€ 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.
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.
€ Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm.
€ 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.
€ 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.
€ 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. (Sable)
D. The Nature of the Government's Interest
€ The government asserts that shielding minors from access to indecent materials is the compelling interest supporting the CDA.
€ There has been recent public interest in the female genital mutilation routinely practiced and officially condoned in some countries. News articles have been descriptive, and it is not stretching to assume that this is a subject that occupies news groups and chat rooms on the Internet. We have no assurance that these ndiscussions, of obvious interest and relevance to older teenage girls, will not be viewed as patently offensive - even in context - in some communities.
€ Other illustrations abound of non-obscene material likely to be available on the Internet but subject to the CDA's criminal provisions. Photographs appearing in National Geographic or a travel magazine of the sculptures in India of couples copulating in numerous positions,
€ The government counters that this court should defer to legislative conclusions about this matter. However, where First Amendment rights are at stake, "[d]eference to a legislative finding cannot limit judicial inquiry." (Sable) . . .Moreover, it appears that the legislative "findings" the government cites concern primarily testimony and statements by legislators about the prevalence of obscenity, child pornography, and sexual solicitation of children on the Internet.
€ I am far less confident than the government that its quotations from earlier cases in the Supreme Court signify that it has shown a compelling interest in regulating the vast range of online material covered or potentially covered by the CDA. Nonetheless, I acknowledge that there is certainly a compelling government interest to shield a substantial number of minors from some of the online material that motivated Congress to enact the CDA, and do not rest my decision on the inadequacy of the government's showing in this regard.
E. The Reach of the Statute
€ Whatever the strength of the interest the government has demonstrated in preventing minors from accessing "indecent" and "patently offensive" material online, if the means it has chosen sweeps more broadly than necessary and thereby chills the expression of adults, it has overstepped onto rights protected by the First Amendment.
€ 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.
€ 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.
€ 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. . . . It placed no similar limitation in the CDA.
€ 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.
€ We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials.
F. Whether CDA is Narrowly Tailored
€ In the face of such a patent intrusion on a substantial category of protected speech for adults, there is some irony in considering whether the statute is narrowly tailored or, as sometimes put, whether Congress has used the least restrictive means to achieve a compelling government interest. (Sable)
€ Nonetheless, the formulation of the inquiry requires that we consider the government's assertion that the statute is narrowly drafted, and I proceed to do so.
€ In this case, the government relies on the statutory defenses for its argument of narrow tailoring. There are a number of reasons why I am not persuaded that the statutory defenses can save the CDA from a conclusion of facial unconstitutionality. . . . I do not believe a statute is narrowly tailored when it subjects to potential criminal penalties those who must depend upon third parties for the effective operation of a statutory defense.
€ Most important, the government's "tagging" proposal is purely hypothetical and offers no currently operative defense to Internet content providers. At this time, there is no agreedupon "tag" in existence, and no web browsers or user-based screening systems are now configured to block tagged material. Nor, significantly, has the government stipulated that a content provider could avoid liability simply by tagging its material.
G. Preliminary Injunction
€ When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools, and libraries to screen such material from their end. It did not do so, and thus did not follow the example available in the print media where non-obscene but indecent and patently offensive books and magazines abound. . . . Instead, in the CDA Congress chose to place on the speakers the obligation of screening the material that would possibly offend some communities.
€ The government makes what I view as an extraordinary argument in its brief. It argues that blocking technology needed for effective parental control is not yet widespread but that it "will imminently be in place." It then states that if we uphold the CDA, it "will likely unleash the 'creative genius' of the Internet community to find a myriad of possible solutions." I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds.
€ But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments.
€ Based upon our findings of fact derived from careful consideration of that evidence, I now conclude that this statute is overbroad and does not meet the strict scrutiny standard in Sable Communications.
€ More specifically, I now find that current technology is inadequate to provide a safe harbor to most speakers on the Internet. On this issue, I concur in Chief Judge Sloviter's opinion. In addition, I continue to believe that the word "indecent" is unconstitutionally vague, and I find that the terms "in context" and "patently offensive" also are so vague as to violate the First and Fifth Amendments.
€ Essentially, my concerns are these: above all, I believe that the challenged provisions are so vague as to violate both the First and Fifth Amendments, and in particular that Congress' reliance on Pacifica is misplaced. In addition, I believe that technology as it currently exists -- and it bears repeating that we are at the preliminary injunction phase only -- cannot provide a safe harbor for most speakers on the Internet, thus rendering the statute unconstitutional under a strict scrutiny analysis.
B.
€ Distilled to its essence, due process is, of course, nothing more and nothing less than fair play. If our citizens cannot rely on fair play in their relationship with their government, the stature of our government as a shining example of democracy would be greatly diminished. I believe that an exacting or strict scrutiny of a statute which attempts to criminalize protected speech requires a word by word look at that statute to be sure that it clearly sets forth as precisely as possible what constitutes a violation of the statute.
€ If the Government is going to intrude upon the sacred ground of the First Amendment and tell its citizens that their exercise of protected speech could land them in jail, the law imposing such a penalty must clearly define the prohibited speech not only for the potential offender but also for the potential enforcer.
€ The fundamental constitutional principle that concerns me is one of simple fairness, and that is absent in the CDA. The Government initially argues that "indecent" in this statute is the same as "patently offensive." I do not agree that a facial reading of this statute supports that conclusion. The CDA does not define the term "indecent," and the FCC has not promulgated regulations defining indecency in the medium of cyberspace. If "indecent" and "patently offensive" were intended to have the same meaning, surely section (a) could have mirrored section
€ Several other courts have, however, upheld the use of the term in statutes regulating different media. . . .Notably, however, in these telephone and cable television cases the FCC had defined indecent as patently offensive by reference to contemporary community standards for that particular medium. (Pacifica)
€ What this [government] argument indicates is that as interpretations of obscenity ebb and flow throughout various communities, restrictions on indecent material are meant to cover a greater or lesser quantity of material not reached by each community's obscenity standard. It follows that to do this, what constitutes indecency must be as open to fluctuation as the obscenity standard and cannot be rigidly constructed as a single national standard if it is meant to function as the Government has suggested.
€ This conflict inevitably leaves the reader of the CDA unable to discern the relevant "community standard," and will undoubtedly cause Internet users to "steer far wider of the unlawful zone" than if the community standard to be applied were clearly defined. The chilling effect on the Internet users' exercise of free speech is obvious.
€ The thrust of the Government's argument is that the court should trust prosecutors to prosecute only a small segment of those speakers subject to the CDA's restrictions, and whose works would reasonably be considered "patently offensive" in every community. Such unfettered discretion to prosecutors, however, is precisely what due process does not allow.
€ Thus, individuals attempting to comply with the statute presently have no clear indication of what actions will ensure that they will be insulated from criminal sanctions under the CDA.
C.
€ The consequences of posting indecent content are severe. . . . What is more important is that the enforcer of statutes must be guided by clear and precise standards. In statutes that break into relatively new areas, such as this one, the need for definition of terms is greater, because even commonly understood terms may have different connotations or parameters in this new context.
€ Words cannot define conduct with mathematical certainty, and lawyers, like the bright and intelligent ones now before us, will most certainly continue to devise ways by which to challenge them. This rationale, however, can neither support a finding of constitutionality nor relieve legislators from the very difficult task of carefully drafting legislation tailored to its goal and sensitive to the unique characteristics of, in this instance, cyberspace.
€ The Government could also completely ban obscenity and child pornography from the Internet. No Internet speaker has a right to engage in these forms of speech, and no Internet listener has a right to receive them. (Alliance for Community Media) . . . The cases before us, however, are not about obscenity or child pornography. Plaintiffs in these actions claim no right to engage in these forms of speech in the future, nor does the Government intimate that plaintiffs have engaged in these forms of speech in the past.
€ This case is about "indecency" (Sable, Pacifica)
€ The Government may only regulate indecent speech for a compelling reason, and in the least restrictive manner. (Sable)
€ In a First Amendment challenge, a plaintiff who meets the first prong of the test for a preliminary injunction will almost certainly meet the second, since irreparable injury normally arises out of the deprivation of speech rights.
€ Plaintiffs' challenge here is a "facial" one. A law that regulates the content of speech is facially invalid if it does not pass the "most exacting scrutiny" that we have described above, or if it would "penalize a substantial amount of speech that is constitutionally protected".. . I have no question that plaintiffs here have standing to challenge the validity of the CDA, and, indeed, the Government has not seriously challenged plaintiffs' standing to do so. (Virginia v. American Booksellers Assoc). Thus, the focus is squarely on the merits of plaintiffs' facial challenge.
B. Defining Indecency
€ Although no court of appeals has ever to my knowledge upheld a vagueness challenge to the meaning of "indecency", several recent cases have grappled with the elusive meaning of that word in the context of cable television and "dial-a-porn". (Alliance for Community Media, etc.)
€ These three cases recognize that the FCC did not define "indecency" for cable and dial-a-porn in a vacuum. Rather, it borrowed from the Supreme Court's decision in FCC v. Pacifica Foundation, . . .
€ These two provisions [in the CDA] describe the same kind of speech. That is, the use of "indecent" in 223(a) is shorthand for the longer description in 223(d). Conversely, the longer description in 223(d) is itself the definition of "indecent" speech. I believe Congress could have used the word "indecent" in both 223(a) and 223(d), or it could have used the "patently offensive" description of 223(d) in 223(a), without a change in the meaning of the Act. I do not believe that Congress intended that this distinction alone would change the reach of either section of the CDA.
€ There is no doubt that the CDA requires the most stringent review for vagueness, since it is a criminal statute that "threatens to inhibit the exercise of constitutionally protected rights". My analysis here nevertheless leads ineluctably to the conclusion that the definition of indecency is not unconstitutionally vague. The Miller definition of obscenity has survived such challenges, . . . It follows, then, that plaintiffs' vagueness challenge is not likely to succeed on the merits and does not support preliminary injunctive relief.
€ The possible interpretations of the defenses in 223(e) do not alter this conclusion. As a matter of statutory construction, 223(e)(5)(B) could not be clearer. . . . Yet even though the defenses in both sections are unavailable to many Internet users, their unavailability does not render the liability provisions vague. Rather, their unavailability just transforms 223(a) and 223(d) into a total ban, in violation of Butler v. Michigan and Sable.
€ Here again, however, the absence of safe harbors relates to the (over)breadth of a statute, and not its vagueness.
C. Plaintiffs' Likelihood of Prosecution Under the Act
€ I agree with the Government that some of plaintiffs' claims are somewhat exaggerated, but hyperbolic claims do not in themselves weigh in the Government's favor. In recent First Amendment challenges, the Supreme Court has itself paid close attention to extreme applications of content-based laws. (Simon & Schuster)
€ Here, even though it is perhaps unlikely that the Carnegie Library will ever stand in the dock for putting its card catalogue online, or that the Government will hale the ACLU into court for its online quiz of the seven dirty words, we cannot ignore that the Act could reach these activities. The definition of indecency, like the definition of obscenity, is not a rigid formula. Rather, it confers a large degree of autonomy to individual communities to set the bounds of decency for themselves.
€ Putting aside hyperbolic application, I also have little doubt that some communities could well consider plaintiffs' speech indecent, and these plaintiffs could -- perhaps should -- have a legitimate fear of prosecution.
€ Sable narrowed Pacifica in two ways. First, the Court implicitly rejected Pacifica's nuisance rationale for dial-aporn, holding instead that the Government could only regulate the medium "by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms". . . Second, the Court concluded that the law, like a law it had struck down in 1957, "denied adults their free speech rights by allowing them to read only what was acceptable for children".
€ Finally, in Turner Broadcasting System, the Supreme Court implicitly limited Pacifica once again when it declined to adopt the broadcast rationale for the medium of cable television. The Court concluded that the rules for broadcast were "inapt" for cable because of the "fundamental technological differences between broadcast and cable transmission".
€ The legal significance to this case of Turner's refusal to apply the broadcast rules to cable television cannot be overstated. Turner's holding confirms beyond doubt that the holding in Pacifica arose out of the scarcity rationale unique to the underlying technology of broadcasting, and not out of the end product that the viewer watches.
€ Turner thus confirms that the analysis of a particular medium of mass communication must focus on the underlying technology that brings the information to the user. In broadcast, courts focus on the limited number of band widths and the risk of interference with those frequencies.
€ I draw two conclusions from the foregoing analysis. First, from the Supreme Court's many decisions regulating different media differently, I conclude that we cannot simply assume that the Government has the power to regulate protected speech over the Internet, devoting our attention solely to the issue of whether the CDA is a constitutional exercise of that power. Rather, we must also decide the validity of the underlying assumption as well, to wit, whether the Government has the power to regulate protected speech at all. That decision must take into account the underlying technology, and the actual and potential reach, of that medium.
€ Second, I conclude that Pacifica's holding is not persuasive authority here, since plaintiffs and the Government agree that Internet communication is an abundant and growing resource. Nor is Sable persuasive authority, since the Supreme Court's holding in that case addressed only one particular type of communication (dial-aporn), and reached no conclusions about the proper fit between the First Amendment and telephone communications generally. Again, plaintiffs and the Government here agree that the Internet provides content as broad as the imagination.
3. The Effect of the CDA and the Novel Characteristics of Internet Communication
€ These Findings lead to the conclusion that Congress may not regulate indecency on the Internet at all.
€ Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face.
(1) the Internet presents very low barriers to entry.
(2) these barriers to entry are identical for both speakers and listeners.
(3) as a result of these low barriers, astoundingly diverse content is available on the Internet.
(4) the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers.
€ To understand how disruptive the CDA is to Internet communication, it must be remembered that the Internet evolved free of content-based considerations. Before the CDA, it only mattered how, and how quickly, a particular packet of data travelled from one point on the Internet to another.
€ After the CDA, however, the content of a user's speech will determine the extent of participation in the new medium. If a speaker's content is even arguably indecent in some communities, he must assess, inter alia, the risk of prosecution and the cost of compliance with the CDA. . . .Unlike other media, there is no technologically feasible way for an Internet speaker to limit the geographical scope of his speech
€ The CDA will, without doubt, undermine the substantive, speech-enhancing benefits that have flowed from the Internet. . . . Barriers to entry to those speakers affected by the Act would skyrocket, especially for non-commercial and not-for-profit information providers. . . . The diversity of the content will necessarily diminish as a result. . . .The CDA will also skew the relative parity among speakers that currently exists on the Internet . . . This change would result in an Internet that mirrors broadcasting and print, where economic power has become relatively coterminous with influence.
€ Perversely, commercial pornographers would remain relatively unaffected by the Act, since we learned that most of them already use credit card or adult verification anyway. Commercial pornographers normally provide a few free pictures to entice a user into proceeding further into the Web site.
€ It is no answer to say that the defenses and exclusions of 223(e) mitigate the disruptive forces of the Act. We have already found as facts that the defenses either are not available to plaintiffs here or would impose excessive costs on them. These defenses are also unavailable to participants in specific forms of Internet communication.
4. Diversity and Access on the Internet
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market . . . .
€ Both Tornillo and Turner recognize, in essence, that the cure for market dysfunction (government-imposed, contentbased speech restrictions) will almost always be worse than the disease.
€ Indeed, the Government's asserted "failure" of the Internet rests on the implicit premise that too much speech occurs in that medium, and that speech there is too available to the participants. This is exactly the benefit of Internet communication, however. The Government, therefore, implicitly asks this court to limit both the amount of speech on the Internet and the availability of that speech. This argument is profoundly repugnant to First Amendment principles.
€ My examination of the special characteristics of Internet communication, and review of the Supreme Court's mediumspecific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation.
€ Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig.
5. Protection of Children from Pornography
€ Laws regulating speech for the protection of children have no limiting principle, and a well-intentioned law restricting protected speech on the basis of its content is, nevertheless, state-sponsored censorship.
€ The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.
€ Parents, too, have options available to them. As we learned at the hearing, parents can install blocking software on their home computers, or they can subscribe to commercial online services that provide parental controls.
E. Conclusion
€ Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.
€ 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.
ORDER
€ The motions are GRANTED;
€ Defendant Attorney General Janet Reno, and all acting under her direction and control, are PRELIMINARILY ENJOINED from enforcing, prosecuting, investigating or reviewing any matter premised upon:
(a) Sections 223(a)(1)(B) and 223(a)(2) of the Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104104, 502, 110 Stat. 133, 133-36, to the extent such enforcement, prosecution, investigation, or review are based upon allegations other than obscenity or child pornography; and
(b) Sections 223(d)(1) and 223(d)(2) of the CDA;
€ Pursuant to Fed. R. Civ. P. 65(c), plaintiffs need not post a bond for this injunction
€ The parties shall advise the Court, in writing, as to their views regarding the need for further proceedings on the later of (a) thirty days from the date of this Order, or (b) ten days after final appellate review of this Order.
SABLE
Dial-a-Porn. In Sable Communications of California, Inc. v. FCC, 492 U.S. 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) the Court held that Congress can constitutionally impose an outright ban on "obscene" interstate, pre-recorded, commercial telephone messages (" dial-a-porn"). The first amendment does not protect obscenity. However, the Court invalidated the portion of the statute at issues that imposed an outright ban, regardless of age, on "indecent" dial-a-porn messages. Sexual expression that is not obscene is entitled to first amendment protection even though it is indecent. The Government does have a compelling interest in protecting minors, but the law at issues was not narrowly tailored for that purpose. Congress could have used credit card, access code, and scrambling rules to keep indecent dial-a-porn out of the reach of minors. The Court carefully distinguished Pacifica as " an emphatically narrow holding" that relied on the "unique" aspects of broadcasting not involved in this case, and further relied on the "captive" or unwilling audience, a fact pattern also inapplicable here.
Nowak and Rotunda, Constitutional Law (1991)