Appendix — Reno v. American Civil Liberties Union

96 511 SEP 5.019%

TE ee

In the Supreme Court of the United States

OCTOBER TERM, 1995

JANET RENO, ATTORNEY GENERAL

OF THE UNITED STATES, ET AL., APPELLANTS

v.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

APPENDIX TO

JURISDICTIONAL STATEMENT

WALTER DELLINGER

Acting Solicitor General

FRANK W. HUNGER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

BARBARA L. HERWIG

JACOB M. LEWIS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-217

TABLE OF CONTENTS

Page

Appendix A (dsitrict court’s motion for preliminary

injunction dated June 12, 1996) .. . la

Appendix B (district court’s order dated June 11,

1 ů —————ů —ů 148a

Appendix C (district court’s orde on motion for

clarification dated June 28, 1996) 150a

Appendix D (district court’s decision dated Feb. 15,

— —ñ————ů——ĩ 153a

Appendix E (district court’s notice of appeal dated

BD The „„„„„„„„%˙iœ 162a

Appendix F (statutory provisions) .. .. 165

(1)

APPENDIX A

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF PENNSYLVANIA

Civil Action Nos. 96-963, 96-1458

AMERICAN CIVIL LIBERTIES UNION, ET AL.

*

JANET RENO, ATTORNEY GENERAL

OF THE UNITED STATES

AMERICAN LIBRARY ASSOCIATION, INC., ET AL.

9.

UNITED STATES DeEpP’T OF JUSTICE, ET AL.

Filed: June 12, 1996

Before: SLovrrER, Chief Judge, United States Court

of Appeals for the Third Circuit; Buck.

WALTER and DALZELL, Judges, United States

District Court for the Eastern District of

Pennsylvania.

ADJUDICATION ON MOTIONS FOR PRELIMINARY

INJUNCTION

(la)

2a

I *

INTRODUCTION

Procedural Background

Before us are motions for a preliminary injunction

filed by plaintiffs who challenge on constitutional

grounds provisions of the Communications Decency

Act of 1996 (CDA or “the Act”), which constitutes

Title V of the Telecommunications Act of 1996, sign-

ed into law by the President on February 8, 1996.

Telecommunications Act of 1996, Pub. L. No. 104-104,

§ 502, 110 Stat. 56, 133-35. Plaintiffs include various

organizations and individuals who, inter alia, are

associated with the computer and/or communications

industries, or who publish or post materials on the

Internet, or belong to various citizen groups. See

ACLU Complaint (J 7-26), ALA First Amended

Complaint (JJ 3, 12-33).

The defendants in these actions are Janet Reno, the

Attorney General of the United States, and the

United States Department of Justice. For conven-

ience, we will refer to these defendants as the Govern-

ment. Plaintiffs contend that the two challenged

provisions of the CDA that are directed to communi-

cations over the Internet which might be deemed

“indecent” or “patently offensive” for minors, defined

as persons under the age of eighteen, infringe upon

rights protected by the First Amendment and the

Due Process Clause of the Fifth Amendment.

' The CDA will be codified at 47 U.S.C. § 223(a) to (h). In

the body of this Adjudication, we refer to the provisions of the

CDA as they will ultimately be codified in the United States

Code.

3a

Plaintiffs in Civil Action Number 96-963, in which

the lead plaintiff is the American Civil Liberties

Union (the ACLU),’ filed their action in the United

States District Court for the Eastern District of

Pennsylvania on the day the Act was signed, and

moved for a temporary restraining order to enjoin

enforcement of these two provisions of the CDA. On

February 15, 1996, following an evidentiary hearing,

Judge Ronald L. Buckwalter, to whom the case had

been assigned, granted a limited temporary restrain-

ing order, finding in a Memorandum that 47 U.S.C. §

223(a)(1)(B) (“the indecency provision” of the CDA)

was unconstitutionally vague. On the same day, Chief

Judge Dolores K. Sloviter, Chief Judge of the United

States Court of Appeals for the Third Circuit, having

been requested by the parties and the district court to

convene a three-judge court, pursuant to § 561(a) of

the CDA, appointed such a court consisting of, in

addition to Judge Buckwalter, Judge Stewart Dalzell

of the same district, and herself, as the circuit judge

required by 28 U.S.C. § 2284.

The plaintiffs in this action are the American Civil Liber-

ties Union; Human Rights Watch; Electronic Privacy Infor-

mation Center; Electronic Frontier Foundation; Journalism

Education Association; Computer Professionals for Social

Responsibility; National Writers Union; Clarinet Communica-

tions Corp.; Institute for Global Communications; Stop Prisoner

Rape; AIDS Education Global Information System; Bibliobytes;

Queer Resources Directory; Critical Path AIDS Project, Inc.,

Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus;

Brock Meeks dba Cyberwire Dispatch; John Troyer dba The

Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle;

and Planned Parenthood Federation of America, Inc. We refer

to these plaintiffs collectively as the ACLU.

4a

After a conference with the court, the parties

entered into a stipulation, which the court approved

on February 26, 1996, wherein the Attorney General

agreed that:

she will not initiate any investigations or prosecu-

tions for violations of 47 U.S.C. § 223(d) for con-

duct occurring after enactment of this provision

until the three-judge court hears Plaintiffs’ Mo-

tion for Preliminary Injunction . . . and has decided

the motion.

The Attorney General’s commitment was qualified to

the extent that:

her full authority to investigate or prosecute any

violation of § 223(a)(1)(B), as amended, and § 223(d)

as to conduct which occurs or occurred during any

period of time after enactment of these provisions

(including for the period of time to which this

stipulation applies) should the Court deny plain-

tiffs’ mdtion or, if the motion is granted, should

these provisions ultimately be upheld.

Stipulation, J 4, in C.A. No. 96-963.

Shortly thereafter, the American Library Associa-

tion, Inc. (the ALA) and others’ filed a similar action

* The plaintiffs in the second action, in addition to the ALA,

are: America Online, Inc.; American Booksellers Association,

Inc.; American Booksellers Foundation for Free Expression;

American Society of Newspaper Editors; Apple Computer, -

Inc.; Association of American Publishers, Inc.; Association of

Publishers, Editors and Writers; Citizens Internet Empower-

ment Coalition; Commercial Internet Exchange Association;

CompuServe Incorporated; Families Against Internet Censor-

ship; Freedom to Read Foundation, Inc.; Health Sciences

Libraries Consortium; Hotwired Ventures LLC; Interactive

5a

at C.A. No. 96-1458. On February 27, 1996, Chief

Judge Sloviter, again pursuant to § 561(a) of the CDA

and upon request, convened the same three-judge

court pursuant to 28 U.S.C. § 2284. The actions were

consolidated pursuant to Fed. R. Civ. P. 42(a), “for all

matters relating to the disposition of motions for

preliminary injunction in these cases, including the

hearing on such motions.”

The parties were afforded expedited discovery in

connection with the motions for preliminary injunc-

tion, 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 ar-

ranged 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

Digital Software Association; Interactive Services Association;

Magazine Publishers of America; Microsoft Corporation; The

Microsoft Network, L.L.C.; National Press Photographers

Association; Netcom On-Line Communication Services, Inc.;

Newspaper Association of America; Opnet, Inc,; Prodigy

Services Company; Society of Professional Journalists; Wired

Ventures, Ltd. We refer to these plaintiffs collectively as the

ALA.

The eight counts of the amended complaint in this action

focus on the CDA’s amendment to 47 U.S.C. § 223, and do not

challenge the CDA’s amendment of 18 U.S.C. § 1462(c).

6a

post-hearing memoranda on April 29, and the court

heard extensive oral argument on May 10, 1996.‘

Statutory Provisions at Issue

Plaintiffs focus their challenge on two provisions of

section 502 of the CDA nich amend 47 U.S.C. §§

223(a) and 223(d).

Section 223(a)(1)(B) provides in part that any per-

son in interstate or foreign communications who, “by

means of a telecommunications device,“ “knowingly

* In addition, we have received briefs of amici curiae sup-

porting and opposing plaintiffs’ contentions. Arguing in favor

of our granting the motions for preliminary injunction are

Authors Guild, American Society of Journalists and Authors,

Ed Carp, Coalition for Positive Sexuality, CONNECTnet,

Creative Coalition on AOL, Tri Dang Do, Feminists for Free

Expression, Margarita Lacabe, Maggie LaNoue, LoD Com-

munications, Peter Ludlow, Palmer Museum of Art, Chuck

More, Rod Morgan, PEN American Center, Philadelphia

Magazine, PSINet, Inc., Erie S. Raymond, Reporters Com-

mittee for Freedom of the Press, Don Rittner, The Sexuality

Information and Education Council of the United States, Lloyd

K. Stires, Peter J. Swanson, Kirsti Thomas, Web Communica-

tions, and Miryam Ehrlich Williamson. Opposing the motion

are the Family Life Project of the American Center for Law

and Justice and a group consisting of The National Law Center

for Children and Families, Family Research Council, “Enough

Is Enough!” Campaign, National Coalition for the Protection

of Children and Families, and Morality in Media.

The Act does not define “telecommunications device”. By

Order dated February 27, 1996, we asked the parties to address

whether a modem is a “telecommunications device”. Plaintiffs

and the Government answered in the affirmative, and we

agree that the plain meaning of the phrase and the legislative

history of the Act strongly support their conclusion. “Tele-

communications” under 47 U.S.C. § 153(48) means “the trans-

mission, between or among points specified by the user, of in-

7a

. . makes, creates, or solicits” and “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,” “shall be

criminally fined or imprisoned.” (emphasis added).

Section 223(d)(1) (“the patently offensive provi-

sion”), makes it a crime to use an “interactive com-

puter service” to “send” or “display in a manner

available” to a person under age 18, “any comment,

formation of the user’s choosing, without change in the form of

content of the information as sent and received.” The plain

meaning of “device” is “something that is formed or formu-

lated by design and usuſally] with consideration of possible al-

ternatives, experiment, and testing.” Webster's Third New In-

ternational Dictionary, 618 (1986). Clearly, the sponsors of the

CDA thought it would reach individual Internet users, many of

whom still connect through modems. See, e.g., 141 Cong. Rec.

S$8329-46 (daily ed. June 14, 1995) (statements of Sen. Exon and

Sen. Coats).

The resolution of the tension between the scope of “tele-

communications device” and the scope of “interactive com-

puter service” as defined in 47 U.S.C. § 230(a)(2), see infra

note 6, must await another day. It is sufficient for us to

conclude that the exclusion of § 223(h)(1)(B) is probably a

narrow one (as the Government has argued), insulating an

interactive computer service from criminal liability under the

CDA but not insulating users who traffic in indecent and pat-

ently offensive materials on the Internet through those ser-

vices.

The statute at § 509 amends 47 U.S.C. to add § 230(e)(2),

which defines such a service as “any information service, sys-

tem, or access software provider that provides or enables com-

puter access by multiple users to a computer server, including

specifically a service or system that provides access to the

Internet and such systems operated or services offered by

libraries or educational institutions.”

8a

request, suggestion, proposal, image, or other com-

munication that, in context, depicts or describes, in

terms patently offensive as measured by contem-

porary community standards, sexual or excretory

activities or organs, regardless of whether the user of

such service placed the call or initiated the com-

munication.”

Plaintiffs also challenge on the same grounds the

provisions in § 223(a)(2) and § 223(d)(2), which make it

a crime for anyone to “knowingly permit[ | any tele-

communications facility under [his or her] control to

be used for any activity prohibited” in §§ 223(a)(1)(B)

and 223(d)(1). The challenged provisions impose a

punishment of a fine, up to two years imprisonment,

or both for each offense.

Plaintiffs make clear that they do not quarrel with

the statute to the extent that it covers obscenity or

child pornography, which were already proscribed

before the CDA’s adoption. See-18 U.S.C. §§ 1464-65

(criminalizing obscene material); id. §§ 2251-52

(criminalizing child pornography); see also New York

v. Ferber, 458 U.S. 747 (1982); Miller v. California,

413 U.S. 15 (1973).

Plaintiffs in the ACLU action also challenge the

provision of the CDA that criminalizes speech over

the Internet that transmits information about abor-

tions or abortifacient drugs and devices, through its

amendment of 18 U.S.C. § 1462(c). That section now

prohibits the sending and receiving of information

over the Internet by any means regarding “where,

how, or of whom, or by what means any [drug, medi-

cine, article, or thing designed, adapted, or intended

for producing abortion] may be obtained or made”.

The Government has stated that it does not contest

9a

plaintiffs’ challenge to the enforceability of the pro-

vision of the CDA as it relates to 18 U.S.C. § 1462(c).’

As part of its argument that the CDA passes con-

stitutional muster, the Government cites the CDA’s

“safe harbor” defenses in new § 223(e) of 47 U.S.C.,

which provides:

(e) Defenses

In addition to any other defenses available by law:

(1) No person shall be held to have violated sub-

section (a) or (d) of this section solely for pro-

viding access or connection to or from a facility,

system, or network not under that person’s con-

trol, including transmission, downloading, inter-

mediate storage, access software, or other related

capabilities that are incidental to providing such

access or connection that does not include the

creation of the content of the communication.

(2) The defenses provided by paragraph (1) of

this subsection shall not be applicable to a person

—

In the Government’s Opposition to plaintiffs’ motion for a

temporary restraining order in C.A. No. 96-963, it notes “the

Department has a longstanding policy that previous such pro-

visions are unconstitutional and will not be enforced”, and that

both President Clinton and Attorney General Reno “have made

thle] point clear” that no one will be prosecuted under “the

abortion-related provision of newly-amended 18 U.S.C. §

1462(c).” Opposition at 19, n.11 (February 14, 1996). In view

of this “longstanding policy”, the Government contends there

is no realistic fear of prosecution and, so the argument goes, no

need for equitable relief. Id. In their post-hearing brief, the

ACLU plaintiffs inform us that in view of the Government’s

statement, “they do not seek a preliminary injunction against

the enforcement of § 1462(c).” Post-Trial Brief of ACLU

Plaintiffs at 2 n.2.

10a

who is a conspirator with an entity actively

involved in the creation or knowing distribution of

communications that violate this section, or who

knowingly advertises the availability of such

communications.

(3) The defenses provided in paragraph (1) of

this subsection shall not be applicable to a person

who provides access or connection to a facility,

system, or network engaged in the violation of this

section that is owned or controlled by such person.

(4) No employer shall be held liable under this

section for the actions of an employee or agent

unless the employee’s or agent’s conduct is within

the scope of his or her employment or agency and

the employer (A) having knowledge of such

conduct, authorizes or ratifies such conduct, or

(B) recklessly disregards such conduct.

(5) It is a defense to a prosecution under sub-

section (a)(1)(B) or (d) of this section, or under

subsection (a)(2) of this section with respect to the

use of a facility for an activity under subsection

(a)(1)(B) that a person— a

(A) has taken, in good faith, reasonable, effec-

tive, and appropriate actions under the circum-

stances to restrict or prevent access by minors to

a communication specified in such subsections,

which may involve any appropriate measures to re-

strict minors from such communications, includ-

ing any method which is feasible under available

technology; or

lla

(B) has restricted access to such communication

by requiring use of a verified credit card, debit ac-

count, adult access code, or adult personal identi-

fication number.

(6) The [Federal Communications] Commission

may describe measures which are reasonable,

effective, and appropriate to restrict access to

prohibited communications under subsection (d) of

this section. Nothing in this section authorizes

the Commission to enforce, or is intended to pro-

vide the Commission with the authority to ap-

prove, sanction, or permit, the use of such mea-

sures. The Commission shall have no enforcement

authority over the failure to utilize such

measures

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 applica-

tion of First Amendment jurisprudence and due pro-

cess 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 dis-

pute, and the first forty-eight paragraphs of the fol-

lowing Findings of fact are derived from the like-

12a

numbered paragraphs of a stipulation® the parties

filed with the court.’

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 net-

works. 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 link-

ed to other computers or networks. Many networks,

however, are connected to other networks, which are

The court again expresses its appreciation to the parties

for their cooperative attitude in evolving the stipulation.

The Government has not by motion challenged the stand-

ing of any plaintiff in either case, and we harbor no doubts of

our own on that point, notwithstanding the Government’s

suggestion in a footnote of its post-hearing brief. See

Defendants’ Post-Hearing Memorandum at 37 n.46 (“Plaintiffs’

assertions as to the speech at issue are so off-point as to raise

standing concerns.”). Descriptions of these plaintiffs, as well as

of the nature and content of the speech they contend is or may

be affected by the CDA, are set forth in paragraphs 70 through

356 at pages 30 through 103 of the parties’ stipulation filed in

these actions. These paragraphs will not be reproduced here,

but will be deemed adopted as Findings of the court.

13a

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 num-

ber 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 approxi-

mately 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

eommunications—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 lit-

erally tens of millions of people with access to the

Internet to exchange information. These communica-

l4a

tions 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 ex-

perimental 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 “In-

ternet.”

6. From its inception, the network was designed to

be a decentralized, self-maintaining series of redun-

dant links between computers and computer net-

works, capable of rapidly transmitting communica-

tions without direct human involvement or control,

and with the automatic ability to re-route communica-

tions 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 con-

tinue even if portions of the network were damaged,

say, in a war.

7. To achieve this resilient nationwide (and ulti-

mately global) communications medium, the AR-

PANET encouraged the creation of multiple links to

— ell, —

15a

and from each computer (or computer network) on the

network. Thus, a computer located in Washington,

D.C., might be linked (usually using dedicated tele-

phone 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 se-

ries 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 com-

puter 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 (be-

cause of military attack, simple technical malfunc-

tion, or other reason), the message would automati-

cally (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 sub-

divided into smaller “packets” that are then sent inde-

pendently to the destination, and are then automati-

cally 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

16a

route become overloaded, then packets can be re-

routed to less loaded computers.

10. At the same time that ARPANET was matur-

ing (it subsequently ceased to exist), similar net-

works developed to link universities, research facili-

ties, businesses, and individuals around the world.

These other formal or loose networks included BIT-

NET, CSNET, FIDONET, and USENET. Even-

tually, each of these networks (many of which over-

lapped) 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, govern-

mental, or non-profit—administers the Internet. It

exists and functions as a result of the fact that

hundreds of thousands of separate operators of com-

puters and computer networks independently decided

to use common data transfer protocols to exchange

communications and information with other com-

puters (which in turn exchange communications and

information with still other computers). There is no

centralized storage location, control point, or com-

munications 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.

How Individuals Access the Internet

12. Individuals have a wide variety of avenues to

access cyberspace in general, and the Internet in

particular. In terms of physical access, there are two

17a

common methods to establish an actual link to the

Internet. First, one can use a computer or computer

terminal that is directly (and usually permanently)

connected to a computer network that is itself

directly or indirectly connected to the Internet.

Second, one can use a “personal computer” with a

“modem” to connect over a telephone line to a larger

computer or computer network that is itself directly

or indirectly connected to the Internet. As detailed

below, both direct and modem connections are made

available to people by a wide variety of academic, gov-

ernmental, or commercial entities.

13. Students, faculty, researchers, and others af.

filiated with the vast majority of colleges and uni-

versities in the United States can access the Internet

through their educational institutions. Such access

is often via direct connection using computers located

in campus libraries, offices, or computer centers, or

may be through telephone access using a modem from

a student’s or professor’s campus or off-campus loca-

tion. Some colleges and universities install “ports”

or outlets for direct network connections in each dor-

mitory room or provide access via computers located

in common areas in dormitories. Such access enables

students and professors to use information and con-

tent provided by the college or university itself, and

to use the vast amount of research resources and

other information available on the Internet world-

wide.

14. Similarly, Internet resources and access are

sufficiently important to many corporations and other

employers that those employers link their office com-

puter networks to the Internet and provide employees

with direct or modem access to the office network

18a

(and thus to the Internet). Such access might be used

by, for example, a corporation involved in scientific or

medical research or manufacturing to enable corpo-

rate employees to exchange information and ideas

with academic researchers in their fields.

15. Those who lack access to the Internet through

their schools or employers still have a variety of ways

they can access the Internet. Many communities

across the country have established “free-nets” or

community networks to provide their citizens with a

local link to the Internet (and to provide local-ori-

ented content and discussion groups). The first such

community network, the Cleveland Free-Net Com-

munity Computer System, was established in 1986,

and free-nets now exist in scores of communities as

diverse as Richmond, Virginia, Tallahassee, Florida,

Seattle, Washington, and San Diego, California. Indi-

viduals typically can access free-nets at little or no

cost via modem connection or by using computers

available in community buildings. Free-nets are often

operated by a local library, educational institution, or

non-profit community group.

16. Individuals can also access the Internet

through many local libraries. Libraries often offer

patrons use of computers that are linked to the Inter-

net. In addition, some libraries offer telephone modem

access to the libraries’ computers, which are them-

selves connected to the Internet. Increasingly, pa-

trons now use library services and resources without

ever physically entering the library itself. Libraries

typically provide such direct or modem access at no

cost to the individual user.

17. Individuals can also access the Internet by

patronizing an increasing number of storefront “com-

—

19a

puter coffee shops,” where customers while they

drink their coffee—can use computers provided by the

shop to access the Internet. Such Internet access is

typically provided by the shop for a small hourly fee.

18. Individuals can also access the Internet

through commercial and non-commercial “Internet

service providers” that typically offer modem tele-

phone access to a computer or computer network

linked to the Internet. Many such providers—includ-

ing the members of plaintiff Commercial Internet

Exchange Association—are commercial entities of-

fering Internet access for a monthly or hourly fee.

Some Internet service providers, however, are non-

profit organizations that offer free or very low cost

access to the Internet. For example, the Interna-

tional Internet Association offers free modem access

to the Internet upon request. Also, a number of trade

or other non-profit associations offer Internet access

as a service to members.

19. Another common way for individuals to access

the Internet is through one of the major national com-

mercial “online services” such as America Online,

CompuServe, the Microsoft Network, or Prodigy.

These online services offer nationwide computer

networks (so that subscribers can dial-in to a local

telephone number), and the services provide extensive

and well organized content within their own proprie-

tary computer networks. In addition to allowing ac-

cess to the extensive content available within each

online service, the services also allow subscribers to

link to the much larger resources of the Internet.

Full access to the online service (including access to

the Internet) can be obtained for modest monthly or

hourly fees. The major commercial online services

20a

have almost twelve million individual subscribers

across the United States.

20. In addition to using the national commercial

online services, individuals can also access the In-

ternet using some (but not all) of the thousands of

local dial-in computer services, often called “bulletin

board systems” or “BBSs.” With an investment of

as little as $2,000.00 and the cost of a telephone

line, individuals, non-profit organizations, advocacy

groups, and businesses can offer their own dial-in

computer “bulletin board” service where friends,

members, subscribers, or customers can exchange

ideas and information. BBSs range from single com-

puters with only one telephone line into the computer

(allowing only one user at a time), to single com-

puters with many telephone lines into the computer

(allowing multiple simultaneous users), to multiple

linked computers each servicing multiple dial-in —

telephone lines (allowing multiple simultaneous

users). Some (but not all) of these BBS systems offer

direct or indirect links to the Internet. Some BBS

systems charge users a nominal fee for access, while

many others are free to the individual users.

21. Although commercial access to the Internet is

growing rapidly, many users of the Internet—such as

college students and staff—do not individually pay for

access (except to the extent, for example, that the

cost of computer services is a component of college

tuition). These and other Internet users can access

the Internet without paying for such access with a

credit card or other form of payment.

21a

Methods to Communicate Over the Internet

22. Once one has access to the Internet, there are

a wide variety of different methods of communication

and information exchange over the network. These

many methods of communication and information

retrieval are constantly evolving and are therefore

difficult to categorize concisely. The most common

methods of communications on the Internet (as well

as within the major online services) can be roughly

grouped into six categories:

(1) one-to-one messaging (such as “e-mail”),

(2) one-to-many messaging (such as “listserv”),

(3) distributed message databases (such as

“USENET newsgroups”),

(4) real time communication (such as “Internet

Relay Chat”),

(5) real time remote computer utilization (such as

“telnet”), and

(6) remote information retrieval (such as “ftp,”

“gopher,” and the “World Wide Web”).

Most of these methods of communication can be used

to transmit text, data, computer programs, sound, vis-

ual images (i. e., pictures), and moving video images.

23. One-to-one messaging. One method of commu-

nication on the Internet is via electronic mail, or

“e-mail,” comparable in principle to sending a first

class letter. One can address and transmit a message

to one or more other people. E-mail on the Internet is

not routed through a central control point, and can

22a

take many and varying paths to the recipients. Un-

like postal mail, simple e-mail generally is not “seal-

ed” or secure, and can be accessed or viewed on inter-

mediate computers between the sender and recipient

(unless the message is encrypted).

24. One-to-many messaging. The Internet also

contains automatic mailing list services (such as

“listservs”), [also referred to by witnesses as “mail

exploders”] that allow communications about particu-

lar subjects of interest to a group of people. For

example, people can subscribe to a “listserv” mailing

list on a particular topic of interest to them. The sub-

scriber can submit messages on the topic to the

listserv that are forwarded (via e-mail), either auto-

matically or through a human moderator overseeing

the listserv, to anyone who has subscribed to the

mailing list. A recipient of such a message can reply

to the message and have the reply also distributed to

everyone on the mailing list. This service provides

the capability to keep abreast of developments or

events in a particular subject area. Most listserv-

type mailing lists automatically forward all incoming

messages to all mailing list subscribers. There are

thousands of such mailing list services on the

Internet, collectively with hundreds of thousands of

subscribers. Users of “open” listservs typically can

add or remove their names from the mailing list auto-

matically, with no direct human involvement. List-

servs may also be “closed,” i.e., only allowing for

one’s acceptance into the listserv by a human

moderator.

25. Distributed message databases. Similar in

function to listservs—but quite different in how com-

munications are transmitted—are distributed mes-

23a

sage databases such as “USENET newsgroups.”

User-sponsored newsgroups are among the most

popular and widespread applications of Internet

services, and cover all imaginable topics of interest to

users. Like listservs, newsgroups are open discus-

sions and exchanges on particular topics. Users,

however, need not subscribe to the discussion mailing

list in advance, but can instead access the database at

any time. Some USENET newsgroups are “moder-

ated” but most are open access. For the moderated

newsgroups,” all messages to the newsgroup are

forwarded to one person who can screen them for

relevance to the topics under discussion. USENET

newsgroups are disseminated using ad hoc, peer to

peer connections between approximately 200,000 com-

puters (called USENET “servers”) around the world.

For unmoderated newsgroups, when an individual

user with access to a USENET server posts a mes-

sage to a newsgroup, the message is automatically

forwarded to all adjacent USENET servers that

furnish access to the newsgroup, and it is then pro-

pagated to the servers adjacent to those servers, etc.

The messages are temporarily stored on each re-

ceiving server, where they-are available for review

and response by individual users. The messages are

automatically and periodically purged from each

system after a time to make room for new messages.

Responses to messages, like the original messages,

are automatically distributed to all other computers

receiving the newsgroup or forwarded to a moderator

in the case of a moderated newsgroup. The dissemina-

It became clear from the testimony that moderated news-

= ps are the exception and unmoderated newsgroups are the

rule.

24a

tion of messages to USENET servers around the

world is an automated process that does not require

direct human intervention or review.

26. There are newsgroups on more than fifteen

thousand different subjects. In 1994, approximately

70,000 messages were posted to newsgroups each day,

and those messages were distributed to the approxi-

mately 190,000 computers or computer networks that

participate in the USENET newsgroup system. Once

the messages reach the approximately 190,000 receiv-

ing computers or computer networks, they are avail-

able to individual users of those computers or com-

puter networks. Collectively, almost 100,000 new

messages (or “articles”) are posted to newsgroups

each day.

27. Real time communication. In addition to trans-

mitting messages that can be later read or accessed,

individuals on the Internet can engage in an immedi-

ate dialog, in “real time”, with other people on the

Internet. In its simplest forms, “talk” allows one-to-

one communications and “Internet Relay Chat” (or

IRC. allows two or more to type messages to each

other that almost immediately appear on the others’

computer screens. IRC is analogous to a telephone

party line, using a computer and keyboard rather than

a telephone. With IRC, however, at any one time

there are thousands of different party lines available,

in which collectively tens of thousands of users are

engaging in conversations on a huge range of sub-

jects. Moreover, one can create a new party line to

discuss a different topic at any time. Some IRC con-

versations are “moderated” or include “channel op-

erators.”

25a

28. In addition, commercial online services such as

America Online, CompuServe, the Microsoft Net-

work, and Prodigy have their own “chat” systems

allowing their members to converse.

29. Real time remote computer utilization. An-

other method to use information on the Internet is to

access and control remote computers in “real time”

using “telnet.” For example, using telnet, a re-

searcher at a university would be able to use the

computing power of a supercomputer located at a

different university. A student can use telnet to

connect to a remote library to access the library’s

online card catalog program.

30. Remote information retrieval. The final major

category of communication may be the most well

known use of the Internet—the search for and re-

trieval of information located on remote computers.

There are three primary methods to locate and

retrieve information on the Internet.

31. A simple method uses “ftp” (or file transfer

protocol) to list the names of computer files available

on a remote computer, and to transfer one or more of

those files to an individual’s local computer.

32. Another approach uses a program and for-

mat named “gopher” to guide an individual’s search

through the resources available on a remote com-

puter.

The World Wide Web

33. A third approach, and fast becoming the most

well-known on the Internet, is the “World Wide Web.”

The Web utilizes a “hypertext” formatting

language

called hypertext markup language (HTML), and

programs that “browse” the Web can display HTML

26a

documents containing text, images, sound, animation

and moving video. Any HTML document can include

links to other types of information or resources, so

that while viewing an HTML document that, for ex-

ample, describes resources available on the Internet,

one can “click” using a computer mouse on the de-

scription of the resource and be immediately connect-

ed to the resource itself. Such “hyperlinks” allow

information to be accessed and organized in very

flexible ways, and allow people to locate and effi-

ciently view related information even if the informa-

tion is stored on numerous computers all around the

world.

34. Purpose. The World Wide Web (W3C) was

created to serve as the platform for a global, online

store of knowledge, containing information from a

diversity of sources and accessible to Internet users

around the world. Though information on the Web is

contained in individual computers, the fact that each

of these computers is connected to the Internet

through W3C protocols allows all of the information

to become part of a single body of knowledge. It is

currently the most advanced information system

developed on the Internet, and embraces within its

data model most informat in previous networked

information systems such as ftp, gopher, wais, and

Usenet.

35. History. W3C was originally developed at

CERN, the European Particle Physics Laboratory,

and was initially used to allow information sharing

within internationally dispersed teams of researchers

and engineers. Originally aimed at the High Energy

Physics community, it has spread to other areas and

attracted much interest in user support, resource

27a

recovery, and many other areas which depend on

collaborative and information sharing. The Web has

extended beyond the scientific and academic com-

munity to include communications by individuals,

non-profit organizations, and businesses.

36. Basic Operation. The World Wide Web is a

series of documents stored in different computers all

over the Internet. Documents contain information

stored in a variety of formats, including text, still

images, sounds, and video. An essential element of

the Web is that any document has an address (rather

like a telephone number). Most Web documents con-

tain “links.” These are short sections of text or

image which refer to another document. Typically

the linked text is blue or underlined when displayed,

and when selected by the user, the referenced docu-

ment is automatically displayed, wherever in the

world it actually is stored. Links for example are

used to lead from overview documents to more de-

tailed documents, from tables of contents to particu-

lar pages, but also as cross-references, footnotes, and

new forms of information structure.

37. Many organizations now have “home pages” on

the Web. These are documents which provide a set of

links designed to represent the organization, and

through links from the home page, guide the user

directly or indirectly to information about or relevant

to that organization.

38. As an example of the use of links, if these

Findings were to be put on a World Wide Web site, its

home page might contain links such as those:

* THE NATURE OF CYBERSPACE

28a

* CREATION OF THE INTERNET AND THE DE-

VELOPMENT OF CYBERSPACE

* HOW PEOPLE ACCESS THE INTERNET

* METHODS TO COMMUNICATE OVER THE IN

TERNET

39. Each of these links takes the user of the site

from the beginning of the Findings to the appropriate

section within this Adjudication. Links may also take

the user from the original Web site to another Web

site on another computer connected to the Internet.

These links from one computer to another, from one

document to another across the Internet, are what

unify the Web into a single body of knowledge, and

what makes the Web unique. The Web was designed

with a maximum target time to follow a link of one

tenth of a second.

40. Publishing. The World Wide Web exists funda-

mentally as a platform through which people and

organizations can communicate through shared infor-

mation. When information is made available, it is said

to be “published” on the Web. Publishing on the Web

simply requires that the “publisher” has a computer

connected to the Internet and that the computer is

running WS3C server software. The computer can be

as simple as a small personal computer costing less

than $1500 dollars or as complex as a multi-million

dollar mainframe computer. Many Web publishers

choose instead to lease disk storage space from some-

one else who has the necessary computer facilities,

eliminating the need for actually owning any equip-

ment oneself.

41. The Web, as a universe of network accessible

information, contains a variety of documents prepared

29a

with quite varying degrees of care, from the hastily

typed idea, to the professionally executed corporate

profile. The power of the Web stems from the ability

of a link to point to any document, regardless of its

status or physical location.

42. Information to be published on the Web must

also be formatted according to the rules of the Web

standards. These standardized formats assure that

all Web users who want to read the material will be

able to view it. Web standards are sophisticated and

flexible enough that they have grown to meet the

publishing needs of many large corporations, banks,

brokerage houses, newspapers and magazines which

now publish “online” editions of their material, as

well as government agencies, and even courts, which

use the Web to disseminate information to the public.

At the same time, Web publishing is simple enough

that thousands of individual users and small com-

munity organizations are using the Web to publish

their own personal “home pages,” the equivalent of

individualized newsletters about that person or or-

e which are available to everyone on the

43. Web publishers have a choice to make their

Web sites open to the general pool of all Internet

users, or close them, thus making the information

accessible only to those with advance authorization.

words as a prerequisite to access to the site. Or. in

the case of Web sites maintained for internal use of

30a

one organization, acces will only be allowed from

other computers within that organization’s local

network."

44. Searching the Web. A variety of systems have

developed that allow users of the Web to search

particular information among all of the public sites

that are part of the Web. Services such as Yahoo,

Magellan, Altavista, Webcrawler, and Lycos are all

services known as “search engines” which allow

users to search for Web sites that contain certain

categories of information, or to search for key words.

For example, a Web user looking for the text of Su-

preme Court opinions would type the words “Supreme

Court” into a search engine, and then be presented

with a list of World Wide Web sites that contain

Supreme Court information. This list would actually

be a series of links to those sites. Having searched

out a number of sites that might contain the desired

information, the user would then follow individual

lirks, browsing through the information on each site,

urtil the desired material is found. For many content

pri viders on the Web, the ability to be found by these

se: rch engines is very important.

5. Common standards. The Web links together

disparate information on an ever-growing number of

Internet-linked computers by setting common infor-

mation storage formats (HTML) and a common lan-

guage for the exchange of Web documents (HTTP).

Although the information itself may be in many

different formats, and stored on computers which are

" The evidence adduced at the hearings provided detail to

this paragraph of the parties’ stipulation. See Findings 95 to

107.

3la

not otherwise compatible, the basic Web standards

provide a basic set of standards which allow commu-

nication and exchange of information. Despite the

fact that many types of computers are used on the

Web, and the fact that many of these machines are

otherwise incompatible, those who “publish” informa-

tion on the Web are able to communicate with those

who seek to access information with little difficulty

because of these basic technical standards.

46. A distributed ) ith pralized

control. Running on tens of thousands of individual

computers on the Internet, the Web is what is known

as a distributed system. The Web was designed so

that organizations with computers containing infor-

mation can become part of the Web simply by attach-

ing their computers to the Internet and running

appropriate World Wide Web software. No single

organization controls any membership in the Web,

nor is there any single centralized point from which

individual Web sites or services can be blocked from

the Web. From a user’s perspective, it may appear to

be a single, integrated system, but in reality it has no

centralized control point.

contrast to most information systems that have come

before it. Private information services such as West-

law, Lexis/Nexis, and Dialog, have contained large

storehouses of knowledge, and can be accessed from

access software. However, these databases are not

linked together into a single whole, as is the World

Wide Web.

32a

48. Success of the Web in research, education, and

political activities. The World Wide Web has become

so popular because of its open, distributed, and easy-

to-use nature. Rather than requiring those who seek

information to purchase new software or hardware,

and to learn a new kind of system for each new

database of information they seek to access, the Web

environment makes it easy for users to jump from one

set of information to another. By the same token, the

open nature of the Web makes it easy for publishers to

reach their intended audiences without having to

know in advance what kind of computer each potential

reader has, and what kind of software they will be

using.

Restricting Access to Unwanted On-Line Material”

PICS

49. With the rapid growth of the Internet, the in-

creasing popularity of the Web, and the existence of

material online that some parents may consider inap-

propriate for their children, various entities have be-

gun te build systems intended to enable parents to

control the material which comes into their homes

= Testimony adduced at the hearing suggests that market

33a

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 par-

ents’ ability to filter and screen material that their

children see on the Web.

50. The Consortium intends that PICS will pro-

vide 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 provid-

ers, and consumer organizations. Among active par-

ticipants in the PICS effort are:

Center for Democracy and Technology

*

CompuServ

Delphi Internet Services

IBM * l *

First floor

First Virtual Holdings Incorporated

France Telecom

FTP Software

34a

Industrial Technology Research Institute

of Taiwan

Information Technology Association of

America

Institut National de Recherche en Infor-

matique et én Automatique (INRIA)

Interactive Services Association

MCI

Microsoft

MIT/LCS/Worid 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”

52. Membership in the PICS-WG includes a broad

cross-section of companies from the computer, com-

munications, and content industries, as well as trade

This membership is constantly growing, according to the

testimony of Albert Vezza, Chairman of the World Wide Web

Consortium. See also Defendants’ Ex. D-167.

35a

associations and public interest groups. PICS techni-

cal 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 ini-

tially 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 con-

figuration 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.“

Software

54. For over a year, various companies have mar-

keted stand alone software that is intended to enable

parents and other adults to limit the Internet access

of children. Examples of such software inelude:

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 pro-

ducts. |

Cyber Patrol

55. As more people, particularly children, began to

use the Internet, Microsystems Software, Inc. de-

4 See also Defendants’ Ex. D-174 and the-testimony of Mr.

Vezza.

36a

cided to develop and market Internet software in-

tended 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 Mac-

intosh 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, Micro-

soft). 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 Net-

Cruiser, 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.

37a

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, in-

cluding masturbation, copulation, pedophilia, inti-

macy 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 Ethnie Impropriety: Prejudice or dis-

crimination 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

38a

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.

ili Extremely aggressive and

combative behaviors, radicalism, advocacy of ex-

treme 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 finan-

cial betting including non-monetary dares.

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 in-

fringement.

ine: 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 cate-

gories. 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.

39a

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 Pa-

trol 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 pro-

vide 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 addi-

tional 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 Inter-

net. 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 pur-

chase 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 down-

loaded from Microsystems’ Web site.

61. Cyber Patrol is also available frum Retail

outlets as NetBlocker Plus. NetBlocker Plus sells

for $19.95, which includes five weeks of updates to the

CyberNOT list.

40a

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 Recrea-

tional 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 Micro-

systems 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 ac-

cess to a PICS rating service, and allows software de-

velopers 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. Surf-

Watch is available for both Apple Macintosh, Micro-

4la

soft 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 Soft-

ware 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 sub-

scription 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 pro-

vided as a low-cost option from Internet Service Pro-

viders.

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

42a

children that accesses only the Kids Only channel on

America Online.”

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 soft-

ware.

71. Plaintiffs CompuServe and Prodigy give their

subscribers the option of blocking all access to the

Internet, or to particular media within their proprie-

tary 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 sexu-

ally 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 effec-

tive 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.

Content on the Internet

74. The types of content now on the Internet defy

easy classification. The entire card catalogue of the

Carnegie Library is on-line, together with journals,

journal abstracts, popular magazines, and titles of

® From this point, our Findings are, unless noted, no longer

based upon the parties’ stipulation, but upon the record ad-

duced at the hearings.

43a

compact discs. The director of the Carnegie Library,

Robert Croneberger, testified that on-line services

are the emerging trend in libraries generally. Plain-

tiff Hotwired Ventures LLC organizes its Web site

into information regarding travel, news and commen-

tary, arts and entertainment, politics, and types of

drinks. Plaintiff America Online, Inc., not only creat-

es chat rooms for a broad variety of topics, but also

allows members to create their own chat rooms to

suit their own tastes. The ACLU uses an America

Online chat room as an unmoderated forum for people

to debate civil liberties issues. Plaintiffs’ expert,

Scott Bradner,” estimated tnat 15,000 newsgroups

exist today, and he described his own interest in a

newsgroup devoted solely to Formula 1 racing cars.

America Online makes 15,000 bulletin boards available

to its subscribers, who post between 200,000 and

250,000 messages each day. Another plaintiffs’ ex-

pert, Harold Rheingold, participates in “virtual com-

munities” that simulate social interaction. It is no

exaggeration to conclude that the content on the

Internet is as diverse as human thought.

75. The Internet is not exclusively, or even pri-

marily, a means of commercial communication. Many

commercial entities maintain Web sites to inform

potential consumers about their goods and services,

or to solicit purchases, but many other Web sites

exist solely for the dissemination of non-commercial

information. The other forms of Internet communica-

Mr. Bradner is a member of the Internet Engineering

Task Force, the group primarily responsible for Internet tech-

nical standards, as well as other Internet-related associations

responsible for, among other things, the prevailing Internet

Protocols. He is also associated with Harvard University.

dda

tion—e-mail, bulletin boards, newsgroups, and chat

rooms—frequently have non-commercial goals. For

the economic and technical reasons set forth in the

following paragraphs, the Internet is an especially

attractive means for not-for-profit entities or public

interest groups to reach their desired audiences.

There are examples in the parties’ stipulation of some

of the non-commercial uses that the Internet serves.

Plaintiff Human Rights Watch, Inc., offers informa-

tion on its Internet site regarding reported human

rights abuses around the world. Plaintiff National

Writers Union provides a forum for writers on issues

of concern to them. Plaintiff Stop Prisoner Rape,

Inc., posts text, graphics, and statistics regarding the

incidence and prevention of rape in prisons. Plaintiff

Critical Path AIDS Project, Inc., offers information

on safer sex, the transmission of HIV, and the treat-

ment of AIDS.

76. Such diversity of content on the Internet is

possible because the Internet provides an easy and

inexpensive way for a speaker to reach a large audi-

ence, potentially of millions. The start-up and operat-

ing costs entailed by communication on the Internet

are significantly lower than those associated with use

of other forms of mass communication, such as televi-

sion, radio, newspapers, and magazines. This enables

operation of their own Web sites not only by large

companies, such as Microsoft and Time Warner, but

also by small, not-for-profit groups, such as Stop

Prisoner Rape and Critical Path AIDS Project. The

Government’s expert, Dr. Dan R. Olsen,” agreed that

Dr. Olsen chairs the Computer Science Department at

Brigham Young University in Provo, Utah, and is the re-

cently-appointed Director of the Human Computer Interaction

45a

creation of a Web site would cost between $1,000 and

$15,000, with monthly operating costs depending on

one’s goals and the Web site’s traffic. Commercial

online services such as America Online allow sub-

scribers to create Web pages free of charge. Any

Internet user can communicate by posting a message

to one of the thousands of newsgroups and bulletin

boards or by engaging in an on-line “chat”, and there-

by reach an audience worldwide that shares an inter-

est in a particular topic.

77. The ease of communication through the

Internet is facilitated by the use of hypertext markup

language (HTML), which allows for the creation of

“hyperlinks” or “links”. HTML enables a user to

jump from one source to other related sources by

clicking on the link. A link might take the user from

Web site to Web site, or to other files within a

particular Web site. Similarly, by typing a request

into a search engine, a user can retrieve many differ-

ent sources of content related to the search that the

creators of the engine have collected.

78. Because of the technology underlying the

Internet, the statutory term “content provider.“

which is equivalent to the traditional “speaker,” may

actually be a hybrid of speakers. Through the use of

HTML, for example, Critical Path and Stop Prisoner

Rape link their Web sites to several related data-

Institute at Carnegie-Mellon University in Pittsburgh, Penn-

sylvania.

™ The term “information content provider” is defined in

§ 509 of the CDA, at the new 47 U.S.C. § 230(e)(3), as “any

person or entity that is responsible, in whole or in part, for the

creation or development of information provided through the

Internet or any other interactive computer service.”

46a

bases, and a user can immediately jump from the home

pages of these organizations to the related databases

simply by clicking on a link. America Online creates

chat rooms for particular discussions but also allows

subscribers to create their own chat rooms. Simi-

larly, a newsgroup gathers postings on a particular

topic and distributes them to the newsgroup’s sub-

seribers. Users of the Carnegie Library can read

on-line versions of Vanity Fair and Playboy, and

America Online’s subscribers can peruse the New

York Times, Boating, and other periodicals. Critical

Path, Stop Prisoner Rape, America Online and the

Carnegie Library all make available content of other

speakers over whom they have little or no editorial

control.

79. Because of the different forms of Internet com-

munication, a user of the Internet may speak or listen

interchangeably, blurring the distinction between

“speakers” and “listeners” on the Internet. Chat

rooms, e-mail, and newsgroups are interactive forms

of communication, providing the user with the oppor-

tunity both to speak and to listen.

80. It follows that unlike traditional media, the

barriers to entry as a speaker on the Internet do not

differ significantly from the barriers to entry as a

listener. Once one has entered — — —

en in the dialogue that occurs there. In the argo

of — the receiver can and does become the

content provider, and vice-versa.

81. The Internet is therefore a unique and wholly

new medium of worldwide human communication.

Sexually Explicit Material On the Internet

47a

82. The parties agree that sexually explicit mate-

rial exists on the Internet. Such material includes

text, pictures, and chat, and includes bulletin boards,

newsgroups, and the other forms of Internet commu-

nication, and extends from the modestly titillating to

the hardest-core.

83. There is no evidence that sexually-oriented

material is the primary type of content on this new

medium. Purveyors of such material take advantage

of the same ease of access available to all users of the

Internet, including establishment of a Web site.

84. Sexually explicit material is created, named,

and posted in the same manner as material that is not

sexually explicit. It is possible that a search engine

can accidentally retrieve material of a sexual nature

through an imprecise search, as demonstrated at the

hearing. Imprecise searches may also retrieve irrele-

vant material that is not of a sexual nature. The

accidental retrieval of sexually explicit material is

one manifestation of the larger phenomenon of irrele-

vant search results.

85. Once a provider posts content on the Internet,

it is available to all other Internet users worldwide.

Similarly, once a user posts a message to a news-

group or bulletin board, that message becomes avail-

able to all subscribers to that newsgroup or bulletin

board. For example, when the UCR/California Mu-

seum of Photography posts to its Web site nudes by

Edward Weston and Robert Mapplethorpe to announce

that its new exhibit will travel to Baltimore and New

York City, those images are available not only in Los

Angeles, Baltimore, and New York City, but also in

Cincinnati, Mobile, or Beijing—wherever Internet

users live. Similarly, the safer sex instructions that

48a

Critical Path posts to its Web site, written in street

language so that the teenage receiver can understand

them, are available not just in Philadelphia, but also

in Provo and Prague. A chat room organized by the

ACLU to discuss the United States Supreme Court’s

decision in FCC v. Pacifica Foundation would trans-

mit George Carlin’s seven dirty words to anyone who

enters. Messages posted to a newsgroup dedicated to

the Oklahoma City bombing travel to all subscribers

to that newsgroup.

86. Once a provider posts its content on the Inter-

net, it cannot prevent that content from entering any

community. Unlike the newspaper, broadcast station,

or cable system, Internet technology necessarily giv-

es a speaker a potential worldwide audience. Because

the Internet is a network of networks (as described

above in Findings 1 through 4), any network con-

nected to the Internet has the capacity to send and

receive information to any other network. Hotwired

Ventures, for example, cannot prevent its materials

on mixology from entering communities that have no

interest in that topic.

87. Demonstrations at the preliminary injunction

hearings showed that it takes several steps to enter

cyberspace. At the most fundamental level, a user

must have access to a computer with the ability to

reach the Internet (typically by way of a modem). A

user must then direct the computer to connect with

the access provider, enter a password, and enter the

appropriate commands to find particular data. On the

World Wide Web, a user must normally use a search

engine or enter an appropriate address. Similarly, ac-

cessing newsgroups, bulletin boards, and chat rooms

requires several steps.

49a

88. Communications over the Internet do not “in-

vade” an individual’s home or appear on one’s com-

puter screen unbidden. Users seldom encounter con-

tent “by accident.” A document’s title or a descrip-

tion of the document will usually appear before the

document itself takes the step needed to view it, and

in many cases the user will receive detailed informa-

tion about a site’s content before he or she need take

the step to access the document. Almost all sexually

explicit images are preceded by warnings as to the

content. Even the Government’s witness, Agent

Howard Schmidt, Director of the Air Force Office of

Special Investigation, testified that the “odds are

slim” that a user would come across a sexually ex-

plicit site by accident.

89. Evidence adduced at the hearing showed sig-

nificant differences between Internet communica-

tions and communications received by radio or tele-

vision. Although content on the Internet is just a few

clicks of a mouse away from the user, the receipt of

information on the Internet requires a series of

affirmative steps more deliberate and directed than

merely turning a dial. A child requires some sophis-

tication and some ability to read to retrieve material

and thereby to use the Internet unattended.

Obstacles to Age Verification on the Internet

90. There is no effective way to determine the

identity or the age of a user who is accessing material

through e-mail, mail exploders, newsgroups or chat

rooms. An e-mail address provides no authoritative

information about the addressee, who may use an

e-mail “alias” or an anonymous remailer. There is

also no universal or reliable listing of e-mail ad-

dresses and corresponding names or telephone num-

50a

bers, and any such listing would be or rapidly become

incomplete. For these reasons, there is no reliable

way in many instances for a sender to know if the

e-mail recipient is an adult or a minor. The difficulty

of e-mail age verification is compounded for mail

exploders such as listservs, which automatically send

information to all e-mail addresses on a sender’s list.

Government expert Dr. Olsen agreed that no current

technology could give a speaker assurance that only

adults were listed in a particular mail exploder’s

mailing list.

91. Because of similar technological difficulties,

individuals posting a message to a newsgroup or en-

gaging in chat room discussions cannot ensure that

all readers are adults, and Dr. Olsen agreed. Al-

though some newsgroups are moderated, the modera-

tor’s control is limited to what is posted and the

moderator cannot control who receives the messages.

92. The Government offered no evidence that there

is a reliable way to ensure that recipients and partici-

pants in such fora can be screened for age. The Gov-

ernment presented no evidence demonstrating the

feasibility of its suggestion that chat rooms, news-

groups and other fora that contain material deemed

indecent could be effectively segregated to “adult” or

“moderated” areas of cyberspace.

93. Even if it were technologically feasible to block

minors’ access to newsgroups and similar fora, there

is no method by which the creators of newsgroups

which contain discussions of art, politics or any other

subject that could potentially elicit “indecent” con-

tributions could limit the blocking of access by

minors to such “indecent” material and still allow

them access to the remaining content, even if the

5la

overwhelming majority of that content was not

indecent.

94. Likewise, participants in MUDs (Multi-User

Dungeons) and MUSEs (Multi-User Simulation En-

vironments) do not know whether the other partici-

pants are adults or minors. Although MUDs and

MUSEs require a password for permanent partici-

pants, they need not give their real name nor verify

their age, and there is no current technology to

enable the administrator of these fantasy worlds to

know if the participant is an adult or a minor.

95. Unlike other forms of communication on the

Internet, there is technology by which an operator of

a World Wide Web server may interrogate a user of a

Web site. An HTML document can include a fill-in-

the-blank “form” to request information from a visi-

tor to a Web site, and this information can be trans-

mitted back to the Web server and be processed by a

computer program, usually a Common Gateway Inter-

face (egi) script. The Web server could then grant or

deny access to the information sought. The cgi script

is the means by which a Web site can process a fill-in

form and thereby screen visitors by requesting a

credit card number or adult password.

96. Content providers who publish on the World

Wide Web via one of the large commercial online ser-

vices, such as America Online or CompuServe, could

not use an online age verification system that re-

quires cgi script because the server software of these

online services available to subscribers cannot pro-

cess cgi scripts. There is no method currently

available for Web page publishers who lack access to

egi scripts to screen recipients online for age.

52a

The Practicalities of the Proffered Defenses

Note: The Government contends the CDA makes

available three potential defenses to all content

providers on the Internet: eredit card verification,

adult verification by password or adult identification

number, and “tagging”.

53a

Credit Card Verification

97. Verification” of a credit card number over the

Internet is not now technically possible. Witnesses

testified that neither Visa nor Mastercard considers

the Internet to be sufficiently secure under the cur-

rent technology to process transactions in that man-

ner. Although users can and do purchase products

over the Internet by transmitting their credit card

number, the seller must then process the transaction

with Visa or Mastercard off-line using phone lines in

the traditional way. There was testimony by several

witnesses that Visa and Mastercard are in the pro-

cess of developing means of credit card verification

over the Internet.

98. Verification by credit card, if and when opera-

tional, will remain economically and practically

unavailable for many of the non-commercial plaintiffs

in these actions. The Government’s expert “sus-

pectſed]“ that verification agencies would decline to

process a card unless it accompanied a commercial

transaction. There was no evidence to the contrary.

99. There was evidence that the fee charged by

verification agencies to process a card, whether for a

purchase or not, will preclude use of the credit-card

verification defense by many non-profit, non-com-

mercial Web sites, and there was no evidence to the

contrary. Plaintiffs’ witness Patricia Nell Warren,

an author whose free Web site allows users to pur-

chase gay and lesbian literature, testified that she

os By “verification”, we mean the method by which a user

types in his or her credit card number, and the Web site

ensures that the credit card is valid before it allows the user to

enter the site.

54a

must pay $1 per verification to a verification agency.

Her Web site can absorb this cost because it arises in

connection with the sale of books available there.

100. Using credit card possession as a surrogate

for age, and requiring use of a credit card to enter a

site, would impose a significant economic cost on non-

commercial entities. Critical Path, for example,

received 3,300 hits daily from February 4 through

March 4, 1996. If Critical Path must pay a fee every

time a user initially enters its site, then, to provide

free access to its non-commercial site, it would incur

a monthly cost far beyond its modest resources. The

ACLU’s Barry Steinhardt testified that maintenance

of a credit card verification system for all visitors to

the ACLU’s Web site would require it to shut down

its Web site because the projected cost would exceed

its budget.

101. Credit card verification would significantly

delay the retrieval of information on the Internet.

Dr. Olsen, the expert testifying for the Government,

agreed that even “a minute is [an] absolutely unrea-

sonable [delay] . . . [PJeople will not put up with a

minute.” Plaintiffs’ expert Donna Hoffman similarly

testified that excessive delay disrupts the “flow” on

the Internet and stifles both “hedonistic” and “goal-

directed” browsing.

102. Imposition of a credit card requirement would

completely bar adults who do not have a credit card

and lack the resources to obtain one from accessing

any blocked material. At this time, credit card veri-

fication is effectively unavailable to a substantial

number of Internet content providers as a potential

defense to the CDA.

55a

Adult Verification by Password

103. The Government offered very limited evidence

regarding the operation of existing age verification

systems, and the evidence offered was not based on

personal knowledge. AdultCheck and Verify, existing

systems which appear to be used for accessing com-

mercial pornographic sites, charge users for their

services. Dr. Olsen admitted that his knowledge of

these services was derived primarily from reading the

advertisements on their Web pages. He had not

interviewed any employees of these entities, had not

personally used these systems, had no idea how many

people are registered with them, and could not testify

to the reliability of their attempt at age verification.

104. At least some, if not almost all, non-com-

mercial organizations, such as the ACLU, Stop

Prisoner Rape or Critical Path AIDS Project, regard

charging listeners to access their speech as contrary

to their goals of making their materials available to a

wide audience free of charge.

105. It would not be feasible for many non-com-

mercial organizations to design their own adult ac-

cess code screening systems because the administra-

tive burden of creating and maintaining a screening

system and the ongoing costs involved is beyond their

reach. There was testimony that the costs would be

prohibitive even for a commercial entity such as

Hot Wired, the online version of Wired magazine.

106. There is evidence suggesting that adult us-

ers, particularly casual Web browsers, would be dis-

couraged from retrieving information that required

use of a credit card or password. Andrew Anker

testified that HotWired has received many complaints

56a

from its members about HotWired’s registration sys-

tem, which requires only that a member supply a

name, e-mail address and self-created password.

There is concern by commercial content providers

that age verification requirements would decrease

advertising and revenue because advertisers depend

on a demonstration that the sites are widely available

and frequently visited.

107. Even if credit card verification or adult

password verification were implemented, the Govern-

ment presented no testimony as to how such systems

could ensure that the user of the password or credit

card is in fact over 18. The burdens imposed by credit

card verification and adult password verification sys-

tems make them effectively unavailable to a sub-

siantial number of Internet content providers.

The Government’s “Tagging” Proposal

108. The feasibility and effectiveness of “tagging”

to restrict children from accessing “indecent”

speech, as proposed by the Government has not been

established. “Tagging” would require content pro-

viders to label all of their “indecent” or “patently

offensive” material by imbedding a string of charac-

ters, such as “XXX,” in either the URL or HTML.

If a user could install software on his or her computer

to recognize the “XXX” tag, the user could screen

out any content with that tag. Dr. Olsen proposed a

LIS“ tag, an idea he developed for this hearing in

response to Mr. Bradner’s earlier testimony that cer-

tain tagging would not be feasible.

109. The parties appear to agree that it is

technologically feasible—“trivial”, in the words of

plaintiffs’ expert—to imbed tags in URLs and HTML,

57a

and the technology of tagging underlies both plain-

tiffs’ PICS proposal and the Government’s “-L18”

proposal.

110. The Government’s tagging proposal would re-

quire all content providers that post arguably “inde-

cent” material to review all of their online content, a

task that would be extremely burdensome for

organizations that provide large amounts of material

online which cannot afford to pay a large staff to

review all of that material. The Carnegie Library

would be required to hire numerous additional

employees to review its online files at an extremely

high cost to its limited budget. The cost and effort

would be substantial for the Library and frequently

prohibitive for others. Witness Kiroshi Kuromiya

testified that it would be impossible for his organiza-

tion, Critical Path, to review all of its material be-

cause it has only one full and one part-time employee.

111. The task of screening and tagging cannot be

done simply by using software which screens for

certain words, as Dr. Olsen acknowledged, and we find

that determinations as to what is indecent require

human judgment.

112. In lieu of reviewing each file individually, a

content provider could tag its entire site but this

would prevent minors from accessing much material

that is not “indecent” under the CDA.

113. To be effective, a scheme such as the -L18

proposal would require a worldwide consensus among

speakers to use the same tag to label “indecent”

material. There is currently no such consensus, and

no Internet speaker currently labels its speech with

58a

the -L18 code or with any other widely-recognized

label.

114. Tagging also assumes the existence of soft-

ware that recognizes the tags and takes appropriate

action when it notes tagged speech. Neither com-

mercial Web browsers nor user-based screening

software is currently configured to block a -L18 code.

Until such software exists, all speech on the Internet

will continue to travel to whomever requests it, with-

out hindrance. Labelling speech has no effect in itself

on the transmission (or not) of that speech. Neither

plaintiffs nor the Government suggest that tagging

alone would shield minors from speech or insulate a

speaker from criminal liability under the CDA. It

follows that all speech on any topic that is available to

adults will also be available to children using the

Internet (unless it is blocked by screening software

running on the computer the child is using).

115. There is no way that a speaker can use cur-

rent technology to know if a listener is using screen-

ing software.

116. Tags can not currently activate or deactivate

themselves depending on the age or location of the

receiver. Critical Path, which posts on-line safer sex

instructions, would be unable to imbed tags that block

its speech only in communities where it may be re-

garded as indecent. Critical Path, for example, must

choose either to tag its site (blocking its speech in all

communities) or not to tag, blocking its speech in

none.

59a

The Problems of Offshore Content and Caching

117. A large percentage, perhaps 40% or more, of

content on the Internet originates outside the United

States. At the hearing, a witness demonstrated how

an Internet user could access a Web site of London

(which presumably is on a server in England), and

then link to other sites of interest in England. A user

can sometimes discern from a URL that content is

coming from overseas, since InterNIC allows a con-

tent provider to imbed a country code in a domain

name.” Foreign content is otherwise indistinguish-

able from domestic content (as long as it is in

English), since foreign speech is created, named, and

posted in the same manner as domestic speech. There

is no requirement that foreign speech contain a

country code in its URL. It is undisputed that some

foreign speech that travels over the Internet is

sexually explicit.

118. The use of “caching” makes it difficult to de-

termine whether the material originated from foreign

or domestic sources. Because of the high cost of

using the trans-Atlantic and trans-Pacific cables, and

because the high demand on those cables leads to

bottleneck delays, content is often “cached”, or tem-

porarily stored, on servers in the United States.

Material from a foreign source in Europe can travel

* InterNIC is a naming organization, not a regulator of

content. InterNIC and two other European organizations

maintain a master list of domain names to ensure that no dupli-

cation occurs. Creators of Web sites must register their domain

name with InterNIC, and the agency will instruct the creator

to choose another name if the new Web site has the name of an

already-existing site. InterNIC has no control over content on

a site after registration.

60a

over the trans-Atlantic cable to the receiver in the

United States, and pass through a domestic caching

server which then stores a copy for subsequent re-

trieval. This domestic caching server, rather than

the original foreign server, will send the material

from the cache to the subsequent receivers, without

placing a demand on the trans-oceanic cables. This

shortcut effectively eliminates most of the distance

for both the request and the information and, hence,

most of the delay. The caching server discards the

stored information according to its configuration

(e.g., after a certain time or as the demand for the

information diminishes). Caching therefore advances

core Internet values: the cheap and speedy retrieval

of information.

119. Caching is not merely an international phe-

nomenon. Domestic content providers store popular

domestic material on their caching servers to avoid

the delay of successive searches for the same mate-

rial and to decrease the demand on their Internet

connection. America Online can cache the home page

of the New York Times on its servers when a sub-

scriber first requests it, so that subsequent sub-

scribers who make the same request will receive the

same home page, but from America Online’s caching

service rather than from the New York Times’s

server.”

120. Put simply, to follow the example in the prior

paragraph, America Online has no control over the

“| This paragraph and the preceding paragraph also illus-

trate that a content provider might store its own material or

someone else’s on a caching server. The goal—saving money

and time—is the same in both cases.

6la

content that the New York Times posts to its Web

site, and the New York Times has no control over

America Online’s distribution of that content from a

caching server.

Anonymity

121. Anonymity is important to Internet users

who seek to access sensitive information, such as

users of the Critical Path AIDS Project’s Web site,

the users, particularly gay youth, of Queer Re-

sources Directory, and users of Stop Prisoner Rape

(SPR). Many members of SPR’s mailing list have

asked to remain anonymous due to the stigma of

prisoner rape.

Plaintiffs’ Choices Under the CDA

122. Many speakers who display arguably indecent

content on the Internet must choose between silence

and the risk of prosecution. The CDA’s defenses—

credit card verification, adult access codes, and adult

personal identification numbers—are effectively un-

available for non-commercial, not-for-profit entities.

123. The plaintiffs in this action are businesses,

libraries, non-commercial and not-for-profit organiza-

tions, and educational societies and consortia.

Although some of the material that plaintiffs post

online—such as information regarding protection

from AIDS, birth control or prison rape—is sexually

explicit and may be considered “indecent” or “pat-

ently offensive” in some communities, none of the

plaintiffs is a commercial purveyor of what is com-

monly termed “pornography.”

62a

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 un-

constitutional 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. Accord-

ingly, plaintiffs have shown irreparable injury, no

party has any interest in the enforcement of an un-

constitutional 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, 655 (d Cir. 1994). The motions for preliminary

injunction will therefore be granted.

The views of the members of the Court in support of

tk se conclusions follow.

“LOVITER, Chief Judge, Court of Appeals for the

Th rd 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 facili-

tate reference, I set forth those provisions in full.

Section 223(a), the “indecency” provision, subjects to

63a

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 telecommunica-

tions 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 specifi-

cally 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—

64a

(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, sugges-

tion, proposal, image or other communication

that, in context, depicts or describes, in terms

patently offensive as measured by contem-

porary community standards, sexual or excre-

tory activities or organs, regardless of whether

the use of such service placed the call or initi-

ated 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 provi-

sions on indecent and patently offensive communica-

tions are not parallel.

The government uses the term “indecent” inter-

changeably 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 “inde-

cent.” Notwithstanding Congress’ familiarity with

Pacifica, it enacted § 223(a), covering “indecent” com-

munications, without any language confining “inde-

65a

cent” to descriptions or depictions of “sexual or ex-

cretory 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 require-

ment 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) (“‘[WJhere 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

wy te * * inclusion or exclu-

quoting Russello v. Unite

2 g d States, 464 U.S.

Plaintiffs note the difference but do not press this

as a basis for distinguishing between the two sections”

in their preliminary injunction arguments and there-

fore 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 injunc-

tive relief is not granted. We also must consider

whether the potential harm to the defendant from

issuance of a temporary restraining order outweighs

66a

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 d 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 inhibi-

tion 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

67a

— — — (1994); Virginia Bd. of Pharmacy v.

wrginia Citizens Consumer Council, 425 U.S.

763-65 (1976). ee

Thus, if plaintiffs have shown a likelihood of

success on the merits, they will have shown the ir-

reparable injury needed to entitle them to a prelimi-

nary injunction.

C.

Applicable Standard of Review

The CDA is patently a government-imposed -

tent-based restriction on p90 and the — 2

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 inter-

est. Sable, 492 U.S. at 126; see also Turner Broad-

casting, 114 S.Ct. at 2459 (1994). “(T]he benefit gained

(by a content-based restriction] must outweigh the

loss of constitutionally protected rights.” Elrod

Burns, 427 U.S. at 363. 1 8

The government's position on the applicable stan-

dard has been less than pellucid bet, deupite 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

68a

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 affirma-

tively and deliberately to retrieve specific informa-

tion online. Even if a broad search will, on occasion,

retrieve unwanted materials, the user virtually al-

ways receives some warning of its content, signifi-

cantly reducing the element of surprise or “assault

involved in broadcasting. Therefore, it is highly un-

likely that a very young child will be randomly “surf-

ing” the Web and come across “indecent” or “patently

offensive” material.

Judge Dalzell’s separate opinion fully explores the

— for the differential treatment of radio and

television broadcasting for First Amendment pur-

poses from that accorded other means of communica-

tion. It follows that to the extent the Court employed

a less than strict scrutiny standard of review in

Pacifica and other broadcasting cases, see, e. g., Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969),

there is no reason to employ a less than strict

scrutiny standard of review in this case.

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. It cites in support the

statements of the Supreme Court that “(i]t is evident

beyond the need for elaboration that a State’s interest

in ‘safeguarding the physical and psychological well-

being of a minor’ is compelling,“ New York v.

Ferber, 458 U.S. 747, 757 (1982) (quoting Globe

Newspaper Co. v. Superior Court, 457 U.S. 596, 607

69a

(1982)), and “there is a compelling interest in pro-

tecting the physical and psychological well-being of

minors. This interest extends to shielding minors

from the influence of literature that is not obscene by

adult standards.” Sable, 492 U.S. at 126. It also cites

the similar quotation appearing in Fabulous Assoc.,

Inc. v. Pennsylvania Public Utility Comm’n, 896

F. 2d 780, 787 (3d Cir. 1990).

Those statements were made in cases where the

potential harm to children from the material was

evident. Ferber involved the constitutionality of a

statute which prohibited persons from knowingly

promoting sexual performances by children under 16

and distributing material depicting such perform-

ances. Sable and Fabulous involved the FCC’s ban on

“dial-a-porn” (dealing by definition with pornographic

telephone messages). In contrast to the material at

issue in those cases, at least some of the material sub-

ject to coverage under the “indecent” and “patently

offensive” provisions of the CDA may contain valu-

able literary, artistic or educational information of

value to older minors as well as adults. The Supreme

Court has held that “minors are entitled to a signifi-

cant measure of First Amendment protection, and

only in relatively narrow and well-defined circum-

stances may government bar public dissemination of

protected materials to them.” Erznoznik v. City of

Jacksonville, 422 U.S. 205, 212-213 (1975) (citations

omitted).

In Erznoznik, the Court rejected an argument that

an ordinance prohibiting the display of films con-

taining nudity at drive-in movie theatres served a

compelling interest in protecting minor passersby

from the influence of such films. The Court held that

70a

the prohibition was unduly broad, and explained that

“(s}peech that is neither obscene as to youths nor

subject to some other legitimate proscription cannot

be suppressed solely to protect the young from ideas

or images that a legislative body thinks unsuitable for

them.” 422 U.S. at 213-14. As Justice Scalia noted in

Sable, “[t]he more pornographic what is embraced

within the . . . category of ‘indecency,’ the more rea-

sonable it becomes to insist upon greater assurance of

insulation from minors.” Sable, 492 U.S. at 132

(Sealia, J., concurring). It follows that where non-

pornographic, albeit sexually explicit, material also

falls within the sweep of the statute, the interest will

not be as compelling.

In part, our consideration of the government’s

showing of a “compelling interest” trenches upon the

vagueness issue, discussed in detail in Judge Buck-

walter’s opinion but equally pertinent to First

Amendment analysis. Material routinely acceptable

according to the standards of New York City, such as

the Broadway play Angels in America which con-

cerns homosexuality and AIDS portrayed in graphic

language, may be far less acceptable in smaller, less

cosmopolitan communities of the United States. Yet

the play garnered two Tony Awards and a Pulitzer

prize for its author, and some uninhibited parents and

teachers might deem it to be material to be read or

assigned to eleventh and twelfth graders. If available

on the Internet through some libraries, the text of

the play would likely be accessed in that manner by at

least some students, and it would also arguably fall

within the scope of the CDA.

There has been recent public interest in the female

genital mutilation routinely practiced and officially

71a

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 discussions, 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 appear-

ing in National Geographic or a travel magazine of

the sculptures in India of couples copulating in nu-

merous positions, a written description of a brutal

prison rape, or Francesco Clemente’s painting “Labi-

rinth,” see Def. Exh. 125, all might be considered to

“depict or describe, in terms patently offensive as

measured by contemporary community standards,

sexual or excretory activities or organs.” 47 U.S.C. §

223(d)(1). But the government has made no showing

that it has a compelling interest in preventing a

seventeen-year-old minor from accessing such

images.

By contrast, plaintiffs presented testimony that

material that could be considered indecent, such as

that offered by Stop Prisoner Rape or Critical Path

AIDS project, spay be critically important for certain

older minors. For example, there was testimony that

one quarter of all new HIV infections in the United

States is estimated to occur in young people between

the ages of 13 and 20, an estimate the government

made no effort to rebut. The witnesses believed that

graphic material that their organizations post on the

Internet could help save lives, but were concerned

about the CDA’s effect on their right to do so.

72a

The government counters that this court should

defer to legislative conclusions about this matter.

However, where First Amendment rights are at

stake, “[djeference to a legislative finding cannot

limit judicial inquiry.” Sable, 492 U.S. at 129 (quot-

ing Landmark Communications, ‘nc. v. Virginia,

435 U.S. 829, 843 (1978)). Whatever deference is due

legislative findings would not foreclose our indepen-

dent judgment of the facts bearing on an issue of

constitutional law.” Id.

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. Similarly, at the hear-

ings before us the government introduced exhibits of

sexually explicit material through the testimony of

Agent Howard Schmidt, which consisted primarily of

the same type of hard-core pornographic materials

(even if not technically obscene) which concerned

Congress and which fill the shelves of “adult” book

and magazine stores. Plaintiffs emphasize that they

do not challenge the Act’s restrictions on speech not

protected by the First Amendment, such as obscenity,

child pornography or harassment of children. Their

suit is based on their assertion, fully supported by

their evidence and our findings, that the CDA reaches

much farther.

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, |

acknowledge that there is certainly a compelling

73a

government interest to shield a substantial number of

minors from some of the online material that moti-

vated Congress to enact the CDA, and do not rest my

decision on the inadequacy of the government’s show-

ing in this regard.

E.

The Reach of the Statute

Whatever the strength of the interest the govern-

ment has demonstrated in preventing minors from

accessing “indecent” and “patently offensive” mate-

rial online, if the means it has chosen sweeps more

7 than oe and thereby chills the expres-

sion of adults, i overstepped onto rights

a by the First Amendment. Sable, = US at

The plaintiffs argue that the CDA violates the

First Amendment because it effectively bans a sub-

stantial 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 consti-

tutionally 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

74a

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-com-

mercial organizations and even many commercial

organizations using the Web would find it prohibi-

tively expensive and burdensome to engage in the

methods of age verification proposed by the govern-

ment, and that even if they could attempt to age

verify, there is little assurance that they could suc-

cessfully 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 por-

75a

nographers, 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. Vir-

ginia v. American Booksellers Ass n, 484 U.S. 383,

397 (1988). The court may not “rewritea . law to

conform it to constitutional requirements.” Id. Al-

though we may prefer an interpretation of a statute

that will preserve the constitutionality of the statu-

tory scheme, United States 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 por-

nography. 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 com-

munication “for commercial purposes”). It placed no

76a

similar limitation in the CDA. Moreover, the Con-

ference 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 goverment’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. 88089 (daily ed. June 9, 1995) (State-

ment 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 constitu-

tional 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. In ques-

tions 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

! It also probably covers speech protected by the First

Amendment for some minors a [sic] well, because it fails to

limit its reach to that which is harmful for minors, an issue

which it is not necessary to decide in light of the other

conclusions reached.

77a

describing sexual activities (e. g., Leaving Las Vegas)

to controversial contemporary art and photographs

showing sexual organs in positions that the gov-

ernment conceded would be patently offensive in some

communities (e.g., a Robert Mapplethorpe photograph

depicting a man with an erect penis).

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. As a consequence,

we have found that Imlany speakers who display ar-

guably indecent content on the Internet must choose

between silence and the risk of prosecution.” Such a

choice, forced by sections 223(a) and (d) of the CDA,

strikes at the heart of speech of adults as well as

minors.

F.

Whether CDA is Narrowly Tailored

In the face of such a patent intrusion on a sub-

stantial 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. See Sable,

492 U.S. at 126. It would appear that the extent of the

abridgement of the protected speech of adults that it

has been shown the CDA would effect is too intrusive

to be outweighed by the government’s asserted inter-

est, whatever its strength, in protecting minors from

access to indecent material. Nonetheless, the for-

mulation of the inquiry requires that we consider the

78a

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.

First, it is difficult to characterize a criminal stat-

ute that hovers over each content provider, like the

proverbial sword of Damocles, as a narrow tailoring.

Criminal prosecution, which carries with it the risk

of public obloquy as well as the expense of court

preparation and attorneys’ fees, could itself cause

incalculable harm. No provider, whether an individ-

ual, non-profit corporation, or even large publicly held

corporation, is likely to willingly subject itself to pro-

secution for a miscalculation of the prevalent commu-

nity standards or for an error in judgment as to what

is indecent. A successful defense to a criminal pro-

secution would be small solace indeed.

Credit card and adult verification services are

explicitly referred to as defenses in § 223(e)(5)(B) of

the CDA. As is set forth fully in the detailed Findings

of Fact, these defenses are not technologically or

economically feasible tor most providers.

The government then falls back on the affirmative

defense to prosecution provided in § 223(e)(5)(A) for a

person who “has taken, in good faith, reasonable,

effective, and appropriate actions under the circum-

stances to restrict or prevent access by minors to a

communication specified in such subsections .. .

including any method which is feasible under

available technology.“ The government emphasizes

79a

that “effective” does not require 100% restriction,

and that this defense is “open-ended” and requires

only reasonable efforts based on current technology.

But, as the evidence made clear, there is no such

technology at this time. The government proffered as

one option that would constitute a valid affirmative

defense under § 223(e)(5)(A) a “tagging” scheme con-

ceived by Dr. Olsen in response to this lawsuit

whereby a string of characters would be imbedded in

all arguably indecent or patently offensive material.

Our Findings of Fact set forth fully the reasons why

we found that the feasibility and effectiveness of

tagging in the manner proposed by the government

has not been established. All parties agree that

tagging alone does nothing to prevent children from

accessing potentially indecent material, because it

depends upon the cooperation of third parties to block

the material on which the tags are embedded. Yet

these third parties, over which the content providers

have no control, are not subject to the CDA. 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” pro-

posal is purely hypothetical and offers no currently

operative defense to Internet content providers. At

this time, there is no agreed-upon “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.

80a

Third, even if the technology catches up, as the

government confidently predicts, there will still be a

not insignificant burden attached to effecting a

tagging defense, a burden one should not have to bear

in order to transmit information protected under the

constitution. For example, to effect tagging content

providers must review all of their material currently

published online, as well as all new material they post

in the future, to determine if it could be considered

“patently offensive” in any community nationwide.

This would be burdensome for all providers, but for

the many not-for-profit entities which currently post

thousands of Web pages, this burden would be one

impossible to sustain.

Finally, the viability of the defenses is intricately

tied to the clarity of the CDA’s scope. Because, like

Judge Buckwalter, and for many of the reasons he

gives, I believe that “indecent” and “patently offen-

sive” are inherently vague, particularly in light of the

government’s inability to identify the relevant

community by whose standards the material will be

judged, I am not persuaded by the government that

the statutory defenses in § 223(e) provide effective

protection from the unconstitutional reach of the

statute.

Minors would not be left without any protection

from exposure to patently unsuitable material on the

Internet should the challenged provisions of the CDA

be preliminarily enjoined. Vigorous enforcement of

current obscenity and child pornography laws should

suffice to address the problem the government

identified in court and which concerned Congress.

When the CDA was under consideration by Congress,

the Justice Department itself communicated its view

8la

that it was not necessary because it was prosecuting

online obscenity, child pornography and child solicita-

tion under existing laws, and would continue to do so.”

It follows that the CDA is not narrowly tailored, and

the government’s attempt to defend it on that ground

must fail.

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. Those responsible for minors undertake the

primary obligation to prevent their exposure to such

material. Instead, in the CDA Congress chose to

place on the speakers the obligation of screening the

material that would possibly offend some com-

munities.

Whether Congress’ decision was a wise one is not

at issue here. It was unquestionably a decision that

placed the CDA in serious conflict with our most

cherished protection—the right to choose the

material to which we would have access.

The government makes what I view as an extra-

ordinary argument in its brief. It argues that block-

2 See 141 Cong. Rec. S8342 (daily ed. June 14, 1995) (letter

from Kent Markus, Acting Assistant Attorney General, U.S.

Department of Justice, to Senator Leahy).

82a

ing technology needed for effective parental control is

not yet widespread but that it “will imminently be in

place.“ Government’s Post-hearing Memorandum at

66. 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.

The government makes yet another argument that

troubles me. It suggests that the concerns expressed

by the plaintiffs and the questions posed by the court

reflect an exaggerated supposition of how it would

apply the law, and that we should, in effect, trust the

Department of Justice to limit the CDA’s application

in a reasonable fashion that would avoid prosecution

for placing on the Internet works of serious literary

or artistic merit. That would require a broad trust

indeed from a generation of judges not far removed

from the attacks on James Joyce’s Ulysses as obscene.

See United States v. One Book Entitled Ulysses, 72

F.2d 705 (2d Cir. 1934); see also Book Named “John

Cleland’s Memoirs of a Woman of Pleasure” v.

Attorney General of Mass., 383 U.S. 413 (1966). Even

if we were to place confidence in the reasonable

judgment of the representatives of the Department of

Justice who appeared before us, the Department is not

a monolithic structure, and individual U.S. Attorneys

in the various districts of the country have or appear

to exercise some independence, as reflected by the

Department’s tolerance of duplicative challenges in

this very case.

83a

But the bottom line is that the First Am

should not be interpreted to require us to — —

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. |

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.

BUCKWALTER, District Judge:

A.

I believe that plaintiffs should il i

4 — uld prevail in this

My conclusion differs in part from my origin

memorandum filed in conjunction with the Monin —

a Temporary Restraining Order. As part of the expe-

dited review (per § 561 of the CDA), and in contrast to

the limited documentation available to me at the time

of the T.R.O. hearing, we have now gathered volumi-

nous evidence presented by way of sworn declara-

tions, live testimony, demonstrative evidence, and

other exhibits.' Based upon our findings of fact

If by virtue of the statute’s authorization of

review of its constitutionality, “on its face,” 47 BAe. Ses.

we were strictly limited to looking at the words of the statute, I

w stand by my T.R.O. opinion. However, in light of the

Tr which are required by 47 U.S.C. § 561(a) and 28

S.C. § 2284, and were followed by this court in establishing

an nore gies say in this case, to ignore the evidence

— * to ignore what an action for injunctive

84a

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 Com-

munications of California, Inc. v. FCC, 492 U.S. 115

(1989).

More specifically, I now find that current technol-

ogy 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 unconstitution-

Section 561 reads as follows:

§ 561. EXPEDITED REVIEW.

(a) THREE-JUDGE DISTRICT COURT HEAR-

ING—

Notwithstanding any other provision of law, any civil action

challenging the constitutionality, on its face, of this title or any

amendment made by this title, or any provision thereof, shall

be heard by a district court of 3 judges convened pursuant to

the provisions of section 2284 of title 28, United States Code.

Section 2284 states, in relevant part:

§ 2284. Three-judge court; when required; composition;

procedure

(b) In any action required to be heard and determined

by a district court of three judges under subsection (a) of

this section, the composition and procedure of the court

shall be as follows:

(3) A single judge may conduct all proceedings except

the trial. He may grant a temporary restraining

order on a specific finding, based on evidence submitted,

that specified irreparable damages will result if the order

is not granted, which order, unless previously revoked by

the district judge, shall remain in force only until the

hearing and determination by the district court of three

judges of an application for a preliminary injunction... .

85a

ally vague, and I find that the terms “in context” and

“patently offensive” also are so vague as to violate the

First and Fifth Amendments.

It is, of course, correct that statutes that attempt

to regulate the content of speech presumptively vio-

late the First Amendment. See e.g. R.A.V. v. City of

Saint Paul, 505 U.S. 377, 381 (1992). That is as it

should be. The prohibition against Government’s re-

gulation of speech cannot be set forth any clearer

than in the language of the First Amendment itself. |

suspect, however, that it may come as a surprise to

many people who have not followed the evolution of

constitutional law that, by implication at least, the

First Amendment provides that Congress shall make

no law abridging the freedom of speech unless that

law advances a compelling governmental interest.

Our cherished freedom of speech does not cover as

broad a spectrum as one may have gleaned from a

simple reading of the Amendment.’

2 Justice Kennedy argues in his opinion in Simon &

Schuster v. New York Crime Victims Bd., 502 U.S. 105, 120

(1991), that It he regulated content has the full protection of

the First Amendment and this, I submit, is itself a full and

sufficient reason for holding the statute unconstitutional. In

my view it is both unnecessary and incorrect to ask whether

the state can show that the statute ‘is necessary to serve a

compelling state interest and is narrowly drawn to achieve that

end.” In the present case, there is no disagreement that

indecent and patently offensive speech have the full protection

of the First Amendment.

Not only has speech been divided up and given values

with some types of speech given little or no protection (ob-

scenity, fighting words, possibly commercial speech)—but also,

by court decisions over the years, it has been decided that the

content of speech can indeed be regulated provided that the

regulation will directly and materially advance a compelling

86a

First Amendment jurisprudence has developed into

a study of intertwining standards and applications,

perhaps as a necessary response to our ever-evolving

culture and modes of communication.‘

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

government interest, and that it is narrowly tailored to accom-

plish that interest in the least restrictive manner. However,

any content-based restriction must survive this most exacting

scrutiny. Sable, 492 U.S. 115; Texas v. Johnson, 491 U.S. 397

(1989).

4 The plaintiffs have made facial challenges to the disputed

provisions of the CDA on grounds of both vagueness and

overbreadth. The approach taken and language used in

evaluating a statute under each of these doctrines commingles,

and frequently is treated as a single approach. “We have

traditionally viewed vagueness and overbreadth as logically

related and similar doctrines.” Kolender v. Lawson, 461 U.S.

352, 358 n.8 (1983) (citing Keyishian v. Board of Regents, 385

U.S. 589, 609 (1967); NAACP v. Button, 371 U.S. 415, 433

(1963)). Even in cases where the court attempts to distinguish

these two doctrines, it acknowledges some interplay between

them. See e.g. Village of Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494, and n. 6 (1982).

In addition, when discussing overbreadth, one cannot avoid

reference to the same language used to describe and apply the

strict scrutiny standard to constitutionally protected activities.

See e.g. Sable, 492 U.S. at 131; Roberts v. Jaycees, 468 U.S. 609,

623 (1984). While there are occasional attempts to argue for

clear distinctions among these doctrines, see e.g. Kolender, 461

U.S. at 369 (White, J., Rehnquist, J. dissenting), such bright

lines simply have not been, and most likely cannot be, drawn in

this area.

87a

at the preliminary injunction phase only—cannot pro-

vide a safe harbor for most speakers on the Internet,

thus rendering the statute unconstitutional under a

strict scrutiny analysis. I refer to Chief Judge

Sloviter’s more detailed analysis of this issue.

While I believe that our findings of fact clearly

show that as yet no defense is technologically feasi-

ble, and while I also have found the present Act to be

unconstitutionally vague, I believe it is too early in

the development of this new medium to conclude that

other attempts to regulate protected speech within

the medium will fail a challenge. That is to say that I

specifically do not find that any and all statutory

regulation of protected speech on the Internet could

not survive constitutional scrutiny. Prior cases have

established that government regulation to prevent

access by minors to speech protected for adults, even

in media considered the vanguard of our First Amend-

ment protections, like print, may withstand a consti-

tutional challenge. See e.g. Ginsberg v. New York,

390 U.S. 629, 635 (1968) (“ ‘Material which is protected

for distribution to adults is not necessarily consti-

tutionally protected from restriction upon its dis-

semination to children.’”) (quoting Bookcase Inc. v.

Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952, 218

N.E.2d 668, 671 (1966), appeal dismissed, sub nom

Bookcase, Inc. v. Leary, 385 U.S. 12 (1966)). It should

be noted that those restrictions that have been found

constitutional were sensitive to the unique qualities

of the medium at which the restriction was aimed.

B.

This statute, all parties agree, deals with protected

speech, the preservation of which has been extolled by

court after court in case after case as the keystone,

88a

the bulwark, the very heart of our democracy. What

is more, the CDA attempts to regulate protected

speech through criminal sanctions, thus implicating

not only the First but also the Fifth Amendment of

our Constitution. The concept of due process is every

bit as important to our form of government as is free

speech. If free speech is at the heart of our democ-

racy, then surely due process is the very lifeblood of

our body politic; for without it, democracy could not

survive. 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 exact-

ing 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.

The reason for such an examination is obvious. 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.

Kolender, 461 U.S. 352; Hoffman Estates, 455 U.S.

489; Smith v. Goguen, 415 U.S. 566 (1974); Grayned v.

City of Rockford, 408 U.S. 104 (1972); Winters v. New

York, 333 U.S. 507 (1948).

In dealing with issues of vagueness and due process

over the years, the Supreme Court has enunciated

many notable principles. One concern with vague

89a

laws relates to the issue of notice. The older cases

have used phrases such as “a statute which either

forbids or requires the doing of an act in terms so

vague that men of common intelligence must nec-

essarily guess at its meaning and differ as to its appli-

cation violates the first essential of due process of

law,” Connally v. General Const. Co., 269 U.S. 385,

391 (1926) (citations omitted); “it will not do to hold

an average man to the peril of indictment for the

unwise exercise of his . knowledge involving so

many factors of varying effect that neither the person

to decide in advance nor the jury to try him after the

fact can safely and certainly judge the result,” Cline

v. Frink Dairy Co., 274 U.S. 445, 465 (1927); and In lo

one may be required at peril of life, liberty or pro-

perty to speculate as to the meaning of penal statutes.

All are entitled to be informed as to what the State

commands or forbids,” Lanzetta v. New Jersey, 306

U.S. 451, 453 (1939). Second, the Court has said that

laws must provide precise standards for those who

apply them to prevent arbitrary and discriminatory

enforcement, because “[wJhen the legislature fails to

provide such minimal guidelines, a criminal statute

may permit ‘a standardless sweep [that] allows police-

men, prosecutors, and juries to pursue their personal

predilections.’” Kolender, 461 U.S. at 358 (citing

Goguen, 415 U.S. at 575). Finally, when First Amend-

ment concerns have been implicated, a stricter stan-

dard of examination for vagueness is imperative.

This court has intimated that stricter standards of

permissible statutory vagueness may be applied to a

statute having a potentially inhibiting effect on

speech; a man may the less be required to act at his

peril here, because the free dissemination of ideas

may be the loser.” Smith v. California, 361 U.S. 147,

90a

151 (1959). See also Hoffman Estates, 455 U.S. at 499

(Perhaps the most important factor affecting the

clarity that the Constitution demands of a law is

whether it threatens to inhibit the exercise of consti-

tutionally protected rights. If, for example, the law

interferes with the right of free speech . , a more

stringent vagueness test should apply.”) (citations

omitted).

A case which sums up vagueness as it relates to due

process as succinctly as any other is Grayned v. City

of Rockford. Here the court said:

It is a basic principle of due process that an en-

actment is void for vagueness if its prohibitions

are not clearly defined. Vague laws offend several

important values. First, because we assume that

man is free to steer between lawful and unlawful

conduct, we insist that laws give the person of

ordinary intelligence a reasonable opportunity to

know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by

not providing fair warning. Second, if arbitrary

and discriminatory enforcement is to be prevented,

laws must provide explicit standards for those who

apply them. A vague law impermissibly delegates

basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective

basis, with the attendant dangers of arbitrary and

discriminatory application. Third, but related,

where a vague statute abutls] upon sensitive

areas of basic First Amendment freedoms,” it

“operates to inhibit the exercise of [those] free-

doms.” Uncertain meanings inevitably lead citi-

zens to “ ‘steer far wider of the unlawful zone“

9la

than if the boundaries of the forbidden areas were

clearly marked.”

Grayned, 408 U.S. at 108-109 (citations omitted).

At the same time, in considering the vagueness

issue, as the Government correctly points out,

“(Cjondemned to the use of words, we can never

expect mathematical certainty from our language.”

Grayned, 408 U.S. at 110. See also Hoffman Estates,

455 U.S. 489; Hynes v. Mayor & Council of Oradell,

425 U.S. 610 (1976); Goguen, 415 U.S. 566. In addition,

it will always be true that the fertile legal “imagina-

tion can conjure hypothetical cases in which the

meaning of [disputed] terms will be in nice question.”

American Communications Assn. v. Douds, 339 U.S.

382, 412 (1950). Thus, as I considered the vagueness

issue I have kept in mind the observation of Justice

Holmes, denying a challenge to vagueness in Nash v.

United States, 229 U.S. 373 (1913). To Justice

Holmes, “the law is full of instances where a man’s

fate depends on his estimating rightly, that is, as the

jury subsequently estimates it, some matter of

degree. If his judgment is wrong, not only may he

incur a fine or a short imprisonment . . , he may incur

the penalty of death.” Nash, 229 U.S. at 377. Even

more recently the court has stated that “due process

does not require ‘impossible standards’ of clarity.”

Kolender, 461 U.S. at 361, (quoting United States v.

Petrillo, 382 U.S. 1, 7-8 (1947)). It is with all of these

principles in mind, as they interplay with the unique

features of the Internet, that I have reached my con-

clusion.

The fundamental constitutional principle that

concerns me is one of simple fairness, and that is

absent in the CDA. The Government initially argues

92a

that “indecent” in this statute is the same as “pat-

ently 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 (d)’s

language. Indecent in this statute is an undefined

word which, standing alone, offers no guidelines what-

soever as to its parameters. Interestingly, another

federal crime gives a definition to indecent entirely

different from that proposed in the present case.“

While not applicable here, this example shows the

indeterminate nature of the word and the need for

clear definition, particularly in a statute which in-

fringes upon protected speech. Although the use of

different terms in § 223(a) and (d) suggests that Con-

gress intended that the terms have different mean-

ings, the Conference Report indicates an intention to

treat § 223(a) as containing the same language as

5 Comparing a different portion of each of these two

provisions suggests that different terms are not to be read to

mean the same thing. As written, section (a) pertains to tele-

communications devices, and section (d) to interactive com-

puter services. While we have not entirely resolved the tension

between these definitions at this stage, it has been established

that these terms are not synonymous, but are in fact intended

to denote different technologies. This, together with the rule

of statutory construction set forth in Chief Judge Sloviter's

opinion, seems to suggest on the face of the statute that inde-

cent and patently offensive also are not to be read as synony-

mous.

6 18 U.S.C. $1461 states, “The term ‘indecent’ as used in this

section includes matter of a character tending to incite arson,

murder or assassination.”

93a

§ 223(d). Conf. Rep. at 188-89 (“The conferees intend

that the term indecency ... has the same meaning as

established in FCC v. Pacifica Foundation, 438 U.S.

726 (1978) and [Sable] and New section 223(d)(1)

codifies the definition of indecency from [Pacifica]

The precise contours of the definition of

indecency have varied .... The essence of the

phrase—patently offensive descriptions of sexual and

excretory activities—has remained constant, how-

ever.“). Therefore, I will acknowledge that the term

indecency is “reasonably susceptible” to the defini-

tion offered in the Conference Report and might

therefore adopt such a narrowing construction if it

would thereby preserve the constitutionality of the

statute. See Virginia v. American Booksellers

Association, 484 U.S. 383, 397 (1988); Erznoznik v.

City of Jacksonville, 422 U.S. 205 (1975).

Accepting these terms as synonymous, however,

provides no greater help to a speaker attempting to

comply with the CDA. Contrary to the Government’s

suggestion, Pacifica does not answer the question of

whether the terms pass constitutional muster in the

present case. In Pacifica, the Court did not consider

a vagueness challenge to the term “indecent,” but

considered only whether the Government had the

authority to regulate the particular broadcast at

issue—George Carlin’s Monologue entitled “Filthy

Words.” In finding in the affirmative, the Court

emphasized that its narrow holding applied only to

broadcasting, which is “uniquely accessible to chil-

dren, even those too young to read.” 438 U.S. at 749.

Thus, while the Court sanctioned the FCC’s time

restrictions on a radio program that repeatedly used

vulgar language, the Supreme Court did not hold that

94a

use of the term “indecent” in a statute applied to

other media, particularly a criminal statute, would be

on safe constitutional ground.

The Supreme Court more recently had occasion to

consider a statute banning “indecent” material in the

dial-a-porn context in Sable, 492 U.S. 115, and found

that a complete ban on such programming violated the

First Amendment because it was not narrowly tai-

lored to serve the purpose of limiting children’s

access to commercial pornographic telephone mes-

sages. Once again, the Court did not consider a chal-

lenge to the term “indecent” on vagueness grounds,

and indeed has never directly ruled on this issue.

Several other courts have, however, upheld the use

of the term in statutes regulating different media.

For example, in Information Providers’ Coalition v.

FCC, 928 F.2d 866 (9th Cir. 1991), the Ninth Circuit

Court of Appeals considered whether the term “inde-

cent” in the 1989 Amendment to the Communications

Act regulating access to telephone dial-a-porn ser-

vices and the FCC’s implementing regulations was

void for vagueness. The FCC had defined “indecent”

as “the description or depiction of sexual or excretory

activities or organs in a patently offensive manner as

measured by contemporary community standards for

the telephone medium.” 928 F.2d at 874. Although

recognizing that the Supreme Court had never explic-

itly ruled on a vagueness challenge to the term, the

court read Sable and Pacifica as having implicitly

accepted the use of this definition of “indecent.” The

court further stated that the FCC’s definition of

“indecent” was no less imprecise than was the defini-

tion of “obscenity” as announced in Miller v. Cali-

fornia, 413 U.S. 15, 25 (1973), and thus concluded that

95a

“indecent” as pertained to dial-a-porn regulations

must survive a vagueness challenge. See also Dial

Information Services v. Thornburgh, 938 F.2d 1535

(2d Cir.1991), (upholding the use of “indecent” in the

same amendment to the Communications Act and

FCC regulations.); Action for Children’s Television

v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (rejecting

vagueness challenge to “indecency” provision in

broadcast television regulations).’

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.

See, e.g., Pacifica, 438 U.S. at 732 (defining “inde-

cent” by reference to terms “patently offensive as

measured by contemporary community standards for

the broadcast medium”); Dial Information Services,

938 F.2d at 1540 (defining indecency by reference to

contemporary community standards for the telephone

medium). Here, the provision is not so limited. In

fact, there is no effort to conform the restricting

terms to the medium of cyberspace, as is required

under Pacifica and its progeny.

The Government attempts to save the “indecency”

and “patently offensive” provisions by claiming that

the provisions would only be used to prosecute porno-

graphic works which, when considered “in context”

Although the Supreme Court may rule on the vagueness

question in the context of cable television regulation in Alliance

for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995),

currently pending on certiorari before the Court, we will not

defer adjudication of this issue as the constitutionality ef the

term in the cable context may not be determinative of its use in

cyberspace.

96a

as the statute requires, would be considered “inde-

cent” or “patently offensive” in any community. The

Government thus contends that plaintiffs’ fears of

prosecution for publishing material about matters of

health, art, literature or civil liberties are exagger-

ated and unjustified. The Government’s argument

raises two issues: first is the question of which

“community standards” apply in cyberspace, under

the CDA; and second is the proposition that citizens

should simply rely upon prosecutors to apply the

statute constitutionally.

Are the contemporary community standards to be

applied those of the vast world of cyberspace, in

accordance with the Act’s apparent intent to establish

a uniform national standard of content regulation?

The Government offered no evidence of any such

national standard or nationwide consensus as to what

would be considered “patently offensive”. On the

contrary, in supporting the use of the term “inde-

cent” in the CDA, the Government suggests that, in

part, this term was chosen as a means of insulating

children from material not restricted under current

obscenity laws. This additional term is. necessary,

the Government states, because “whether something

rises to the level of obscene is a legal conclusion that,

by definition, may vary from community to com-

munity.” Govt. Brief at 31. In support of its argu-

ment, the Government points to the Second Circuit’s

decision in United States v. Various Articles of

Obscene Merchandise, Schedule No. 2102, 709 F.2d

132, 134, 137 (2d Cir. 1983), which upheld the district

court’s conclusion that “detailed portrayals of genita-

lia, sexual intercourse, fellatio, and masturbation”

including the film “Deep Throat” and other porno-

97a

graphic films and magazines, are not obscene in light

of the community standards prevailing in New York

City.“ What this argument indicates is that as

interpretations of obscenity ebb and flow throughout

various communities, restrictions on indecent mate-

rial 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. As Justice Scalia

stated, “[t]he more narrow the understanding of what

is ‘obscene,’ . . . the more pornographic what is em-

braced within the residual category of ‘indecency.’”

Sable, 492 U.S. at 132 (Scalia, J. concurring). This

understanding is consistent with the case law, in

which the Supreme Court has explained that the

relevant community is the one where the information

is accessed and where the local jury sits. See Sable,

492 U.S. at 125; Hamling v. United States, 418 U.S.

87 (1974); Miller, 413 U.S. at 30 (“{Ojur nation is

simply too big and too diverse for this Court to

reasonably expect that such standards [of what is

patently offensive] could be articulated for all 50

states in a single formulation.”). However, the Con-

ference Report with regard to the CDA states that

the Act is “intended to establish a uniform. national

standard of content regulation.” Conf. Rep. at 191.

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

98a

speech is obvious. See Baggett v. Bullitt, 377 U.S.

360, 372 (1964). This is precisely the vice of vague-

ness.

In addition, the Government’s argument that the

challenged provisions will be applied only to “porno-

graphic” materials, and will not be applied to works

with serious value is without support in the CDA

itself. Unlike in the obscenity context, indecency has

not been defined to exclude works of serious literary,

artistic, political or scientific value, and therefore the

Government’s suggestion that it will not be used to

prosecute publishers of such material is without

foundation in the law itself. The Government’s claim

that the work must be considered patently offensive

“in context” does nothing to clarify the provision, for

it fails to explain which context is relevant. Con-

text” may refer to, among other things, the nature of

the communication as a whole, the time of day it was

conveyed, the medium used, the identity of the

speaker, or whether or not it is accompanied by

appropriate warnings. See e.g., Pacifica, 438 U.

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