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Fed Court Rules Communications Decency Act Unconst
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Computer underground Digest Wed Jun 12, 1996 Volume 8 : Issue 44
ISSN 1004-042X
Editor: Jim Thomas ([email protected])
News Editor: Gordon Meyer ([email protected])
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
Cu Digest Homepage: http://www.soci.niu.edu/~cudigest
CONTENTS, #8.44 (Wed, Jun 12, 1996)
File 1--Fed Court Rules Communications Decency Act Unconstitutional
File 2--Excerpts from the CDA Decision (re 96-963)
File 3--Cu Digest Header Info (unchanged since 7 Apr, 1996)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION ApPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Wed, 12 Jun 1996 08:55:37 -0700
From: [email protected]
Subject: File 1--Fed Court Rules Communications Decency Act Unconstitutional
EFFector Online Volume 09 No. 08 June 12 1996 [email protected]
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
------------------------------------------------
Groups challenging the law prepare for government appeal to the Supreme Court
Electronic Frontier Foundation
PRESS RELEASE
Contacts: Stanton McCandlish, Online Activist, +1 415 436 9333
Mike Godwin, Staff Counsel, +1 510 548 3290
Shari Steele, Staff Counsel, +1 301 375 8856
Philadelphia -- "Just as the strength of the Internet is chaos, so the
strength of our liberty depends upon the chaos and cacophony of the
unfettered speech the First Amendment protects."
With these ringing words, a Philadelphia federal court has struck down a law
today that would have criminalized constitutionally protected speech on the
Internet and other online forums.
In what civil libertarians are hailing as a victory for everyone who uses
computer communications, a three-judge panel in Philadelphia's federal
court ruled in a unanimous decision that the controversial
"Communications Decency Act" (CDA) violates the U.S. constitutional
guarantees of freedom of speech and of the press.
"First of all, are pleased to see the court vindicate our vision of the Net
as a medium protected by the First Amendment," said Lori Fena, executive
director of the Electronic Frontier Foundation (EFF), watchdog group
established to protect civil liberties, and promote responsibility, in
computer communications. "Secondly, we are delighted that the court has gone
beyond striking down the law, and has stated positively what constitutional
principles must govern any attempt to regulate the most democratic mass
medium the world has ever seen."
Said EFF Chairman Esther Dyson: "This is a day for individual citizens, for
families, and for public and private organizations online to celebrate."
"The judges recognized that CDA was a wholly inappropriate exercise of
governmental power under the Constitution," said Mike Godwin, EFF staff
counsel. "The law would have abridged one of the freedoms that Americans
treasure most, and a freedom that is central to any democratic society," he
said.
Godwin applauded the members of the coalition that challenged the law in
federal court. "We and the other plaintiffs persuaded them that the
government cannot constitutionally impose this sort of overreaching, and
duplicative regulation of content in the online world," Godwin said.
Dyson stated that the decision stands for one of EFF's principal positions
regarding free speech online: "We believe in free speech at the source -- and
in the empowerment of any audience for that speech to control what they see.
"This decision takes the responsibility for controlling and accessing speech
on the Net out of the hands of government and puts it back in the hands of
parents and other individuals where it belongs," she said. "Individuals
already have the technical means to make their own choices about what they
and their children read and see," Dyson said.
Godwin noted that existing anti-obscenity laws, together with low-cost
technological solutions, offer a more efficient, less intrusive answer to
questions about protecting children in the online world.
"The government kept saying that this was a crisis that required harsher
censorship in the online world than in any other communications medium,"
Godwin said. "In fact, we showed that it's possible to promote both freedom
of speech and family values -- that the two goals don't oppose each other."
While the plaintiffs are pleased with the victory, Fena said, "it's no time
to be complacent." A collection of poorly drafted state laws has followed in
the wake of the passage of the CDA, and the issues these statutes raise must
be addressed as well, she said.
"What's as compelling as the language of this decision," Godwin said, "is the
breadth of the opposition to this legislation," He noted that two large
groups of plaintiffs, including EFF, the American Civil Liberties Union, the
Electronic Privacy Information Center, People for the American Way, the
American Library Association, Microsoft, and Apple Computer, had challenged
the recently passed law in Philadelphia's federal court. Even Administration
officials have privately and publicly voiced their concerns. The plaintiffs
must now prepare for the government's planned appeal to the United States
Supreme Court, Godwin said, citing a provision of the Telecommunications
Reform Act of 1996, which prescribes such a direct appeal when a provision of
the telecom act is found unconstitutional in a lower court..
Godwin also commented that "this may be the most rapidly distributed federal
court opinion in American history." Sites all over the over the Net would be
carrying the full text of the opinion almost as soon as the judges hand it
down, he said, noting that the court is providing copies of the opinion on
computer diskettes as well as through more traditional means.
The constitutional challenge to the Communications Decency Act has been
grounded in four basic arguments -- that the law is unconstitutionally
overbroad (criminalizing protected speech), that it is unconstitutionally
vague (making it difficult for individuals and organizations to comply),
that it fails what the judiciary calls the "least restrictive means" test for
speech regulation, and that there is no basic constitutional authority under
the First Amendment to engage in this type of content regulation in any
nonbroadcast medium.
"We are confident the Supreme Court will uphold the Philadelphia court's
decision," Godwin said.
To reach EFF board chairman Esther Dyson or executive director Lori Fena,
please contact EFF's main office at +1 415 436 9333.
------------------------------
Date: Wed, 12 Jun 1996 16:23:28 -0500
From: [email protected](Computer underground Digest)
Subject: File 2--Excerpts from the CDA Decision (re 96-963)
((MODERATORS' NOTE: The following are a few excerpts from the CDA
decision. The complete text is about a quarter of a meg and over
4,400 lines. It was provided by the Center for Democracy and
Technology. For complete information on the Congressional Decency
Act (CDA) (including the full decision text) contact the CDT homepage at:
http://www.cdt.org
The full text can also be found on CuD's homepage at:
http://www.soci.niu.edu/~cudigest/cda/cdadec1))
=========================================
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION
et al., :
:
v. :
:
JANET RENO, Attorney General of :
the United States : No. 96-963
_____________________________________________________________
AMERICAN LIBRARY ASSOCIATION, : CIVIL ACTION
INC., et al., :
:
v. :
:
UNITED STATES DEP'T OF JUSTICE, :
et al. : No. 96-1458
Before: Sloviter, Chief Judge, United States Court of Appeals
for the Third Circuit; Buckwalter and Dalzell, Judges,
United States District Court for the Eastern District
of Pennsylvania
June 11, 1996
ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION
<snip>
The parties were afforded expedited discovery in
connection with the motions for preliminary injunction, and they
cooperated with Judge Dalzell, who had been assigned the case
management aspects of the litigation. While the discovery was
proceeding, and with the agreement of the parties, the court
began receiving evidence at the consolidated hearings which were
conducted on March 21 and 22, and April 1, 12 and 15, 1996. In
order to expedite the proceedings, the parties worked closely
with Judge Dalzell and arranged to stipulate to many of the
underlying facts and to place much of their cases in chief before
the court by sworn declarations, so that the hearings were
largely devoted to cross-examination of certain of the witnesses
whose declarations had been filed. The parties submitted
proposed findings of fact and post-hearing memoranda on April 29,
and the court heard extensive oral argument on May 10, 1996.[4]
..................
II.
FINDINGS OF FACT
All parties agree that in order to apprehend the legal
questions at issue in these cases, it is necessary to have a
clear understanding of the exponentially growing, worldwide
medium that is the Internet, which presents unique issues
relating to the application of First Amendment jurisprudence and
due process requirements to this new and evolving method of
communication. For this reason all parties insisted on having
extensive evidentiary hearings before the three-judge court.
The court's Findings of fact are made pursuant to Fed. R. Civ. P.
52(a). The history and basic technology of this medium are not
in dispute, and the first forty-eight paragraphs of the following
Findings of fact are derived from the like-numbered paragraphs of
a stipulation[8] the parties filed with the court.[9]
The Nature of Cyberspace
The Creation of the Internet and the Development of Cyberspace
1. The Internet is not a physical or tangible entity,
but rather a giant network which interconnects innumerable
smaller groups of linked computer networks. It is thus a network
of networks. This is best understood if one considers what a
linked group of computers -- referred to here as a "network" --
is, and what it does. Small networks are now ubiquitous (and are
often called "local area networks"). For example, in many United
States Courthouses, computers are linked to each other for the
purpose of exchanging files and messages (and to share equipment
such as printers). These are networks.
2. Some networks are "closed" networks, not linked to
other computers or networks. Many networks, however, are
connected to other networks, which are in turn connected to other
networks in a manner which permits each computer in any network
to communicate with computers on any other network in the system.
This global Web of linked networks and computers is referred to
as the Internet.
3. The nature of the Internet is such that it is very
difficult, if not impossible, to determine its size at a given
moment. It is indisputable, however, that the Internet has
experienced extraordinary growth in recent years. In 1981, fewer
than 300 computers were linked to the Internet, and by 1989, the
number stood at fewer than 90,000 computers. By 1993, over
1,000,000 computers were linked. Today, over 9,400,000 host
computers worldwide, of which approximately 60 percent located
within the United States, are estimated to be linked to the
Internet. This count does not include the personal computers
people use to access the Internet using modems. In all,
reasonable estimates are that as many as 40 million people around
the world can and do access the enormously flexible communication
Internet medium. That figure is expected to grow to 200 million
Internet users by the year 1999.
4. Some of the computers and computer networks that
make up the Internet are owned by governmental and public
institutions, some are owned by non-profit organizations, and
some are privately owned. The resulting whole is a
decentralized, global medium of communications -- or "cyberspace"
-- that links people, institutions, corporations, and governments
around the world. The Internet is an international system. This
communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange
information. These communications can occur almost
instantaneously, and can be directed either to specific
individuals, to a broader group of people interested in a
particular subject, or to the world as a whole.
5. The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project Agency
("ARPA"), and was called ARPANET. This network linked computers
and computer networks owned by the military, defense contractors,
and university laboratories conducting defense-related research.
The network later allowed researchers across the country to
access directly and to use extremely powerful supercomputers
located at a few key universities and laboratories. As it
evolved far beyond its research origins in the United States to
encompass universities, corporations, and people around the
world, the ARPANET came to be called the "DARPA Internet," and
finally just the "Internet."
6. From its inception, the network was designed to be
a decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human involvement or
control, and with the automatic ability to re-route
communications if one or more individual links were damaged or
otherwise unavailable. Among other goals, this redundant system
of linked computers was designed to allow vital research and
communications to continue even if portions of the network were
damaged, say, in a war.
7. To achieve this resilient nationwide (and
ultimately global) communications medium, the ARPANET encouraged
the creation of multiple links to and from each computer (or
computer network) on the network. Thus, a computer located in
Washington, D.C., might be linked (usually using dedicated
telephone lines) to other computers in neighboring states or on
the Eastern seaboard. Each of those computers could in turn be
linked to other computers, which themselves would be linked to
other computers.
8. A communication sent over this redundant series of
linked computers could travel any of a number of routes to its
destination. Thus, a message sent from a computer in Washington,
D.C., to a computer in Palo Alto, California, might first be sent
to a computer in Philadelphia, and then be forwarded to a
computer in Pittsburgh, and then to Chicago, Denver, and Salt
Lake City, before finally reaching Palo Alto. If the message
could not travel along that path (because of military attack,
simple technical malfunction, or other reason), the message would
automatically (without human intervention or even knowledge) be
re-routed, perhaps, from Washington, D.C. to Richmond, and then
to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto. This type of transmission, and re-routing,
would likely occur in a matter of seconds.
9. Messages between computers on the Internet do not
necessarily travel entirely along the same path. The Internet
uses "packet switching" communication protocols that allow
individual messages to be subdivided into smaller "packets" that
are then sent independently to the destination, and are then
automatically reassembled by the receiving computer. While all
packets of a given message often travel along the same path to
the destination, if computers along the route become overloaded,
then packets can be re-routed to less loaded computers.
10. At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar networks developed to link
universities, research facilities, businesses, and individuals
around the world. These other formal or loose networks included
BITNET, CSNET, FIDONET, and USENET. Eventually, each of these
networks (many of which overlapped) were themselves linked
together, allowing users of any computers linked to any one of
the networks to transmit communications to users of computers on
other networks. It is this series of linked networks (themselves
linking computers and computer networks) that is today commonly
known as the Internet.
11. No single entity -- academic, corporate,
governmental, or non-profit -- administers the Internet. It
exists and functions as a result of the fact that hundreds of
thousands of separate operators of computers and computer
networks independently decided to use common data transfer
protocols to exchange communications and information with other
computers (which in turn exchange communications and information
with still other computers). There is no centralized storage
location, control point, or communications channel for the
Internet, and it would not be technically feasible for a single
entity to control all of the information conveyed on the
Internet.
<snip>
Restricting Access to Unwanted On-Line Material[12]
PICS
49. With the rapid growth of the Internet, the
increasing popularity of the Web, and the existence of material
online that some parents may consider inappropriate for their
children, various entities have begun to build systems intended
to enable parents to control the material which comes into their
homes and may be accessible to their children. The World Wide
Web Consortium launched the PICS ("Platform for Internet Content
Selection") program in order to develop technical standards that
would support parents' ability to filter and screen material that
their children see on the Web.
50. The Consortium intends that PICS will provide the
ability for third parties, as well as individual content
providers, to rate content on the Internet in a variety of ways.
When fully implemented, PICS-compatible World Wide Web browsers,
Usenet News Group readers, and other Internet applications, will
provide parents the ability to choose from a variety of rating
services, or a combination of services.
51. PICS working group [PICS-WG] participants include
many of the major online services providers, commercial internet
access providers, hardware and software companies, major internet
content providers, and consumer organizations. Among active
participants in the PICS effort are:
Adobe Systems, Inc.
Apple Computer
America Online
AT&T
Center for Democracy and Technology
CompuServe
Delphi Internet Services
Digital Equipment Corporation
IBM
First floor
First Virtual Holdings Incorporated
France Telecom
FTP Software
Industrial Technology Research Institute of Taiwan
Information Technology Association of America
Institut National de Recherche en Informatique et
en Automatique (INRIA)
Interactive Services Association
MCI
Microsoft
MIT/LCS/World Wide Web Consortium
NCD
NEC
Netscape Communications Corporation
NewView
O'Reilly and Associates
Open Market
Prodigy Services Company
Progressive Networks
Providence Systems/Parental Guidance
Recreational Software Advisory Council
SafeSurf
SoftQuad, Inc.
Songline Studios
Spyglass
SurfWatch Software
Telequip Corp.
Time Warner Pathfinder
Viacom Nickelodeon[13]
52. Membership in the PICS-WG includes a broad cross-
section of companies from the computer, communications, and
content industries, as well as trade associations and public
interest groups. PICS technical specifications have been agreed
to, allowing the Internet community to begin to deploy products
and services based on the PICS-standards.
53. Until a majority of sites on the Internet have
been rated by a PICS rating service, PICS will initially function
as a "positive" ratings system in which only those sites that
have been rated will be displayed using PICS compatible software.
In other words, PICS will initially function as a site inclusion
list rather than a site exclusion list. The default
configuration for a PICS compatible Internet application will be
to block access to all sites which have not been rated by a PICS
rating service, while allowing access to sites which have a PICS
rating for appropriate content.[14]
Software
54. For over a year, various companies have marketed
stand alone software that is intended to enable parents and other
adults to limit the Internet access of children. Examples of
such software include: Cyber Patrol, CYBERsitter, The Internet
Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy
Server, and WebTrack. The market for this type of software is
growing, and there is increasing competition among software
providers to provide products.
Cyber Patrol
55. As more people, particularly children, began to
use the Internet, Microsystems Software, Inc. decided to develop
and market Internet software intended to empower parents to
exercise individual choice over what material their children
could access. Microsystems' stated intent is to develop a
product which would give parents comfort that their children can
reap the benefits of the Internet while shielding them from
objectionable or otherwise inappropriate materials based on the
parents' own particular tastes and values. Microsystems'
product, Cyber Patrol, was developed to address this need.
56. Cyber Patrol was first introduced in August 1995,
and is currently available in Windows and Macintosh versions.
Cyber Patrol works with both direct Internet Access providers
(ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service
Providers (e.g., America Online, Compuserv, Prodigy, Microsoft).
Cyber Patrol is also compatible with all major World Wide Web
browsers on the market (e.g., Netscape, Navigator, Mosaic,
Prodigy's Legacy and Skimmer browsers, America Online, Netcom's
NetCruiser, etc.). Cyber Patrol was the first parental
empowerment application to be compatible with the PICS standard.
In February of 1996, Microsystems put the first PICS ratings
server on the Internet.
57. The CyberNOT list contains approximately 7000
sites in twelve categories. The software is designed to enable
parents to selectively block access to any or all of the twelve
CyberNOT categories simply by checking boxes in the Cyber Patrol
Headquarters (the Cyber Patrol program manager). These
categories are:
Violence/Profanity: Extreme cruelty, physical or
emotional acts against any animal or person which are
primarily intended to hurt or inflict pain. Obscene
words, phrases, and profanity defined as text that uses
George Carlin's seven censored words more often than
once every fifty messages or pages.
Partial Nudity: Full or partial exposure of the human
anatomy except when exposing genitalia.
Nudity: Any exposure of the human genitalia.
Sexual Acts (graphic or text): Pictures or text
exposing anyone or anything involved in explicit sexual
acts and lewd and lascivious behavior, including
masturbation, copulation, pedophilia, intimacy and
involving nude or partially nude people in
heterosexual, bisexual, lesbian or homosexual
encounters. Also includes phone sex ads, dating
services, adult personals, CD-ROM and videos.
Gross Depictions (graphic or text): Pictures or
descriptive text of anyone or anything which are
crudely vulgar, deficient in civility or behavior, or
showing scatological impropriety. Includes such
depictions as maiming, bloody figures, indecent
depiction of bodily functions.
Racism/Ethnic Impropriety: Prejudice or discrimination
against any race or ethnic culture. Ethnic or racist
jokes and slurs. Any text that elevates one race over
another.
Satanic/Cult: Worship of the devil; affinity for evil,
wickedness. Sects or groups that potentially coerce
individuals to grow, and keep, membership.
Drugs/Drug Culture: Topics dealing with the use of
illegal drugs for entertainment. This would exclude
current illegal drugs used for medicinal purposes
(e.g., drugs used to treat victims of AIDS). Includes
substances used for other than their primary purpose to
alter the individual's state of mind such as glue
sniffing.
Militant/Extremist: Extremely aggressive and combative
behaviors, radicalism, advocacy of extreme political
measures. Topics include extreme political groups that
advocate violence as a means to achieve their goal.
Gambling: Of or relating to lotteries, casinos,
betting, numbers games, on-line sports or financial
betting including non-monetary dares.
Questionable/Illegal: Material or activities of a
dubious nature which may be illegal in any or all
jurisdictions, such as illegal business schemes, chain
letters, software piracy, and copyright infringement.
Alcohol, Beer & Wine: Material pertaining to the sale
or consumption of alcoholic beverages. Also includes
sites and information relating to tobacco products.
58. Microsystems employs people to search the Internet
for sites containing material in these categories. Since new
sites are constantly coming online, Microsystems updates the
CyberNOT list on a weekly basis. Once installed on the home PC,
the copy of Cyber Patrol receives automatic updates to the
CyberNOT list over the Internet every seven days.
59. In February of 1996, Microsystems signed a
licensing arrangement with CompuServe, one of the leading
commercial online services with over 4.3 million subscribers.
CompuServe provides Cyber Patrol free of charge to its
subscribers. Microsystems the same month signed a licensing
arrangement with Prodigy, another leading commercial online
service with over 1.4 million subscribers. Prodigy will provide
Cyber Patrol free of charge of its subscribers.
60. Cyber Patrol is also available directly from
Microsystems for $49.95, which includes a six month subscription
to the CyberNOT blocked sites list (updated automatically once
every seven days). After six months, parents can receive six
months of additional updates for $19.95, or twelve months for
$29.95. Cyber Patrol Home Edition, a limited version of Cyber
Patrol, is available free of charge on the Internet. To obtain
either version, parents download a seven day demonstration
version of the full Cyber Patrol product from the Microsystems
Internet World Wide Web Server. At the end of the seven day
trial period, users are offered the opportunity to purchase the
complete version of Cyber Patrol or provide Microsystems some
basic demographic information in exchange for unlimited use of
the Home Edition. The demographic information is used for
marketing and research purposes. Since January of 1996, over
10,000 demonstration copies of Cyber Patrol have been downloaded
from Microsystems' Web site.
61. Cyber Patrol is also available from Retail outlets
as NetBlocker Plus. NetBlocker Plus sells for $19.95, which
includes five weeks of updates to the CyberNOT list.
62. Microsystems also sells Cyber Patrol into a
growing market in schools. As more classrooms become connected
to the Internet, many teachers want to ensure that their students
can receive the benefit of the Internet without encountering
material they deem educationally inappropriate.
63. Microsystems is working with the Recreational
Software Advisory Council (RSAC), a non-profit corporation which
developed rating systems for video games, to implement the RSAC
rating system for the Internet.
64. The next release of Cyber Patrol, expected in
second quarter of this year, will give parents the ability to use
any PICS rating service, including the RSAC rating service, in
addition to the Microsystems CyberNOT list.
65. In order to speed the implementation of PICS and
encourage the development of PICS-compatible Internet
applications, Microsystems maintains a server on the Internet
which contains its CyberNOT list. The server provides software
developers with access to a PICS rating service, and allows
software developers to test their products' ability to interpret
standard PICS labels. Microsystems is also offering its PICS
client test program for Windows free of charge. The client
program can be used by developers of PICS rating services to test
their services and products.
SurfWatch
66. Another software product, SurfWatch, is also
designed to allow parents and other concerned users to filter
unwanted material on the Internet. SurfWatch is available for
both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95
Operating Systems, and works with direct Internet Access
Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000
other Internet Service Providers).
67. The suggested retail price of SurfWatch Software
is $49.95, with a street price of between $20.00 and $25.00. The
product is also available as part of CompuServe/Spry Inc.'s
Internet in a Box for Kids, which includes access to Spry's Kids
only Internet service and a copy of SurfWatch. Internet in a Box
for Kids retails for approximately $30.00. The subscription
service, which updates the SurfWatch blocked site list
automatically with new sites each month, is available for $5.95
per month or $60.00 per year. The subscription is included as
part of the Internet in a Box for Kids program, and is also
provided as a low-cost option from Internet Service Providers.
68. SurfWatch is available at over 12,000 retail
locations, including National stores such as Comp USA, Egghead
Software, Computer City, and several national mail order outlets.
SurfWatch can also be ordered directly from its own site on the
World Wide Web, and through the Internet Shopping Network.
69. Plaintiffs America Online (AOL), Microsoft
Network, and Prodigy all offer parental control options free of
charge to their members. AOL has established an online area
designed specifically for children. The "Kids Only" parental
control feature allows parents to establish an AOL account for
their children that accesses only the Kids Only channel on
America Online.[15]
70. AOL plans to incorporate PICS-compatible
capability into its standard Web browser software, and to make
available to subscribers other PICS-compatible Web browsers, such
as the Netscape software.
71. Plaintiffs CompuServe and Prodigy give their
subscribers the option of blocking all access to the Internet, or
to particular media within their proprietary online content, such
as bulletin boards and chat rooms.
72. Although parental control software currently can
screen for certain suggestive words or for known sexually
explicit sites, it cannot now screen for sexually explicit images
unaccompanied by suggestive text unless those who configure the
software are aware of the particular site.
73. Despite its limitations, currently available user-
based software suggests that a reasonably effective method by
which parents can prevent their children from accessing sexually
explicit and other material which parents may believe is
inappropriate for their children will soon be widely available.
<snip>
III.
CONCLUSIONS OF LAW
Plaintiffs have established a reasonable probability of
eventual success in the litigation by demonstrating that
223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on
their face to the extent that they reach indecency. Sections
223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their
face. Accordingly, plaintiffs have shown irreparable injury, no
party has any interest in the enforcement of an unconstitutional
law, and therefore the public interest will be served by granting
the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74
(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied,
493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,
653 (3d Cir. 1994). The motions for preliminary injunction will
therefore be granted.
The views of the members of the Court in support of
these conclusions follow.
SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:
A.
Statutory Provisions
As noted in Part I, Introduction, the plaintiffs'
motion for a preliminary injunction is confined to portions of
two provisions of the Communications Decency Act of 1996,
223(a) and 223(d), which they contend violate their First
Amendment free speech and Fifth Amendment due process rights. To
facilitate reference, I set forth those provisions in full.
Section 223(a), the "indecency" provision, subjects to criminal
penalties of imprisonment of no more than two years or a fine or
both anyone who:
1) in interstate or foreign communications . . .
(B) by means of a telecommunications device
knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of,
any comment, request, suggestion, proposal, image,
or other communication which is obscene or
indecent, knowing that the recipient of the
communication is under 18 years of age, regardless
of whether the maker of such communication placed
the call or initiated the communication; . . .
(2) knowingly permits any telecommunications facility
under his control to be used for any activity
prohibited by paragraph (1) with the intent that it be
used for such activity.
(emphasis added).
The term "telecommunications device" is specifically
defined not to include "the use of an interactive computer
service," as that is covered by section 223(d)(1).
Section 223(d), the "patently offensive" provision,
subjects to criminal penalties anyone who:
(1) in interstate or foreign communications knowingly--
(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or
(B) uses any interactive computer service to display in
a manner available to a person under 18 years of age,
any comment, request, suggestion, proposal, image or
other communication that, in context, depicts or
describes, in terms patently offensive as measured by
contemporary community standards, sexual or excretory
activities or organs, regardless of whether the use of
such service placed the call or initiated the
communication; or
(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be
used for such activity.
(emphasis added).
Two aspects of these provisions stand out. First, we
are dealing with criminal provisions, subjecting violators to
substantial penalties. Second, the provisions on indecent and
patently offensive communications are not parallel.
The government uses the term "indecent" interchangeably
with "patently offensive" and advises that it so construes the
statute in light of the legislative history and the Supreme
Court's analysis of the word "indecent" in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978). However, the CDA does not
define "indecent." Notwithstanding Congress' familiarity with
Pacifica, it enacted 223(a), covering "indecent"
communications, without any language confining "indecent" to
descriptions or depictions of "sexual or excretory activities or
organs," language it included in the reference to "patently
offensive" in 223(d)(1)(B). Nor does 223(a) contain the
phrase "in context," which the government believes is relevant.
The failure to define "indecent" in 223(a) is thus
arguably a negative pregnant and subject to "the rule of
construction that an express statutory requirement here,
contrasted with statutory silence there, shows an intent to
confine the requirement to the specified instance." Field v.
Mans, 116 S.Ct. 437, 442 (1995). See also Gozlon-Peretz v.
United States, 498 U.S. 395, 404 (1991) ("'[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion'") (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)).
Plaintiffs note the difference but do not press this as
a basis for distinguishing between the two sections in their
preliminary injunction arguments and therefore I will also use
the words interchangeably for this purpose, leaving open the
issue for consideration at the final judgment stage if it becomes
relevant.
B.
Preliminary Injunction Standard
To obtain a preliminary injunction, plaintiffs must
establish that they are likely to prevail on the merits and that
they will suffer irreparable harm if injunctive relief is not
granted. We also must consider whether the potential harm to the
defendant from issuance of a temporary restraining order
outweighs possible harm to the plaintiffs if such relief is
denied, and whether the granting of injunctive relief is in the
public interest. See Campbell Soup Co. v. ConAgra, Inc., 977
F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd. of
Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).
In a case in which the injury alleged is a threat to
First Amendment interests, the finding of irreparable injury is
often tied to the likelihood of success on the merits. In Elrod
v. Burns, 427 U.S. 347 (1976), the Supreme Court emphasized that
"the loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Id. at
373 (citing New York Times Co. v. United States, 403 U.S. 713
(1971)).
Subjecting speakers to criminal penalties for speech
that is constitutionally protected in itself raises the spectre
of irreparable harm. Even if a court were unwilling to draw that
conclusion from the language of the statute itself, plaintiffs
have introduced ample evidence that the challenged provisions, if
not enjoined, will have a chilling effect on their free
expression. Thus, this is not a case in which we are dealing
with a mere incidental inhibition on speech, see Hohe v. Casey,
868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but
with a regulation that directly penalizes speech.
Nor could there be any dispute about the public
interest factor which must be taken into account before a court
grants a preliminary injunction. No long string of citations is
necessary to find that the public interest weighs in favor of
having access to a free flow of constitutionally protected
speech. See, e.g., Turner Broadcasting System, Inc. v. FCC, 114
S. Ct. 2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 763-65 (1976).
Thus, if plaintiffs have shown a likelihood of success
on the merits, they will have shown the irreparable injury needed
to entitle them to a preliminary injunction.
C.
Applicable Standard of Review
The CDA is patently a government-imposed content-based
restriction on speech, and the speech at issue, whether
denominated "indecent" or "patently offensive," is entitled to
constitutional protection. See Sable Communications of
California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such, the
regulation is subject to strict scrutiny, and will only be upheld
if it is justified by a compelling government interest and if it
is narrowly tailored to effectuate that interest. Sable, 492
U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459
(1994). "[T]he benefit gained [by a content-based restriction]
must outweigh the loss of constitutionally protected rights."
Elrod v. Burns, 427 U.S. at 363.
The government's position on the applicable standard
has been less than pellucid but, despite some references to a
somewhat lesser burden employed in broadcasting cases, it now
appears to have conceded that it has the burden of proof to show
both a compelling interest and that the statute regulates least
restrictively. Tr. of Preliminary Injunction Hearing at 121 (May
10, 1996). In any event, the evidence and our Findings of Fact
based thereon show that Internet communication, while unique, is
more akin to telephone communication, at issue in Sable, than to
broadcasting, at issue in Pacifica, because, as with the
telephone, an Internet user must act affirmatively and
deliberately to retrieve specific information online. Even if a
broad search will, on occasion, retrieve unwanted materials, the
user virtually always receives some warning of its content,
significantly reducing the element of surprise or "assault"
involved in broadcasting. Therefore, it is highly unlikely that
a very young child will be randomly "surfing" the Web and come
across "indecent" or "patently offensive" material.
The Reach of the Statute
Whatever the strength of the interest the government
has demonstrated in preventing minors from accessing "indecent"
and "patently offensive" material online, if the means it has
chosen sweeps more broadly than necessary and thereby chills the
expression of adults, it has overstepped onto rights protected by
the First Amendment. Sable, 492 U.S. at 131.
The plaintiffs argue that the CDA violates the First
Amendment because it effectively bans a substantial category of
protected speech from most parts of the Internet. The
government responds that the Act does not on its face or in
effect ban indecent material that is constitutionally protected
for adults. Thus one of the factual issues before us was the
likely effect of the CDA on the free availability of
constitutionally protected material. A wealth of persuasive
evidence, referred to in detail in the Findings of Fact, proved
that it is either technologically impossible or economically
prohibitive for many of the plaintiffs to comply with the CDA
without seriously impeding their posting of online material which
adults have a constitutional right to access.
With the possible exception of an e-mail to a known
recipient, most content providers cannot determine the identity
and age of every user accessing their material. Considering
separately content providers that fall roughly into two
categories, we have found that no technology exists which allows
those posting on the category of newsgroups, mail exploders or
chat rooms to screen for age. Speakers using those forms of
communication cannot control who receives the communication, and
in most instances are not aware of the identity of the
recipients. If it is not feasible for speakers who communicate
via these forms of communication to conduct age screening, they
would have to reduce the level of communication to that which is
appropriate for children in order to be protected under the
statute. This would effect a complete ban even for adults of
some expression, albeit "indecent," to which they are
constitutionally entitled, and thus would be unconstitutional
under the holding in Sable, 492 U.S. at 131.
Even as to content providers in the other broad
category, such as the World Wide Web, where efforts at age
verification are technically feasible through the use of Common
Gateway Interface (cgi) scripts (which enable creation of a
document that can process information provided by a Web visitor),
the Findings of Fact show that as a practical matter, non-
commercial organizations and even many commercial organizations
using the Web would find it prohibitively expensive and
burdensome to engage in the methods of age verification proposed
by the government, and that even if they could attempt to age
verify, there is little assurance that they could successfully
filter out minors.
The government attempts to circumvent this problem by
seeking to limit the scope of the statute to those content
providers who are commercial pornographers, and urges that we do
likewise in our obligation to save a congressional enactment from
facial unconstitutionality wherever possible. But in light of
its plain language and its legislative history, the CDA cannot
reasonably be read as limited to commercial pornographers. A
court may not impose a narrowing construction on a statute unless
it is "readily susceptible" to such a construction. Virginia v.
American Booksellers Ass'n, 484 U.S. 383, 397 (1988). The court
may not "rewrite a . . . law to conform it to constitutional
requirements." Id. Although we may prefer an interpretation of
a statute that will preserve the constitutionality of the
statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980),
we do not have license to rewrite a statute to "create
distinctions where none were intended." American Tobacco Co. v.
Patterson, 456 U.S. 63, 72 n.6 (1982); see also Consumer Party v.
Davis, 778 F.2d 140, 147 (3d Cir. 1985). The Court has often
stated that "absent a clearly expressed legislative intention to
the contrary, [statutory] language must ordinarily be regarded as
conclusive." Escondido Mut. Water Co. v. La Jolla Band of
Mission Indians, 466 U.S. 765, 772 (1984)(quoting North Dakota v.
United States, 460 U.S. 300, 312 (1983)).
It is clear from the face of the CDA and from its
legislative history that Congress did not intend to limit its
application to commercial purveyors of pornography. Congress
unquestionably knew how to limit the statute to such entities if
that was its intent, and in fact it did so in provisions relating
to dial-a-porn services. See 47 U.S.C. 223(b)(2)(A)
(criminalizing making any indecent telephone communication "for
commercial purposes"). It placed no similar limitation in the
CDA. Moreover, the Conference Report makes clear that Congress
did not intend to limit the application of the statute to content
providers such as those which make available the commercial
material contained in the government's exhibits, and confirms
that Congress intended "content regulation of both commercial and
non-commercial providers." Conf. Rep. at 191. See also, 141
Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator
Exon).
The scope of the CDA is not confined to material that
has a prurient interest or appeal, one of the hallmarks of
obscenity, because Congress sought to reach farther. Nor did
Congress include language that would define "patently offensive"
or "indecent" to exclude material of serious value. It follows
that to narrow the statute in the manner the government urges
would be an impermissible exercise of our limited judicial
function, which is to review the statute as written for its
compliance with constitutional mandates.
I conclude inexorably from the foregoing that the CDA
reaches speech subject to the full protection of the First
Amendment, at least for adults.[1] In questions of the witnesses
and in colloquy with the government attorneys, it became evident
that even if "indecent" is read as parallel to "patently
offensive," the terms would cover a broad range of material from
contemporary films, plays and books showing or describing sexual
activities (e.g., Leaving Las Vegas) to controversial
contemporary art and photographs showing sexual organs in
positions that the government conceded would be patently
offensive in some communities (e.g., a Robert Mapplethorpe
photograph depicting a man with an erect penis).
<snip>
3. The Effect of the CDA and the Novel Characteristics
of Internet Communication
Over the course of five days of hearings and many
hundreds of pages of declarations, deposition transcripts, and
exhibits, we have learned about the special attributes of
Internet communication. Our Findings of fact -- many of them
undisputed -- express our understanding of the Internet. These
Findings lead to the conclusion that Congress may not regulate
indecency on the Internet at all.
------------------------------
Date: Thu, 21 Mar 1996 22:51:01 CST
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