Amicus Curiae Brief — Reno v. American Civil Liberties Union

Supreme Court brief1997

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Supreme Court. U 5. |

FILED ,

FEB 21 1997

In The

Supreme Court of the Anited States

OcTOBER TERM, 1996

Janet RENO, Attorney General

of the United States, ef al,

Appellants,

AMERICAN Crvit Liperties UNion, ef al,

Appellees.

ON APPEAL From THe Unitep Stares District Court

FOR THE EASTERN District OF PENNSYLVANIA

BRIEF AMICUS CURIAE OF VOLUNTEER LAWYERS

FOR THE ARTS, VARIOUS ARTISTS AND

ART ORGANIZATIONS IN SUPPORT OF APPELLEES

SR NL TS SS

AMY Su.itWARTZMAN Daniel H. WEINER

Volunteer Lawyers for the Arts Counsel of Record

I East 53rd Street Hughes Hubbard & Reed LLP

New York, New York 10022 One Battery Park Plaza

(212) 319-2787 New York, New York 10004

| (212) 837-6000

Te, pt

Me BEST AVAILABLE COPY Mt

Interest of Amici

TABLE OF CONTENTS

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ARTISTIC EXPRESSION IS

ENTITLED TO THE FULL

PROTECTION OF THE FIRST

ITT vilrteistindecninccctnbinecdetercnseoccencsees

UNLIKE ALL PREVIOUS MEDIA,

THE INTERNET HAS THE

POTENTIAL TO ELIMINATE

ECONOMIC AND CULTURAL

BARRIERS TO THE WIDESPREAD

COMMUNICATION AND

UNDERSTANDING OF ARTISTIC

EIEN evbstacadbemndinstntcsenncosessssesonsescescess

THE CDA’S “INDECENCY” AND

“PATENTLY OFFENSIVE”

PROVISIONS ARE

UNCONSTITUTIONALLY

I ctntintitsitidinenenneebesanpdnccrunsacepsaneet

A. Minors Have The Right To Create,

Display And Receive Certain

“Indecent” And “Patently Offensive”

pastioase 5

TABLE OF CONTENTS

(Continued)

B. The Adult Public Has The Right To

Create, Display And Receive

“Indecent” And “Patently Offensive”

C. The CDA Acts As A Virtual Ban On

Adult-To-Adult Communication of

“Indecent” And “Patently Offensive”

D. The CDA’s Qualifying Use of “In

Context” and “Contemporary

Community Standards” Does Not

Save The “Patently Offensive”

Provision From Overbreadth ....................

IV. THE CDA’S “INDECENCY” AND

“PATENTLY OFFENSIVE”

PROVISIONS ARE

UNCONSTITUTIONALLY VAGUE............

V. THE STATUTORY “DEFENSES” OF

THE CDA ARE EFFECTIVELY

UNAVAILABLE TO NON-

COMMERCIAL ENTITIES. .........:ccccccceeeeees

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sovnnts 22

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TABLE OF AUTHORITIES

Page

Cases

Abood v. Detroit Board of Education, 431 U.S

EE SED |

Boos v. Barry, 485 U.S. 312 (1988) os. 16

Carey v. Population Services International, 431

TS ee i eecenennil

Erznoznik v. City of Jacksonville, 422 U.S. 205

cians scssumcnenncensces a.

FCC v. Pacifica Foundation, 438 U.S. 726

ItIiieledlisieliiliiinesenmbssaueinanentccsansccescocececees: 16,19

Grayned v. City of Rockford, 408 U.S. 104 (1972)............22

Hurley v. Irish-American Gay, Lesbian &

Bisexual Group of Boston. US.

SE isis

Hustler Magazine, Inc. v. Falwell, 485 U.S. 46

a OT EEE 16

Joseph Burstyn, Inc. v. Wilson, 343 US. 495

SE 6,7. 17

Kolender v. Lawson, 461 U.S. 352 (1983) 0.00.00... 22

Sable Communications of California, Inc. v.

EE ERE WE? CUED occaccncsccevsccossescosecceccose _ passim

Shea v. Reno, 930 F. Supp. 916 (S.D.N_Y. 1996).....9. 18, 24

Southeastern Promotions, Lid. v. Conrad. 420

Nee ecenasuccscccnccs 6

Spence v. Washington, 418 U.S. 405 (1974) (per

TABLE OF AUTHORITIES

(Continued)

_— Page

Texas v. Johnson, 49] US 397 Ea a 16

Village of Hoffman Estates v. F. lipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982). 22

Ward v. Rock Against Racism, 491 US 78]

er tainiecidiiaisiniaat 6

Winters v. New York, 333 U.S. 507 (1 Se Fe 6

Statutes

sein ce kg SMR Nea: BTN el 4

Fy Sait he 4

OF Digs Ga intithigtientia a ee passim

ee he

Interest of Amici

Amici Robert Altman, Laurie Anderson, Jon Robin Baitz,

Eric Bogosian, Robert Beaser, John Corigliano, David

Del Tredici, Karen Finley, Timothy Greenfield-Sanders,

Emily Hartzell and Nina Sobell a/k/a “Parkbench.” Jenny

Holzer, Tony Kushner, Craig Lucas, Philip Pearlstein, Lou

Reed, Cindy Sherman, Kevin Smith, Ann Sperry and Oliver

Stone are renowned artists whose work represents visual,

musical and literary expression exemplifying many of the

major artistic movements in the United States today.

Examples of the artistic works of some of these amici are

currently available for viewing, reading or listening through

various “sites” on the World Wide Web and the Internet.!

Amicus The New Museum of Contemporary Art is among the

major not-for-profit and educational institutions and

museums in the United States devoted to the collection,

preservation and display of visual art; many of these

institutions maintain “sites” on the Internet through which

artistic images and other communications in their collections

can be viewed, read or heard. Amici Metro Pictures, New

York and Ronald Feldman Fine Arts Inc. are commercial art

galleries engaged in the display and sale of creative artworks.

Amicus Theatre Communications Group is a_ national

organization devoted to American theater arts, with over

17,000 members. Amici Volunteer Lawyers for the Arts,

Albany/Schenectady League of Arts, Inc. California

Lawyers for the Arts, Colorado Lawyers for the Arts,

Connecticut Lawyers for the Arts, Maine Volunteer Lawyers

for the Arts, Maryland Lawyers for the Arts, St. Louis

Volurfteer Lawyers and Accountants for the Arts, Volunteer

|. These defined terms have the meanings used in the opinion below.

American Civil Liberties Union v. Reno, 929 F. Supp. 824 (E.D. Pa.

1996) (“ACLU”).

Lawyers for the Arts, D.C.. and Volunteer Lawyers for the

Arts of Massachusetts, Inc. are not-for-profit organizations

providing legal services to artists and arts organizations with

limited financial resources.

Amici urge the Court to affirm the decision of the three-

judge district court in the Eastern District of Pennsylvania

preliminarily enjoining appellants from — enforcing,

prosecuting, investigating or reviewing any matter premised

upon Sections 223(a(1(B) and 223(aX2) of the

Communications Decency Act of 1996 (the “CDA”), to the

extent such actions are based upon the alleged creation,

display or transmission of materials other than obscenity or

child pornography, and Sections 223(d)(1) and 223(d)(2) of

the CDA. Amici submit this brief to stress the vital

importance of public availability of artistic works, whose

exhibitors are now subject to criminal prosecution under the

CDA’s prohibitions on the creation, display or transmission

to minors via the Internet of “indecent” or “patently

offensive” material.

Statement of the Case

The CDA criminalizes, inter alia, the creation and

display or transmission of “images or other communications”

which may be deemed “indecent” or “patently offensive” for

minors, defined as persons under the age of eighteen. See 47

U.S.C. §§223(a 1B), (a2); 223(d(1), (dy(2).2 The three-

Section 223(a 1B) (“the indecency provision”) provides in part

that any person in interstate or foreign communications who, “by

means of a telecommunications device,” “knowingly... makes,

creates, or solicits’ and “initiates the transmission” of “any

comment, request, suggestion, proposal, image or other

communication which is obscene or indecent, knowing that the

recipient of the communication is under 18 years of age,” shall be

criminally fined or imprisoned. (Emphasis added.)

(Footnote continued on next page)

ee ae

judge district court below, convened pursuant to Section

561(a) of the CDA and 28 U.S.C. §2284. preliminarily

enjoined appellants from enforcing these provisions of the

CDA as unconstitutional on their face. ACLU, 929 F. Supp.

at 883-84.

The Court has jurisdiction over the Government's appeal

pursuant to Section 561{b) of the CDA.

Summery of Argument

1. The Court has long recognized that artistic expression

is as entitled to protection under the First Amendment as

classic political or written “speech.” The communication and

exchange of ideas, expressed and received through a myriad

of visual images, text and aural communications, is not

limited to the spoken or typewritten word. Few speeches on

the evils of war can surpass, for example, the shattering folly

depicted in Picasso’s Guernica, few tracts on human beauty

do not pale next to Michelangelo's statue of the nude David

(Exhibit A-1).

(Footnote continued from previous page)

Section 223(d\(1) (“the patently offensive provision”), makes it a

crime to use an “interactive computer service” to “send” or “display

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

request, suggestion, proposal, image, or other communication that, in

context, depicts or describes, in terms patently offensive as measured

by contemporary community standards, sexual or excretory activities

or organs, regardless of whether the user of such service placed the

call or initiated the communication.” (Emphasis added.)

Sections 223(aX2) and 223(d2) make it a crime for anyone to

“knowingly permit{] any telecommunications facility under [his or

her] control to be used for an[y] activity prohibited” in Sections

223(a 1B) and 223(d)( 1), and impose a punishment of a fine, up to

two years imprisonment, or both for each offense.

2. The Internet is truly “the most participatory form of

mass speech yet developed.” ACLU, 929 F. Supp. at 883.

By enabling for the first time the worldwide, instantaneous

and nearly cost-free transmission of images, sound and text,

the Internet substantially reduces many of the practical

obstacles to widespread access to creative works. DaVinci's

Mona Lisa no longer looks down only upon those privileged

enough to enjoy a Parisian vacation; through the remarkable

‘vehicle of the Internet, she now casts her smile

simultaneously from Addis Ababa to Zanzibar. The Internet

is also the first mass medium in which art need not be static:

many new artistic creations available on the Internet are

evolving products of audience response and participation, a

worldwide give-and-take of unprecedented scope and

creativity.

3. While amici do not quarrel with the CDA to the

extent that it covers hard-core obscenity or child

pornography. which were already proscribed before the

CDA’s adoption’ the CDA’s prohibitions on the creation,

display or transmission of “indecent” and “patently

offensive” images and communications on the Internet

unconstitutionally burden the creation and dissemination of

art. By proscribing an amorphous array of constitutionally

protected speech in a manner which is not narrowly tailored

to advance the Government's compelling interest in

protecting minors, the CDA sweeps so broadly and vaguely

as to act as a virtual ban on a substantial amount of artistic

expression, violating the constitutional rights of both adults

and minors to receive and transmit such speech.

4. The “safe harbor” provision of Section 223(e) of the

CDA makes available to content providers on the Internet the

3. 18U.S.C. §§1464-65 (criminalizing obscene material); id §§2251-

52 (criminalizing child pornography).

i ly A ND A a A ON Le a i

— a

potential defenses of debit and credit card verification, adult

verification by password or adult personal identification

number, or labeling-and-blocking of “indecent” or “patently

offensive” material. While amici do not oppose an effective,

narrowly-tailored method of restricting access by minors to

limited types of these materials, the methodology described

in Section 223(e) is presently “effectively unavailable for

non-commercial, not-for-profit entities,” ACLU, 929 F. Supp.

at 849, and thus acts effectively as a ban on the creation and

display or transmission of artistic works protected by the

First Amendment.

Argument

I. ARTISTIC EXPRESSION IS ENTITLED TO THE

FULL PROTECTION OF THE FIRST

AMENDMENT

The artistic impulse is as old and widespread as

humankind itself. From the Paleolithic cave paintings of

southwest France, to the ancient ritual songs of Africa, to

classical Greek drama and sculpture, to the “hip-hop” music

of today’s inner-city youth, human beings have always

sought to express themselves through visual, aural and

textual works of the imagination. Through the creation and

display of their work, artists endeavor to communicate with

others and affect the world around them. Some art is

connected to religion or magic: the cave paintings of our

ancestors, the depictions of Madonna and Child produced in

the Renaissance (Exhibit A-2), and the Bharata Natyam

dance of India are but a few examples. Sexual symbols, in

the form of phallic sculptures (Exhibit A-3) and female

figures with overemphasized breasts and buttocks (Exhibit A-

4), abound in art as symbols of the fertility of the land and its

people. The human body has been a departure point for

dance and visual art from ancient times to the present day, as

exemplified by the 12th century depiction of the Goddess

Sarasvati (Exhibit A-5), a photograph by Edward Weston

(Exhibit A-6), and a sculpture by Louise Bourgeois

(Exhibit A-7).

Artists are no strangers to controversy or censorship.

They often deliberately provoke their audience. goading us to

question ourselves and the world around us. Aristophanes

did so in his Lysistrata (Exhibit B-1), a bawdy plea for peace,

and Cindy Sherman does so today in her deliberately

disturbing images of deconstructed doll bodies with sexual

organs (Exhibit A-8). These provocations are by no means

unthinking: rather, they are intended to prod us to greater

examination and analysis. The glory of both our Constitution

and this Court's jurisprudence is the recognition of the

importance of such artistic expression.

There is no question that the First Amendment shields

more than classic political speech. Thus, for example, the

Court has extended First Amendment protection to

entertainment. Winters v. New York, 333 U.S. 507. 510

(1948); film, Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495.

501-02 (1952); theater, Southeastern Promotions, Lid vy.

Conrad, 420 U.S. 546, 557-58 (1975): music. without regard

to words, Ward v. Rock Against Racism, 491 U.S. 781. 790

(1989); and parades, with or without banners or written

messages, Hurley v. Irish-American Gay, Lesbian & Bisexual

Group of Boston, __ U.S. __, 115 S.Ct. 2338, 2345

(1995).

As the Court recently acknowledged, “the Constitution

looks beyond written or spoken words as mediums of

expression.” Hurley, 115 S.Ct. at 2345. If the First

Amendment reached only “expressions conveying a

‘particularized message,”” its protection “would never reach

the unquestionably shielded painting of Jackson Pollock.

music of Arnold Schénberg, or Jabberwocky verse of Lewis

Carroll.” Jd. quoting Spence v. Washington, 418 U.S. 405,

411 (1974) (per curiam).

Thus, the First Amendment's fundamental purpose is to

protect peaceful expression in all of its myriad

manifestations. See Ahbood v. Detroit Board of Education,

431 U.S. 209, 231 (1977) (“It is no doubt true that a central

purpose of the First Amendment ‘was to protect the free

discussion of governmental affairs." But our cases have

never suggested that expression about philosophical, social.

artistic, economic, literary or ethical matters... is not

entitled to full First Amendment protection”) (citations and

footnote omitted); see also Joseph Burstyn, Inc. v. Wilson,

343 U.S. at 501 (1952) (motion pictures are fully protected

expression that “may affect public attitudes and behavior in a

variety of ways, ranging from direct espousal of a political or

social doctrine to the subtle shaping of thought which

characterizes all artistic expression”).°

4. “Visual art is as wide ranging in its depiction of ideas, concepts and

emotions as any book, treatise, pamphlet or other writing, and is

similarly entitled to full First Amendment protection. Indeed,

written language is far more constricting because of its many

variants — English, Japanese Arabic, Hebrew, Wolof. Guarani. etc.

— among and within each group and because some within each

language group are illiterate and cannot comprehend their own

written language. The ideas and concepts embodied in visual art

have the power to transcend these language limitations and reach

beyond a particular language group to both the educated and the

illiterate. As the Supreme Court has reminded us. visual images are

‘a primitive but effective way of communicating ideas... a short

cut from mind to mind’.” Bery v. City of New York, 97 F.3d 689,

695 (2d Cir. 1996) (footnotes omitted), quoting West Virginia State

Board of Education v. Barnette, 319 U.S. 624, 632 (1943).

5. Even when dealing with obscenity, the Court has recognized that the

First Amendment prohibits government regulation as “obscene”

(Footnote continued on next page)

Modern-day visual, textual and aural creative expression

— from the plays of Tony Kushner, to the photographs of

Robert Mapplethorpe and Cindy Sherman (Exhibit A-8), to

the songs of Alanis Morissette, to the paintings of Robert

Colescott (Exhibit A-9), to the performance art of Karen

Finley, to the films of Robert Altman and Oliver Stone, and

on and on — is under the Constitution entitled to the full

protection of the First Amendment. The marketplace of ideas

is not limited in its forms of expression.

Il. UNLIKE ALL PREVIOUS MEDIA, THE

INTERNET HAS THE POTENTIAL TO

ELIMINATE ECONOMIC AND CULTURAL

BARRIERS TO THE WIDESPREAD

COMMUNICATION AND UNDERSTANDING OF

ARTISTIC EXPRESSION

The Internet has already proved itself truly revolutionary

in its capacity to reduce economic and cultural barriers to the

widespread communication and understanding of artistic

expression. Unlike other forms of media, what has been

labeled the world’s “new town square”? allows not only the

passive receipt of information, but also immediate, one-to-

one, one-to-many and many-to-one responses and ongoing

dialogue via on-line “chat rooms” regarding artistic images,

sounds and text. See ACLU, 929 F. Supp. at 881 (“It is no

exaggeration to conclude that the Internet has achieved, and

continues to achieve, the most participatory marketplace of

(Footnote continued from previous page)

those works which have “serious literary, artistic, political, or

scientific value.” Miller v. California, 413 U.S. 15, 26 (1973).

6. President William J. Clinton, State of the Union Address.

February 4, 1997.

mass speech that this country — and indeed the world — has

yet seen”); Shea v. Reno, 930 F. Supp. 916, 922 (S.D.N_Y.

1996) (“[E]merging media technologies quite simply offer an

unprecedented number of individual citizens an opportunity

to speak and to be heard — at very little cost — by audiences

around the world. In that sense, we are encountering a

communications medium unlike any we have ever known’).

The ever-expanding use of the Internet has led to the

daily display and transmission of thousands of images and

communications, created and received by an ever-more-

diverse population of Internet users. The consequences of

providing significant and relatively equal access to all who

wish to speak on the Internet has been ani astounding

explosion in both the diversity of artistic expression and the

public’s access to those creative labors.’ For the first time.

7. Recent articles hailing artistic initiatives on the Internet include the

following: Robin Williams, Robin's World: Art and the Internet in

Santa Fe, The Santa Fe New Mexican, February 2, 1997; First Night

International Premieres Virtual First Night ‘97, An Internet

Celebration, PR Newswire, Boston, Massachusetts, December 16,

1996: Robert Simonson, Arts Organizations Continue to Embrace

Internet, Information Access Company, November 15, 1996; Mitch

Wagner, The Internet Gallery: Digital Commerce to Link Fine-Art

Buyers, Sellers on the Web, Computerworld, November |1, 1996:

Annette Cardwell, Cyberspace: NEA Plugs In, Linking Artists on the

Internet, Boston Herald, October 25, 1996; Internet Work of Art.

Priced at Zero Francs, Sells for 58,000, Agence France Presse, Paris,

October 16, 1996; The Fine Arts Museum of San Francisco Hosts the

World's Largest Art Opening, Business Wire, San Francisco,

California, September 30, 1996; Timothy C. Barmann, CYBERTALK

— Art World Takes to the Internet, Providence Journal Bulletin,

September |, 1996.

Searches with the “Yahoo” Internet search engine alone

(http.//www_yahoo.com/arts/) locate thousands of sites referring to

the arts. For example, as of February 20, 1997, 651 sites are listed

when the phrase “art history” is searched, 740 when “artists” is

(Footnote continued on next page)

individual, relatively “unknown” artists and small, not-for-

profit organizations — previously unable to afford the means

to reach a widespread audience for their endeavors — can

now instantly gain access to a worldwide public, simply by

establishing a “home page” on the World Wide Web and

inviting “visitors” to that site to explore further, or by

establishing “links” from other Internet Sites to their own

creative works. Through the Internet's unique ability to

widely disseminate these works for both public appreciation

and potertial purchase. aspiring playwrights, novelists,

filmmakers, poets, painters, sculptors, musicians and

performance artists can sustain and Support their artistic

endeavors.

Museums, libraries and other educational institutions

with collections of vast artistic and social value can finally,

through the Internet, display their full collections to an

enormous array of people, far more than could previously

afford to travel to those institutions themselves. The

(Footnote continued from previous page)

searched, 3,424 for “visual arts,” 1.887 for “design arts” and 2.04)

for “performance arts.”

8 The National Gallery of An in Washington, D.C.

(http://www. nga gov) currently has over 10,000 color images of its

works available on the Internet. including Monet's The Bridge at

Art in New York City (Attp://www.moma org), featuring Pablo

Picasso's Les Demoiselles D'Avignon and Piet Mondrian’s

Broadway Boogie Woogie: the Fine Arts Museum of San Francisco.

with a database of over 60 °° images (http://www thinker org), the

Louvre (http://mistral cult, ~Sr/louvre/y, the New York Public

Library of the Performing Arts

Music (http://www. bam. org’), the Juilliard School

(Footnote continued on next page)

convenience and economy of “virtual” visits to an Internet

site maintained by an artist. author, musician. filmmaker,

gallery, museum or library means that those who were once

100 poor, too busy, too far away or too intimidated to view.

read or listen to artistic expression can now freely receive

those works of art.? Greater discussion. contemplation and

understanding of those works — running the gamut from

awestruck appreciation to passionate dislike — is the

inevitable and desired result.

In addition, the urge to create — now driven by the

knowledge that one’s creation may see the daylight of public

discussion — continues to swell the tide of diversity in

creative artistic expression on the Internet. Much in the way

the new medium of video created video artists, the Internet is

creating Internet artists out of those who have used different

media in the past, as well as those who are emerging for the

first time amid the flowering of this new form of expression.

“Parkbench,” for example, an artistic collaboration between

Emily Hartzell and Nina Sobell, links the artists”

performance about the creative process, conducted in their

studio, to the World Wide Web via video link. Jenny Holzer,

(Footnote continued from previous page)

(Attp://www juilliard edu/); Writers Guild of America

(Attp.//www. wga.org/). the Whitechapel Gallery

(Attp://www dircon.co. uk/artonliney, the Smithsonian Institution

(http.//www.si.edu), the Library of Congress (http://www. loc gov),

and the American Film Institute

(http://www afionline org/home himl).

9. Even a trip to a particular museum does not guarantee an opportunity

to review that institution's full collections, since many museums are

as a practical matter unable to publicly showcase more than a small

portion of their collections at any one time. No such practical

limitation on the display or transmission of artistic images, text or

sounds exists with the Internet.

best known for her printed, incised and electronic |light-

emitting diode text work, now creates on her own Web page,

allowing visitors to wander through her creations in any order

they choose and to add their personal variations. In her

exhibition, “Fear of Offending” (due to open at Los Angeles’

Museum of Contemporary Art on March 16, 1997),

performance artist Karen Finley asks visitors to the

Museum's physical and “virtual” sites to respond to the

question, “What do you find offensive?” The responses will

be displayed in “real time” on a fountain in the actual gallery

and on-line, and will be archived at the Museum

(http://www. moca. org).

Literary magazines and experiments are also flourishing

on the Internet, bringing a new look and sound to the written

craft. The Internet’s format, with its integration of color,

text, “hypertext,” graphics, and sound. has Created a new

literature. Writers, experimenting with the possibilities, are

creating poems and stories which fuse all these elements. If a

poem speaks about “mother,” a click on that word may bring

the reader to a discussion of the poet’s mother, a visual

representation of her, or even an “audio streaming™!! of her

speaking to the poet. Some writers are experimenting with

visual representation of their poetry. Others speak the work

aloud as the reader visually scans it, creating a spoken word

experience.

10. Hypertext is coded words and images that appears in bright colors on

the computer screen. When “clicked on” by an Internet user,

hypertext brings the user to other Internet locations which discuss the

hypertext in greater depth.

11. Audio streaming is the technology whereby aural communications

can be heard via the Internet. Poetry or a music concert in real-time

(1, occurring live) can thus be heard with the use of a computer

sound-card.

Performances are taking place on the Internet. The

Australian artist “stelare” performs a type of piece he calls

“URL body.” in which viewers input data into their

computers which emerges, via sensors attached to the artist's

body, as sensory input stimulating him to move. The

performance is literally constructed by the viewers.

Musicians also have Web pages listing their lyrics and often

inviting interaction with site visitors. Concerts are now

“Webcast” live; unhampered by the limitations upon radio

waves, which can travel only limited distances, the Internet

allows the listener unlimited possibilities for musical

pleasure. Filmmakers, via “video streaming,” can send their

films out to home viewers. Technology is emerging which

will soon change what is a somewhat flickering image to a

fully-resolved one, enabling filmmakers to transmit. and

people in their homes to download, feature-length films.

Art galleries, too, are taking advantage of Internet

initiatives. The Union Galleries in Madison, Wisconsin this

year held its Ninth Annual Computer Art Invitational. for

which artists were required to create new works specifically

for display in the gallery (htp//www. visual arts ewu edu).

The University of Southern California is creating a “virtual

museum,” where visitors employ virtual reality goggles to

simulate walking around a sculpture by Auguste Rodin

(Attp.//digimuse usc edu/museum him).

In sum, the Internet's ability to interconnect media is

providing a new arena for collaborative work and viewer

interaction on a truly global scale.

Ill. THE CDA’S “INDECENCY” AND “PATENTLY

OFFENSIVE” PROVISIONS ARE

UNCONSTITUTIONALLY OVERBROAD

Because the concepts of “indecency” and “patently

offensive” vary from community to community (with mere

nudity being declared offensive in some communities!?), the

CDA sweeps into its path some of the greatest works in art

history. The statutory language of the CDA’s “indecency”

and “patently offensive” provisions is unconstitutionally

overbroad, since it includes within its ambit (a) artistic

creations that cannot seriously be prohibited from viewing by

minors; and (b) materials which the adult public has the

constitutional right to recéive. In criminalizing speech well

beyond the traditionally proscribed activities of hard-core

obscenity and child pornography, the CDA throws the

bathwater out with the baby.

A. Minors Have The Right To Create, Display

And Receive Certain “Indecent” And

“Patently Offensive” Speech

The CDA impermissibly restricts the right of minors to

create, display and receive certain speech which falls under

the statute's definition of “indecent” and “patently offensive”

speech. As the Court recognized in Erznoznik v. City of

Jacksonville, 422 U.S. 205, 212-13 (1975), “[mJinors are

entitled to a significant measure of First Amendment

protection, and only in relatively narrow and well-defined

12. People For The American Way publishes an annual book entitled.

“Artistic Freedom Under Attack,” detailing artwork which has been

subject to attack. We credit them for the following two examples of

what was found “offensive” in America in 1996: in Berthoud.

Colorado, eight pastel figure drawings by David Mesple of

realistically-rendered female nudes without genitalia were removed

from a community center art display because their depiction was

thought inappropriate for children: artist Stephen Halko’s “Standing

Nude Female,” an award-winning charcoal sketch depicting a naked

female figure from the neck down, with full frontal nudity, was

removed from a student art exhibit at William Penn High School in

New Castle, Delaware.

circumstances may government bar public dissemination of

protected materials to them.” See also ACLU, 929 F. Supp.

at 853 (noting absence of showing that Government has a

“compelling interest” in preventing a seventeen-year-old

minor from gaining access via the Internet to images of, inter

alia, sculptures in India of copulating couples or Francesco

Clemente’s painting. Labirinth).

Some of the greatest treasures of art history are currently

available on-line via the Internet, and a substantial number of

those images depict nudity to some degree. The broad

language of the CDA encompasses many of these works: it

is ironic that a seventeen-year-old college freshman, having

just seen during an introductory art history lecture the sexual

organs of the Venus of Willendorf (Exhibit A-4) or the

bestiality of Picasso's Minotaur (Exhibit A-12) and the

violence of his Les Demoiselles d'Avignon (Exhibit A-13),

and having during her freshman English seminar discussed

Tony Kushner’s Pulitzer Prize-winning Angels in America, a

contemporary play about love, politics, and the scourge of

AIDS (Exhibit B-2), could not then return to her dormitory

room and view those images and-+ext on the Internet. Even

the descriptions of nascent sexuality contained in Anne

Frank's Diary of a Young Girl (Exhibit B-4), a classic of

Holocaust literature written by a minor, could subject to

prosecution under the CDA one who provides the text “on-

line” to college freshmen.

Similarly, implementation of the CDA would mean that

the transmission of the sexually explicit song lyrics of

popular modern-day musicians such as Alanis Morissette

(Exhibit B-5), Nine Inch Nails, Janet Jackson (Exhibit B-3),

Coolio and Velvet Underground — presently widely

available to teenage minors in music stores, libraries and on

radio broadcasts —- would constitute criminal conduct when

made available for listening on the Internet.

B. The Adult Public Has The Right To Create,

Display And Receive “Indecent” And “Patently

Offensive” Speech

However “indecent” or “patently offensive” the speech at

issue, the Court has recognized that it is absolutely protected

as concerns the adult public. Sable Communications of

California, Inc. v. FCC, 492 U.S. 115. 126 (1989) (“Sexual

expression which is indecent but not obscene is protected by

the First Amendment; and the federal parties do not submit

that the sale of such materials to adults could be criminalized

solely because they are indecent”).

Thus, the Court has repeatedly held that the desire to

protect adults from offensive messages or speech is

insufficient to justify content-based regulation of such

speech. “[T]he fact that society may find speech offensive is

not a sufficient reason for suppressing it. Indeed, if it is the

speaker's opinion that gives offense. that consequence is a

reason for according it constitutional protection.” FCC y.

Pacifica Foundation, 438 U.S. 726. 745 (1978); see Hustler

Magazine, Inc. v. Falwell, 485 US. 46, 55 (1988) (“An

‘Outrageousness’ standard thus runs afoul of our long-

standing refusal to allow damages to be awarded because the

speech in question may have an adverse emotional impact on

the audience”); Boos vy. Barry, 485 U.S. 312, 322 (1988)

(same re “dignity” standard); Carey v. Population Services

International, 431 U.S. 678, 701 ( 1977) (“[w]here obscenity

is not involved, we have consistently held that the fact that

protected speech may be offensive to some does not justify

its suppression”); Texas v. Johnson, 491 US. 397, 414

(1989) (“if there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable”). '3

That is not to say that such constitutionally protected

speech may not be regulated. Sable Communications.

492 U.S. at 126 (“[t}he Government may... regulate the

content of constitutionally protected speech in order to

promote a compelling interest if it chooses the least

restrictive means to further the articulated interest”).

However, as the Court has recognized, “{iJt is not enough to

show that the Government's ends are compelling: the means

must be carefully tailored to achieve those ends.” /d. Here.

rather than being carefully tailored to address an appropriate

compelling interest, the CDA effectively acts as a ban on all

adult-to-adult communication of artistic creations which may

fall under the statute's rubric of “indecent” or “patently

offensive” material.

13. The Court long ago rejected the contention that speech may be

regulated or suppressed because it “attractively portrays a

relationship which is contrary to the moral standards, the religious

precepts, and the legal code of its citizenry.” Kingsley International

Pictures Corp. v. Regents, 360 U.S. 684, 688 (1959) (overturning a

licensing provision that refused a permit to the film Lady Chatterly's

Lover on the ground that its depiction of an adulterous relationship

was “immoral”), Joseph Burstyn, Inc., 343 U.S. at 505 (“{t}he state

has no legitimate interest in protecting any or all religions from

views distasteful to them ... It is not the business of government in

our nation to suppress real or imagined attacks upon a particular

religious doctrine, whether they appear in publications, speeches, or

motion pictures”).

C. The CDA Acts As A Virtual Ban On Adult-To-

Adult Communication of “Indecent” And

“Patently Offensive” Speech

Because it is the very nature of the Internet that any

display on a Web site is necessarily available to those under

18 years old, the CDA acts as a virtual ban on adult-to-adult

communication of “indecent” and “patently offensive”

speech. In Sable Communications, the Court struck down

under the First Amendment a statutory ban on indecent

“dial-a-porn™ commercial telephone communications,

holding that the statute's “denial of adult access to telephone

messages which are indecent but not obscene far exceeds that

which is necessary to limit the access of minors to such

messages. 492 U.S. at 131. While acknowledging the

“compelling interest in protecting the physical and

psychological well-being of minors,” 492 U.S. at 126, the

Court in Sable recognized that the challenged regulation

would have the “invalid effect of limiting the content of adult

telephone conversations to that which is suitable for children

to hear.” /d. at 131.

The commercial “dial-a-porn” services held protectible in

Sable Communications had no claim to serious artistic value.

The proscriptions of the CDA, however, reach out to

criminalize the display on the Internet of such acknowledged

works of art as Philip Pearlstein’s Punch On a Ladder, with

its rendition of two female nudes (Exhibit A-10), Rodin’s

The Kiss, depicting a sexual embrace (Exhibit A-11),

Aristophanes’ Lysistrata (Exhibit B-1), or Pablo Neruda’s

The Widower's Tango, with its poetic description of a lover

urinating (Exhibit B-6). The CDA acts as a virtual ban on the

communication of such text and images, because no content

provider on the Internet will reasonably risk criminal

prosecution for text or images which may be found

“indecent” or “patently offensive” somewhere in the nation.

See Shea v. Reno, 930 F. Supp. 916, 923 (S.D.N.Y. 1996)

(three-judge panel concluded that plaintiff challenging the

“patently offensive” provision of the CDA “has demonstrated

a likelihood of success on his overbreadth claim, that

§ 223(d) would serve as a ban on constitutionally protected

indecent communications between adults”).

By effectively banning indecent or patently offensive but

not obscene adult-to-adult communications on the Internet.

the CDA trammels upon the constitutional rights of the adult

public to create, display and transmit “indecent” or “patently

offensive” speech. Through the display of such images,

sound and text, the posting of one-to-many communications,

dialogue in on-line “chat rooms,” and other forms of

participatory speech on the Internet, adults have the potential

to reach that portion of the worldwide adult public which

may choose to see, read, or listen to these messages. Like the

private telephone communications at issue in Sable'*, the

Internet is a medium in which participants affirmatively elect

14. “The private commercial telephone communications at issue here are

substantially different from the public radio broadcast at issue in

[FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (concluding that

special treatment of indecent radio broadcast was justified)). In

contrast to public displays, unsolicited mailings and other means of

expression which the recipient has no meaningful opportunity to

avoid, the dial-it medium requires the listener to take affirmative

steps to receive the communication. There is no ‘captive audience’

problem here; callers will generally not be unwilling listeners. The

context of dial-in services, where a caller seeks and is willing to pay

for the communication, is manifestly different from a situation in

which a listener does not want the received message. Placing a

telephone call is not the same as turning on a radio and being taken

by surprise by an indecent message. Unlike an unexpected outburst

on a radio broadcast, the message received by one who places a call

to a dial-a-porn service is not so invasive or surprising that it

prevents an unwilling listener from avoiding exposure to it.” Sable

Communications, 492 U.S. at 127-28.

to participate by “dialing in” and “clicking on™ specific

Internet sites. !*

D. The CDA’s Qualifying Use of “In Context” and

“Contemporary Community Standards” Does

Not Save The “Patently Offensive” Provision

From Overbreadth

The CDA’s use of the term, “in context,” to qualify those

proscribed images and communications which are “patently

offensive.” offers no guidance to the potential creation,

display or transmission of artwork. It is not at all clear what

“context” is being referred to in Section 223(d): the context

of a particular image or communication itself. the context of

a larger work containing that image or communication, or the

context of the Internet medium itself.'6 The phrase, “in

15. The Internet mandates an active search for material by its users

through the use of “search engines” which require the user either to

enter specific words or pose specific inquiries. As the court below

found, “[c]ommunications over the Internet do not ‘invade’ an

individual's home or appear on one’s computer screen unbidden.

Users seldom encounter content ‘by accident’. ... Although content

on the Internet is just a few clicks of a mouse away from the user. the

receipt of information in the Internet requires a series of affirmative

steps more deliberate and directed than merely turning a dial.”

ACLU, 929 F. Supp. at 844-45; see id at 852 (“[I}t is highly unlikely

that a very young child will be randomly ‘surfing’ the Web and

come across ‘indecent’ or ‘patently offensive’ material”) (Sloviter,

J.).

16. As the court below observed, Internet technology undercuts the

argument that the “in context” element of §§223(a) and 223(d) will

always insulate individuals who present graphic sexual content (e ¢.,

AIDS counseling regarding condom use) embedded in a larger work,

since “the use of links effectively excerpts that document by

eliminating content unrelated to the link.” ACLU, 929 F. Supp. at

871 n.11 (Dalzell, J.).

context.” is thus both overbroad and unconstitutionally

vague. (See infra at Part IV).

Nor can one who wishes to create, display or transmit

artwork find comfort in the CDA’s qualification of the term

“patently offensive.” as “measured by contemporary

community standards.” It is a commonplace that the

contemporary community standards in Los Angeles and New

York City are far different than those community standards

which prevail in Topeka or Montgomery.

Criminal prosecutions for material alleged to be “patently

offensive” in some communities are all too fresh in the recent

memory of the artistic community. In 1990, a Broward

County, Florida judge banned the sale of the album entitled

“Nasty As They Wanna Be” by the rap music artists, 2 Live

Crew, because he found it offensive and a violation of his

community's standards of decency. Also in 1990, a Chicago

photographer had his apartment raided by the FBI and local

police, who seized his prints, negatives and equipment on the

ground that his photographs of families and adolescent girls

in the nude, which had been widely exhibited in museums

and galleries, constituted child pornography. In Fall 1995,

the police arrested the owner of a Cincinnati film rental store

for “pandering obscenity” because his store rented a video by

acclaimed Italian filmmaker Pier Pasolini. In the same city,

the director of the Contemporary Art Center, Dennis Barrie,

was charged in 1990 with obscenity for displaying the

photographic works of Robert Mapplethorpe. While Mr.

Barrie was ultimately acquitted, his fear of prosecution was

all too well-founded.

The Internet has for the first time in history made the

global local. creating a worldwide community of “Netizens”

(as they refer to themselves), without geographic borders and

with diverse and often divergent cultural values. One who

places an artistic image or communication on the Internet can

have no way of knowing what zealous prosecutor will seek to

apply his or her community's standards to that work: rather

than risk offending a very few, the artist, gallery. museum or

literary magazine facing the challenged criminal provisions

of the CDA must forsake the opportunity to communicate

with the very many.

IV. THE CDA’S “INDECENCY” AND “PATENTLY

OFFENSIVE” PROVISIONS ARE

UNCONSTITUTIONALLY VAGUE

The CDA’s prohibitions on “indecent” and “patently

offensive” images and other communications are also

unconstitutionally vague, since those terms are not clearly

defined by the statute. See Kolender v. Lawson, 461 U:S.

352. 357 (1983); Village of Hoffman Estates vy. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 499 (1982) (“[P]Jerhaps

the most important factor affecting the clarity that the

Constitution demands of a law is whether it threatens to

inhibit the exercise of constitutionally protected rights. If, for

example, the law interferes with the right of free speech .. . .

a more stringent vagueness test should apply.) (citations

omitted); Grayned v. City of Rockford, 408 U.S. 104,

108-109 (1972).

Even if one were to assume that the word, “indecent”, as

used in the CDA is synonymous with the CDA’s use of the

phrase, the depiction or description of sexual or excretory

activities or organs in a manner “patently offensive as

measured by contemporary community standards,”!’ those

terms do not have a sufficiently clear meaning when applied

to the Internet. The issue of what “community” will apply its

17. This conclusion, urged by appellants, is not supported by a facial

reading of the statute. ACLU, 929 F. Supp at 86! (Buckwalter, J.);