Amicus Curiae Brief — Reno v. American Civil Liberties Union

Supreme Court of the United

October Term 1996

¢

JANET RENO, ATTORNEY GENERAL OF THE

UNITED STATES, ET AL.,

Appellants,

AMERICAN CIVIL LIBERTIES UNION, ET AL.,

Appellees.

¢

On Appeal From The United States District Court

For The Eastern District Of Pennsylvania

°

BRIEF OF APOLLOMEDIA CORPORATION AND BAY

AREA LAWYERS FOR INDIVIDUAL FREEDOM, AS

AMICI CURIAE, IN SUPPORT OF AFFIRMANCE

€

WituiamM BeNnNeTT TURNER

Rocers, JosepH, O’ DONNELL

& QuINN

311 California Street, 10th Floor

San Francisco, California 94104

Telephone: (415) 956-2828

Facsimile: (415) 956-6457

Attorneys for Amici Curiae

I.

II.

Ill.

IV.

i

TABLE OF CONTENTS

THE FEDERAL GOVERNMENT'S POWER TO

REGULATE INTERSTATE COMMERCE DOES

NOT CONFER ON IT A “COMPELLING”

INTEREST IN REGULATING “INDECENT”

SPEECH BY ORDINARY CITIZENS USING

eee i ee

BECAUSE THE CDA EXEMPTS INTRASTATE

COMMUNICATIONS AND IS NOT PRAC-

TICALLY ENFORCEABLE AGAINST COM-

MUNICATIONS ORIGINATING ABROAD,

THE GOVERNMENT’S ASSERTED INTEREST

IS NOT IN FACT SERVED BY ITS SPEECH

ESS Pi am

SECTION 223(a)(1)(B)(ii)’s FAILURE TO

DEFINE THE “INDECENT” SPEECH THAT

IT MAKES CRIMINAL RENDERS IT

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

THE COURT SHOULD REJECT ANY

ATTEMPT TO BORROW ONE-THIRD OF

THE MILLER V. CALIFORNIA TEST FOR THE

PURPOSE OF CRIMINALIZING NON-

SE I bb nbc dSbs ccc oscbescceces

A. Uncoupling “patently offensive” from the

Miller obscenity test makes the law

impermissibly overbroad, subjective and

vague for criminal purposes............

12

15

19

ii

TABLE OF CONTENTS - Continued

Page

B. Usi hic “community standards”

in a ae hic medium means that

speech offensive in any community is

banned from all communities............. 25

CORCLISBION .... cccccccceccénceeseneeeneeeeenneel 30

iii

TABLE OF AUTHORITIES

Page

Feperat Cases

44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495

EEE OE EET EEE ES PTTTT TTT TSTTT TTT 15

ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996)..... passim

Alexander v. United States, 509 U.S. 544 (1993)....... 20

ApolloMedia Corporation v. Reno, No. C-97-0346........ 1

Blanchard v. Bergeron, 489 U.S. 87 (1989)............. 18

Board of Airport Commissioners v. Jews for Jesus, 482

tt iececeekeeensecencesesoccocecccccce 20

Bolger v. Young's Drug Products Corp., 463 U.S. 60

EERE PESTS TE PPC OTOTTUTT TTT TT TT Ee 6, 22

Bowsher v. Merck & Co., 460 U.S. 824 (1983) ......... 17

_ of Renton v. Playtime Theatres, Inc., 475 U.S. 41

PPE RRASEMESESS DEES OK Gseececccecccccccccece 24, 25

Cohen v. California, 403 U.S. 15 (1971) ...........665, 21

Denver Area Education Telecommunications Consor-

tium v. FCC, 116 S. Ct. 2374 (1996)........ 4, 7, 23, 24

Edenfield v. Fane, 113 S. Ct. 1792 (1993)...........45. 15

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

ELS SORES PT TTT TTTTTTLT LT TTT 8, 16, 17, 18, 23

First National Bank of Boston v. Bellotti, 435 U.S. 765

EEE EEE EEE PTT TTT TT TT TTT T 5, 14

Florida Star v. B.J.F., 491 U.S. 524 (1989)............. 13

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) ..4, 23

Ginsberg v. New York, 390 U.S. 629 (1968).......... 9, 10

Gozlon-Peretz v. United States, 498 U.S. 395 (1991) .... 17

iv

TABLE OF AUTHORITIES —- Continued .

age

Grayned v. City of Rockford, 408 U.S. 104 (1972)...19, 29

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)... .21, 22

Jacobellis v. Ohio, 378 U.S. 184 (1964)... 6... c ene 19

Kolender v. Lawson, 461 U.S. 352 (1983)........... 19, 20

Lamont v. Postmaster General, 381 U.S. 301 (1965) ..... 6

Miller v. California, 413 U.S. 15 (1973) ........... passim

National Broadcasting Co. v. United States, 319 U.S.

BOD (BDEBD . wc cccccccccccccccccccccsccccccsccvccoces 6

Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) 20, 23

Pope v. Illinois, 481 U.S. 497 (1987)... .. 6... ceeees 18, 20

Red Lion v. FCC, 395 U.S. 367 (1969) ..... 0.6... eens 7,8

Roth v. United States, 354 U.S. 476 (1957)....... 6, 7, 19

Russello v. United States, 464 U.S. 16 (1983).......... 17

Sable Communications, Inc. v. FCC, 492 U.S. 115

CBOE) « cccccccocceccccvececceseceesecsde 7, 16, 26, 27

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

ce ccccccccsccccssGsbacbdbecctoeedebbes ed 14, 21, 23, 25

Smith v. Daily Mail Publishing Co., 443 US. 97

CIGTDD ow cccccvcccccccccccccccccecccccescescccccess 13

Smith v. United States, 431 U.S. 291 (1977)........ 16, 20

Speiser v. Randall, 357 U.S. 513 (1958) ............005. 5

Sprint Corp. v. Evans, 846 F. Supp. 1497 (M.D. Ala.

BIDE. o cccccccscccccccccccescescctccecqoserectooes 12

Turner Broadcasting System v. FCC, 114 S. Ct. 2445

GRBDED oc ccvcccccccescccccccccnccccccccecveccens 11, 15

v

TABLE OF AUTHORITIES - Continued

Page

United States v. i 679 F.2d 826 (11th Cir.

1982), cert. denied, 460 U.S. 1047 (1983)............ 25

United States v. Lopez, 115 S. Ct. 1624 (1995).......... 7

United States v. Nordic Village, 503 U.S. 30 (1992) .... 17

United States v. Smith, 11 Fed. 663 (C.C.Ky. 1882) .... 16

United States v. Thomas, 74 F.3d 701 (6th Cir.), cert.

Gonted, 117 GS. Ct. 746 (19BG). 2. cccccccces: 25, 27, 29

Winters v. New York, 333 U.S. 507 (1948)............. 19

Wisconsin Public Intervenor v. Mortier, 501 U.S. 597

Pa ahens Gas chnetdcdcetbsnccbhedsccsccccesce 18

Young v. American Mini Theatres, Inc., 427 U.S. 50

Spe sanbbbcotevnthechabadeetansocodbesscévese 24, 25

STATUTES

EE a ae a 16

SP ee Oe Oe PD Cn cccdccccctécocvcecctccses 12

Communications Decency Act, 47 U.S.C. § 223 .. passim

MISCELLANEOUS

American Heritage Dictionary of the English Lan-

GURGR, GED GRGE GE. BGR os cccccccccsecccccccccccce 16

Conference Report, 1996 U.S. Code Congressional

& Administrative News, at 201................... 16

133 Cong. Rec. $14203 (daily ed. Oct. 14, 1987) ..... 22

Note, Why Learned Hand Would Never Consult Leg-

islative History Today, 105 Harv. L. Rev. 1

Geta ben ensnceceubenccacccesecéscnceceececessces 18

————— —

1

INTEREST OF THE AMICI

Amicus ApolloMedia Corporation is a multimedia

technology company located in San Francisco, California.

Its business is entirely devoted to computer-mediated

communications. It designs and constructs sites on the

World Wide Web, and it implements Internet systems for

the delivery and management of information. Amicus

uses computers, modems and telephone lines to commu-

nicate its own “content” as well as the content published

by its clients and by visitors to its web sites.

ApolloMedia’s web sites and some of its clients’ web

sites often communicate strong positions using expres-

sion that may be considered “indecent” by some people

in some communities. Its “annoy.com” web site (http: / /

www.annoy.com) enables visitors to construct and send

provocative email messages to various public officials

and public figures, transmitting views on controversial

issues such as single sex marriage, censorship, health care

and gays in the military. Amicus’ online databases con-

tain material of social or political value, some of which is

sexually explicit or uses vulgar language. Among Apollo-

Media’s clients are the Service Members Legal Defense

Network (assisting military service members who are

investigated concerning alleged homosexuality or who

oppose sexual harassment), and the Hawaii Equal Rights

Marriage Project (attempting to secure the right to mar-

riage for gay and lesbian couples).

ApolloMedia has filed an action in the Northern Dis-

trict of California (ApolloMedia Corporation v. Reno, No.

C-97-0346 MMC), challenging the constitutionality of the

provision of the Communications Decency Act (“CDA”),

47 U.S.C. § 223(a)(1)(A)(ii), that makes criminal any

“indecent” computer communication “with intent to

annoy.” The Court's resolution of “indecent” speech

issues in the instant case, under different CDA provisions

(§§ 223(a)(1)(B)(ii) and (d)(1)(B)), may affect certain issues

in ApolloMedia’s action.

2

Amicus Bay Area Lawyers for Individual Freedom

(BALIF) is a minority bar association comprised of over

500 lesbian, gay and bisexual members of the Bay Area

legal community. Founded in 1980, BALIF promotes the

professional interests of its members and the legal inter-

ests of the gay, lesbian and bisexual community at large.

BALIF frequently appears as amicus curiae in cases

in which it can provide perspective that will inform a

court’s decision on a matter of broad public importance.

BALIF believes this to be such a case. The speech of

BALIF’s members, their clients and lesbian, gay and

bisexual Californians in general is restricted by the CDA.

They routinely use computer-mediated forms of commu-

nication. BALIF itself maintains a web site (http://

www.balif.org), with links to a variety of other sites and

organizations of interest to BALIF members, including

Gay.Net. Because the CDA targets sexual speech, and

because BALIF is identified in part by its members’ sex-

ual orientation, the CDA’s attempt to outlaw “indecent”

speech threatens the full and frank discussion of matters

of great concern to BALIF. Indeed, BALIF is aware that

the very concept of homosexuality is considered “inde-

cent” to some people in some communities, and the CDA

therefore poses a particular threat to the speech of BALIF

and the gay, lesbian and bisexual community it repre-

sents.

The parties have consented to the filing of this brief,

and amici have lodged letters of consent with the Clerk.

o

SUMMARY OF ARGUMENT

1. The federal government's power to regulate

interstate commerce does not confer on it a “compelling

interest” in restricting the speech of ordinary citizens

using computers. Any federal interest in policing sexual

morality is attenuated. It is further attenuated, compared

to its power over goverment licensed broadcasters, by the

nature of the Internet medium, the most democratic ever

3

invented. The CDA supplants the authority of parents

and the states by banning speech that some parents affir-

matively wish their children to have access to (e.g., infor-

mation about avoiding sexually transmitted diseases) or

are willing to trust their children with. Speech is made

criminal and banned for everyone if it is deemed “pat-

ently offensive” for five-year olds. The government's

alternative argument, that it has a compelling interest in

making sure that people are not deterred from using the

Internet fails in light of the reality that the Internet is

flourishing and Americans are flocking to it, and there is

simply no need for coercive federal criminal intervention.

2. The CDA exempts intrastate communications. It

is practically unenforceable against communications orig-

inating abroad, which are a substantial portion of sexu-

ally explicit communications. The CDA’s formal and

practical underinclusiveness means that it does not effec-

tively prohibit many if not most “indecent” communica-

tions. Because the CDA’s speech restrictions do not

effectively serve the government's asserted purpose in

shielding children from such communications, they vio-

late the First Amendment.

3. Section 223(a)(1)(B)(ii) criminalizes “indecent”

speech but does not define it. “Indecency” has no mean-

ing sufficiently intelligible to make its prohibition crimi-

nally enforceable. The government's attempt to rescue the

statute by relying on a committee report to supply the

missing definition violates settled canons of statutory

interpretation and due process requirements of fair

notice. The prohibition is impermissibly vague for a crim-

inal statute.

4. As construed by the government, the CDA uses

only one part of the three-part test of Miller v. California,

413 U.S. 15, 24 (1973), to make criminal speech that is not

legally obscene. This violates the First Amendment

because it punishes speech with societal value and

because, when the “patently offensive” prohibition is

uncoupled from the prurient-appeal and no-societal value

4

rules for obscene speech, the law is impermissibly vague.

The wholly uncertain applicability of the CDA defenses

actually compounds the vagueness of the statute. See

Gentile v. State Bar of Nevada, 501 U.S. 1030, 1048-49 (1991).

In addition, using “community standards” to judge a

non-geographic medium like the Internet means that

speech offensive to the least tolerant community in the

nation is banned from all communities. The subjective

“patently offensive” standard, standing alone, invites

both discriminatory enforcement and unseemly govern-

ment surveillance of the online communications of ordi-

nary innocent citizens.

.

ARGUMENT

The Court has never upheld a criminal statute out-

lawing either “indecent” or “patently offensive” speech

that is not legally “obscene.”! The provisions of the CDA

at issue in this case punish pure speech as a felony.

' In Denver Area Educ. Telecommunications Consortium v.

FCC, 116 S. Ct. 2374 (1996), the Court considered a non-criminal

provision of the 1992 cable television act that was entirely

permissive, authorizing, but not requiring, cable operators to

refuse to carry “patently offensive” sexual material. 116 S. Ct. at

2387. A plurality of the Court found that the provision was not

vague. Id. at 2390. Not only did Denver involve a non-criminal

statute, but the Court emphasized the special characteristics of

the medium, noting that cable television is essentially the same

as broadcast in being a “pervasive” presence, “uniquely

accessible to children” and capable of confronting them “with

little or no warning.” Computer-mediated communication, for

the many reasons set forth in the findings of fact below, ACLU v.

Reno, 929 F. Supp. 824, 830-49 (E.D. Pa. 1996), is very different

from broadcast. One of those reasons - the ability of consumers

to block communications that they do not want their children to

see - was emphasized by the Court in Denver in striking down

the provision of the 1992 cable act requiring operators to

“scramble and block” sexual material. 116 S. Ct. at 2392-93. The

The CDA is not a “sensitive tool” for regulating

unprotected speech. See Speiser v. Randall, 357 U.S. 513,

525 (1958). Instead, it is a clumsy and defective piece of

legislation that builds a censorship edifice on the flim-

siest of foundations: it prohibits unknowable kinds and

quantities of speech (“indecent”) not defined by the stat-

ute; the government’s proposed definition of the forbid-

den speech, borrowed from a committee report, was in

turn borrowed from the FCC’s definition used to regulate

government licensees in a very different medium (broad-

cast); and the FCC’s definition in turn borrowed one part

of the three-part test for “obscene” matter established by

Miller v. California, 413 U.S. 15 (1973). At each step in the

construction of this censorship structure, the CDA’s

unconstitutionality has been compounded.

I. THE FEDERAL GOVERNMENT’S POWER TO REG-

ULATE INTERSTATE COMMERCE DOES NOT

CONFER ON IT A “COMPELLING” INTEREST IN

REGULATING “INDECENT” SPEECH BY ORDI-

NARY CITIZENS USING COMPUTERS

The primary battleground on which this case has

been fought is whether the CDA is “narrowly tailored.”

But the CDA’s attempt at regulation of the speech of

ordinary citizens requires a determination, first, whether

the federal government has both the constitutional power

and a compelling interest in regulating citizen speech

(not the speech of federally-licensed broadcasters) using

computers. The requisite power and interest cannot sim-

ply be assumed. E.g., First National Bank of Boston v.

Bellotti, 435 U.S. 765, 786 (1988) (burden on government);

id. at 788-89 (asserted interests not “supported by record

provision invalidated by the Court is more closely analogous to

the CDA provisions at issue in this case than the permissive

provision upheld by the Court.

6

or legislative findings”). Only if, after consideration of all

the relevant facts, the Court finds the federal interest to

be “compelling” need it decide whether the CDA is “nar-

rowly tailored” to serve the interest.

Congress has only the legislative powers enumerated

in the Constitution. All other powers are reserved, under

the Tenth Amendment, to the states and the people. The

federal government needs to be reminded on occasion

that it, unlike the states, has no general police power. In

particular, “the domain of sexual morality is pre-emi-

nently a matter of state concern.” Roth v. United States,

354 U.S. 476, 502 (1957) (Harlan, J., dissenting in part).

Interests protected by statutes on sexual morality are

“primarily entrusted to the care, not of the federal gov-

ernment, but of the states. Congress has no substantive

power over sexual morality.” Id. at 504.

As the Court held in Roth, Congressional power to

regulate obscene matter in the mails is based on its

express power over the postal system under Article I,

section 8, clause 7 of the Constitution. 354 U.S. at 492-93.

Even this plenary power over the postal system does not

justify Congressional attempts to restrict unpopular

speech transmitted by mail. E.g., Bolger v. Young’s Drug

Products Corp., 463 U.S. 60 (1983) (invalidating federal

statute that prohibited unsolicited mail advertising of

contraceptives); Lamont v. Postmaster General, 381 U.S. 301

(1965) (invalidating requirement that persons receiving

“Communist propaganda” had to request delivery of

such mail). Congress has no express power over other

forms of communication, including the Internet, and

therefore any regulatory power must be implied from its

power over interstate commerce. See National Broadcasting

7

Co. v. United States, 319 U.S. 190, 227 (1943) (Communica-

tions Act of 1934 provision a proper exercise of Congres-

sional power over interstate commerce).?

The federal commerce power, however, is not unlim-

ited. United States v. Lopez, 115 S. Ct. 1624 (1995). If under

Lopez Congress lacks power under the Commerce Clause

to protect children from the very serious problem of

violence associated with guns in schools, it is hard to see

why its interest in shielding them from private online

speech should be considered “compelling.” As Justice

Harlan pointed out, “Not only is the federal interest in

protecting the Nation against pornography attenuated,

but the dangers of federal censorship in this field are far

greater than anything the States may do.” Roth, supra, 354

U.S. at 505. The “deadening uniformity” of national cen-

sorship is one of the dangers. Id.

The “attenuated” federal interest in regulating sexual

morality is further attenuated by the nature of the online

medium. As Justice Frankfurter pointed out in NBC with

regard to the broadcast medium, “Unlike other modes of

expression, radio inherently is not available to all. That is

its unique characteristic, and that is why, unlike other

modes of expression, it is subject to governmental regula-

tion. Because it cannot be used by all, some who wish to

2 The provisions at issue in this case are not limited to

commercial speakers. For example, they are far broader than the

prohibition of obscenity on the telephone, where the statute, 47

U.S.C. § 223(b)(1), is limited to transmission of obscenity “for

commercial purposes.” Sable Communications, Inc. v. FCC, 492

U.S. 115 (1989). The Court has upheld non-criminal regulation

of federally licensed commercial operators of broadcast and

cable television outlets. E.g., Red Lion v. FCC, 395 U.S. 367 (1969);

Denver Area Educ. Telecommunications Consortium v. FCC, 116

S. Ct. 2374 (1996). But the CDA reaches far beyond commercial

uses to regulate the speech of ordinary citizens using

computers.

use it must be denied.” 319 U.S. at 226; accord, Red Lion,

395 U.S. at 386-401. But the Internet can be used by all.

“Unlike other modes of expression,” there is no scarcity

of frequencies or facilities that could justify government

content regulation. Nor is it “intrusive” in the sense that

an unwanted communication may enter the home unbid-

den and “confront” unsuspecting children. Cf. FCC v.

Pacifica Foundation, 438 U.S. 726, 748 (1978). Nor is it a

medium “uniquely accessible to children.” Id. at 749.

Receiving any computer-mediated communication

requires both affirmative effort and significantly more

sophistication than turning on a television set or picking

up a telephone.

The government asserts that “the indecency prob-

lem” on the Internet is “much more pronounced than it is

on broadcast stations.” U.S. Br. at 29. According to the

government, this is because the Internet operates “with-

out the intervention of editors, network censors, or mar-

ket disincentives.” Id. In other words, according to the

government, because ordinary citizens can communicate

with each other directly, not as the passive recipients of

programming directed at them by powerful corporations,

the government is entitled to step in and make criminal

the citizen speech that it disfavors. The perverse result is

that the more democrati-~ the medium - in the sense of

being free of corporate “.-nsors” and commercial “disin-

centives” — the greater the government's right to regulate

the medium. If the First Amendment means anything,

this argument must be rejected out of hand.

Finally, any federal interest is attenuated because the

CDA officiously meddles in what is first and foremost the

domain of parents, not government. It overrides parents’

wishes and criminalizes speech that some parents affir-

matively wish their children to have access to, e.g., infor-

mation about how to avoid sexually transmitted diseases.

9

It criminalizes speech that some parents are willing to

trust their children with. It makes felonies speech that

would be perfectly appropriate for 17-year old minors

simply because it might be deemed “patently offensive”

in some communities for 5-year old children. (The CDA

makes no distinction between older minors and toddlers,

banning speech if it is “available” to any minor.) Further,

the CDA ignores the fact that parents may easily install

software on their computers that prevents their children

from gaining access to material that the parents do object

to. ACLU v. Reno, 929 F. Supp. at 838-42. In short, the

CDA supplants parental control with governmental con-

trol over the information that children have access to, and

it supplants state authority with federal authority over

sexual morality. It does so without hearings, findings or

any evidence of what speech might cause what harm to

what minors.

As Judge Dalzell noted, the asserted interest in pro-

tecting children “is as dangerous as it is compelling”

because it has “no limiting principle.” ACLU v. Reno, 929

F. Supp. at 882. It would, for example, authorize Congress

to enact a “Newspaper Decency Act,” id., and, in the

name of protecting children, to restrict wide varieties of

speech disfavored by paternalistic legislators.

The Court should conclude that Congress does not in

fact have a compelling interest in shielding all children,

of whatever age and regardless of their parents’ wishes,

from sexual speech on the Internet. The Court's decision

in Ginsberg v. New York, 390 U.S. 629 (1968), cannot carry

the freight that the government attempts to load on it.

The government contends, first, that what it calls the

CDA’s “specific child” and “transmission” provisions are

“essentially no different” from the New York law in Gins-

berg. U.S. Br. at 24. The Court in Ginsberg rejected tie

argument of a commercial seller of pornography that

10

minors had the right to see the same materials available

for sale to adults. 390 U.S. at 636-37. Ginsberg involved a

state law enacted in the state’s police power, not a federal

commerce regulation. The Court specifically noted that

the validity of the law rested on the state’s power “to

control the conduct of children” (id. at 638-39), a power

that the federal government does not have. Justice Stew-

art, concurring, said that the law was valid on the same

basis that the states may deny minors the right to marry

or to vote. Id. at 649-50.

Furthermore, the state statute in Ginsberg embodied a

legislative approach that Congress expressly and deliber-

ately rejected in the CDA. The New York law precisely

defined types of materials that were deemed by the state

to be “harmful to minors.” 390 U.S. at 645-47. For exam-

ple, the state statute contained detailed definitions of

“nudity, sexual conduct, sexual excitement, or sado-mas-

ochistic abuse,”> which, when the material met the three-

part test of Miller as obscene for minors, were deemed to

be “harmful to minors.” Congress, however, “considered,

but rejected the so-called ‘harmful to minors’ standard.

See Ginsberg v. New York ...” Conf. Report at 188,

reprinted in 1996 U.S. Code Congressional Adm. News, at

202. Oddly, it is the very approach specifically rejected by

Congress that is now relied upon by the government.*

3 Typical of the detail in the definitions was “nudity”: the

“showing of the human male or female genitals, pubic area or

buttocks with less then a full opaque covering, or the showing

of the female breast with less than a fully opaque covering of

any portion thereof below the top of the nipple, or the

of covered male genitals in a discernibly turgid state.” 390 U.S.

at 645.

4 Nor did Ginsberg approve the prohibition of “indecent”

material. It was an obscenity case, in which satisfying all three

parts of the “three-pronged test” (390 U.S. at 635) was required

11

Finally, now that the case is in this Court, the govern-

ment asserts —- without any supporting evidence or con-

gressional finding - a new “compelling interest in

protecting the First Amendment interests of all Ameri-

cans,” not just children, in using the Internet. U.S. Br. At

31. The argument is that the Internet's potential “will be

lost” if people are “unwilling to avail themselves of its

benefits because they do not want their children exposed

to patently offensive material.” Id. at 30. There is, how-

ever, no evidence to support the suggestion that substan-

tial numbers of people are foregoing the communicative

benefits of the Internet for fear of exposing their children

to “indecent” material. In fact, all the evidence shows that

the Internet is flourishing and American participation in

it is growing by leaps and bounds. Households, schools

and businesses are flocking to it in ever increasing

numbers. It “ain't broke” and does not need government

“fixin’” to make it work for the people.® /f any parents are

sufficiently concerned that they might be “deterred” from

using the Internet, they have it within their power - with

no need for coercive government criminal intervention -

by the statute. The Court approved the statute's “variable

obscenity” approach, so that the material could be deemed

obscene if it had prurient appeal for persons under 17, if it was

patently offensive with respect to what was suitable for minors

and if it was “utterly” without redeeming social importance for

minors. /d. at 632. In sharp contrast, the CDA makes speech

criminal if it meets only one part of the three-part test for

obscenity. See point IV, infra.

5 Ata minimum, the government has not carried its burden

of proof that substantial numbers of people in fact are afraid to

use the Internet because they do not wish their children to see

“indecent” material. See Turner Broadcasting Sys. v. FCC, 114

S. Ct. 2445, 2470 (1994) (government failed to prove that statute

met actual need to preserve free broadcast).

12

to monitor their children’s use and to install the readily

available software that screens out undesired material.

Furthermore, recognizing a “compelling government

interest” in making sure that a communications medium

is “family friendly” (U.S. Br. at 7) has disturbing implica-

tions. Such an interest could as easily be asserted with

regard to “indecent” speech in public parks or leaflets

passed out on street corners. If the federal government

were given free rein to ensure “family friendly” commu-

nications media, it could regulate depictions of violence,

use of profanity and almost any other content disfavored

by legislators. The simple truth is that criminalizing the

speech of ordinary citizens in the name of making sure

that all speech on a medium is acceptable to the majority

- who may otherwise desert the medium - is inconsistent

with the very purpose of the First Amendment.

Il. BECAUSE THE CDA EXEMPTS INTRASTATE

COMMUNICATIONS AND IS NOT PRAC-

TICALLY ENFORCEABLE AGAINST COMMUNI-

CATIONS ORIGINATING ABROAD, THE

GOVERNMENT'S ASSERTED INTEREST IS NOT

IN FACT SERVED BY ITS SPEECH RESTRIC-

TIONS

Sections 223(a)(1) and (d)(1) of the CDA apply only

to “interstate and foreign communications.” These are

defined terms in the Communications Act. 47 U.S.C. § 153

(e) and (f). The definition of “interstate communication”

is a common sense one, meaning a communication or

transmission “from any State . . . to any other State.” See

Sprint Corp. v. Evans, 846 F. Supp. 1497, 1500-01 (M.D.

Ala. 1994).

Because Congress elected in the CDA not to make

criminal intrastate computer communications, the Act

exempts innumerable communications that may well

13

include “indecent” or “patently offensive” material. For

example, a “chat room” or email sexual proposition from

a pedophile to a child in the same town is not covered by

the Act. Nor are cross-town facsimile transmissions. Sim-

ilarly, intrastate email among employees in a business, or

students at a university, is not covered. Many other

online communications of all kinds, so long as they do

not cross state lines, are simply not covered.

In Florida Star v. B.J.F., 491 U.S. 524 (1989), the Court

invalidated a Florida law prohibiting disclosure of rape

victims’ names in “any instrument of mass communica-

tion.” The Court held that the law’s “facial under-

inclusiveness” undermined the state’s claim that it was in

fact accomplishing its asserted purpose of protecting the

victims’ privacy. The law did not “prohibit the spread by

other means of the identities of victims of sexual

offenses,” and did not cover communications by individ-

uals (like the “backyard gossip”) at all. 491 U.S. at 540.

The Court held that “without more careful and inclusive

precautions against alternative forms of dissemination,

we cannot conclude that Florida’s selective ban on pub-

lication by the mass media satisfactorily accomplishes its

stated purpose.” Justice Scalia stated the defect in the law

concisely in his concurring opinion, in terms directly

applicable here: the speech restriction is invalid “when it

leaves appreciable damage to that supposedly vital inter-

est unprohibited.” 491 U.S. at 542.

Similarly, in Smith v. Daily Mail Publishing Co., 443

U.S. 97 (1979), the Court invalidated a law that made it a

crime for a newspaper (but not electronic media) to pub-

lish the names of juvenile offenders. The Court held that

the law failed to “accomplish its stated purpose.” 443 U.S.

at 105. As now Chief Justice Rehnquist remarked, it is

“difficult to take very seriously [the government's]

asserted need to preserve the anonymity of its youthful

14

offenders when it permits other, equally, if not more,

effective means of mass communication to distribute this

information without fear of punishment.” Id. at 104-05

(Rehnquist, J., concurring); accord, First National Bank of

Boston v. Bellotti, supra, 435 U.S. at 792-93 (statute invalid

because “both underinclusive and overinclusive” in deal-

ing with asserted interests).

In addition to exempting intrastate communications,

the CDA is prevented from effectively serving the interest

in protecting children by the fact that a “large percentage,

perhaps 40% or more, of content on the Internet origi-

nates outside the United States.” ACLU v. Reno, 929

F. Supp. at 848; see Shea v. Reno, 930 F. Supp. 916, 931

(S.D.N.Y. 1996). Perhaps “thirty percent of the sexually

explicit material currently available on the Internet origi-

nates in foreign countries.” Shea, 930 F. Supp. at 931.

“Pornography from, say, Amsterdam will be no less

appealing to a child on the Internet than pornography

from New York City, and residents of Amsterdam have

little incentive to comply with the CDA.” ACLU, 929

F. Supp. at 882-83. Thus, for this reason alone, “the CDA

will almost certainly fail to accomplish the Government's

interest in shielding children from pornography on the

Internet.” Id. at 882. The CDA “will not reach a significant

percentage of the sexually explicit material currently

available.” Shea, 930 F. Supp. at 941.

(The extent to which the quixotic CDA is ineffective

is emphasized by the twin realities that minors are in fact

exposed to “indecent” speech in many more direct and

pervasive ways than through computers, and shutting

down even some of those ways through measures like a

Newspaper Decency Act, a Novel Decency Act, a Village

Green (or “Schoolyard,” or “Lockerroom”) Decency Act

or a Postal Decency Act would be palpably unconstitu-

tional. See ACLU, 929 F. Supp. at 882.)

15

The Court frequently has invoked the principle that a

speech restriction must be demonstrably effective. E.g., 44

Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1509 (1996)

(state failed to demonstrate that ban on liquor advertising

actually reduced alcohol consumption); Turner Broadcast-

ing Sys. v. FCC, 114 S. Ct. 2445, 2470 (1994) (government

must meet burden of establishing that speech regulation

“will in fact alleviate these harms in a direct and material

way”); Edenfield v. Fane, 113 S. Ct. 1792, 1800 (1993) (even

restriction on commercial speech requires such justifica-

tion).

Because the CDA is facially underinclusive in that it

does not reach intrastate communications, and because it

cannot practically prevent foreign materials from reach-

ing minors in this country, it does not effectively accom-

plish the government's asserted goal of shielding minors

from “indecent” and “patently offensive” speech. There-

fore, it is not effective in serving a compelling govern-

ment interest, and for this reason violates the First

Amendment.

Ill. SECTION 223(a)(1)(B)(ii)’s FAILURE TO DEFINE

THE “INDECENT” SPEECH THAT IT MAKES

CRIMINAL RENDERS IT UNCONSTITU-

TIONALLY VAGUE

Section 223(a)(1)(B)(ii) prohibits communicating any

“indecent” speech (including mere words) to anyone

under age 18. Here, the CDA overinclusively bans “inde-

cent” speech by telephone, fax machine or email, to a 17-

year-old if it would be “indecent” for a toddler, even

outlawing communications that the parents of the minor

recipient know of and permit (or, indeed, send).

The provision does not define “indecent.” “Indecent”

can mean many things to different people. For example, it

16

might include depictions or descriptions of violence, pro-

fanity or blasphemy, all of which are considered “inde-

cent” by some people. The word is defined in the

dictionary as “1. offensive to good taste; unseemly. 2.

offensive to public morals; immodest; indecent exposure

~ See Synonyms at improper.” American Heritage Diction-

ary of the English Language, 668 (ist ed. 1969). The syn-

onyms are “improper, unbecoming, unseemly, indelicate,

indecent, indecorous.” Id. at 662.

Amici have found only one legislative definition of

“indecent” in the federal Codes. 18 U.S.C. § 1461, dealing

with obscene materials in the mails, provides that: “The

term indecent as used in this section includes matter of a

character tending to incite arson, murder, or assassina-

tion.” In United States v. Smith, 11 Fed. 663 (C.C.Ky. 1882),

in quashing an information under this statute, the court

ruled that “indecent” means “immodest, impure,” not

“coarse, or unbecoming, or even profane.”

Given these diverse definitions, “indecent” has no

meaning sufficiently intelligible or coherent to make its

prohibition criminally enforceable. The government,

however, relying not on anything in the statute itself but

on a conference report, says that “indecent” in subsection

(a)(1)(B)(ii) (speech communicated to a minor via “tele-

communications device”) means “patently offensive” sex-

ual speech as referred to in subsection (d)(1)(B) (speech

“available” to a minor via an “interactive computer ser-

vice”). The conference report states that “The conferees

intend that the term indecency (and the rendition of the

definition of that term in new section 502) has the same

meaning as established in FCC v. Pacifica Foundation, 438

U.S. 726 (1978), and Sable Communications of California v.

FCC, 492 US. 115 (1989)... . ” Conf. Report at 188,

reprinted in 1996 U.S. Code Congressional & Administra-

tive News, at 201.

—_—-

17

Even if the intent of the few “conferees” were rele-

vant for the purpose of supplying a missing definition in

a criminal statute, the report is inaccurate in stating that

“indecency” is defined in section 502; it is not. In fact, the

CDA does not even use the noun “indecency.” Further,

contrary to the conference report, “indecency” under the

CDA cannot have the “same meaning” as in Pacifica; the

FCC’s definition that the Court upheld for administrative

(not criminal) purposes referred to patently offensive lan-

guage “as measured by contemporary community stan-

dards for the broadcast medium . . . at times of the day when

there is a reasonable risk that children may be in the

audience.” 438 U.S. at 732 (emphasis added). This cannot

be applied to online communication, which is

asynchronous.

The government's attempt to salvage subsection (a)’s

criminalization of undefined “indecent” communications

by reference to a different term in a different provision of

the statute must be rejected. If Congress uses language in

one section of a statute but omits it in another, it is

presumed that Congress acted intentionally and intended

different meanings. Gozlon-Peretz v. United States, 498 U.S.

395, 404 (1991); Russello v. United States, 464 U.S. 16, 23

(1983). Further, to read “indecent” as redundant of “pat-

ently offensive” is to rob it of independent meaning in

violation of the rule that a “statute must, if possible, be

construed in such fashion that every word has some opera-

tive effect.” United States v. Nordic Village, 503 U.S. 30, 36

(1992) (emphasis added); Bowsher v. Merck & Co., 460 U.S.

824, 833 (1983).

More fundamentally, it is entirely inappropriate for

the government to attempt to validate a criminal statute,

which requires fair notice of precisely what is proscribed,

by relying on a conference report. “Congress ‘s elected to

enact statutes rather than point to cases,” and

18

“unrestrained use of legislative history” by reference to

committee reports is no substitute for valid legislation.

Blanchard v. Bergeron, 489 U.S. 87, 89 (1989) (Scalia, J.,

concurring); Wisconsin Public Intervenor v. Mortier, 501

U.S. 597, 616, 619-22 (1991) (Scalia, J., concurring); see

generally, Note, Why Learned Hand Would Never Consult

Legislative History Today, 105 Harv. L. Rev. 1005 (1992).

Reliance on a committee report citing a case to supply a

statutory term crucial to its validity is particularly inap-

propriate. “As anyone familiar with modern-day drafting

of congressional committee reports is well aware, the

references to the cases were inserted, at best by a commit-

tee staff member on his or her own initiative, and at

worst by a committee staff member at the suggestion of a

lawyer-lobbyist . .. ” Blanchard v. Bergeron, supra, 489 U.S.

at 98 (Scalia, J., concurring).

Amici recognize that one judge in ACLU v. Reno and the

court in Shea v. Reno accepted the government's argument

that the conference report supplied the missing definition of

“indecent,” and that “indecent” means “patently offen-

sive....” But neither gave any consideration to the rules of

statutory construction cited above. More importantly, the

authorities on which they relied involved only civil adminis-

trative uses of “indecent” as equivalent to “patently offen-

sive” — FCC regulations and decisions, Pacifica and the

television cases following Pacifica. Since none of those author-

ities involved criminal statutes, the Court should not sanction

their incorporation to salvage a defective criminal law. See

generally Pope v. Illinois, 481 U.S. 497, 507-19 (1987) (Stevens,

J., dissenting).© The requisites for valid criminal statutes -

6 Justice Stevens was the author of Pacifica. His opinion in

Pope explains at length why Pacifica-type administrative or civil

speech regulation is entirely inappropriate for criminal

prohibitions.

19

adequate notice and precision to discourage arbitrary

enforcement — rule out such legislation by indirection.

Because § 223(a)(1)(B)(ii) makes-criminal a broad

range of “indecent” speech, without defining the term,

this provision of the CDA is void for vagueness. See, e.g.,

Kolender v. Lawson, 461 U.S. 352, 357, 359, n.8 (1983);

Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972);

Winters v. New York, 333 U.S. 507, 515 (1948).

IV. THE COURT SHOULD REJECT ANY ATTEMPT

TO BORROW ONE-THIRD OF THE MILLER V.

CALIFORNIA TEST FOR THE PURPOSE OF

CRIMINALIZING NON-OBSCENE SPEECH

Even if, contrary to amici’s contention in point III,

§ 223(a)’s prohibition of “indecent” speech is read to

mean “patently offensive” sexual speech as prohibited by

§ 223(d)(1)(B), the patently offensive proscription is itself

unconstitutional. It bears emphasis again that the Court

has never upheld a criminal statute outlawing “patently

offensive” speech that is not legally “obscene” under the

test of Miller v. California, 413 U.S. 15, 24 (1973).

The Court struggled in the 1950’s and 1960's with

whether “obscene” speech could be either meaningfully

defined or punished criminally. E.g., Roth v. United States,

354 U.S. 476 (1957); Jacobellis v. Ohio, 378 U.S. 184, 191

(1964); id. at 197 (Stewart, J.: “I know it when I see it”). In

Miller the Court attempted to resolve those questions by

establishing a three-part test for obscenity regulation: (1)

the “work” must appeal to the “prurient” interest; (2) its

depictions of sexual acts must be “patently offensive” as

judged by community standards; and (3) the work must

lack “serious literary, artistic, political or scientific

value.” 413 U.S. at 24.

Several members of the Court have expressed their

dissatisfaction with the Miller test even as to obscenity.

20

See, e.g., Pope v. Illinois, 481 U.S. 497, 505-06 (1987) (Scalia,

J.) (need for “reexamination” of Miller, since whether

material has. literary or artistic value is matter of taste

and “De gustibus non est disputandum”); id. at 516 & n.11

(Stevens, J.) (criminal prosecution for obscenity involving

consenting adults should not be permitted); Paris Adult

Theatre I v. Slaton, 413 U.S. 49, 84 (1973) (Brennan, J.,

dissenting); cf. Alexander v. United States, 509 U.S. 544, 573

(1993) (Kennedy, J., dissenting, with Blackmun, Stevens

and Souter, JJ.) (obscenity “separated from protected

expression only by a ‘dim and uncertain line’ ”).”

Each of the three parts of the Miller test must be met

to criminalize even obscene speech. Cf. Pope v. Illinois, 481

U.S 497 (1987) (societal value part not to be judged by

community standards, which govern offensiveness and

prurient parts); id. at 507-08 (Stevens, J., dissenting:

“prosecutor must prove each of these three elements

beyond a reasonable doubt”). If the CDA borrows only

one-third of the Miller guidelines to outlaw “patently

offensive” speech on the Internet, it violates the First

Amendment because it criminally punishes valuable

speech and because, when it is uncoupled from the pru-

rient-appeal and no-societal-value rules for obscene

speech, the subjective patently offensive “test” becomes

impermissibly vague for use in a criminal statute. In

addition, judging offensiveness by geographic “commu-

nity standards” means that Internet speech is barred

7 See also Smith v. United States, 431 U.S. 291, 316 (1977)

(Stevens, J., dissenting) (“line between communications which

‘offend’ and those which do not is too blurred to identify

criminal conduct”); accord, Board of Airport Commissioners v. Jews

for Jesus, 482 U.S. 569, 756 (1987) (O’Connor, J.: line too

“murky”); Alexander, supra (line too uncertain for criminal

forfeiture purposes); Kolender v. Lawson, 461 U.S. 352, 359, n.8

(1983).

21

everywhere if it is “offensive” in the least tolerant com-

munity in the nation, thus denying the speech to the vast

majority of Americans to whom it is not offensive.

A. Uncoupling “patently offensive” from the Mil-

ler obscenity test makes the law impermissibly

overbroad, subjective and vague for criminal

purposes

As construed by the government, the CDA borrows

only the “patently offensive” part of the Miller test. It

completely omits the other twc parts: that the material's

appeal be to the “prurient” interest and that the material

not have “serious literary, artistic, political or scientific

value.” Accordingly, the CDA prohibits speech that, by

definition, does not appeal to the prurient interest and

that does have serious literary, artistic, political or scien-

tific value. In other words, not only does the CDA crimi-

nalize a vast range of speech, but it forbids speech that

may have important societal value. It is a “statute of

unprecedented sweep,” Shea, 930 F. Supp. at 922, the most

sweeping restriction on the speech of ordinary citizens

that Congress has ever attempted.

Examples of patently offensive sexual speech that are

protected by the First Amendment can be found in the

decisions of this Court. See, e.g., Cohen v. California, 403

U.S. 15 (1971), and Hustler Magazine v. Falwell, 485 U.S. 46

(1988). Cohen’s “Fuck the Draft” jacket, worn to court in

full view of all spectators, including children, was held to

be protected even though highly “offensive” to most citi-

zens. Hustler Magazine’s mean-spirited accusation that

Rev. Falwell had sex with his mother in an outhouse was

deemed “patently offensive” by this Court. 485 U.S. at 50.

Even though the parody was “gross and repugnant in the

eyes of most” (id.), and found by a jury to be an “outra-

geous” and intentional infliction of emotional harm, it

22

was held protected. Both examples obviously would be

deemed “patently offensive” in some communities and, if

the communications had been done by computer rather

than in public or print, would be felonies under the CDA.

Bolger v. Young's Drug Products Corp., 463 U.S. 60

(1983), is another example of speech held protected by

this Court but subject to criminal punishment under the

CDA. Bolger invalidated a statute prohibiting unsolicited

mail advertising of contraceptives. The advertising -

“Plain Talk About Venereal Disease” and “Condoms and

Human Sexuality” (463 U.S. at 62, n.4) —- might well have

been considered “patently offensive” by some recipients,

especially those with religious scruples about contracep-

tives. The Court rejected the government’s argument that

the statute was needed to keep unsolicited sexual mate-

rial out of the hands of children. Id. at 73-74. But such

material, if communicated via the Internet, likely would

be a felony in some communities.®

Moreover, “patently offensive” is an inherently sub-

jective standard. The speech must be offensive to some-

one. This loose and variable “standard” is wholly

inappropriate for a criminal statute of general application

enforceable throughout the nation. As Chief Justice Rehn-

quist wrote for the Court in Hustler Magazine, supra,

“ ‘Outrageousness’ in the area of political and social dis-

course has an inherent subjectiveness about it which

would allow a jury to impose liability on the basis of the

jurors’ tastes or views, or perhaps on the basis of their

dislike of a particular expression.” 485 U.S. at 55.

8 In another context, Senator Helms declared that written

“safe sex” educational materials were “obscene.” 133 Cong. Rec.

$14203 (daily ed. Oct. 14, 1987). If a prominent legislator

believes that Bolger-type materials are “obscene,” it is not

farfetched to suggest that some prosecutors and juries will find

them “patently offensive.”

23

Nor is the CDA’s inherent subjectivity cured by the

supposed statutory “defenses” set forth in 47 U.S.C.

§ 223(e)(5). The defenses are not in fact available to most

speakers. Shea, 930 F. Supp. at 942-48; ACLU, 929 F. Supp.

at 846, 849, 856, 859. Moreover, their wholly indetermin-

able applicability to a few speakers (who could theo-

retically — but not practicably - take some “good faith”

step to screen the age of recipients) actually compounds

the vagueness of the statute. See Gentile v. State Bar of

Nevada, 501 U.S. 1030, 1048-49 (1991) (“safe harbor” pro-

vision of disciplinary rule misled attorney into believing

he had defense to vague rule).

The government's reliance on Pacifica is completely

misplaced. The court below properly rejected the notion

that Pacifica - involving administrative regulation of a

government-licensed broadcaster in a medium that is

“uniquely accessible” to children and can “confront” lis-

teners without warning (438 U.S. at 748) - validates a

criminal statute governing a completely different

medium. Pacifica involved only a mild declaratory order

(not even a reprimand). 438 U.S. at 730. Moreover, in

sharp contrast to the initiation of criminal proceedings

under the CDA by any of hundreds of federal prosecutors

who wish to do so, the FCC stated in Pacifica that it

would not impose even an administrative sanction “with-

out warning.” Id. at 743.9

The Court's discussion of “borderline” examples of

cable television broadcasts in Denver Area Educ. Telecom-

munications Consortium v. FCC, 116 S. Ct. 2374, 2396-97

% See also, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 55

(1973) (civil procedure for determining obscenity provides

seller with “the best possible notice, prior to any criminal

indictments”).

24

(1996), is instructive here. The Court invalidated a preVvi-

sion of the 1992 cable television act that merely permitted

cable operators to refuse to carry “patently offensive”

programming on public access channels. In doing so, the

Court referred to certain “borderline examples as to

which people’s judgment may differ, perhaps acceptable

in some communities but not others.” The Court men-

tioned “depiction of a self-help gynecological examima-

tion,” “nude scenes from a movie” and a “safe s€X”

program. 116 S. Ct. at 2396-97. The Court concluded that

it was “difficult to see how such borderline examples

could show a compelling need, nationally, to protect chil-

dren from significantly harmful materials.” Amici’s peint

is that the CDA, worse than the much less restrictive

provisions that the Court struck down in Denver, makes

criminal the very kinds of “borderline examples” that the

Court recognized might not be “acceptable in some cOM-

munities.”!° The effect of the CDA is to ban even the

“borderline” examples from all communities because they

are unacceptable in some very intolerant ones, even

though they are generally acceptable around the nation.

The government stretches too far when it invents the

concept of “cyberzoning” and says the CDA operates like

the adult theater ordinances in City of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), and Young v. American

Mini Theatres, Inc., 427 U.S. 50 (1976). The CDA does not

“channel” materials to “adult areas of cyberspace” (U.S.

Br. at 32); it makes criminal speech that is protected

among adults. Moreover, the CDA is not a time, place and

manner regulation aimed at containing the “secondary

effects” of speech. Unlike City of Renton and Young, where

10 A wide variety of similar examples of speech with

societal value that the CDA makes criminal was identified

below. ACLU, 829 F. Supp. at 852, 855, 871-72.

25

the cities sought to control crime and protect retail busi-

ness and property values through geographic zoning of

theaters, the CDA criminalizes speech because of its con-

tent. As the Court remarked in City of Renton, “[i}t is thie]

secondary effect which these zoning ordinances attempt

to avoid, not the dissemination of ‘offensive’ speech.” 475

U.S. at 49, quoting Young, 427 U.S. at 71, n.34 (emphasis

added). Here, it is precisely the “offensive” speech that is

prohibited.

B. Using geographic “community standards” for a

non-gesgraphic medium means that speech

offensive in any community is banned from all

communities

Miller's definition of obscene speech that enjoys no

First Amendment protection attempted to minimize sub-

jectivity by requiring that offensiveness be judged by

“community standards.” These standards have come to

be geographic. Miller itself said that it was permissible to

use the State of California as the relevant “community.”

413 U.S. at 30-31. Other courts have approved the use of

“community standards” of a county (e.g., United States v.

Bagznell, 679 F.2d 826, 836-37 (11th Cir. 1982), cert. denied,

460 U.S. 1047 (1983)), and a federal district (e.g., United

States v. Thomas, 74 F.3d 701, 710-11 (6th Cir.), cert. denied,

117 S. Ct. 74 (1996)). But the Internet is a non-geographic

medium, and online communications can ard do circulate

throughout the nation and the world, with the speaker

commonly having no idea who might read his or her

words or in what geographic community readers might

live."' In other words, the assumption of Miller that

“An individual sending a message that will be

retransmitted by a mail exploder program has no way of

knowing the e-mail addresses of other subscribers.” Shea, 930

26

“patent offensiveness” will be judged by the standards of

a given geographic community, where the defendant

intends to sell the offending film or book, simply does

not work with the Internet. Applying geographic commu-

nity standards to speech that is “available” everywhere

reduces all speech to what is acceptable in the least toler-

ant community a prosecutor can find.

Amici recognize that Sable Communications v. FCC,

492 U.S. 115 (1989), rejected the argument of commercial

“dial-a-porn” operators that they would be compelled to

tailor their messages to the least tolerant community. 492

U.S. at 124. The argument was that Miller was violated

because the telephone statute assertedly created an

“impermissible national standard.” The Court cited its

cases upholding prohibitions against mailing or broadcast-

ing obscene materials into certain communities. The

Court said that a commercial telephone pornographer

was “free to tailor its messages, on a selective basis, if it

so chooses, to the communities it chooses to serve,” and that

there was no constitutional impediment to imposing the

costs of “screening the locale of incoming calls” on the

commercial operator. 492 U.S. at 125 (emphasis added).

This reasoning cannot be applied here because the vast

majority of Internet speakers (1) are not commercial

enterprises, (2) do not “choose” to serve any geographic

community, and (3) have no means of “screening” who

might see their speech. As Judge Dalzell pointed out,

“unlike other media, there is no technologically feasible

way for an Internet speaker to limit the geographical

F. Supp. at 927. “[O}ne who posts an article to a news group has

no way of knowing who will choose to retrieve it.” Id at 928;

ACLU, 929 F. Supp. at 845, 854, 878.

27

scope of his speech (even if he wanted to), or to ‘imple-

ment{ ] a system for screening the locale of incoming’

requests.” ACLU, 929 F. Supp. at 878, quoting Sable.'?

Miller was decided on the assumption that the Court

was dealing with relatively fixed “works,” like movies,

books and magazines, that the publisher intends to sell in

a given geographic community. Miller was decided two

decades before the Internet emerged. The Court plainly

did not anticipate its application to interactive speech, the

kinds of computer-mediated human conversations that

the Internet medium makes possible and that know no

geographic boundaries.

The Conference Report on the CDA states that a

different section of the law, § 223(f)(2), which preempts

inconsistent state and local regulations, is “intended to

establish a uniform national standard of content regula-

tion for a national, and indeed a global, medium... ”

Conf. Report at 191, reprinted at 1996 U.S. Code Congres-

sional & Administrative News, at 204. If this opaque

reference was meant to establish “national” standards

rather than local “community” standards for judging

“patently offensive” speech, this is an odd and highly

questionable legislative technique. See authorities cited in

point III, supra. It also is contrary to Miller's rejection of a

12 In United States v. Thomas, 74 F.3d 701 (6th Cir.), cert.

denied, 117 S. Ct. 74 (1996), the Sixth Circuit upheld an obscenity

conviction involving pictures transmitted by computer from

California to Memphis, Tennessee, rejecting the argument that it

should “adopt a new definition of ‘community’ for use in

obscenity prosecutions involving electronic bulletin boards.” 74

F.3d at 711. The court found “no need” to reconsider this aspect

of the Miller test because the defendants in Thomas in fact

“knew” that they were sending the pictures to a specific

recipient in Tennessee who had submitted an application and

been issued a password before requesting that the particular

pictures be sent to Tennessee. Id. at 72.

28

national standard. 413 U.S. at 30 (“our Nation is simply

too big and diverse for this Court reasonably to expect

that such standards could be articulated for all 50 States

in a single formulation, even assuming the prerequisite

consensus exists”).

When uncoupled from Miller's context of “hard-

core,” prurient sexual “works” with no societal value, the

“patently offensive” standard becomes an engine for the

suppression of speech that prosecutors subjectively find

objectionable. It cannot stand alone as the test for

whether speech is criminal. Whatever its validity as part

of the FCC’s administrative regulation of commercial

broadcasters who voluntarily seek government licenses

and submit to such regulations, it cannot be used in a

criminal statute applied to ordinary citizens who con-

verse on the Internet. Its vagueness is compounded by

“the government's inability to identify the relevant com-

munity by whose standards the material will be judged.”

ACLU v. Reno, 929 F. Supp. at 856 (Sloviter, J.); id. at 863

(Buckwalter, J.).

Nor is it irrelevant that enforcement of this criminal

statute inevitably will involve widespread eavesdropping

or other participation by government agents and vig-

ilante groups in the online conversations of ordinary

citizens. That is, unlike complaint-activated monitoring of

public broadcasts by the FCC, enforcement of the CDA

necessarily will involve reading, snooping on and record-

ing the electronic communications of unsuspecting and

wholly innocent citizens. For example, when a vigilante

group tips law enforcement that a certain news group

involves the “patently offensive” discussion of abortion,

safe sex or erotic literature, Big Brother government will

log on and listen to the conversation, recording at will.

When a prosecutor thinks he or she can get a conviction

in a particular community intolerant of such discussion,

29

the conversation can be downloaded - with a mouse click

~ to that venue. Hundreds of persons’ thoughts and ideas

will become “evidence” in a criminal prosecution. This

will happen even if the “patently offensive” material in

fact has no impact whatever on the “community” whose

standards will govern and would not even have been

downloaded there except for the purpose of prosecu-

tion.'> Thus, not only does the CDA’s vagueness invite

arbitrary and discriminatory enforcement (see Grayned v.

City of Rockford, supra, 408 U.S. at 108-09), but the enforce-

ment will include unseemly government surveillance of

the private online conversations of ordinary innocent

people.

In short, the CDA is not rescued by borrowing from

Pacifica which in turn borrowed part of Miller. Unlike

with broadcast, cable and telephone, where there is a

long tradition of significant federal regulation, including

the need to apply for government licenses to make com-

mercial use of these media, there is no overriding federal

interest in policing the content of citizen speech on the

Internet. See point IL, supra. The drafters of the CDA, in

their haste to suppress images and words that they find

offensive, blundered far beyond the scope of any legiti-

mate federal interest. Until Congress specifies, in clear

terms that give fair notice to speakers, what harm is

3 In United States v. Thomas, supra, the only person to

download the defendant's electronic bulletin board’s materials

in Tennessee was the postal inspector who initiated the

prosecution. 74 F.3d at 705. The defendants in that case knew

that they were transmitting the material to Tennessee, because

they required an application and password for any

transmission. Id. at 705, 710, 711. But in most CDA cases, the

unsuspecting speaker will have no idea where his or her

communications are going, or to whom. See note 11, supra.

30

caused to what minors by what speech, it cannot make

“patently offensive” speech a criminal offense.

S

CONCLUSION

The judgment of the court below, finding the Com-

munications Decency Act unconstitutional, should be

affirmed.

Respectfully submitted,

WituiamM Bennetr Turwer

Rocers, JosepH, O’ DeNELL

& QuINN

311 California Street, 10th Floor

San Francisco, California 94104

Telephone: (415) 956-2828

Facsimile: (415) 956-6457

Attorneys for ApolloMedia

Corporation and Bay Area Lawyers

for Individual Freedom,

as Amici Curiae

February, 1997