Amicus Curiae Brief — Reno v. American Civil Liberties Union
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Supreme Court, U.S.
FILED
{ .
i, FEB 19 1997
No. 96-511 CLERK
Oc
In the Supreme Court of the Anited States
OCTOBER TERM, 1996
JANET RENO, ATTORNEY GENERAL
OF THE UNITED STATES, ET AL.,
Appellants,
v.
AMERICAN CIVIL LIBERTIES UNION, ET AL.,
Appellees.
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
BRIEF OF AMICI CURIAE
AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS, ET AL.
IN SUPPORT OF APPELLEES
JAMES D. CRAWFORD (Counsel of Record)
CARL A. SOLANO
THERESA E. LOSCALZO
JENNIFER DUFAULT JAMES
JOSEPH T. LUKENS
Attorneys for Amici Curiae
SCHNADER HARRISON SEGAL & LEWIS
1600 Market Street, Suite 3600
Pennsylvania 19103
(215) 751-2162
Of Counsel.
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~/BEST AVAILABLE COPY’
LIST OF AMICI CURIAE:
AMERICAN ASSOCIATION OF UNIVERSITY
PROFESSORS, AMERICAN SOCIETY OF
JOURNALISTS AND AUTHORS, AUTHORS GUILD,
CALIFORNIA MUSEUM OF
PHOTOGRAPHY/UNIVERSITY OF CALIFORNIA AT
RIVERSIDE, COALITION FOR POSITIVE
SEXUALITY, CREATIVE COALITION OF ARTISTS,
TRI DANG DO, FEMINISTS FOR FREE EXPRESSION,
MARGARITA LACABE, LAMBDA LEGAL DEFENSE
AND EDUCATION FUND, INC., MAGGIE LANOUE,
LOD COMMUNICATIONS, PETER LUDLOW, CHUCK
MORE, PEN AMERICAN CENTER, PHILADELPHIA
MAGAZINE, PSINET, INC., ERIC S. RAYMOND, DON
RITTNER, THE SEXUALITY INFORMATION AND
EDUCATION COUNCIL OF THE UNITED STATES,
LLOYD K. STIRES, PETER J. SWANSON, KIRSTI
THOMAS, WEB COMMUNICATIONS, AND MIRYAM
EHRLICH WILLIAMSON
ALL PARTIES CONSENT TO THE
FILING OF THIS AMICUS BRIEF
TABLE OF CONTENTS
Page
EEE PUNE occ ccccccsscccecccccccees ii
STATEMENT OF INTEREST OF AMICI CURIAE ...... 2
EE, .cccccccscccccecceccces 2
CEE ERe ted cuassddcceccccoscceccses 4
In Criminalizing Speech with Serious Social, Political,
Artistic, Literary, Medical, Journalistic, and Educa-
tional Value, the CDA Is Not Narrowly Tailored To
Achieve Its Stated Justification .................... 4
A. The CDA Is Overbroad in Banning Speech of
Pee. sec cececccocces 7
* Medical Information on the Internet .......... 7
© Artwork on the Internet ................... 13
e Literature on the Internet .................. 16
¢ Social and Political Discourse on the
Te ce ceecces 20
¢ Journalism on the Internet ................. 23
¢ Education on the Internet .................. 26
B. The CDA Also Is Overbroad in Banning Speech
Sought by Content Recipients ................. 28
TABLE OF AUTHORITIES
Cases Page
Board of Airport Commissioners v. Jews for Jesus, Inc.,
GES Gade SEP GREEOD . cvacenvetcuviedibvebibecabed 4
Branton v. FCC, 993 F.2d 906 (D.C. Cir. 1993), cert.
GEE, SEDGE, TD cbc ccdcccuscncvccese 25
Butler v. Michigan, 352 U.S. 380 (1957) ................ 6
Denver Area Educational Telecommunications Consor-
tium v. FCC, 518 U.S. ___, 116 S. Ct. 2374 (1996) . 5-6,8
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) .. 5-6
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) . 10-12, 26
Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (Sth
Cir. 1987), cert. denied, 485 U.S. 959 (1988) ..... 18, 24
Keyishian v. Board of Regents of University of State of
New York, 365 U.S. SGD (ISBT) ow ccc ccc ccccccese 27
Massachusetts v. Oakes, 491 U.S. 576 (1989) ........... 4
Memoirs v. Massachusetts, 383 U.S. 413 (1966) ........ 17
Minarcini v. Strongville City School District, 541 F.2d
eh 8 Se 18, 28
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367
SE Abbe cedhstnadabaces condeeaaeboks 28-29
Sable Communications v. FCC, 492 U.S. 115 (1989) ...... 6
Schad v. Mount Ephraim, 452 U.S.61 (1981) ........... 4
Cases Page
Virginia State Board of Pharmacy v. Virginia Citizens
Consumer Council, 425 U.S. 748 (1976) ............ 28
Constitution of the United States
PRE RIND 6 cccccocccccvsicccccedevceses passim
Fe IES vc ccctbdewedescdsccccceccsccsceess l
Statutes
Communications Decency Act of 1996, 47 U.S.C.
REP OTTTITT PITT TT TTL passim
Legislative Materials
H.R. Conf. Rep. No. 104-458, at 188-89 (1996) ......... 10
Internet World Wide Web Pages
(Universal Resource Locators)
“The Alanis Annex,” hAttp://mbess.ccsm.uiuc.edu:80/
alanis
— Video file: Attp://mbess.ccsm.uiuc.edu:80/alanis/
knowl.mov (Exhibit 17] ...........-.500-eeeeeees 19
“Alanis Morissette Net Audio,” Attp://www.animatrix.
com/Alanis_Morrissette/ra/MusicArchive.htm/
— Audio file: http://www.animatrix.com/Alanis_
Morrissette/ra/oughta.wav [Exhibit 17] ............. 19
American Association of University Professors, http-//
www.igc.apc.org/aaup/1940stat.htm [Exhibit 33} .. 27-28
Internet World Wide Web Pages
American Council for the Arts, “The Flatlining of U.S.
Cultural Policy,” Attp://www.artsusa.org/Advocacy/
flatline.him {Exhibit 30] .......................
California Museum of y, “Weston and
Mapplethorpe,” Attp://www.cmp.ucr.edu/exhibitions/
w_m/wm2.html [Exhibit 11]
“Candide by Voltaire,” gopher://gopher.vt.edu:10010/
SEE ced vedcca ds ceuiciabamcn «
“The Canterbury Tales by Chaucer,” gopher://
wiretap.spies.com:70/00/Library/Classic/
canterbury.txt [Exhibit 12] .....................
Coalition for Positive Sexuality, “Just Say Yes,”
http://www. positive.org/cps/jsy/jsy.html [Exhibit 6]
Coalition for Positive Sexuality, “Safe Sex,” http://www.
positive.org/cps/jsy/safe_sex.hitml [Exhibit 6] ......
The Daily Californian, “Everything you wanted to know
about prophylactics (but were afraid to ask),”
http://www.dailycal.org/Issues/09.09.96/condoms. txt
EE Sn do vonk bacdkdndacbdabsidatadwesce
The Daily Collegian, “Disputed Artist Explains His
Works,” hitp://www.collegian. psu.edu/archive/]996_
jan-dec/1996_oct/1996-10-02_the_daily_collegian/
1996-10-02d01-001 htm [Exhibit 30}
The Daily Pennsylvanian, “*Sexpert’ Lectures on Safe
Sex,” http://www.dp.upenn.edu/AppleSearch.acgi$
RETRIEVE, 13,11964,5506,0,6927,0 (Exhibit 32] ...
Derechos, “Indecent Material,” hitp:/www.derechos.org/
indecent.html [Exhibit 25]
iv
Page
Internet World Wide Web Pages Page
Detroit News, “Painless Impotence Treatment to Hit
Market,” = Attp://detnews.com/96/nation/9701/03/
01030061 .htm (Exhibit 27) 2... 2.0.66 cee ee eee 23-24
Detroit News, “The Yeast Common Denominator,”
http://detnews.com/menw/stories/1 9449. htm [Exhibit
Dado od dOS GUUS Cldd ec COSTS SE Eb Tes ee ee coe 23
T.D. Do, “The STD Homepage,” http://med-www.bu.edu/
people/sycamore/std/std.htm {Exhibit 4] ............ 11
A. Dworkin, “Intercourse: Occupation/Collaboration
(1 of 2),” Attp://www.igc.org/Womensnet/dworkin/
Intercoursel.html (Exhibit 15] ................555- 18
A. Dworkin, “The simple story of a lesbian girlhood,”
http://www.igc.org/Womensnet/dworkin/New.
Womans. Broken.Heart.html [Exhibit 15] ............ 18
“Expulsion” (JPEG image), http://www.christusrex.org/
www //sistine/6-Expulsion.jpg [Exhibit 8] ........... 14
“Fanny Hill: Memoirs of a Woman of Pleasure by John
Cleland,” gopher://wiretap.spies.com: 70/00/Library/
Classic/fannyhill.txt [Exhibit 13] ............... 17-18
“Freedom of Expression and America On-line,” Attp://
motley-focus.com/~timber/aol.html [Exhibit 16] ...... 19
“Go Ask Alice Home Page,” Attp://kwaziwai.cc.
columbia.edu/cu/healthwise/alice.html [Exhibit 5] .... 11
Home Vision Cinema, “Clips from That Object of
Desire,” http://www. homevisioncinema.com/
homevision/clips.cgi ?thatobscure
— Video file: Attp://www.homevisioncinema.com/
catalog/thatobscure.alarge.mov [Exhibit 19] ..... 19-20
Internet World Wide Web Pages
Internet Support Groups [Ritual Abuse], http://www.
xroads.com:0080/rahome/support.htm [Exhibit 23] .. .
“James Joyce: Ulysses,” http:/www. bibliomania. —
com/F iction/joyce/ulysses/ [Exhibit 12]
Kaiser Permanente of Colorado, “Teen Web: Boys, You
are Changing,” hitp://www.kaiser-co.org/teenboys.
htm [Exhibit 1]
“Karra’s Korner,” http:/Awww.xroads.com/rainbow/ka
html [Exhibit 20} Bad
“Leaves of Grass by Walt Whitman,” hitp://kwaziwai.cc.
columbia. edu/acis/bartleby/whitman/index.himl
ER BE o BSS Nos dn Sav ce He ARK e dies GRkS ss
Medical Interactive Applications, “MEDI.A. — Breast
Self-Examination,” http://www.immediate.com:80/
media/breast.html [Exhibit 2]
P. Murray, “My experience with breast cancer (illustra-
ted),” Attp://web.mit.edu/pamurray/www/artbc.html
ND ON S60 0.0:0b vi 8s doth de eelch es wade vac
“Naked Lunch by William S. Burroughs,” http://www.
whbr.com/nakedlunch/
— Audio file: Attp://www.wbr.com/nakedlunch/aj .
wav [Exhibit 14] <li
National Geographic Society, “Portfolio Exhibit,”
http://www. nationalgeographic.com/modules/
anata see html [Exhibit
vi
*_* ef © «©
eeee eevee eseeeeeeeeeeaseeeeeeoeeaeeoee ee ees
Page
24
Internet World Wide Web Pages
OncoLink, “NCI/PDQ Physician Statement: Penile
Cancer — Updated 01/07,” Attp://oncolink.upenn.
edu/pdq_html/I/engi/101082.html [Exhibit 2] ......
Palmer Museum of Art, “The PalmerONLINE Lobby,”
http://cac.psu.edu/~mtd 1 20/palmer/lobby.html
7 g, SS er ers Tree eT ere ee
“Penis Enlargement & Enhancement Surgery &
Male Augmentation,” Attp://www.enlarge.com/
ME TD ow cece cccccscececedovccscccccevees
“Phat Jams,” http://www.aswellas.se/drdre/sounds. html
— Audio file: http:/~www.aswellas.se/drdre/dreday.wav
IS BEB occ cece ccccvcvvescccceseveccees
Philadelphia Inquirer, “Inside Tibet,” http://www.
phillynews.com/packages/tibet/TENZO8.himl
I BTR oo cccwecccccsccscccccccescccecs
“Rape, Violence and Abuse,” http://www.vix.com/
pub/men/abuse/abuse.html [Exhibit 23} ...........
“Ritual Abuse and Healing Home Page,” http://www.
xroads.com/rahome/rahome.html [Exhibit 22] .....
“Robert Mapplethorpe Traveling Exhibition,” Attp://
fileroom.aaup.uic.edu/F ileRoom/documents/Cases/
337mapplethorpe.html [Exhibit 10] ..............
“Sex During Pregnancy,” Attp://www.uiuc.edu/
departments/mckinley/health-info/womenhlt/
sex-preg.html [Exhibit 3] ...... 66.6666 eee eee
“Surgery Center for Men — Penile Lengthening and
Enlargement,” Attp://www.2020tech.com/mensurg
STIR DN cv ccccccccccvedvcscccocccsccvecses
Vii
13-14
Internet World Wide Web Pages Page
“The Survivor's Page,” Attp://cam043212.studert.
co ee Pe 20
“Vaginal Birth After Cesarean FAQ,” http://www.
childbirth.org/section/VBACFAQ.html [Exhibit 3] .... 10
Vietnam Television Image (JPEG image), Attp://ww.
portoftacoma.com/colovos/VIETNAM/08/00000438.
TE 8S 6 CEE 0s NR hah wks 24
White House, First Lady’s Sculpture Garden (GIF image),
http://www. whitehouse. gov/WH/EOP/First_Lady/
images/raw/gard6.gif [Exhibit9) ................. 14
World Wide Arts Resources, “Nude Resources,”
http://wwar.com/creator/nudes.html [Exhibit 7] ...... 14
“Writings, Letters and Poetry by Survivors,”
http://cam043212.student.utwente.nl/Writing.htm
hans Sn tduete dss hdabudaesnanenata< 21
“You Oughta Know,” http://http.tamu.edu:8000/
~vkb5818/Alanis_Morissette_V2.0/Alanis_Lyrics/
CREE OU bac Kc kbd c Rhee CBR bs chb5 19
Other Authorities
Baumman, “Groups Pushing Parental Rights,” The Des
Moines Register, Metro lowa, Feb. 3, 1996, p.5 ... 12-13
Hartigan, “Mapplethorpe’s ‘Chilling Effect’: A Year
Later, Battle Goes On,” The Boston Globe, Oct. 6,
1991, Sunday, City Edition,p.1 .................. 15
“Panel Says Ban Judy Blume Novel,” Wisconsin St.
SO Beas MEAD eehiwsiowesccvedesines 13
Viii
Other Authorties
Polner, “The Four Forbidden Words,” Newsday, Feb. 5,
NOE OOD 5 cg whkveeess
“State Ranks 9th in Censorship Tries,” Wisconsin St.
Jour., Sept. 2, 1993, p.2B ..
“The Vampires of Delancey Street,” Philadelphia
Magazine, March 1996, p. 64
ix
In the Supreme Court of the Gunited States
OCTOBER TERM, 1996
No. 96-511
JANET RENO, ATTORNEY GENERAL
OF THE UNITED STATES, ET AL.,
Appellants,
Vv.
AMERICAN CIVIL LIBERTIES UNION, ET AL.,
Appellees.
BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS, ET AL.
IN SUPPORT OF APPELLEES
The decision below correctly held that provisions of the
Communications Decency Act of 1996 (“CDA”), 47 U.S.C.
§ 223(a) & (d), as amended,’ that criminalize “indecent” and
“patently offensive” speech on the international computer
network known as the Internet impermissibly infringe nghts of
communication under the First Amendment and must be
enjoined from enforcement. If not enjoined, the statute will
deprive both adults and minors of information that is essential to
their health and well-being. The statute is unconstitutionally
overbroad in criminalizing non-obscene speech that has any
connection with sexual topics, despite the fact that the speech
possesses serious literary, artistic, political, or scientific value
and is protected by the First and Fifth Amendments.
1. The CDA is Title V of the Telecommunications Act of 1996, Pub. L.
No. 104-104, §§ 501 et. seqg., 110 Stat. 56, 133-43. Section 502 of the
statute, 110 Stat. at 133-36, enacted the operative provisions here as
amendments to Section 223 of the Communications Act of 1934, 47
U.S.C. § 223. Citations in this brief are to the provisions as codified
in the Communications Act.
2
STATEMENT OF INTEREST OF AMICI CURIAE
Amici are a diverse group of 25 individuals and
organizations that use the Internet, and include Internet service
providers (“ISPs”), over whose lines speech targeted by the CDA
is carried; individuals and organizations who place on the
Internet speech and other forms of expression on wide-ranging
subjects; individuals and organizations that access the Internet to
receive speech on diverse topics; and others who require and
believe firmly in freedom of expression in connection with their
use of the Internet. Many are individuals for whom the Internet
provides an unprecedented opportunity to publish and
disseminate speech on issues that they consider important. Some
are educators who use the Internet for both teaching and
research. A complete list of amici, with descriptions of their use
of the Internet, their interest in this litigation, and the impact that
the CDA has had (and would continue to have if enforced) on
their varying uses of the Internet, is set forth in a more detailed
Statement of Interest of Amici Curiae that is appended to this
brief. All parties have consented to the filing of this brief, and
letters of consent are being lodged with the Clerk.
Amici have the unique ability in this litigati
one of the fatal flaws in the CDA. its ho cde mera
antithesis of a narrowly tailored infringement on protected
speech. As users of the Internet, amici are directly affected by the
deterrence of speech that the CDA’s overbreadth causes. In
some cases, amici are deterred themselves from engaging in
speech because of fear of prosecution under the statute. In other
cases, amici are deprived of important information because the
statute's deterrent effect causes others to make information
unavailable. In either event, the CDA impermissibly infringes
amici’s rights of communication.
SUMMARY OF ARGUMENT
Each day, the Internet carries a vast array of speech having
serious social, political, literary, artistic, medical, and
educational merit. The CDA criminalizes much of this valuable
3
and constitutionally protected speech in a broad sweep that is not
narrowly tailored to achieve its stated justification. In so doing,
it chills the current and future speech of those who use the
Internet. The amici curiae who submit this brief represent only
a small fraction of the Internet speakers touched by the CDA’s
chill. The statute cannot achieve its stated ends without
simultaneously inhibiting or prohibiting amici’s constitutionally
protected and socially valuable speech.
The terms “indecent” in Section 223(a)(1)(B) of the statute
and “patently offensive as measured by contemporary commun-
ity standards” in Section 223(d) encompass speech by and to
amici tha! has independent value for both adults and minors. By
bringing such speech within its scope and chilling its dissemin-
ation, the CDA is unconstitutionally overbroad. The three-judge
panel below correctly so held. See American Civil Liberties
Union v. Reno, 929 F. Supp. 824, 854-57 (E.D. Pa. 1996).
In illustrating this overbreadth, amici do not advocate
access by all minors to all forms of expression on the Internet.
Amici recognize, for example, that some valuable and protected
speech that is appropriate for older teenagers may not be
appropriate for elementary school children, and that some
speech, while appropriate and even necessary for adults to
express and to hear, may not be appropriate for minors under the
age of 18. But as demonstrated by examples throughout this
brief, the CDA fails to take these gradations into account, thus
reducing all speech on the Internet to that appropriate for
elementary school children. In the process, the CDA not only
criminalizes protected speech, but also deprives parents of the
freedom and responsibility to choose what their own children
will access on the Internet. Parents understand their own
children’s maturity levels, life experiences, and needs to receive
different types of speech far better than the government ever can,
and, as appellees’ briefs explain in detail, computer technology
now has the ability to permit parents to make those selections for
themselves. Accordingly, the CDA’s censorship of all speech
that the government deems “indecent” or “patently offensive” for
minors is intolerable under the First Amendment.
4
ARGUMENT
In Criminalizing Speech with Serious Social, Political,
Artistic, Literary, Medical, Journalistic, and Educational
Value, the CDA Is Not Narrowly Tailored
To Achieve Its Stated Justification
Great and emerging works of art and literature. Life-
saving and life-enriching medical information. Social exchange
and personal interaction. Expressions of opinion on issues of
politics and societal concern. Journalistic reporting. Education
on a wide variety of issues. — To sove extent, the CDA
potentially criminalizes all of these things. It makes unlawful the
transmission of any not-otherwise-defined “indecent” communi-
cation (§ 223(a)(1)(B)) and the sending or display of any descrip-
tion of certain body parts that is “patently offensive as measured
by contemporary community standards” (§ 223(d)). Those terms
embrace much that is not obscene or pornographic, is not harm-
ful to minors, and is protected expression under the First Amend-
ment. For that simple reason, the CDA fails the overbreadth test.
It is not narrowly tailored to achieve its stated objective of
protecting minors.
Appellees, whom amici support, do not challenge any of
the CDA’s proscriptions against speech that is obscene or other-
wise outside the scope of the First Amendment’s protections. By
definition, then, this action challenges only the CDA’s prohi-
bition of speech that is constitutionally protected. A statute is
constitutionally overbroad if it presents a genuine likelihood that
it will prohibit a substantial amount of speech that is beyond its
permissible application. See Massachusetts v. Oakes, 491 U.S.
576 (1989); Board of Airport Commissioners v. Jews for Jesus,
Inc., 482 U.S. 569 (1987); Schad v. Mount Ephraim, 452 U.S. 61
(1981). Because the speech placed on the Internet by amici and
by appellees is protected speech under the First Amendment, the
court below correctly held (929 F. Supp. at 851, 858, 867 n.2) —
and the Government's brief does not appear seriously to contest
— that the CDA’s content-based criminal prohibition on that
speech must be subjected to strict scrutiny. Whatever verbal
5
formula is used to describe this applicable standard, the CDA
must be narrowly tailored to achieve its stated justification, no
matter how compelling that justification may be, or, stated
differently, must be the least restrictive alternative restriction on
speech that will satisfy that objective. Denver Area Educational
Telecommunications Consortium v. FCC, 518 U.S. __, 1168. Ct.
2374, 2391-92 (1996).
This Court has held that an ordinance that prohibited the
display of nudity at drive-in theaters but included in its sweep
non-obscene films protected by the First Amendment was uncon-
stitutionally overbroad. See Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975). The Court observed that while “[m}uch
that we encounter offends our esthetic, if not our political and
moral, sensibilities,” nevertheless “the Constitution does not
permit government to decide which types of otherwise protected
speech are sufficiently offensive to require protection for the
unwilling listener or viewer.” 422 U.S. at 210. The Court noted
that the Jacksonville ordinance, like the CDA here, discriminated
among movies “solely on the basis of content,” id. at 211, and
that its effect would be “to deter drive-in theaters from showing
movies containing any nudity, however innocent or even
educational.” Jd. Rejecting arguments that protection of minors
warranted the sweeping content-based prohibition in Erznoznik,
the Court observed that minors themselves have a significant
First Amendment right to receive speech and that this nght is
infringed by a law that “sweepingly forbids the display of all
films containing any uncovered buttocks or breasts, irrespective
of content or pervasiveness.” /d. at 213. The Court added:
Thus [the ordinance] would bar a film containing a
picture of a baby’s buttocks, the nude body of a war
victim, or scenes from a culture in which nudity is
indigenous. The ordinance also might prohibit news-
reel scenes of the opening of an art exhibit as well as
shots of bathers on a beach. Clearly all nudity cannot
be deemed obscene even as to minors. Nor can such
a broad restriction be justified by any other govern-
mental interest pertaining to minors. Speech that is
6
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.
Id. at 213-14 (citation and footnote omitted). The Court's char-
acterization of the Jacksonville ordinance could apply just as
well to the CDA.
In enacting the CDA, Congress failed to recognize and
provide for the First Amendment protection enjoyed by speech
that has serious social, political, literary, artistic, medical, or edu-
cational merit. “Indecency often is inseparable from the ideas
and viewpoints conveyed, or separable only with loss of truth or
expressive power.” Denver Area, 116 S. Ct. at 2416 (separate
opinion of Kennedy, J.). But by ignoring the redeeming qualities
of the speech, the CDA criminalizes all speech that might be
viewed as “indecent” or “patently offensive as measured by
contemporary community standards” in the hands of children,
regardless of the value that the speech may have for children
(particularly adolescents). And it utterly disregards the value of
this speech to adults. The Government itself admits (Govt. Br.
at 17-18) that “[t}here may be borderline cases in which it is
difficult to determine on which side of the line particular material
falls." The CDA’s sweep renders it unconstitutionally over-
broad. “Quarantining the general [Internet] public against
[transmissions] not too rugged for grown men and women in
order to shield juvenile innocence . . . is to burn the house to
roast the pig.” Butler v. Michigan, 352 U.S. 380, 383 (1957).
See Sable Communications v. FCC, 492 U.S. 115 (1989).
2. Although the Government and its supporting amici emphasize what
they say is the narrow scope of the statute's provisions, their briefs in
fact underscore the uncertainty created by the statute's breadth. For
example, one amicus, Morality in Media, Inc., apparently views a
broad range of AIDS-prevention materials and government documents
discussing sexual violence as within the statute's proscription of
“content that is indecent but not ‘pornographic."” See Br. of Amicus
Morality in Media at 7-8.
7
A. The CDA Is Overbroad in Banning Speech of Content
Providers.
The overbreadth of the CDA is best demonstrated by the
speech that the amici content providers and others situated
similarly to them regularly place on the Internet and that is
endangered under the CDA’s proscriptions. In contrast to the
“ocean” of “pornography” postulated by the Government and its
supporting amici (Br. of Amici Enough Is Enough, et al., at 7),
the affected speech deals with medical information about
subjects ranging from cancer detection to AIDS; depictions of
artwork ranging from established masterpieces in recognized
museums to avant garde works in less renowned galleries;
literary works ranging from classic novels and poetry to new
compositions; speech on social and political issues ranging from
sexual abuse to human rights; news reporting on all of these
issues; and educational materials of similar scope. The speech
ranges from the generally (although by no means universally)
, to that which is less in the mainstream — though no
less valuable. Under the CDA, all of it is criminalized.
» Medical Information on the Internet.
Medical information is widely available on the Internet. It
includes descriptions and depictions of sexual and excretory
activities and organs that in some “communities” may well be
considered “patently offensive,” or that some might consider
“indecent,” but which unquestionably have medical, scientific,
social, and educational value. Some sites discuss the onset of
puberty. Others discuss sexually transmitted diseases and means
to avoid their transmission — an issue of obvious importance to
youth and adults alike in today’s world. Other topics include
prostate cancer and surgery; testicular cancer and preventive self-
examination; breast cancer and preventive self-examination;
breast reconstruction after a mastectomy; breast feeding;
childbirth; and sex during pregnancy. Discussion of these
subjects necessarily entails frank and even graphic descriptions
8
that are within the CDA’s scope despite their high social,
medical, and scientific importance. °
The discussion of puberty on a World Wide Web page of
Kaiser Permanente of Colorado called ““TeenWeb: Boys, You are
Changing,” http://www.kaiser-co.org/teenboys.htm (Exhibit | to
the appendix to this brief),* presents a vivid illustration of the
ability of the Internet to convey medical information of interest
to teens. The page explains:
Boys in puberty start having more erections. This
means their penis gets hard and stiff from time to
time. This can happen when you touch or stroke your
penis, if pants are too tight, or when you nde a bike.
It can also happen when you are nervous, scared,
tense, or when you're thinking about sex. This is
because your sex organs are getting more sensitive.
An erection is normal, although it’s sometimes
embarrassing because it is unpredictable. Try to
ignore it. Usually only you notice it, not others.
Think about something else and the penis will get
soft and return to its normal size again. At some
point, an erection will result in ejaculation. This
means that semen, a creamy, white liquid containing
sperm will squirt out of the penis. This can happen in
3. As Justice Kennedy pointed out last Term, “In scientific programs, the
more graphic the depiction (even to the point of offensiveness), the
more accurate and comprehensive the portrayal of the truth may be.”
Denver Area, 116 S. Ct. at 2416 (separate opinion).
4. Printed copies of World Wide Web pages cited in this brief are
included in an appendix of exhibits that is being lodged with the Clerk.
That appendix — along with this brief itself — also is being lodged
with the Clerk in electronic form (a compact disc) for the Court's
convenience. Examples of some of the illustrations included on the
Internet, along with citations to their sources, are reproduced
throughout this bnef in graphics boxes containing material downloaded
from Web sites.
9
your sleep and you may wake up with wet and sticky
pajamas. People call this a “wet dream.” This is a
normal part of growing and nothing to feel ashamed
about. When you start ejaculating, it means you are
potentially able to cause a pregnancy in a woman
since your body can make and deliver sperm.
The value of this type of information in educating young people
about their bodies is readily apparent. The detailed and graphic
nature of the description enhances that value, rather than re-
ducing it. And the fact that presentations such as this are aimed
directly at adolescents simply makes them more understandable
to their intended audience. But even under the Government's
new, narrower interpretations (not presented to the court below)
of what it calls the “transmission” and “specific child” provisions
of the CDA (see Govt. Br. at 24-27), the fact that these materials
are “knowingly” directed to minors makes them a potential sub-
ject of criminal liability under all of the challenged provisions of
the statute.
Similarly, illustrations and frank discussions of such impor-
tant health matters as breast cancer detection through self-
examination and the warning signs of penile cancer may fall
within the broad
language of the
CDA. Such discus-
sions, which are es-
sential to informed
discourse on these
vital subjects, are
not uncommon on
the Internet. See,
€.2., http://www.
immediate.com:80/
media/breast.html;
http://oncolink.
upenn.edu/pdq_
html/1/englV/101082.
html (Exhibit 2).
10
The same is true of sites candidly discussing surgical issues, such
as breast reconstruction and penile prosthetics, and pregnancy
issues, such as intercourse during pregnancy and post-caesarean
vaginal birth. See, e.g., http://web.mit.edu/pamurray/www/
artbc.himl, http://www.2020tech.com/mensurg/, http://www.
enlarge.com/; hitp://www.uiuc.edu/departments/
mckinley/health-info/womenhlt/sex-preg.html;
http://www. childbirth. org/section/VBACFAQ. html
(Exhibit 3). Many of these sites publish photographs, drawings,
or other depictions of sexual and excretory activities and organs
— illustrations that are essential to convey information about
these subjects. Under the overbroad scope of the CDA, all of
their authors are subject to the threat of criminal prosecution.
Because of that threat, the CDA potentially denies millions of
Americans accurate sources of health information that could
improve, and in certain cases even save, countless lives.
A paradigm example of legitimate — even compelling —
medical material on the Web is information advising about how
to avoid the sexual transmission of disease, particularly the
transmission of HIV, the virus that causes AIDS. Such
information is vital to adults, and may be even more vital to
teens. The Web sites offering this information frequently are
addressed to sexually active teenagers, a group most likely to
engage in sexual experimentation and least likely to have
adequate knowledge of how to avoid the dangers of
“unprotected” sexual activity in today’s world. Any effective
delivery of meaningful sexual information to such an audience,
which often is unsophisticated when it comes to medical
terminology, requires the use of “street language” — including
language that was at issue in FCC v. Pacifica Foundation, 438
U.S. 726 (1978). In Pacifica, the Court held that a broadcast
featuring George Carlin’s use of seven specified “dirty” words in
a comedy routine could be restricted to time slots when children
were unlikely to be in the audience. According to the
Conference Report to the CDA, H.R. Conf. Rep. No. 104-458,
at 188-89 (1996), that decision sets the legal standard for
determining whether speech violates the CDA’s provisions that
would ban from all sites and at all times (not just restrict to time
11
slots) all “indecent” and “patently offensive” speech. Yet, the
Pacifica-like language that Congress seeks to ban completely
from the Internet is essential to the communication of this critical
medical information.
For example, amicus Coalition for Positive Sexuality
authors a Web page designed to provide teenagers with com-
prehensive information about sexual issues.’ As it states on that
page, “We chose words . . . that we use when we talk about sex
with our friends. We’re not doctors and we don’t pretend to be,
so pardon our French!” See http://www.positive.org/cps/jsy/jsy.
html (Exhibit 6). The site contains detailed and graphic infor-
mation about “safe sex”’ practices, including illustrated instruc-
tions about how to use a condom, which is an essential element
in preventing the spread of HIV. See id. at http://www.positive.
org/cps/jsy/safe_sex.html. Those instructions are frank, friendly,
Source: hup:/www. positive.org/cps/jsw/safe_sex.himl
HERE'S WHAT YOU DO:
| Get ready. Make sur your condoms az fresh — check the
expumtion date Throw away condoms that have been very
cold or hot or that have been camed around m you wallet or
run through the washer If you thunk the condom might not be
good, get anew one. You and you partner are worth it.
5. There are a number of such sites on the Web. For example, the site of
amicus Tri Dang Do, a medical student at Boston University, includes
a page that provides education to teens on sexually transmitted
diseases. See http://med-www.bu.edu/people/sycamore/std/std.htm/
(Exhibit 4). Another illustrative site is Healthwise, the Health,
Education and Wellness program of Columbia University Health
Service, which includes an award-winning feature entitled “Go Ask
Alice,” an interactive question and answer service explicitly dealing
with sexual health and relationships. See http://kwaziwai.cc.columbia.
edu/cu/healthwise/alice.html (Exhibit 5).
12
colloquial, and unvarnished. See, e.g., id. (“That dick has to be
hard before you put a condom on it”: “Guys — if you cum in the
condom while having sex, hold the condom near your balls and
pull out while you're still hard”).
The language used in these examples undoubtedly is crude,
distasteful, or shocking to many segments of society. But it is
the language most likely to be understood by an intended audi-
ence that, as the phrase “street language” implies, makes use of
such words every day. Although the examples in the preceding
paragraph do not contain any of the precise “seven dirty words”
from Pacifica, no one has suggested that Internet users can avoid
criminal liability simply by shunning these seven words, and, in
any event, other paragraphs from the Coalition for Positive
Sexuality’s Web site do contain the Pacifica language. See
generally http://www. positive. org/cps/jsy/jsy.html (Exhibit 6).
The language used on its site is just as likely to strike censorious
adults as “indecent” or “patently offensive” as the words at issue
in Pacifica, and it is precisely such language that, according to
the conference report, the CDA was intended to ban. That ban
is oblivious to the instructional value provided by frank speech
of this type, and a statutory proscription of such speech merely
because minors — those arguably most in need of the infor-
mation — may receive it is unconstitutionally overbroad.
Of course, the language used in the foregoing examples
will, for many people, be just one small source of objections.
For many, any frank discussion of sexual topics is indecent,
regardless of the words used, and that certainly is true when the
discussion turns to more stigmatized sexual practices, such as
oral or anal intercourse. Additional objections may be triggered
by a discussion of gay or lesbian relationships or sexual conduct
between persons of the same sex. Add the thought of minors
Participating in such activities, and, for many, a conclusion of
“indecency” and “patent offensiveness” will follow a fortiori.°
13
But it is a well-known fact that such sexual activities are a part
of the experiences of many teenagers (as well as large groups of
adults) today. And it is a depressingly well-known fact that
many of these activities can be fatal without proper precautions
and advice. Life-saving advice about how to take those
precautions therefore cannot be dismissed as too indecent to be
communicated. Nevertheless, the CDA is broad enough to
sweep it within its prohibitions.
» Artwork on the Internet.
With increasing frequency, art institutions are placing home
pages on the Internet. Museums have created Web sites or home
pages not only to discuss their exhibits and provide a cyberspace
forum for art aficionados, but also to display art on the Internet.
The overbreadth of the CDA’s “indecent” and “patently
offensive” prohibitions ensures that the subjective opinions
forming the basis of art appreciation now must take a back seat
to concerns about what the government or certain unspecified
“communities” may deem unacceptable.
The numerous art galleries, museums, and other art
institutions on the Internet include the Metropolitan Museum of
Art, Whitney Museum of American Art, Smithsonian Institution,
and the Vatican Museum. Frequently, their sites provide
descriptions of their galleries with links to some of the images
displayed there and guided tours through some of the collections.
See, e.g., http://cac.psu.edu/~mid120/palmer/lobby.html (Palmer
Museum of Art; Exhibit 7). Typically, these sites also include
links to the Web pages of other art institutions, and some sites
even have provided search mechanisms to assist in locating other
Rights,” The Des Moines Register, Metro lowa, Feb. 3, 1996. at 5.
Similarly, much of the effort to remove books from public school
libraries, discussed at pages 17-18, infra, has been aimed at sexually
explicit literature, including books specifically aimed at helping teen-
agers deal with their emerging sexuality. See “State Ranks 9th in Cen-
sorship Tries,” Wisconsin St. Jour., Sept. 2, 1993, at 2B; “Panel Says
Ban Judy Blume Novel,” Wisconsin St. Jour., Mar. 31, 1993, at 3D.
art-related sites and have
created links to allow access
, to those sites. See, e.g., id.
<= One organization, World
Wide Arts’ Resources,
provides an _ extensive
directory of art institutions
on the Internet that includes
among its lists a full page of
“nude resources.” See
http://wwar.com/creator/
nudes.html (included with
Exhibit 7). The art
institutions’ Web pages dis-
play a diverse array of art,
ranging from such Sistine
Chapel nudes as_ the
Expulsion of Adam and Eve,
http://www. christusrex.org/www1/sistine/6-Expulsion._jpg
(Exhibit 8) (works that themselves, until just a few years ago,
were covered with strategic drapes of paint because church
authorities found the lack of clothing indecent), to modern art
collections. Creators and purveyors of such works now have a
reasonable fear of prosecution under the CDA for these activities
because the CDA encompasses so much.
The value of an unfettered display of art on the Internet
cannot be exaggerated. With the exponential growth of the
Internet and the ability of Web sites to reach millions, the
potential for exposure to art is unbounded. Internet users
everywhere can view paintings, drawings, and sculpture housed
in museums or other collections located thousands of miles away
without ever having to leave their homes. See, e.g.,
http://www. whitehouse. gov/WH/EOP/First_Lady/images/raw/
gard6.gif (Exhibit 9) (one example of sculpture shown on
Internet; other examples of artwork on Internet are collected
under that same exhibit number). Far more people can
experience art of all varieties through this medium than through
any other, including libraries or television, simply because of the
15
Internet’s unprecedented capacity for transmitting information.
There also can be no doubt that adults are not the only
beneficiaries of this broadened participation in the art world. Art
education is invaluable to people of all ages.
Appreciation of selected works of art is, of course, a most
subjective judgment. In 1989, for example, Washington's
Corcoran Gallery refused to show an exhibition of bold photo-
graphs taken by Robert Mapplethorpe, organized and initially
shown without objection by the University of Pennsyivenia’s
Institute for Contemporary Art, even though Mapplethorpe was
a National Endowment of the Arts grant recipient and many had
acclaimed his work. A Cincinnati museum director was arrested
on obscenity charges for choosing to show the exhibit, but the
jury returned a not-guilty verdict, finding that the art was not
obscene. See Hartigan, “Mapplethorpe’s ‘Chilling Effect’: A
Year Later, Battle Goes On,” The Boston Globe, Oct. 6, 1991,
Sunday, City Edition, p. 1. To many, the exhibit, which included
homoerotic photographs, was indecent. To many others, the
photographs were modern artistic expressions deserving of exhi-
bition and appreciation. This case demonstrates the dangers
posed by a law criminalizing speech based on “community
standards” of offensiveness. As the court below observed (929
F. Supp. at 844), Mapplethorpe’s works are among those now
Source: hitp./www.cmp.ucr edu/exhibitions/w_m/wm2.himi
A compartson of Westen's Nude Floating, 1939 and Mappiethorpe's Thomas.
1986, provides one example of the shift in context presented by this exhibition.
.
4
’
-
pI
Weston’s Nude Floating, 1939. an mmage of 2 woman floating face up m 2 swunerung pool, with
Mapplethorpe’s Thomas, 1986, an 1 of a nude man tmuthy posed m « square structe Here, the
saline iateteaatbenmetvtecstemngumententanes
reated m sometal reimmonshaps, gender, rece, and sexuaitty (dews< Mappiethorpe’s work
cramaned next to Weston’s arvites the viewer to look beyond the lngermg NFA controversy and sec
the mnage for as formal wm the wedimon of moderns! photography im both cases the
compansoas serve to more ground the ertsts work m 20th century at practice
CAPTIONS:
Eaware Weston, Mads Ploatmg. 1999 Specal Coliechons UC/Sanme Cra
Robert Mappicthorpe Thoma 986 Robert Mappiatharpe F mandation © 98¢ Esume 0{ Rober Mappicthorpe ised by permmsmon
16
exhibited on the Internet and (once again) in danger of
prosecution. See, e.g., Attp://fileroom.aaup.uic.edu/FileRoom/
documents/Cases/337mapplethorpe.html (Exhibit 10). Amicus
Califomia Museum of Photography at The University of
California, Riverside, is just one of those exhibitors. See, e.g.,
http://www.cmp.ucr.edu/exhibitions/w_m/wm2.html(Exhibit 1 1).
Subjecting its educational site to the threat of criminal
prosecution because it is available to minors would be both
ironic (it is part of a state university system) and stifling, but the
CDA nevertheless has that effect.
The First Amendment does not tolerate banning non-
obscene art works merely because of differing subjective
judgments. But the CDA subjects art exhibited on the Internet
to precisely that damage. In certain communities, even such
classic works as Michelangelo’s David and the now-undraped
Sistine Chapel may fall within the broad language of the CDA.
The CDA will chill, and indeed cripple, this valuable use
of the Internet. Where art that some may consider potentially
“indecent” or “patently offensive as measured by contemporary
community standards” is already on the Internet, the museums
and other institutions that have placed it there may be exposed to
criminal prosecution. Museums, galleries, and individuals now
must choose between placing art on the Internet that some might
find objectionable, thus opening themselves up to prosecution,
or deliberately excluding from their Web sites important art that
is protected under the First Amendment. Simply put, the choice
for these amici — as for all the amici — is between prosecution
for free speech or chilled spers+ The First Amendment protects
against such a choice.
» Literature on the Internet.
Like art, literature is particularly susceptible to differences
in interpretation. That is as true on the Internet as it is on bound
pages. The CDA’s overbreadth fails to acknowledge that one
17
Internet user’s literature is another's “indecent” or “patently
offensive” communication. ’
Communities throughout the United States have on
occasion banned classic literature from libraries, purportedly for
being harmful to minors. See, e.g., Dist. Ct. Br. of Pl. Amer.
Library Assn. in Support of Mo. for Prelim. Inj., Ex. 19, at Ex.
O. The banned works include Whitman's Leaves of Grass,
Joyce’s Ulysses, Voltaire’s Candide, and Chaucer's The
Canterbury Tales, all of which are now on the Internet. See
htp://kwaziwai.cc.columbia.edu/acis/bartleby/whitman/index.
html; gopher://wiretap.spies.com:70/00/Library/Classic/
canterbury.txt, gopher://gopher.vt.edu:10010/02/155/1; http://
www.bibliomania.com/F iction/joyce/ulysses/ (Exhibit 12). This
Court itself has determined that another target of would-be book
banners, Fanny Hill by John Cleland, is not obscene. See
Memoirs v. Massachusetts, 383 U.S. 413 (1966). It too is on the
Internet. See gopher://wiretap.spies.com:70/00/Library/Classic/
7. Yet another indication of the CDA's overbreadth is the irony that
results from the availability in the print media of speech identical to
that banned on the Internet under the CDA. Although, as discussed in
the main text, book-banning efforts are not uncommon, no federal
Statute purports to authorize such silencing of protected speech. In
books, magazines, and newspapers, adults and minors alike therefore
have lawful access to information and other forms of speech of the
same nature as that falling under the CDA's rubric of “indecent” or
“patently offensive.” While the Internet, because of its limitless
capacity for providing forums for individual speakers, expands the
amount of information available in other media, it does not necessarily
expand the types of information available there. Thus, minors can
check out books from libraries, purchase books or magazines or
newspapers in bookstores or from other vendors, or subscribe to
periodicals in their home, all containing speech of the same sort that
they are now legally prohibited from receiving on the Internet. And.
publishers in the print and even broadcast media can disseminate that
speech while those on the Internet cannot. In failing to be sufficiently
tailored to narrowly achieve its stated ends, the CDA fails both to meet
those ends and to pass constitutional muster.
18
fannyhill.txt (Exhibit 13).° Considering their track records, there
is no reason to believe that communities that have tried to ban or
exclude from libraries books in print form will not target them as
being “indecent” or “patently offensive” when transmitted, to
minors among others, over the Internet. The reasonable fear of
prosecution that this prospect will instill in speakers who place
all or portions of these works on the Internet renders the CDA
unconstitutionally overbroad.
The CDA gives communities an ostensible legal basis for
what amounts to online book banning, even though courts have
held that removal from school libraries of hard copies of these
same works violates of the First Amendment. See Minarcini v.
Strongville City School District, 541 F.2d 577 (6th Cir. 1976).
Even works of a less literary nature are protected when in print
form. See, e.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017
(Sth Cir. 1987), cert. denied, 485 U.S. 959 (1988). No different
result should obtain when such works are placed on the Internet.
Yet under the CDA, a very different result, of criminal
proportions, will obtain. Despite the Government's argument to
the contrary, there is nothing in the language of the CDA that
permits consideration of the literary, social, or historical merit of
a targeted literary work.
The so-called “classics” are not the only literature
transmitted on the Internet that the CDA endangers. See, ¢.g.,
hitp://www.igc.org/Womensnet/dworkin/New. Womans. Broken.
Heart.html, http://www.igc.org/Womensnet/dworkin/
Intercoursel.html (Exhibit 15) (short stories by noted feminist
Andrea Dworkin). Perhaps even more so, newly composed
works by emerging authors and poets are likely to be the target
of the “indecency police.” The Internet is a ground-breaking
medium for innovative authors because they can publish and
disseminate their literary creations without the need for
traditional agents and publishing houses or for personal financial
s Some classic literature also is available on the Internet in audio format.
See, e.g., http://www. wbr.com/nakedlunch/ajparty.wav (Exhibit 14)
(excerpts from Naked Lunch, as read by author William S. Burroughs).
19
expenditures. On the Internet, they can share their works with
readers and fellow writers, exchange criticism and suggestions,
hone their craft, and achieve satisfaction knowing that others are
finding enjoyment or inspiration reading their works. Yet works
placed on the Internet that touch on such things as the sexual
aspects of love and romance can be expected to be prime targets
for those quick to find “indecency.”
Groups such as amicus Creative Coalition of Artists, an
organization of online poets, have felt the chill from this over-
breadth. Even prior to the final enactment of the CDA, America
OnLine removed dozens of poems from Creative Coalition's
Poetry Corner in response to demands of some who believed that
the use of words such as “breast” rendered the poems indecent.
Some poems were removed for no discernible reason what-
soever, making it impossible for their authors to understand what
language had been considered “indecent” and therefore had to be
avoided. See hitp://motley-focus.com/~timber/aol.html (Exhibit
16). Now the vagaries of “indecency” also carry the threats of
government censorship and criminal prosecution.
Nor is the scope of the CDA limited to books.
Technological innovations now make it possible to transmit and
receive not just text and pictures on the Internet, but also motion
compositions (as well as scripts and lyrics from those works).
These contemporary compositions sometimes contain explicit
sexual themes or lyrics. Just one example of a contemporary
musical composition with a sexual theme and lyrics is Alanis
Morissette’s You Oughta Know, which won the 1996 Grammy
Award for Best Rock Song of the Year. The song is on the
Internet in three available formats: the lyrics, the audio version,
and the music video. See http://hitp.tamu.edu:8000/~vkb58 | 8/
Alanis_Morissette_V2.0/Alanis_Lyrics/oughta.html; http://www.
animatrix.com/Alanis_Morissette/ra/Oughta.wav, hitp://mbess.
ccsm.uiuc.edu:80/alanis/know | mov (Exhibit 17). See also hitp://
aaa dean om eae 18) (another exam-
-—_ 1 pop ical “ on
Internet m audio form); Attp:/Awww.homevisioncinema.com/
20
catalog/thatobscure.alarge.mov (Exhibit 19) (example of movie
clips from sexually explicit non-obscene foreign films). Such
new compositions on the Internet are in jeopardy under the CDA.
> Social and Political Discourse on the Internet.
Issues of social and political import are widely discussed
on the Internet. Certain issues implicate topics of discussion that
fall squarely within the overbroad language of the CDA, and yet
are both vital to informed discourse in a democratic society and
fully protected under the First Amendment. They include, but
certainly are not limited to, sexual abuse and human rights
issues.
For example, Karra’s Korner and The Survivor's Page are
Web sites dedicated to sexual abuse and rape survivors. See
hitp://www.xroads.com/rainbow/karra. html, http://cam0432 12.
student.utwente.nl/ (Exhibits 20 and 21). They include chat
rooms offered as a forum for survivors to share their experiences
poems and stories composed by them. Ed Carp, an amicus in the
court below, operated a similar site called “Khijol” that was
dedicated to survivors of sexual abuse; it has since been re-
moved from the Web. It is impossible for such sites to avoid
in a manner that would, as measured by the contemporary
standards of some communities, be patently offensive. Con-
sidering the nature of the issue, it would be unreasonable and
unrealistic to expect otherwise. Unfortunately, these realities are
no impediment to the CDA’s reach.
It would likewise be undesirable for such sites to prevent
minors from participating, considering that sexual abuse often is
perpetrated on minors. Even if it were technologically possible
for those who maintain such Web sites to exclude minors (which
it is not), such a restriction would undermine the sites’ very
for example, deals explicitly with ritual abuse. See hitp://www.
xroads.com/rahome/rahome.html (Exhibit 22). Others address
21
family violence, sexual abuse, and child abuse, all linked by
common sites such as that of Internet Support Groups. See
hitp://www.xroads.com:0080/rahome/support.him; http://www.
vix.com/pub/men/abuse/abuse. himl (Exhibit 23). Still another
site Carnes writings, letters, and poetry by survivors. See http://
cam04321 2.student.utwente.nl/Writing.htm (Exhibit 24). To de-
prive these Internet users of the ability to speak, communicate,
and assist one another — having survived (or being still trapped
in) the horrifying experience of sexual abuse — would be yet a
further violation. But the authors of sites like these realistically
may be concerned that they now face prosecution for providing
this service and may be unable to continue doing so.
Similarly, it is essential to the mission of human rights
organizations such as Derechos, an amicus here, to inform about
the nature of human rights abuses wherever and in whatever
form they occur. Too often, such abuses include physical
atrocities relating ing to the victims " “sexual or excretory organs.”
However distasteful, difficult, or “offensive” this topic may be
for some to confront, it is speech of truly serious social and
political teed , ‘ot ' ond
persuading people to fight against them, is a vital form of speech
on the Internet.
Derechos Web site, includes on that site excerpted personal
me nee an wy yee ing comaat tortano of Goth turn and
women, in Nunca (Never in), the of
the Argentine National Commission ant teases
Persons, which details the disappearance of 9,000 people in
Argentina in the 1970s. See hitp://www.derechos.org/indecent.
html (Exhibit 25). They include the following:
... At some point he feels that they pick him up,
they take him through a corridor to another place,
where they order him to undress, they throw him on
a cot and they say to him: “Look, I am ‘El Aleman,””
screaming. “El Aleman” tries to introduce a pipe into
22
his anus. Another voice tells them to leave him, and
speaking to the victim, he says: “you see, | am ‘El
Gallego,’ and saved you from him putting the iron
bar in you.” They put him naked, with his legs and
arms opened, tied with leather. “El Gallego” tells him
to speak, while he applies an electric shock on his
ankle, burning his muscles, he still has the marks. He
is also interrogated by a woman. “E] Gallego” applies
the “picana™ [electric cattle-prod-like instrument] on
his armpits, where he also still has the scars. “El
Gallego” laughed and tells the woman: “You, you
like the piece, you continue.” Then he feels as the
woman takes his member and introduces in it some
caustic-like liquid, and because of this he still has
problems urinating.
... Then they proceeded to introduce in my vagina
what | knew afterwards to be a baton or a police
stick. Then they took me to another building, where
they made me eat handcuffed to a table. When I
refused to, they took me to another building, where
they would make me stand and go back to
interrogating me, hitting me on the head and
threatening to introduce the stick I mentioned before
in my anus.
Many of the victims of such torture were themselves
younger than 18. To omit from Internet coverage of human
nights abuses such personal accounts as these, written by those
who have suffered through them for the sake of the values they
champion, would be to silence voices of experience, education,
and warning. Nevertheless, the CDA is broad enough to do so.
The CDA forces authors of home pages dedicated to these issues,
and users of those pages, to make a choice between emasculating
their speech by omitting descriptions and depictions of human
rights abuses, or risking criminal prosecution for speaking out.
The First Amendment does not tolerate that choice. Indeed, the
irony of our democratic government silencing speech on human
23
rights abuses inflicted by non-democratic regimes should not be
lost on the Court.
Of course, the story of the Argentine disappearances, like
many of the reports of human rights abuses on the Internet, is
historical and serves only to warn readers: “Never again,” as to
crimes against humanity that have already occurred. But abuses
involving “indecent” and “patently offensive” behavior also are
perpetrated today, and the Internet is the quickest and most
effective tool for exposing them. One wonders whether the
disappearances — or indeed the Holocaust — would have
occurred so brazenly if the Internet had been reporting on them
twenty or sixty years ago. Yet the graphic reports that might
have caught the world’s attention would have been threatened
with criminal prosecutions under the CDA.
» Journalism on the Internet.
The news media have gone online. Hundreds of news pro-
viders in the United States alone, ranging from daily newspapers
torture and abuse of nuns in Tibetan prison); http://detnews.
com/menu/stories/19449.him; — http://detnews.com/96/nation/
24
9701/03/01030061 .htm (Exhibit 27) (recent Detroit Free Press
articles about treatments of yeast infections in women and im-
potence in men). The angry posturing of combatants in war, at
the scenes of crime, in the political arena, outside abortion
clinics, or in other newsmaking settings will often provoke the
use of language adjudged by some to be indecent. And from tele-
vision footage of the napalm bombing of Vietnam villagers, e.g.,
http://www. portoftacoma.com/colovos/VIETNAM/08/000004 38.
JPG (Exhibit 28), to classic National Geographic reports on
indigenous peoples in less developed parts of the globe, €.2.,
http://www.nationalgeographic.com/modules/contact2/briefing/
clickup/portfolio-k3.html (Exhibit 29), the daily parade of news
events will often result in compelling photojournalism. Under
the First Amendment, coverage of such issues, disturbing though
they may be, is not limited to material suitable to minors. &.
Herceg, 814 F.2d at 1020 (First Amendment protected article
detailing life-threatening sexual act, even though adolescent who
obtained article died trying to imitate act).
It is reasonable for those who place their reporting on the
Internet to fear prosecution under the CDA. Precedent as to the
print and broadcast media demonstrates the propensity of some
25
people to view factual reporting, which is at the core of the First
Amendment, as “indecent” or “patently offensive.” For example,
when National Public Radio in a profile of John Gotti aired an
evidentiary tape used in court that included Gotti’ s repetitive use
of expletives, a listener sued the Federal Communications
Commission to force the agency to punish NPR. See Branton vy.
FCC, 993 F.2d 906 (D.C. Cir. 1993), cert. denied. 114 S. Ct
1610 (1994).
Nevertheless, journalists cannot and should not shy away
from coverage of topics within the potential scope of the CDA,
for such topics are of legitimate public concern. The CDA raises
the stakes in covering such issues. Despite the public interest in
government funding of the works of controversial artists, which
has led to extensive media coverage over a period of years, the
CDA might, for example, have subjected the media to threatened
prosecution for describing one of the works in question, Andres
Serrano’s “Piss Christ,” as a crucifix placed in jar of urine,
which many certainly would find offensive, or for reporting
Serrano’s explanation of that work. See http://www.collegian.
psu.edu/archive/1996_jan-dec/1996_oct/1996-1 0-02_the_daily_
collegian/1996-10-02d01-001 htm: http ://www.artsusa.org/
Advocacy/flatline.htm (Exhibit 30). Similarly, just a few months
before the decision below was rendered, Philadelphia Magazine,
an amicus here, reported on male prostitution in Center City,
Philadelphia. See “The Vampires of Delancey Street,”
Philadelphia Magazine, March 1996, p. 64. The report's neces-
sarily graphic content raised a specter of criminal liability under
the CDA in the event of Web publication. °
9. As the Serrano reporting demonstrates, these concerns are not limited
to professional news organizations, but apply equally to less traditional
publications like on-line college newspapers, many of which contain
articles with frank discussions of sexuality. See also The Daily
Californian (Univ. of Cal., Berkeley), http://www.dailycal.org/Issues/
09.09.96/condoms.txt (Exhibit 31); The Daily Pennsylvanian (Univ. of
Pa.), hitp://www.dp.upenn.edu/AppleSearch.acgi$RETRIEVE, /3.
1 1964,5506,0,6927.0 (Exhibit 32). They also apply to organizations
seeking to issue press releases about these topics. For example, the
26
The CDA places a gag on those who would report the
news, forcing them to engage in self-policing far beyond
anything required in the print media (to which the Internet is
most analogous) or even the broadcast media. The CDA ban on
speech applies twenty-four hours a day, seven days a week, every
day of the year. Unlike the broadcast restrictions approved in
Pacifica, there is no “adult” time zone available here, and no
recognition of the utility of scrambling mechanisms. The gag on
the Internet is complete and total.
» Education on the Internet
The Internet is a powerful teaching and research tool. In
universities, for example, professors use the Internet to sup-
plement printed materials available to students, some of whom
are minors, in order to offer more comprehensive treatment of
facts and issues. The ready access to information made possible
by the Internet, in addition to smaller local area networks within
university communities, enhances the educational experience.
Professors use the Internet not only to teach courses covering the
subjects discussed in the foregoing sections of this brief ~ for
example, medicine, anatomy, a art, social —.
nalism, and human rights — but also courses on such i
the social and psychological effects of pornography and the phi-
losophical implications of cyberspace. This is accomplished by
posting course materials on Web sites; transmitting, via e-mail,
information located elsewhere on the Internet; encouraging
students to explore the information available on the Internet ina
particular subject area; and, in many cases, by a combination of
all of these methods. And as discussed later in this brief, pro-
fessors also utilize the Internet in their own research and to
communicate and exchange information with their colleagues at
other institutions.
CDA's restrictions could impede amicus Lambda Legal Defense and
Educational Fund's ability to disseminate information about a recent
litigation victory involving anti-gay abuse of a teenager that included
a mock rape.
27
For example, amicus Peter Ludlow, an Associate Professor
at the State University of New York at Stony Brook, places
online all of his course materials for his course, entitled
“Conceptual Issues in Cyberspace.” The course covers, in an
online context, such issues as the nature of online sexual
behavior in multi-user online games known as “MUDs.” The very
reason that some materials are used in the course is that they are
construed by some as “indecent,” and an analysis of that
construction is part of what the course addresses. Transmitting
these materials, even in the context of providing a
comprehensive academic analysis, may itself be construed
“indecent” and, therefore, criminalized by the CDA. Certainly
the wide-sweeping CDA does not provide for consideration of
the context in which materials are placed on the Internet. For
that reason, Professor Ludlow chose to change his approach to
using online course material for his class last semester on moral
reasoning as applied to the Internet, which included materials
actually subject to censorship and thus considered by some to be
“indecent” or “patently offensive” per se. While most of the
readings for the course were made available online, Professor
Ludlow felt unable to provide online copies of the more
controversial materials, concerned that if the CDA were in effect
he could be subject to prosecution under its provisions for his
teaching activities.
The CDA therefore poses a threat to academic freedom,
which requires broad latitude for teaching and research in the
pursuit of truth and knowledge. See, e.g., Keyishian v. Board of
Regents of University of State of New York, 385 U.S. 589, 603
(1967) (recognizing importance of academic freedom to
democracy). The /940 Statement of Principles on Academic
Freedom and Tenure, adopted 57 years ago by amicus American
Association of University Professors and endorsed by more than
150 professional organizations and learned societies, applies
fully and forcefully in the context of the Internet of the 1990s:
“Freedom in research is fundamental to the advancement of
truth. Academic freedom in its teaching aspect is fundamental
for the protection of the rights of the teacher in teaching and of
the student to freedom in learning.” AAUP Policy Documents
28
& Reports (1995 ed.); see http://www.igc.apc. org/aaup/1940stat.
him (Exhibit 33). The criminal proscniptions of the CDA would
eviscerate vast realms of teaching and learning materials, to the
detriment of both teachers and students, both adults and minors.
The CDA also stifles access to information te orton
libraries, including those affiliated with institutions of hig
learning. “A library is a mighty resource in the free —.
of ideas. It is specially dedicated to the broad dissemination Oo
ideas. It is a forum for silent speech.” Minarcini, 541 F.2d at
582-83 (citations omitted). Yet, while materials available in
print form are fully accessible to minors and adults, the CDA
prohibits the same access on the Internet. And, while a library
has the freedom to choose what books and periodicals to include
in its collection, so that it can identify and eliminate works it
determines to be unsuitable, the CDA prevents it from relying on
its own judgment of what Internet sites its users may access. By
making access to the Internet available to minors, a library or
individual librarian now risks prosecution under the CDA.
B. The CDA Also Is Overbroad in Banning Speech Sought
by Content Recipients.
It is not only speakers on the Internet who feel the chill
posed by the CDA. The millions who access speech on the
Internet feel it as well. They do not open themselves up to crim-
inal prosecution, as do content providers (although, if they down-
load the content into e-mail messages to minors OF otherwise
disseminate questionable content so that it may reach a minor,
they risk becoming content providers themselves). But they are
deprived of access to speech with serious redeeming merit which
they are entitled to receive under the First Amendment.
ipients of speech are equally entitled to protection under
the Ry rhe That protection is afforded “to the
communication, to its source and to its recipients both. Virginia
State Board of Pharmacy v. Virginia Citizens Consumer Council,
425 US. 748, 756 (1976). The “right of the public to receive
suitable access to social, political, esthetic, moral, and other
a eae eee a =
29
ideas and experiences” is “crucial” and “may not be
constitutionally abridged” by statute or regulation. Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). Neverthe-
less, the CDA violates this principle.
Several of the amici experience the chill of the CDA from
the perspective of a recipient of speech. For example, Lloyd K.
Stires, a social psychologist and professor who teaches a seminar
entitled “Pornography: Critical, Behavioral and Legal
Approaches” at Indiana University of Pennsylvania, conducts
research for the course on the Internet. The CDA jeopardizes his
ability to research non-obscene speech protected by the First
Amendment. Amicus American Association of University
Professors represents thousands more like Professor Stires, who
increasingly depend on the Internet as a source of information on
a host of issues, and a teaching tool for students who include
minors. Many such controversial issues, or the approaches that
professors might choose to bring to more mundane issues, will
undoubtedly infringe on the sensibilities of some communities
sufficiently to bring within the chilling scope of the CDA both
professors who access “indecent” or “patently offensive” infor-
mation from the Internet, and those who post it there.
Similarly, Miryam Ehrlich Williamson, a freelance techni-
cal journalist who conducts nearly of all her research on the
Internet and whose topics have included medical disorders that
affect “sexual or excretory activities or organs,” may eventually
find under the CDA that the Internet has become, not a font of
information, but rather a dry well for some of those topics. That
will also be true for journalists, who rely increasingly on the
Internet as an invaluable research tool. The ban affects all users.
including those serviced by amicus Eric Raymond, a director of
Chester County InterLink, a Pennsylvania ISP that provides free
access to the Internet for those who are ecouomically disad-
vantaged and physically challenged. As these examples illus-
trate, the CDA would potentially freeze out entire segments of
society from exercising their First Amendment night to
participate in this new high-tech marketplace of ideas.
30
The CDA, particularly because it poses the harsh sanction
of criminal to re decreases the likelihood that in the
future there will be speech on the Internet that these amici can
view and use for undeniably legitimate purposes. In this way as
well, the CDA is unconstitutionally overbroad.
CONCLUSION
For the foregoing reasons, amici curiae urge the Court to
affirm the decision of the three-judge panel that preliminarily
enjoined enforcement of the Communications Decency Act of
1996, and to declare the Act unconstitutional.
Respectfully submitted,
James D. Crawford
Carl A. Solano 4
Theresa E. Loscalzo
Jennifer DuFault James
Joseph T. Lukens
Attorneys for Amici Curiae
SCHNADER HARRISON SEGAL & LEWIS
1600 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103
(215) 751-2162
Of Counsel.
Dated: February 20, 1997.
STATEMENT OF INTEREST OF AMICI CURIAE
The American Association of University Professors
(AAUP) is an organization of approximately 44,000 faculty
members and research scholars in all academic disciplines.
Founded in 1915, the Association is committed to the defense of
academic freedom and the free exchange of ideas in scholarly
and creative work. Among the organization’s central functions
is the development of policy standards for the protection of
academic freedom, tenure, and other elements central to higher
education. The Association’s policy statements have long
emphasized the need for wide latitude in teaching and research
for professors and their students in the pursuit of knowledge —
including with regard to controversial topics or examples that are
relevant to the subject matter. See, e.g., 1940 Statement of
Principles on Academic Freedom and Tenure, AAUP Policy
Documents & Reports (1995 ed.) (endorsed by more than 150
professional organizations and learned societies). AAUP’s
policies are widely respected and followed as models in
American colleges and universities. See, e. &., Board of Regents
of State Colleges v. Roth, 408 U.S. 564, 579 n. 17 (1972); Tilton
v. Richardson, 403 U.S. 672, 681-82 (1971),
Faculty members rely increasingly on the Internet for
teaching and research. AAUP is concerned that the CDA will
chill on-line expression and discussion on a wide variety of
academic subjects (e.g., medicine, biology, anatomy, social
work, art, and journalism), impairing use of this promising new
medium for legitimate pedagogical and research purposes in the
pursuit of truth and knowledge.
The American Society of Journalists and Authors is a
professional association representing journalists and authors,
primarily in the print media, many of whose works are placed in
whole or in part onto the Internet. Claire Safran is the
Chairperson of the ASJA’s First Amendment Committee and its
amicus contact person. The ASJA and its members are
concerned that the CDA will prohibit certain writings from being
placed on the Internet and chill free expression online. See
Exhibit 35.
STATEMENT OF INTEREST — 2
The Authors Guild is a national association of almost
7,000 professional book and periodical writers of all genres,
including journalists, historians, biographers and other writers of
fiction and nonfiction. Founded in 1912, it is the oldest and
largest organization of published writers in the United States.
Members of the Authors Guild include winners of the Pulitzer
and Nobel Prizes, National Book Awards, and other prestigious
awards and prizes. The Authors Guild works to promote the
professional interests of its members and to educate the
community at large on issues facing publishing-related
industries.
One of the Authors Guild's principal purposes is to express
its members’ views in cases involving questions of freedom of
expression and to support that fundamental constitutional right.
Many of its members rely heavily on the extraordinary
opportunity for free and open communication offered by on-line
services and the Internet, which allow its members to participate
in a true “marketplace of ideas.” The Authors Guild opposes the
CDA because it will chill free speech in this important forum.
Since 1993, the California Museum of Photography at
the University of California, Riverside has been producing
exhibitions on the Internet that combine both fine art and
scholarship. See generally http://www.cmp.ucr.edu/frames/
intro.html (Exhibit 36). Projects such as a comparison of the
work of photographers Edward Weston and Robert
Mapplethorpe would be restricted by the CDA. See http://www.
cmp.ucr.edu/exhibitions/\w_m/wm2.himl (Exhibit 11). Further,
the California Museum of Photography at the University of
California, Riverside has long championed the concept of the
Internet as an expressive medium for both individual artists and
for collaborative activities. Provisions in the CDA could
prohibit both advanced scholarship in the visual arts and practice
by contemporary artists exploring the unique attributes of the
Internet as a medium for pictorial discourse and active
collaboration across state and international boundaries.
STATEMENT OF INTEREST — 3
The Coalition for Positive Sexuality is a grassroots
volunteer group originally formed by high school students and
members of various AIDS awareness, pro-choice, women’s
health, and gay rights groups to respond to what it identified as
a health crisis among Chicago teenagers in terms of teen
pregnancy, sexually transmitted diseases, and lack of awareness
of issues relating to homosexuality. Its purpose is to provide
teens with comprehensive information on sexuality and
reproductive control, and to stimulate debate on the quality of
sex education in public schools and around the country.
_ The Coalition maintains a Web site directed to teenagers
and intended to provide accurate information on sexuality. See
hitp://www. positive.org/cps/ (Exhibit 37). The site includes, in
both English and Spanish, information on state laws regarding
abortion, and a listing of electronic and general resources. The
information includes definitions of sexual organs, sexually
transmitted diseases, and other issues related to sexuality that
could be considered “indecent” or “patently offensive” according
to particular community standards. The site is visited daily by
more than 1,500 users from more than eighty countries. The
Coalition also communicates via e-mail directly with minors,
frankly answering questions about sexuality. Natasha Minsker
is the amicus contact person for the Coalition.
Creative Coalition of Artists is a national Internet
Organization comprised of poets who place their works on an
America OnLine (‘ AOL”) page called the Poetry Corner. See
hitp://www.on-net.net/~cca/ (Exhibit 38). The poets within
Creative Coalition use the Internet to share their poetry and to
exchange critiques, suggestions and comments on it, as well as
to enable others simply to enjoy reading it. Jordanne Holyoak is
its media coordinator and amicus contact person.
Creative Coalition and its members are concerned that the
CDA may prohibit certain writings from being placed on the
Internet and that it will chill free expression. Their concern has
particular force because, even prior to enactment of the CDA.
AOL had removed dozens of poems from the Poetry Corner in
STATEMENT OF INTEREST — 4
response to demands by some who believed that the use of such
words as “breast” rendered a poem “indecent.” Some poems
were removed for no discernable reason whatsoever, making it
impossible for their authors to understand what language had
been considered “indecent” and therefore had to be avoided.
Under the CDA, the poets of Creative Coalition face not only
removal of their poetry by the service provider, but also the even
harsher and more chilling threat of criminal prosecution by the
tederal government.
In light of the fact that some already have labeled poetry
written by members of the Creative Coalition as “indecent” or
“patently offensive” as measured by some unarticulated
standards, the fear of prosecution experienced by its members is
well founded. In the past, works of poetry such as those authored
by the beat poets Allen Ginsburg and Jack Kerouac were deemed
“indecent” and were banned in some communities during the
1950s and 1960s. The CDA poses a threat to those who post
such works on the Internet, as well as to those who author or post
newly composed poetical works that might be deemed
“indecent” according to some community standards but which
have artistic and social merit today and which may even become
the classics of future generations.
Tri Dang Do is a student at Boston University School of
Medicine. He authors a Web site that includes a page “prepared
for and dedicated to the teens of East Boston” that provides
education on sexually transmitted diseases (hitp://med-www.bu.
e ‘sycamore/sid/std.htm/). See Exhibit 4. The informa-
tion is strictly medical in nature, but presented in a way that
teenagers will understand and with which they can identify. His
goal is to help teens accessing the site to engage in healthy
behavior and to teach them how to handle their sexuality in a
safe and responsible manner, by arming them with factual
information. He believes that it is vital that he perform this
service and that teens accessing the Internet have a way of
receiving this potentially live-saving information. He is
concerned that the CDA poses a risk of prosecution to him for
posting language that is essential to any discussion of sexually
STATEMENT OF INTEREST — 5
transmitted diseases — their symptoms, nose
cures, and avoidance. ae (etary ree waa
Feminists for Free Expression is an organization
comprised of a diverse group of women who believe that
freedom of expression is especially important for protecting and
furthering women’s rights. It maintains a Web site on which it
describes these beliefs. See hitp://www.well. com/user/freedom/
(Exhibit 39). It believes that the appropriate way to protect
children from exposure to harmful materials on the Internet is
increased parental responsibility and supervision, combined with
advancing technology to aid parents in their efforts to protect
their own children. See id. In addition to these beliefs, the
Organization s opposition to the CDA stems from a concern that
it could be used to ban from the Internet works of art and
literature that are expressions by women of their own sexuality
as well as materials that inform women and teenage girls about
their own bodies. Similar materials in print form, such as the
landmark book Our Bodies, Ourselves, have in the past been the
= of ae a that they were “indecent” or “patently
ensive, ile failing to recognize or late
tremendous educational value. Feminists for ees Saoncion
has a reasonable concern that similar works transmitted on the
Internet will be prohibited under the CDA.
Margarita Lacabe is a student at the Hastin
Law who authors a Web site called Derechos that = denned on
encouraging human rights activism around the world by
providing human rights information. See http://www.derechos.
org/derechos.html (Exhibit 40). An active member of Amnesty
International, Ms. Lacabe through her site provides links to Web
sites maintained by that organization and other human rights
organizations, and also publishes a Human Rights Newsletter
available on its site. /d. Included on the site is a page excerpting
personal accounts of torture, including sexual torture, contained
in Nunca Mas (Never Again), the Report of the Argentine
National Commission on the Disappearance of Persons, which
covers the disappearance of 30,000 people in Argentina during
the 1970s. While the accounts are graphic and might be deemed
STATEMENT OF INTEREST — 6
to be “indecent” or “patently offensive” in some communities,
Ms. Lacabe believes that it is the human suffering itself that is
indecent, not the description of it. She believes that such
descriptions are vital to informing people (including minors who
have a right to know what is happening in their world) of human
rights abuses, and to persuading people to fight these abuses. For
placing this information on the Internet, where it is accessible to
minors, Ms. Lacabe has a reasonable fear of prosecution under
the CDA.
Lambda Legal Defense and Education Fund is a
national organization committed to achieving full recognition of
the civil rights of lesbians, gay men, and people with HIV/AIDS
through litigation, education and public policy work. Lambda
was founded in 1973 and brought the first AIDS discrimination
lawsuit in 1983. Much of Lambda’s litigation and advocacy
work focuses on ensuring that lesbians and gay men can
communicate openly about their sexual orientation without
retribution, and on ensuring that all people — including young
people — have access to accurate, understandable HIV prevention
and treatment information.
Lambda uses the Internet to communicate with its clients
and constituents, and to disseminate information about legal and
policy issues related to sexual orientation or AIDS to lawyers and
grassroots activists throughout the United States and abroad.
Lambda’s AIDS Project currently contributes to a Web site, http://
www.the body.com (Exhibit 52), that is dedicated to providing a
wide range of medical, social, political, and legal information of
importance to people with HIV. Lambda is also in the process of
designing its own Web site, through which it will attempt to
reach gay youth with information about their nghts and about
resources that may help them deal with the isolation that so many
gay and lesbian adolescents feel in homophobic family, school,
or community environments. Lambda also uses the Internet to
distribute press releases. For example, Lambda recently
announced a favorable jury verdict and settlement in Nabozny v.
Podlesny, a case involving the brutal anti-gay abuse of a teenager
at the hands of his schoolmates, without any intervention by
STATEMENT OF INTEREST — 7
school authorities. Even accurate descriptions of that abuse.
which included a mock rape, could be deemed by some to fall
within the CDA’s censorship, as could much of the other
information Lambda transmits and receives over the Internet.
Expression about topics related to sexuality, or about sex
itself, has inherent value and should remain free from govern-
ment interference on the Internet. The CDA jeopardizes
Lambda’s own postings on Web sites and ongoing use of the
Internet to communicate with individuals across the country and
internationally about gay- or HIV-related issues.
Maggie LaNoue authors a Web site called NewsBoy,
which provides links to hundreds of world news sites on the
Web. See hitp://www.newsboy.com/ (Exhibit 41). The NewsBoy
site allows users to go to news of state, national, and
international news services online. It carries links to such
nationally syndicated news sources as Time Magazine, The Wail
Street Journal, ABC News, and CNN. There also are links to
ElectNet, a site which carries election news in each of the fifty
states, and to the U.S. Community Page Index out of
Massachusetts, a network that itself links to over 1,000 American
newspapers.
NewsBoy also carries links to such international news
sources as the OneWorld News Service out of the United
Kingdom and “Daily News: Just the Links,” a Web site out of the
Netherlands that links users to more than 200 media
organizations worldwide. Many of the sites to which NewsBoy
provides links have RealAudio clips. Ms. LaNoue plans in the
future to add to NewsBoy additional features, including an index
of news sources online in all fifty states, including state-by-state
weather and sports.
The news sources to which NewsBoy provides links may
include descriptions or depictions that some might deem
“indecent” or “patently offensive,” particularly depending upon
the individual community standards to be applied. Ms. LaNoue
can neither identify such material nor edit sources to delete such
STATEMENT OF INTEREST — 8
material. The list of NewsBoy links is so extensive that she
cannot even visit them all, let alone monitor them regularly. She
is concerned that under the CDA she could be held responsible
and criminally prosecuted for providing these links. The user-
friendly NewsBoy site may no longer be able to provide this
wealth of news access to computer users if the author may be
held responsible for all the content of the links.
LoD Communications is an Internet service provider
serving the Tallahassee, Florida region. It is concerned that the
CDA makes it responsible for monitoring and removing
communications by its customers, or Web sites that it carmies,
based on a vague, undefined, and overbroad standard of whai is
“indecent” or “patently offensive.” Todd Lawrence is LoD
Communications’ amicus contact person.
Dr. Peter Ludlow is an Associate Professor in the
Department of Philosophy at the State University of New York
at Stony Brook. Included among the classes he teaches is a
course entitled “Conceptual Issues in Cyberspace,” which covers,
in the online context, such philosophical issues as the nature of
self and community. His practice is to place all of his course
materials for the class on his home page, but the CDA has placed
a chill on this teaching practice, and he has declined to place
some of the more controversial materials online as a result. See
http://semlab2.sbs.sunysb.edu/Users/pludlow/highnoon. html
(Exhibit 42). He believes that under the CDA he may be
prohibited from placing on that site materials relating to the
nature of online sexual behavior in MUDs (multi-user interactive
games played over the Internet) and other materials that are
essential to the course but that may be termed “indecent” or
“patently offensive.” The teaching materials used for that course
and located on the home page were published in book form last
spring. See High Noon on the Electronic Frontier: Conceptual
Issues in Cyberspace (MIT Press 1996).
Professor Ludlow also offered in the fall 1996 semester a
course entitled “Moral Reasoning,” which applied traditional
concepts in moral reasoning to the ethical dilemmas that arise in
STATEMENT OF INTEREST — 9
cyberspace. Included on the class syllabus were discussions of
censorship on the Internet and the CDA itself. Professor Ludlow
believes he cannot comprehensively or meaningfully teach these
issues without giving examples of communications that might be
“indecent” or “patently offensive” under the CDA but which
nevertheless are worthwhile communications, and that he cannot
do so without violating the CDA himself. Professor Ludlow was
able to make available on the class web site most of the materials
for the course, but felt unable to provide online copies of the
more controversial materials, and made do by either merely
alluding to their contents, or locating published hard copy
versions of those materials.
Chuck More owns an art gallery in Philadelphia,
Pennsylvania. He authors a Web site to display exhibitions of
artwork sold at his gallery. See http://www. libertynet.org~artst/
more/ (Exhibit 43). The art displayed there regularly includes
nudes, both painted and photographed. See id. Such artwork,
displaying as it does sexual organs, could be considered “patently
offensive” according to the standards of some communities, thus
placing Mr. More in jeopardy of criminal prosecution.
Philadelphia Magazine is a general interest magazine
published by Metro Corp. and operates its own Web site. It
covers a broad range of issues of interest to the Greater
Philadelphia area, some of which relate to medicine, art,
literature, social affairs, politics, education, and sexual topics.
For example, its March 1996 issue included a report on male
prostitution in a Center City, Philadelphia neighborhood. Some
material in that article might be within the CDA’s scope if it
were placed on magazine’s Web site. See “The Vampires of
Delancey Street,” Philadelphia Magazine, March 1996, p. 64.
The magazine also publishes classified advertisements, including
personal advertisements by people seeking companions. See id.
at 158. It places some of its editorial content and advertising
online. See Attp://www.phillymag.com/ (Exhibit 44). The
magazine fears that it may not be able to engage in cyberspace
publishing of some articles and advertising without risk of
prosecution under the CDA.
STATEMENT OF INTEREST — 10
PEN American Center (“PEN’’) is an organization of 2,400
novelists, poets, essayists, translators, playwrights and editors,
chartered to defend free and open communication within all
nations and across national boundaries. PEN has taken a leading
role in attacking restrictive laws, rules, regulations, and practices
that censor, curb or limit freedom of speech or expression in the
nation.
Of all the restrictive practices that might censor an author's
work and restrict freedom of speech, PEN American Center
believes there is none more sweeping and dangerous than a prior
restraint against publication. PEN and its members believe that
the CDA has ominous implications for the entire craft of writing
and publishing, which relies increasingly on the Internet for both
information gathering and publishing.
PSINet, Inc. is a leading international provider of Internet
access and value-added intranet, security, and web hosting
services, with hundreds of points-of-presence throughout the
United States and internationally through subsidiaries in Canada,
the United Kingdom, and Japan, and through joint-venture
partners in the Netherlands and South Korea. Founded in 1989,
it is a publicly-traded company with offices in Virginia, New
York, California, England, Canada, and Japan. PSINet provides
Internet services to more than 18,000 businesses with
approximately 2,500,000 individuals who access the PSINet
network daily. PSINet also carries the traffic of some 25 smaller
United States Internet service providers on a wholesale basis.
Because it does not want to censor its customers’ Internet
transmissions and because it firmly believes that its customers
have a right of privacy in those transmissions, PSINet will not
monitor its subscribers’ communications or transmissions on the
Internet. Moreover, despite its considerable technical
sophistication, PSINet does not have the technical or logistical
capability routinely to monitor and screen the millions of
domestic and international transmissions of its customers and
their customers and employees — not to mention the “blind”
transmissions of other [SPs to whom the PSINet network is
STATEMENT OF INTEREST — | 1
linked —- to determine whether any of those transmissions might
be “indecent.” The additional complications presented by the
CDA’s monitoring requirements with respect to the
communications that PSINet carries from foreign points of origin
and in foreign languages make the statute’s defenses meaningless
for PSINet.
Eric S. Raymond is the co-founder and a member of the
Board of Chester County InterLink (CCIL), a volunteer-run
nonprofit organization started in 1993 that provides community
networking and Internet access for over two thousand users in
Chester County, Pennsylvania. Its mission is to support access
by poor, disadvantaged, elderly, and minority residents of
Chester County who traditionally either have been financially
unable, or lacked the background, education, and confidence, to
take advantage of commercial Internet and computer bulletin
board services. CCIL runs active community-outreach and
educational programs designed to assist ordinary people in taking
advantage of the new electronic media. See http://www.ccil.
org:80/~esr (Exhibit 45).
Mr. Raymond believes that the CDA is a death warrant for
CCIL. Under it, any person displeased by any of the content its
users offer could find it all too easy to instigate prosecution of
CCIL itself under the vague “indecency” language. CCIL does
not command the resources needed to conduct the elaborate self-
censorship required by the CDA’s purported defenses, nor to
defend itself against prosecution. The drain on CCIL’s volunteer
time required even to attempt to filter the entire Internet would
cripple every educational and support program it runs.
Moreover, Mr. Raymond fears that the CDA’s overbroad
indecency provisions effectively require content-based
censorship and would prohibit CCIL from carrying information
for teenagers on such issues as safe sex, AIDS prevention,
abortion, or alternatives to abortion.
Don Rittner is the publisher of The MESH — Inside
Cyberspace, a Web version of a monthly magazine covering the
Internet. See http:/Avww.themesh.com:80/meshinfo.html (Exhibit
STATEMENT OF INTEREST — 12
46). Since enactment of the CDA, Mr. Rittner has felt compelled
to remove several columns from The MESH Web page out of
fear of criminal prosecution. He believes that the CDA has
limited his choice of content for his magazine, thus infringing on
his First Amendment right to free expression. He further
believes that it is unclear under the terms of the CDA precisely
what speech he must remove or exclude to avoid prosecution and
that, in order to reconcile this lack of clarity, he must take an
overbroad view of materials that might be deemed “indecent” or
“patently offensive.”
The Sexuality Information and Education Council of
the United States (STECUS) is a national nonprofit organization
incorporated in 1964 that develops, collects, disseminates, and
promotes comprehensive information about sexuality, and
advocates the rights of individuals to make responsible sexual
choices. See http://www.siecus.org/ (Exhibit 47). It believes that
sexually explicit speech and visual materials are indispensable
elements of sexuality education, and that the CDA may restrict
the appropriate professional use of such materials by sexuality
educators, therapists, and researchers. See id. Betsy Wacker is
the amicus contact person for SIECUS.
Dr. Lloyd K. Stires is a social psychologist and professor
in the Psychology Department at the Indiana University of
Pennsylvania. His primary academic research deals with the
content and effects of pornography. In the context of his work,
he subscribes to several Internet discussion groups that
sometimes involve frank discussions of human sexuality, as well
as censorship issues and First Amendment rights. He also
teaches an annual seminar at the university entitled
“Pornography: Critical, Behavioral and Legal Approaches.” He
sends announcements regarding the seminar to students and also
forwards to them information downloaded from the Internet that
is relevant to the course and that could be deemed “indecent” or
“patently offensive.” He is concerned that this academic activity
may expose him to prosecution under the CDA. Further, he is
concerned that the CDA will chill his ability to conduct his
research on the Internet, by forcing the removal of materials that
STATEMENT OF INTEREST — 13
are “indecent” or “patently offensive” according to some
community standards but which form a vital part of his studies
and teaching.
Peter J. Swanson is a Ph.D. candidate in Electrical
Engineering and Computer Science at the University of Michigan
and a member of the University’s Advanced Technology
Laboratory. He authors a Web site that includes a page dedicated
to a discussion of United States v. Baker, 890 F. Supp. 1375
(E.D. Mich. 1995). See http://ai.eecs.umich.edu/people/pjswan/
(Exhibit 48).
The Baker case concerned a United States prosecution
under 18 U.S.C. § 875(c) for threats transmitted via e-mail over
the Internet, including stories written by the defendant, a student
at the University of Michigan. The Baker Web page is typically
accessed by scholars interested in the legal and social
implications of the case and by students of philosophy and
composition who use the case as a discussion topic. While the
stories and e-mail messages themselves are unquestionably
offensive, they are so central to an understanding of the case that
the United States District Court for the Eastern District of
Michigan quoted them extensively in its opinion dismissing the
indictment. See Baker, 890 F. Supp. at 1387-90. The text of that
opinion is reproduced on Mr. Swanson’s Web page. See Exhibit
48. However, since enactment of the CDA, Mr. Swanson has
felt compelled to remove from that page the full text of the
stories, despite his conviction that it is important to the public
interest for those interested in the controversy to understand its
underpinnings. See id. Fear of the strong penalties imposed by
the CDA also has forced him to refuse legitimate requests for the
material by some who access the Baker page because he is
unable to confirm the age of the requesters — a problem
exacerbated by the fact that he is part of a university system
attended by minors.
Kirsti Thomas is a Reference and Technical Services
Librarian at Seattle Pacific University in Seattle, Washington.
Users of the library include undergraduates (including many
STATEMENT OF INTEREST — 14
under the age of 18), children of graduate students, faculty
members and their children, and members of the outside
community, including minors.
Ms. Thomas believes that the CDA has a serious
detrimental effect on how she fulfills her duties as a librarian
serving these varied constituencies. The Internet is a major
reference source within the field of library science, on which Ms.
Thomas relies heavily in providing the library’s patrons with
rapid access to current and sometimes controversial information.
Ms. Thomas has a reasonable fear of prosecution under the CDA
for simply fulfilling those duties. For example, by showing a 17-
year old nursing student online information on AIDS prevention
and safe sex education, using such sources as a Web site, mailing
list, discussion groups, or even access to LEXIS/NEXIS, she could
be transmitting “indecent” or “patently offensive” information to
a minor. Ironically, Ms. Thomas may show identical materials
located in print to the same student without any legal
repercussions at all. She believes this contrast demonstrates that
the CDA is not narrowly tailored to achieve the government's
stated compelling interest of preventing minors from receiving
“indecent” or “patently offensive” information.
Additionally, consistent with her academic concentration
in German culture and civilization, Ms. Thomas maintains a
home page that includes a link to the German weekly news
magazine Der Spiegel (which is carried in print form in most
major libraries in the United States). See Attp://paul.spu.edu/
~kst/art.html (Exhibit 49). The covers of Der Spiegel, which
appear on her home page, frequently show naked breasts, which,
while not offensive to German sensibilities, is not generally
accepted mainstream journalism in this country. She is
concerned that under the CDA she could be prosecuted if a
minor accesses her home page and views or links to Der Spiegel.
Ms. Thomas also believes that the CDA deprives her of her First
Amendment right to post artwork on her home page that some
might find “indecent” or “patently offensive.” See id.
STATEMENT OF INTEREST — 15
Overriding these specific concerns is Ms. Thomas'’s belief
as a librarian and an educator that the Internet is an international
source of information that is unlike any medium known before
and that possesses unlimited educational and social value.
Web Communications is a Web hosting service that
provides a self-service online facility used by its customers to
post Web sites on the Internet. See http:/Awww.webcom.com/
(Exhibit 50). It services more than 1650 Web sites, and that
number grows daily. The driving purpose of Web
Communications is its desire to make available at a grassroots
level the positive social benefits of the free exchange of ideas
and expression among individuals that the Internet makes
possible.
Web Communications is concerned that if one of its
customers places on the Internet a communication that could be
deemed “indecent” or “patently offensive” and accordingly
unlawful under the CDA, then it too could be in danger of
prosecution. The large and growing number of Web
Communications customers posting information on their Web
sites makes monitoring of those sites impossible as a technical
and financial matter. But under the CDA, if it were brought to
the attention of Web Communications that one of its customers
was placing “indecent” or “patently offensive” speech on the
Internet, it would be Web Communications’ responsibility to
remove it. That burden imposed by the CDA is unworkable and
runs counter to’ mission to provide open access to the Internet.
Web Communications believes this mission is protected under
the First Amendment. Web Communications’ president and
amicus contact person is Chris Schefler.
Miryam Ehrlich Williamson is a freelance technical
journalist who has written a medical book concerning a
neurochemical disorder called fibromyalgia. She conducted all
the research for the book on the Internet — the only means
available to her for locating all the information she required.
Over the Internet, she interviewed hundreds of people who have
fibromyalgia to determine their concerns and opinions and to
STATEMENT OF INTEREST — 16
discuss the as-yet unknown cause and cure for the disorder. In
the course of this research, she participated in discussions on the
Internet that included references to bowel movements,
menstruation, urinary tract infections, sexual relations, and
contraception. These discussions included use of specific
terminology and descriptions that were sometimes graphic but
always central to the symptoms of the disorder and the struggle
to live with it. Ms. Williamson believes that some might
consider the discussions “indecent.”
Under the CDA, research of the sort that Ms. Williamson
conducted may now be impossible. The threat of prosecution
posed by the CDA prohibits her from conducting unfettered
follow-up interviews on fibromyalgia and from conducting
research on that or similar medical disorders or diseases that
might implicate “sexual or excretory activities or organs” and
that might include communications considered by some to be
“indecent” because other authors of speech on the Internet that
she would need to access may themselves be chilled by the threat
of prosecution. Ms. Williamson has written an essay posted on
the Internet regarding the restrictions that the CDA has placed on
her work. See http://www.privatel.com/democracy24/essay/
wmson.html/ (Exhibit 51).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.