting cable operators the power to prohibit indecent
communications on "leased access channels"-i.e., channels reserved
under federal law for commercial lease by unaffiliated third parties;
(2) requiring cable operators to segregate and block indecent
programming if they decide to permit, rather than to prohibit, its
broadcast; and (3) granting cable operators the power to prohibit
indecent programming on "public access channels"-i.e., channels
reserved under local franchise agreements for public, educational, or
governmental purposes. Id at *5-*6. Recognizing that the Court's
First Amendment jurisprudence involved application of principles
tailored to different communications media, the plurality expressly
declined to adopt a definitive standard for evaluating content-based
regulation in the cable medium to apply in all future circumstances.
Id. at *10. Accordingly, the plurality did not evaluate the restrictions
on indecent cable broadcasts under a standard of "strict scrutiny," but
rather assessed whether the restrictions "properly addresse[d] an
extremely important problem, without imposing, in light of the
relevant interests, an unnecessarily great restriction on speech." Id. at
*11.
As the Denver Area Consortium plurality itself recognized, there was
little difference between the standard it applied and the strict scrutiny
approach that Justice Kennedy endorsed in his partial concurrence.
See id at *13. We have no doubt, however, that strict scrutiny should
apply here. The plurality's decision not to expressly apply strict
scrutiny in Denver Area Consortium depended in part on the
likelihood that children would be exposed to indecent cable
programming; reasoning that, like broadcast television or radio, cable
television is "uniquely pervasive" in homes and highly accessible to
children and that patently offensive material confronts the viewer
"with little or no prior warning," the plurality reasoned that Pacifica's
consideration of a limitation on indecent broadcasting was
persuasive. Id. at *12 (internal quotation marks omitted). The
plurality distinguished Sable Communications in part because it
"involved a communications medium, telephone service, that was
significantly less likely to expose children to "indecent] material, was
less intrusive, and allowed for significantly more control over what
comes into the home." Id at *14. As our findings of fact make clear,
it takes several affirmative steps for a user to gain access to material
through an interactive communications service. Indecent content on
the Internet ordinarily does not assault a user without warning: a
child cannot gain access to Internet content with the touch of a remote
control, and while accidental viewing of indecent content is possible,
there is no evidence in this record to suggest that it is likely.
Accordingly, we find strict scrutiny appropriate here.
In charging that Section 223(d) unconstitutionally restricts protected
expression, the plaintiff pursues two distinct arguments. First, the
plaintiff contends that Section 223(d) reaches a significant amount of
Internet content with serious literary, artistic, political, or scientific
value, and that the government cannot demonstrate any compelling
interest in restricting the availability of such material on the Internal
Second, the plaintiff claims that Section 223(d) (considered together
with certain affirmative defenses to criminal liability set forth in
Section 223(e)(5)) is not narrowly tailored, in that it fails to preserve
for adults the ability to engage in certain constitutionally protected
communications-effectively acting as a total ban on indecent
communications by interactive computer systems.
We find it necessary to address only the second of these claims.
Entirely independently of the question of whether matter of serious
value is chilled by the CDA, the statute constitutes an overly broad
restraint on protected communication between and among adults. Of
course, the statute would be even more constitutionally defective if it
encompassed work of serious value that the government has no
compelling interest in regulating. In light of our finding on the
plaintiff's second overbreadth claim, however, it is unnecessary to
resolve the question of whether he has demonstrated a likelihood of
success on his claim that the CDA would proscribe a substantial body
of work that is of serious value but that is not harmful to minors and
therefore not in the government's compelling interest to regulate.
Broadrick, 413 U.S. at 615.
It is also unnecessary, given our holding on the plaintiff's second
overbreadth claim, to decide whether the potential ineffectiveness of
the CDA in eradicating the problem of minors' having access to
sexually explicit material on the Internet renders the statute
constitutionally defective. Because the CDA only regulates content
providers within the United States, while perhaps as much as thirty
percent of the sexually explicit material on the Internet originates
abroad, see supra p. 26, the CDA will not reach a significant
percentage of the sexually explicit material currently available.
Considering, as we hold below with respect to the plaintiff's second
overbreadth claim, that the CDA can be expected to chill the First
Amendment rights of adults to engage in the kind of expression that
is subject to the CDA's criminal penalties, the apparent
ineffectiveness of the CDA underscores our holding today that the
Government has failed to demonstrate that the CDA does not
"unnecessarily interfer[e] with First Amendment freedoms." Sable
Communications, 492 U.S. at 126 (internal quotation marks
omitted). Even if it were established that the statute is to some limited
extent effective in protecting minors from sexually explicit material
on line, and that nothing short of a total ban on indecent
communication could be as effective, it is not obvious that the
benefits thus achieved would outweigh the burden, described below,
imposed on the First Amendment rights of adults. As our Court of
Appeals has repeatedly stated, "[T]he State may not regulate at all if it
turns out that even the least restrictive means of regulation is still
unreasonable when its limitations on freedom of speech are balanced
against the benefits gained from those limitations." Carlin
Communications, Inc. v. FCC, 837 F.2d 546, 555 (2d Cir.)
(internal quotation marks omitted), cert; denied, 488 U.S. 924
(1988).
We turn now to the plaintiff's second overbreadth claim, analytically
distinct from the first, that the CDA acts as a ban on certain
constitutionally protected communications between adults. For
purposes of our discussion of this claim, we will assume that the
government has a compelling interest in restricting minors' access to
all (or virtually all) "patently offensive" material-that is, that all such
material is found to be harmful to minors. The question is whether
the challenged provision of the CDA is a "narrowly drawn
regulations designed to serve [the government's] interest[] without
unnecessarily interfering with First Amendment freedoms." Sable
Communications, 492 U.S. at 126 (internal quotation marks
omitted). The plaintiff claims that the statute fails to safeguard for
adults the means of engaging in constitutionally protected
communications through interactive computer services.
The Government concedes that Section 223(d), standing alone, is not
constitutionally defensible. (Oral Argument, June 3, 1996, Tr. at 69-
71) As discussed in greater detail in our factual findings, and as the
Government concedes, for the vast majority of applications and
services available on the Internet, a user has no way of
communicating or making available patently offensive content with
certainty that the content will not reach a person under eighteen years
of age. (See Findings of Fact, supra; Oral Argument, June 3, 1996,
Tr. at 69) For example, an individual sending a message that will be
retransmitted by a mail exploder program has no way of knowing the
identity of other subscribers (even if he knows the e-mail address of
each subscriber). A content provider has no way of knowing who
will have access to an article posted to a Usenet newsgroup.
Individual participants in an Internet Relay Chat discussion know
other participants only by the names they choose upon entering the
discussion; users can participate anonymously by using a
pseudonym. A content provider who makes files available on an
anonymous FTP or on a gopher or Web server has no way of
knowing the identity of other participants who will have access to
those servers.
Because content providers using most forms of Internet
communication have no way of transmitting indecent content with
certainty that it will not reach a minor, the only way for a content
provider to comply with Section 223(d), standing alone, would be to
refrain from transmitting any indecent content. Because adults would
lack means of engaging in constitutionally protected indecent
communications over the Internet without fear of criminal liability,
the statute would unquestionably be unconstitutional. See Sable, 492
U.S. at 131 (holding that total ban on commercial indecent telephone
messages "has the invalid effect of limiting the content of adult
telephone conversations to that which is suitable for children to
hear").
Section 223(d), however, does not stand alone. In Section 223(e)(5),
Congress supplied two affirmative defenses to liability under the
CDA. First, Section 223(e)(5)(A) provides that it is a defense to a
prosecution under Section 223(d) that a person "has taken, in good
faith, reasonable, effective, and appropriate actions under the
circumstances to restrict or prevent access by minors to [covered]
communication[s], which may involve any appropriate measures to
restrict minors from such communications, including any method
which is feasible under available technology." Second, Section
223(e)(5)(B) provides that it is a defense to a prosecution under
Section 223(d) that a person "has restricted access to [covered]
communication[s] by requiring use of a verified credit card, debit
account, adult access code, or adult personal identification number."
Accordingly, our inquiry is whether the statutory defenses adequately
ensure that would-be speakers can use the Internet to transmit
constitutionally protected communications to adults. The Government
concedes that it bears the burden of proving that Section 223(d),
taken together with the statutory defenses, preserves the ability of
adult Internet speakers to engage in constitutionally protected
indecent communications (Oral Argument, June 3, 1996, Tr. at 28-
29), see R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992)
(noting that content-based regulations are presumptively invalid);
only if adults can engage in such communications can the court
conclude that the relevant provisions of the CDA are narrowly
tailored to achieve the government's interest in restricting minors'
access to indecent material. We examine the Section 223(e)(5)
defenses in reverse order.
1. Verified Credit Card, Debit Account, Adult Access Code, or Adult
Identification Number
The Government does not claim that Section 223(e)(5)(B) serves as a
defense for content providers using all or even most forms of on-line
communication. If a content provider cannot discern who receives his
messages, there is no way for him to obtain verification of recipients'
ages. As previously noted, a speaker posting a message to a
newsgroup or to a list maintained by a mail exploder has no control
over who will receive the message; a user who joins an IRC
discussion channel cannot determine the identity of other participants,
beyond viewing a list of names. Because speakers wishing to use
these forms of communication have no way of identifying the
recipients of their messages, they simply cannot seek to obtain any
credit card or access code verification of a recipient's age. Similarly,
credit card or adult access verification is not available as a defense to
content providers who maintain FTP servers and wish to permit
"anonymous" access to files or who maintain gopher servers.17
As previously explained, evidence adduced at the three-day hearing
suggests that some form of verification is technologically feasible for
at least one mode of on-line communication relevant for our
purposes: the World Wide Web. See Findings of Fact, supra, pp.
31-32. Based on this evidence of record, it iS possible to conclude
that Section 223(e)(5)(B) serves as an adequate defense for at least
certain commercial providers of Web content-specifically, those who
primarily make Web content available for "purchase" or, put another
way, those who charge Web users to gain access to, and view, their
content. Many commercial content providers charge a fee to permit a
user to gun access to sexually explicit content, thus necessitating
credit card verification in any event. Nevertheless, we note that the
category of "commercial content providers" is itself somewhat
elusive, and it is not dear that all content providers who could be
termed "commercial" content providers could absorb the cost of
credit card verification. Consider, for example, a software developer
who makes a program available on line for users to download (that
is, copy to the hard drive of the user's computer) without charge, for
a short trial period, with the understanding that the user will remit a
registration fee if the user decides to retain the program after the trial
period. Although the software developer has a commercial purpose,
it is not clear that he could bear the economic burden of verifying the
credit cards of all those who access his software (as opposed to those
who ultimately enter into a licensing agreement).
Were Section 223(e)(5)(B) the only defense available to providers of
Internet content, the conclusion would be inescapable that the
provision challenged by the plaintiff reaches a substantial amount of
protected speech and is therefore constitutionally infirm. For
speakers using most Internet applications e-mail, newsgroups, chat
rooms-Section 223(e)(5)(B) is no defense at all; to avoid the threat of
CDA liability, they would simply have to refrain from engaging in
constitutionally protected speech. For non-commercial content
providers and possibly some commercial providers, credit card
verification or maintenance of a verification system would be
extremely costly. The Government urges that all Web content
providers-commercial and non-commercial alike-could associate with
"adult verification services." This argument ignores what is obvious
from examining the advertisements and informational literature in the
record regarding such services: these services are used in connection
with, and indeed gear their promotional materials toward, so called
"adult" sites offering pornographic images and users of such sites.
We have no doubt that it would be burdensome for some non-
commercial and commercial content providers wishing to make
available other types of material arguably falling within the scope of
the CDA, and for users wishing to retrieve such material, to associate
with "adult verification services."
2. Good Faith Defense
We turn, then, to Section 223(e)(5)(A), which provides a defense to
CDA liability for content providers who, "in good faith," take
"reasonable, effective, and appropriate actions under the
circumstances," including any steps "feasible under available
technology" to prevent minors' access to communications falling
within the scope of the CDA. The Conference Report accompanying
the CDA emphasizes that the term "effective" is to be given an's
common meaning and does not require an absolute 100% restriction
of access to be judged effective." S. CONF. REP. No. 230, 104th
Cong., 2d Sess. 190 (1996). Although the statute does not require
that a content provider take steps that are one-hundred percent
effective in restricting minors' access to indecent communications, it
is not disputed that Section 223(d) cannot stand unless there are
reasonably effective means of ensuring that covered communications
do not reach minors. (Oral Argument, June 3, 1996, Tr. at 69-71;
see supra p. 48) While the statute makes clear that a content provider
is permitted to do anything that is "feasible" under current technology
to restrict minors' access to covered communications, it does not by
itS terms allow content providers to escape liability if there is no
feasible and reasonably effective way of limiting minors' access to
those communications. Throughout this litigation, the Government
has attempted to identify certain steps-nowhere specifically set forth
in the CDA-that content providers could take that would, absent
extraordinary circumstances, constitute substantial evidence of a
Section 223(e)(5)(A) defense. On April 30, 1996, the Court directed
the Government to obtain clarification of the Department of Justice
position regarding the applicability of Section 223(e)(5)(A). On May
3, 1996, the Government filed a letter from John C. Keeney, Acting
Assistant Attorney General of the Criminal Division of the
Department of Justice ("Keeney Later"), stating in pertinent part:
Under present technology, non-commercial content providers can
take steps to list their site[s] in URL registries of covered sites,
register their site[s] with the marketplace of browsers and blocking
software (including listing an IP address), place their material in a
directory blocked by screening software, or take other similarly
effective affirmative steps to make their site[s] known to the world to
allow the site[s] to be blocked. Under present technology, it is the
position of the Department of Justice that, absent extraordinary
circumstances, such efforts would constitute substantial evidence that
a content provider had taken good faith, reasonable, effective, and
appropriate actions under the circumstances to restrict or prevent
access by minors to the covered material. The same would be true for
tagging by content providers, coupled with evidence that the tag
would be screened by the marketplace of browsers and blocking
software.
(Emphasis supplies.) Following dosing arguments on June 3, 1996,
the Court ordered supplemental briefing by the Government focusing
in particular on the technological feasibility and the effectiveness of
some of the steps set forth in the Keeney Letter. We examine whether
content providers using various forms of Internet communication can
avail themselves of the good-faith defense set forth in Section
223(e)(5)(A)-that is, whether Section 223(e)(5)(A) enables them to
engage in constitutionally protected communications without fear of
criminal liability.18
We note at the outset that the Government has nowhere represented
that the articulation of the Department of Justice's position in the
Keeney Letter would prevent any United States Attorney from
arguing in a particular prosecution that any of the steps identifies in
the letter to not satisfy the requirements of Section 223(e)(5)(A). In
fact, it appears that in the Philadelphia litigation, where the
Government was granted leave to file the Keeney Letter, the
Government expressly conceded that the letter does not preclude a
United States Attorney from taking a contrary position in particular
litigation. See ACLU/ALA, 1996 WL 311865, at *58 n.20 (Dalzell,
J.). In addition, neither Section 223(e)(5)(A) itself nor the
Government's representations concerning that section can be read to
suggest that individuals taking the enumerated steps need not fear
prosecution (as distinct from ultimate criminal liability). Section
223(e)(5)(A) (like Section 223(e)(5)(B)) supplies a content provider
with an affirmative defense, to be invoked after a criminal
prosecution has been initiated and after the Government has
presented its case; the steps specified by the Government are said to
constitute "substantial evidence" of the affirmative defense. Because
Section 223(e)(5)(A) in no way shields a content provider from
prosecution, it cannot be said that the steps enumerated by the
Government eliminate any chilling effect that the "patently offensive.
provision otherwise would have.
Even if we were satisfied that the Department of Justice's position
regarding the scope of Section 223(e)(5)(A), as stated in the Keeney
Letter, could be uniformly implemented, that the Government would
not prosecute individuals who had taken the enumerated steps, and
that individual content providers' knowledge that they would not be
prosecuted would eliminate any chilling effect that the challenged
provision might otherwise have, we are unavoidably constrained to
conclude that Section 223(e)(5)(A) does not provide a safe harbor in
a substantial number of circumstances. We examine the particular
steps suggested by the Government.
a. Tagging
We look first to the concept of "tagging," the subject of extensive
testimony at the evidentiary hearing, as described above. See
Findings of Fact, supra, at pp. 28-30. As one of the Government's
expert witnesses testified, content providers wishing to transmit or
make available material that they believe to fall within the scope of the
CDA could identify the material as such by inserting a tell-tale "tag"
into a site's name or address.
Even assuming that content providers are able to distinguish
accurately between material subject to the CDA and material not
subject to the CDA, and assuming that any requirement that content
providers label constitutionally protected but patently offensive
communications would not lead a significant number of content
providers to refrain from transmitting such communications, the
tagging scheme suggested by the Government's expert still fails to
bring content providers within Section 223(e)(5)(A)'s safe harbor,
for several reasons. The simple act of inserting a tag in the address of
a domain, directory, or file; the name of a newsgroup or IRC
channel; the subject line of an e-mail message or newsgroup article;
or the source code of an HTML document, is completely ineffective
in preventing minors' access to patently offensive materials. For a
tagging scheme to be effective, the tag must be capable of being
detected by server software designed to make the materials available
or by client software used to request access to or to display such
materials. (Olsen Test., Tr. at 321-22) Indeed, the Government has
carefully avoided representing that tagging alone constitutes
"substantial evidence" that the content provider has used reasonable,
effective, and appropriate means for preventing minors' access to
constitutionally protected communications. Rather, the Department of
Justice has indicated that, absent unusual circumstances, evidence of
tagging, "coupled with evidence that the tag would be screened by
the marketplace of browsers and blocking software," would
constitute substantial evidence of compliance with Section
223(e)(5)(A). (Keeney Letter at 2 (emphasis supplied)) The evidence
adduced at the hearing, however, indicates that there is currently no
tag (such as "-L18") widely recognized as signaling that content falls
within the scope of the CDA. More important, the CDA imposes no
obligation on the manufacturers of browsers and blocking software
to configure their products to detect a particular tag; content
providers' ability to mount a tagging defense depends upon the
actions of these parties, whose cooperation is not required under the
Act.
Despite the lack of a recognized tag for CDA content, a content
provider could presumably insert into an address a label-such as
"sex" or "xxx"-designed to trigger blocking features (even in the
absence of a CDA tag agreed upon by the "marketplace of browsers
and blocking software" or prescribed by law). It is unclear that this
step would satisfy either the terms of the government's policy as
stated in the Keeney Letter or the plain language of the statute. The
terms of the Keeney Letter contemplate screening by the "marketplace
of browsers and blocking software." As the Government has
strenuously argued, blocking software is not in wide use today. S.
supra p. 27. Accordingly, even if content providers could offer
evidence that they "tagged" content within the reach of the CDA prior
to displaying it, and that available blocking software is configured to
detect the tag, it is difficult to see how their actions could be regarded
as "effective" means of preventing minors from gaining access to
materials.
At the hearing, the Government introduced no evidence that any
browser-that is, client software permitting a user to view materials
available on Web servers-is currently configured to detect and block
access to a directory or file containing a particular string of
characters. After the Court ordered the Government to file
supplemental materials regarding the Keeney Letter, the Government
submitted an article detailing the release of a Microsoft browser,
Internet Explorer 3.0, capable of screening content based on labels
compatible with PICS. (Supplemental Declaration of William J.
Hoffman, Ex. C; see supra p. 28) If a content provider were to tag a
file with a name incorporating a PICS label, a minor seeking access
to such a file on a system running this browser (appropriately set)
could not do so. (Id)
The Government also points to the fact that CompuServe and
Prodigy have linked their browsers to parental screening software
offered by Cyber Patrol Joint Stip. Paragraph 57) and that a browser
offered by InterGO Communications includes a PICS-compatible
screening feature. Yet there are numerous other browsers lacking any
screening features-including Netscape Navigator, which controls
some eighty percent of the browser marker. (Olsen Decl. Paragraph
101) A content provider simply could not show that a tag is screened
by the "marketplace of browsers" when only a handful of browsers
have screening capabilities. Even if it were possible to show that all
browsers with screening features would detect a label, the
Government has not suggested, much less proven, that browsers
with such screening features are in wide use. Without such a
showing, it is difficult to see how tagging could be "effective" within
the meaning of Section 223(e)(5)(A).
In sum, we fail to see how content providers attempting to carry a
Section 223(e)(5)(A) defense could do so by introducing evidence
that they had tagged materials within the scope of the CDA and that
browsers or blocking software in the "marketplace" can detect the
tags. Without a showing that a range of browsers and blocking
software capable of detecting the tag exist and are in wide use,
tagging cannot be thought reasonably "effective." If it is the
Government's position that a content provider need not show that the
relevant tag is widely screened-that is, screened by the "marketplace
of [available] browsers," not simply by a few browsers that may or
may not be in wide use-it is at odds with the statutory language,
which requires that content providers take effective means to prevent
minors' access to patently offensive materials. To put the matter
simply, unless and until blocking software is widely in place, or
unless and until those who produce and market browsers-on whom
Congress placed no obligations in the CDA-configure those browsers
to recognize particular labels, tagging to prevent minors' access to
material available on the Web cannot be "effective."
We note also that "browsers" are client software designed to obtain
access to material available on the World Wide Web. While some
permit the user to engage in other modes of Internet communication,
there is no evidence that those with screening features would restrict
access to, for example, tagged newsgroups, mailing lists, and chat
rooms. One of the Government's two expert witnesses testified that
client software enabling users to read e-mail and newsgroups, as
manufactured and distributed, is not configured to supply users with
options to detect particular labels or tags in newsgroup names, e-mail
addresses, or subject lines accompanying articles and messages.
(Olsen Test., Tr. at 331, 334) Such software can, however, be
reconfigured by a user to detect particular tags. (Id at 331) We doubt
that a content provider could rely on tagging, coupled with the fact
that e-mail and newsgroup readers can reconfigure their software to
detect certain tags, as evidence of reasonable and effective efforts to
prevent minors' access to materials falling within the scope of the
CDA. A content provider has no control over what client software a
user installs, how the user reconfigures that software, or whether a
minor can undo the reconfiguration. (Id at 333, 334) Thus, a content
provider has no way of ensuring that a message posted to a
newsgroup or a mailing list will not be available to persons under the
age of eighteen; to rely on the combination of tagging and client
software to come within the Section 223(e)(5)(A) defense, a content
provider would have to assume that third parties-namely, the users-
install and reconfigure software, and would risk criminal liability if
that dubious assumption proved incorrect.
b. Placing Content in Blocked Directories and Registering Content
Having concluded that the tagging scheme pressed by the
Government does not presently offer a substantial number of content
providers an affirmative defense to criminal liability under the CDA,
we turn to other steps identified in the Keeney Letter.
Those steps fall roughly into two categories. First, the Keeney Letter
suggests that steps taken by content providers to "place their material
in a directory blocked by screening software" will constitute
substantial evidence of compliance with Section 223(e)(5)(A).[19]
For example, a content provider can take steps to ensure that the site
is listed with a directory of sites containing "adult" material, such as a
section of the Internet Yellow Pages identifying adult materials
(Hoffman Decl., Ex. 6) or a section of an on-line directory system
such as Yahoo reserved for sexually explicit materials. The record
suggests that screening software such as SurfWatch is designed to
block sites listed in the Internet Yellow Pages under the category "X-
Rated Resources." (Stipulated Record, Ex. M, at 137-39 (Duvall
Test.); id. Ex. Q)
Second, the Keeney Letter suggests that steps taken by content
providers to "register their site[s] with the marketplace of browsers
and blocking software" will constitute substantial compliance with
Section 223(e)(5)(A). Attempting to lend substance to this language,
the Government notes that certain commercial on-line services,
Internet service providers, browsers, and blocking software will
block access to sites "registered" with their services. "Defendant's
Supp. Memo. at 34) Thus, the Government contends that, "absent
extraordinary circumstances," content providers who directly register
their sites with an unspecified number of such companies will have
satisfied Section 223(e)(5)(A). (Id)
Again, it appears that the Government's representation fails to help
any substantial number of content providers to enter the safe harbor
offered by Section 223(e)(5)(A). As previously noted, the
Government has offered no evidence, and does not contend, that the
products and services that offer to block site access cover even a
significant portion of the available market. If that portion were not
significant, site registration would accomplish little, and would
certainly not serve as an "effective" means to restrict the access of
minors to Internet content. Similarly, the effectiveness of securing a
listing in a directory containing sexually explicit sites depends upon
households' voluntary use of blocking software. The Government
strenuously argues-and we have found-that blocking software is not
widely used (Defendant's Post-Hearing Memo. at 54-55; see supra
p. 27), and content providers certainly cannot cause its greater use.
We note in passing two additional steps for compliance with Section
223(e)(5)(A) offered by the Government but not included in the
Keeney Letter. The Government suggests that those adults who wish
to exchange indecent communications can do so by confining those
communications to limited membership or limited access forums. For
example, an adult user could post indecent e-mail only to "closed"
mailing lists, whose subscribers could be "approved" based on age.
As previously noted, however, an e-mail address provides no
authoritative information about a subscriber, an individual managing
a "closed" mailing list would have to use some other means of
identifying subscribers' ages. The Government suggests none;
presumably, the list manager could obtain a credit card number from
each subscriber. Again, however, verification would be costly, and
not likely an option for a noncommercial content provider.
The Government also urges that content providers court post indecent
material to limited newsgroups. A newsgroup cannot be limited in the
same sense as a mailing list; communications are not transmitted from
a central server, but are passed among servers participating in the
Usenet system. Accordingly, a limited newsgroup is achieved by
restricting the number of servers on which posted articles appear.
Although the concept is not well developed in the record, it is clear
that the server or servers on which the newsgroup is available would
need the capacity to verify that any user requesting access to an article
is an adult. (Olsen Decl. Paragraphs 75-87 (describing concept of a
"verified server")) The Government's suggestion assumes that users
will possess the resources and expertise to establish and maintain a
server; although several individuals or entities could share a single
server, the record suggests that the cost of establishing a server is not
trivial-indeed, the price could range beyond three-thousand dollars.
(Galligher Test., Tr. at 182 (describing cost of maintaining mail
server))
In sum, there is no persuasive evidence that a substantial proportion
of Internet content providers can make available material potentially
within the scope of the CDA without fear of prosecution and criminal
liability. Leaving aside the fact that Section 223(e)(5) sets forth
affirmative defenses-and thus offers no assurance that a content
provider will not be prosecuted-the proffered defenses are
unavailable for numerous Internet content providers. The
Government suggests that content providers should "tag" their
material, but recognizes that the effectiveness of tagging depends
wholly on the actions of third parties-manufacturers of client
software-on whom the Act places no obligations whatsoever. The
Government also suggests that registration with the "marketplace of
browsing and blocking software" will constitute "substantial
evidence" of good faith, despite the face that the effectiveness of such
steps depends on the availability and use of services that offer to
block sites, browsers that have screening capabilities, or blocking
software. (See Defendant's Post-Hearing Memo. at 44-45) In the
absence of evidence that the marketplace actually offers a substantial
number of services and products with blocking capabilities-and,
indeed, in the face of evidence that households do not tend to use
existing parental control software, see supra p. 27-the Government's
position is untenable. We have no doubt that, under current
technology, the availability of a good-faith defense in Section
223(e)(5)(A) will not lessen the chill on protected expression created
by Section 223(d) of the CDA. (See Oral Argument, June 3, 1996,
Tr. at 18)
The Government urges thee we overlook the fact that the standards
and client software necessary to ensure that content providers can
enter Section 223(e)(5)(A)'s safe harbor are not currently in place,
and that we trust that standards and technology will evolve rapidly in
response to the CDA. The Government thus argues thee a defense to
criminal liability under a statute regulating constitutionally protected
speech is not now available but will be in shore order. We decline to
accept such an argument. We cannot uphold a statute against a First
Amendment challenge in the uncertain expectation that future
technology will remedy any constitutional infirmities. Even if we
could be certain thee technological advancement would rapidly render
the good-faith defense practicable, we necessarily decide questions of
law in the factual context of the world as we know it, mindful that
restrictions on First Amendment freedoms, "for even minimal
periods of time, unquestionably constitutes irreparable injury."
Elrod, 427 U.S. at 373.
Section 223(e)(5)(A) offers the only possible defense for those who
wish to communicate by e-mail, newsgroups, or chat rooms or those
who choose to make files available by running an FTP or gopher
server. In addition, it offers the only defense for non-commercial-and
possibly some commercial-content providers of World Wide Web
material. The fact that Section 223(e)(5)(B) may offer a defense to
Web providers who primarily make content available for purchase
leads the Government to urge that, at a minimum, we uphold Section
223(d) as to commercial providers of Web content.20
We recognize that courts should attempt to limit a statute's scope
before resolving to declare it facially void. Two roads are available in
this respect; a court can strike a portion of a statutory provision,
leaving the remainder of the legislation intact, or it can leave the law's
language in place but assign to it a narrow meaning. However, the
circumstances here presented do not permit us either of these options
to save part, if not all, of the statute.
The Supreme Court has repeatedly recognized the "'elementary
principle that the same statute may be in part constitutional and in part
unconstitutional, and that if the parts are wholly independent of each
other, that which is constitutional may stand while that which is
unconstitutional will be rejected.'" Brockett v. Spokane Arcades,
Inc., 472 U.S. 491, 502 (1985) (quoting Allen v. Louisiana, 103
U.S. 80, 83-84 (1881)). Where it is possible to identify in the text of
a statute particular language that is unconstitutional, a court should
attempt to strike only that language, provided that the remainder of
the statute can function effectively without the excised portion and
that the resulting whole is consistent with the intent and design of
Congress. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85
(1986. Thus, for example, in Brockett, the Court reversed the
appellate court's facial invalidation of Washington's moral nuisance
statute, finding that the statute could survive a First Amendment
attack if, at worst, the word "lust" were struck from its definitional
section. 472 U.S. at 504-07; see also Alaska Airlines, Inc., 480
U.S. at 697 (striking down statute's legislative veto component
only).
The statute at issue in the instant case, however, nowhere
distinguishes between categories of content providers. Even if we
were to accept the Government's position that the statute could be
constitutionally applies to commercial providers of indecent material,
we are not in a position to excise particular statutory language in an
effort to salvage the provision, because we cannot identify a "wholly
independent" portion of the law that can be described as
constitutionally infirm.
Nor would it be appropriate for the Court to assign a narrow
construction to the statute's existing language. Although we
recognize that this is the proper approach in many instances, see,
e.g., National Advertising Co. v. City of Orange, 861 F.2d 246 (9th
Cir. 1988) (construing Orange City anti-billboard ordinance to apply
only to commercial billboards); Doyle v. Suffolk County, 786 F.2d
523 (2d Cir.) (saving New York law from invalidity under ADEA by
exempting individuals aged forty to seventy from its prohibition on
applicants over age twenty-nine), cert. denied, 479 U.S. 825 (1986),
there are limits on the extent to which the courts can salvage
legislation through limiting interpretation. A statutory provision must
be "easily susceptible of a narrowing construction." Erznoznik v.
City of Jacksonville, 422 U.S. 205, 216 (1975) (declining to
construe city ordinance narrowly to avoid First Amendment facial
invalidation); Virginia v. American Booksellers Ass'n, 484 U.S.
383, 397 (1988) (dicta) (noting that "the statute must be 'readily
susceptible' to the limitation; we will not rewrite a state law to
conform it to constitutional requirements"). Otherwise, the courts
risk intrusion into the legislative sphere. See United States v.
National Treasury Employees Union, 115 S.Ct. 1003, 1019 (1995)
(declining to read nexus requirement into Ethics in Government Act,
noting its "obligation to avoid judicial legislation. and concluding,
"We cannot be sure that our attempt to redraft the statute . . . would
correctly identify the nexus Congress would have adopted....").
In the instant case, we would need to limit the statutory term "any
person" to mean "any commercial content provider," or, possibly,
"any commercial provider of Web content," or even "any commercial
purveyor of pornography on the World Wide Web. The statute is far
from "readily susceptible" to any such limitation. Rather, any such
interpretation would fly in the face of a dear congressional intent to
apply the statute's proscriptions to commercial and noncommercial
content providers alike. See S. CONF. REP. No. 230, 104th Cong.,
2d Sess. 191 (1996). The construction of the statute urged by the
Government here would require the court to substantially redraft the
statute-in effect, to usurp Congress's legislative functions. We
cannot accept the invitation to so reconfigure this statute and thus
engage in judicial legislation-the very "judicial legislation" that the
Supreme Court condemned in National Treasury Employees Union.
Nor does the statute at issue in the instant case lend itself to a gradual
narrowing through case-by-case adjudication along the lines of the
Supreme Court's approach in Broadrick, 413 U.S. at 601. In
Broadrick, the Court limited its holding to the parties before it in the
express expectation that subsequent cases would serve to define the
statute's proper scope. It did so, however, recognizing that the
potential range of the law's unconstitutional applications was not
"substantial . . . in relation to the statute's plainly legitimate sweep."
Id. at 616; see also New York v. Ferber, 458 U.S. 747, 773-74
(1982). In the instant case, the evidence suggests that the set of
content providers whose speech could be constitutionally proscribed
is in fact exceeded, perhaps even overshadowed, by the number of
users whose speech is constitutionally protected. Under these
circumstances, this Court may not leave to subsequent adjudication
the task of defining the potentially expansive set of users who should
be outside the statute's scope.
CONCLUSION
to summarize, we find as follows:
(1) The plaintiff has not demonstrated a likelihood of success on his
claim that Section 223(d) is void as unconstitutionally vague.
(2) The plaintiff has demonstrated a likelihood of success on the
merits of his second substantial overbreadth claim, that Section
223(d) serves as a ban on constitutionally protected indecent
communication between adults;
(a) The Government has conceded that Section 223(d), standing
alone, is unconstitutional as a total ban on protected indecent
communication between adults;
(b) Current technology provides no feasible means for most content
providers to avail themselves of the two affirmative defenses to
Section 223(d) set out in Section 223(e)(5).
Accordingly, the plaintiff's Motion for a Preliminary Injunction (filed
Feb. 17, 1996) is granted: the defendant is preliminarily enjoined,
until further order of this Court, from initiating any investigation or
prosecution under Section 223(d), to the extent that such
investigation or prosecution is based upon the alleged display or
transmission of indecent but not obscene material.
It is so ordered.
ENTERED in New York, New York, this 29th day of July, 1996.
/s/
Jose A. Cabranes
United States Circuit Judge
/s/
Leonard B. Sand
United States District Judge
/s/
Denise Cote
United States District Judge
ENDNOTES
* The Honorable Jose A. Cabranes of the United States Court of
Appeals for the Second Circuit.
** The Honorable Leonard B. Sand of the United States District
Court for the Southern District of New York.
*** The Honorable Denise Cote of the United States District Court
for the Southern District of New York.
FN1: Following the Philadelphia decision, the Court ordered the
parties tO file letter briefs addressing the preclusive effect, if any, of
the Philadelphia court's findings of fact on this proceeding. "Under
the judicially developed doctrine of collateral estoppel, once a court
has decided an issue of fact or law necessary to its judgment, that
decision is conclusive in a subsequent suit based on a different cause
of action involving a party to the prior litigation."United States v.
Mendoza, 464 U.S. 154, 158 (1984). Although the doctrine can
apply where there is no mutuality of parties and can be used
offensively, id at 158-59, Mendoza makes dear that nonmutual
offensive collateral estoppel does not apply against the government,
at lease as to issues of law, id. at 162-63. Although courts have
observed that Mendoza leaves open the possibility that nonmutual
collateral estoppel may apply against the government with respect to
factual issues, see, e.g., Adkins v. Commissioner of Internal
Revenue, 875 F.2d 137, 141 (7th Cir. 1989), we conclude that its
application is inappropriate here in light of the "avowedly tentative.
nature of the Philadelphia court's findings Lummus Co. v.
Commonwealth Oil Refining Co., 297 F.2d 80, 89 (2d Cir. 1961),
cert. denied, 368 U.S. 986 (1962); see ACLU/ALA, 1996 WL
311865, at *13 n.12 ("Because of the rapidity of developments in
this field, some of the technological facts we have found may become
partially obsolete by the time of publication of these [f]indings.").
Although many of our findings overlap with those made in
ACLU/ALA, we recognize that Internet technology is rapidly
evolving, and that evidence of new developments was added to the
record before us as late as June 7, 1996.
FN2: We use the term "content" to refer to any text, data, sound,
program, or visual image transmitted over or made available for
retrieval on an ineeractive computer service.
FN3: While Section 223(d) regulates more than the content of
Internet communications, we focus mainly on the range of tools and
services available to individuals with Internet access, recognizing that
the vast majority of content available through the use of an interactive
computer service is in fact available on the Internet.
FN4: A "modem" (a contraction of "modulator" and "demodulator")
is a device that translates digital information into a signal for
transmission over a telephone line ("modulation") and eranslates a
signal received over a telephone line into digital information
("demodulation").
FN5 We use the eerm "coneene provider". to refer to any Internet
"speaker"-that is, a user who eransmies or makes available any
coneent over the Ineerna. Although the term is not used in the
statutory provision at issue, "information coneent provider" is
elsewhere defined in the CDA as "any person or entity that is
responsible, in whole or in part, for the creation or development of
information provided ehrough the Ineerna or any other interactive
computer service." Pub. L. No. 104-104, Sect. 509(e)(3), 110 Stat.
at 139 (to be codified at 47 U.S.C. Section 230(e)(3)). The phrase
serves as a reasonable shorchand for the category of individuals
targeted by the CDA-persons who send or display Internet content.
See S. CONF. REP. No. 230, 104eh Cong., 2d Sess. 188 (1996)
(stating that 223(d)(1) applies to "content providers").
FN6 We use the eerm "software" to refer to the combination of
programs and procedures that serve as instructions to the computer.
The term is often used in contrast with "hardware," which refers to a
computer system's physical elements.
FN7: The Court received direct testimony of the parties' experts on
technological issues (Dr. Olsen for the defendants and Clay Shirky
for the plaintiffs) by affidavit.
FN8: To locate files available for copying, a user can contact an
"Archie" server-a remote computer capable of searching directories
for file names containing a particular string of characters on FTP
servers permitting anonymous retrieval. (Hoffman Declaration, Ex.
4, at 180-90)
FN9: As with FTP servers, there are tools available for locating
menus or items containing a certain sering of characters: a "Veronica"
server is capable of searching menus on all gopher servers, while
"Jughead" is an aptly named tool for searching menus on only a
single server. (Galligher Testimony, Tr. ae 124; Hoffman Decl., Ex.
3, at 5; id Ex. 4, at 191-92)
FN10: Most of these services do not charge users for search requests
and are sustained primarily by advertising revenues. (Galligher Test.,
Tr. at 136-37.)
FN11: In the example jdoe@smith.com, "smith.com" would
constitute a domain name.
FN12: Following the example above, all e-mail would originate from
the domain smith-L18.com.
FN13: In the example above, material would originate from the
address jdoe-L18@smith.com.
FN14: The FCC's definition of "indecency" in turn has its roots in
the Supreme Court's obscenity jurisprudence. Under Miller v.
California, 413 U.S. 15, 24 (1973), a work is legally obscene if it
"portray[s] sexual conduct in a patently offensive way. and, taken as
a whole, "appeal[s] to the prurient interest in sex" and lacks "serious
literary, artistic, political, or scientific value.. Under the FCC's
indecency definition, a work need not appeal to the prurient interest
or lack serious value to be "indecent."See Denver Area Consortium,
1996 WL 354027, at *16 (plurality opinion). We note that Section
223(d) contains no reference to "indecent" speech, bue merely
imports the FCC's definition of indecency to define covered speech.
Section 223(a)(1)(B) of the CDA, not challenged by the plaintiff in
this litigation, uses the term "indecent." Like the parties in ehis case,
we use the trms "indecent" and "patently offensive. interchangeably.
The three judges in the Philadelphia litigation acceptd, for purpose of
adjudication of the plaintiff's motion for preliminary injunctive relief,
that Section 223(a)(1)(B) and Section 223(d) cover the same contene,
despite Congress's use of the eerrn "indecent. in one provision and
the "patently offensive" description in the other. See ACLU/ALA,
1996 WL 311865, at *28 (Sloviter, C.J.), *40 (Buckwalter, J.), *48
(Dalzell, J.).
FN 15: In reviewing these rulings, the U.S. Court of Appeals for the
D.C. Circuit approved of the more expansive interpretation of the
indecency standard, see ACTI, 852 F.2d at 133840, but vacates
Regents of the Universitry of California and Pacifica Foundation,
Inc. on other grounds, see id at 1341.
FN16. Indeed, the statutory definition of indecency for the cable
medium, found not to be vague by a plurality of the Court in Denver
Area Consortium, makes no reference to the community standards
for the cable medium. 1996 WL 354027, at *16. Compare 47
U.S.C. Section 532(h) packing reference to standards for cable
medium) with 47 C.F.R. Section 76.701(g) (including reference to
standards for cable medium).
FN17. We note that an FTP server can be configured to verify a
password against a list of passwords issued to users maintaining an
account on the server before permitting access to certain files. A
provider opting for such a configuration, however, would not be able
to make files falling within the scope of the CDA broadly available to
"anonymous" adult users-ie, users without an account on the system.
Moreover, such a configuration is impracticable insofar as it requires
the maintenance of an extensive database of authorized user names
and passwords.
FN18. This inquiry is, of course, distinct from an inquiry into
whether the fact that Section 223(e)(5)(A) nowhere identifies any
specific steps that a content provider can take to enter its "safe
harbor" renders Section 223(d) unconstitutionally vague, because
individuals lack sufficient notice as to how to shield themselves from
criminal liability under the statute. The plaintiff does not press this
argument here.
FN19. The Keeney Letter also indicates that content providers can
take steps to ensure that their sites are listed "in URL registries of
covered sites." In response to the Court's request for supplemental
submissions, the Government appears to suggest that "registries" are
no different from "directories," and that a "covered" site is a site
blocked by screening software. (Defendant's Supplemental Post-
Hearing Memorandum of Law, at 1 n.1, 2) The steps by content
providers contemplated here are essentially identical to "plac[ing] . . .
material in a directory blocked by screening software." (See also
Olsen Testimony, Tr. at 447-48)
FN20. We note that in the ACLU/AL.A, the Government apparently
urged an even narrower approach-namely, that the Court uphold the
statute as to commercial purveyors of pornography. See
ACLU/ALA, 1996 WL 311865, at *33 (Sloviter, CJ.); cf. Oral
Argument, Shea v. Reno, June 3, 1996, Tr. at 74-75.
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