Motion — ApolloMedia Corp. v. Reno

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Supreme Court, U3,

‘ FILED

| MER 20 1999

No. 98-933 { _—s

In the Supreme Court of the Giited States

OCTOBER TERM, 1998

APOLLOMEDIA CORPORATION, APPELLANT

Vv.

JANET RENO, ATTORNEY GENERAL

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOTION TO DISMISS OR AFFIRM

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

EDWIN 8S. KNEEDLER

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

BARBARA L. HERWIG

JACOB M. LEWIS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

f a

- 2 e¥

QUESTION PRESENTED

Whether 47 U.S.C. 223(a)(1)(A) (Supp. II 1996)—

which prohibits persons in interstate and foreign

communications from initiating, by means of a

“telecommunications device,” the transmission of any

communication that is “obscene, lewd, lascivious, filthy,

or indecent” with the “intent to annoy, abuse, threaten,

or harass another person”—is limited to communi-

cations that are obscene.

(I)

TABLE OF CONTENTS

Page

cl cg, OSES RE DA Eta ROSEN RO l

Sn Ee NOT ERNE a BOO LED TEES SIO aI 1

IN asi leis Saciicalocpcg ce ase a De er 2

I eli adic ican ae 7

i cc, ET CEST CLE DLR ORE ELD OER 28

oe reese ea Rie ROE ORR OEE St NEE TCR la

TABLE OF AUTHORITIES

Cases:

American Civil Liberties Union v. Reno, 929

F. Supp. 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844

Ope gO NE RED SEES RGF ES TN Laity AE Oe DD EROS 25

Arizonans for Official English v. Arizona,

oh So 1 VESTER A wea CP oT gece 10

Atlantic Cleaners & Dyers, Inc. v. United States,

dc UR? EAR ER Pn ne le SOR Sem 25

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) cecccccccsececoceeooee-c.., 26

Babbitt v. United Farm Workers, 442 U.S. 289

SEED calpestouhamscantistichtntin! Seine inenmiiecnin ceils 10, 11

Cannon v. University of Chicago, 441 U.S. 677

Ooh of Ba Nh NORRIE te NaC OD aC oT aR 18

City of Los Angeles v. Lyons, 461 U.S. 95

EMME cet beitiarebsoecstatpdbeescptbecnsceseasemsveniareeeoie sions ddasocsnks co.cc. 10

Cohalan v. New York Tel. Co., 55 Rad. Reg. 2d

(P & F) 1249 (FCC Mar. 7, 1984) cocccececcessoccsescoseeooees-ose-.... 26

Cox v. Lowisiana, 379 U.S. 559 (1965) cecceccscccccececcseecocses.... 15

Crowell v. Benson, 285 U.S. 22 (1982) coecccccccocccccceeeocoses.-.., 27

Denver Area Educ. Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727 (1996) .............. 20-21

Dowling v. United States, 493 U.S. 342 (1990) ................ 12

(III)

Cases—Continued: Page

Edward J. DeBartolo Corp. v. Florida Gulf Coast

Bldg. & Constr. Trades Council, 485 U.S. 568

CHOUIEY css acacia hcaniasemtntcecaaecioaiond 24, 27

FCC vy. Pacifica Found., 438 U.S. T26 (1978) cesccsessesseeseens 5, 6,

19, 20, 21, 28

Flying Eagle Publications, Inc. v. United States,

2T3 F.2d 799 (ist Cir, 1960) oc ceccseseceeeseeneneesseenseneersnnennees 21

Gustafson v. Alloyd Co., 513 U.S. 561 (1995) ssc 21

Hamling v. United States, 418 US. BT (GIS) ccc 5, 18, 21

Jarecki v. G.D. Searle & Co., 367 U.S. 303 (1961)... 21

Laird v. Tatwm, 408 U.S. 1 (1972) cccceceeeeseseenenenenneeenennens 11

Manual Enters., Inc. v. Day, 370 U.S. 478

(TOG2) ..cececesesessncseccesscvsuvacstarnednessesensensevassnenstecnensessacsgeewtenes 5, 17, 21

Miller v. California, 413 U.S. 15 (L978) cceccecsseeseesneeeeeneens 17

National Endowment for the Arts v. Finley,

LIS S. Ct. 21GS (1998) co.ccceceeesesseeeeerteeeteeentesenennsnnreneerenennesens 20-21

NLRB vy. Catholic Bishop of Chicago, 440 U.S.

490 (L9TO) ...cccccccccssccessccesesscrseversessenerssensnsenseansssnnenasecerecenenseoennns 26-27

NLRB v. Fruit & Vegetable Packers & Warehouse-

men Local 760, 377 U.S. 58 (1964) .....cceccsseeesersnrseseeneenees 24

North Star Steel Co. v. Thomas, 515 U.S. 29

(1995) ...ccecccsceeeecenscecssesscssrssetenserensensensenessnsenanessesenensensennnsnanesenes 18

Pierce v. Underwood, 487 U.S. 552 (1988) ....csecscesereneeees 22

Public Citizen v. United States Dep't of Justice,

491 U.S. 440 (1989) ...ccccscocecssorsensscssvsvsesevesersessonensecssessrsanssesees 27

Raines v. Byrd, 521 U.S. 811 (1997) ..... “hie 10

Raley v. Ohio, 360 U.S. 423 (1959) . i 15

Reno v. American Civil Liberties Union, 521 U.S.

844 (1997) 24

Roth v. United States, 354 U.S. 476 (1957) ........... 4, 16, 17, 21

Russello v. United States, 464 U.S. 16 (1983) ......-...s0e 26

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

(1989) . 5, 19, 20, 23, 24

Schwegmann Bros. v. Calvert Distillers Corp.,

341 U.S. 384 (1951) 24

Cases—Continued: Page

Steffel v. Thompson, 415 U.S, 452 (197A) --sscssessseeesssneree 10, 11

United States v. Carlin Communications, Inc.,

815 F.2d 1367 (LOth Cir. 1987) ..cccceceseseseseeneneeesnersneneneenenenes 26

United States v. Darsey, 431 F.2d 963 (5th Cir.

1970) ..ccccccccccccccsecscsececcccvessressssereceseorecesssscssacansnnsensesacuaeannessooesers 11-12

United States v. Keller, 259 F.2d 54 (3d Cir.

T9GB) cceccscsessovececesevsecsscessensessucsvovensesessseoneessoessageeseseosscnsesensecsvnce 21-22

United States v. Lawb, 385 U.S. 475 (1967) «...ccsesesesecseeens 15

United States v. Orito, 413 U.S. 188 (1978) ....ssecseseseeesens 17

United States v. Pennsylvania Indus. Chem.

Corp., 411 U.S. 655 (1978) secs ssseesnesenesenesensennesaneenneenneennees 15

United States v. Stauffer Chem. Co., 464 U.S.

165 (1984) ...cscecccossorscsseconsecosesonsnsesegorerencconnedsasoosorsensassesse 12, 13, 14

United States v. 12 200-Ft. Reels of Super 8 MM

Film, 413 U.S, 123 (1978) ..ccccscsesessssesesesseserensseesenensens 5, 17, 18

Valley Forge Christian College v. Americans Un ited

for Separation of Church & State, Inc.,

454 U.S. 464 (1982) ....ccsceccecsssssecsssvevnsrsnsecncnenssseseessssersvessesnses 10

Constitution and statutes:

US. Const.:

Aix. TY ciecocictcsescosececsecsvoiovsvssssoseossessetonqnevessiainnexiwbaeretisnenenooeviens 9, 10

Amend, I ....<.ccecccocccsncessnsoresecssenstsscsosesesesencnonensaceuserersveoensnsosesees 4

Act of May 3, 1968, Pub. L. No. 90-299, § 1, 82 Stat.

Lia aaa sic deiaslbsspbncacitlinintammeacabiahioonniapys 18, 19, 22

Communications Act of 1934, 47 U.S.C. 151 et seq:

AT U.S.C. 223 aU MA) -.ncececscscorssnsercsscsseccesnensnsersensnsesseeres passim

47 U.S.C. 223(a)(1)(A) (Supp. IT 1996) ...... secs 2, 16, 22, 24

47 U.S.C. 223(a UMA) EI) -..ccossserererneeesrecscossersneees 4

47 U.S.C. 223(a)(1)(B) (Supp. II 1996) 6, 23

47 U.S.C. 223(a)(1)(C) (Supp. II 1996) 3, 19

47 U.S.C. 223(a)(1)(D) (Supp. IT 1996) ....... 19

47 U.S.C, 223(a)(1)(E) (Supp. II 1996) 19

47 U.S.C, 223(a)(2) 4

47 U.S.C. 223(a)(2) (Supp. IT 1996) : 2-3

Statutes—Continued: Page

47 U.S.C. 223(b) slanesebeivinedt ‘3 5

SE UC, SE easiest shitiicier ec cetdncninibieaciiacalccnicle 24

47 U.S.C, 223(d) (Supp. IT 1996) ........crsccersersecssversesesnesescess 23

47 U.S.C. 223(d)(1) (Supp. IT 1996) .........cccccesssssssseveesesseceees 6

47 U.S.C. 223(e)(2) (Supp. 1] 1996) .......cccessssssseressssveseeneceee 25

47 U.S.C, 223(h)(1)(B) (Supp. TT 1996) .......ccccceseeeseees 7, 25-26

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

BOE, TAG RICIIG. ID. sscenenipssinpennoeinetinelansbetacicsdiotiuncraica caste ae z

Tit. V, § 501, 110 Stat. 133 (Communications

Decency Act of 1996) (47 U.S.C. 228) wceceeeeees 1-2, 3, 6,

14, 22, 23, 24

SOG RC), TID Cth. BAG a icissncaverchencebumiectmapkoniannn 2

18 UBS. TAG eessinlctacanaboadaniaten 4, 5, 16, 17, 18, 21

BG ALA, TOGD wicccsccssisdincenncothasincsctaticumasenabeds o HOT

NE EBA, TAIN ssstiasisictcevensssnbuttecoppasiaabidabeutaa) Sateen gic 22

BS EG, LOG inccessiicnischeinvecbeciieeplilisiondcuniabciia tieadec ce cata 5, 20

18 U.S.C. 14665 (Supp. TT 1996). .<...csseicsssasscoseoseresanmssesiacenigts 6, 25

BO UC FIGIAD : ccesitstessdycadcderariuicbccnnisisonmaecenen sae cl eae 17

Miscellaneous:

Abusive and Harassing Telephone Calls: Hearing

on S. 2825 and S. 3072 Before the Subcomm. on

Communications of the Sen. Comm. on Commerce,

89th Cong., 2d Sess. (1966) 19

141 Cong. Ree:

p. 58330 (daily ed. June 14, 1995) 22-23

p. 58333 (daily ed. June 14, 1995) 23

p. S8091 (daily ed. June 9, 1995) 26

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess.

(1996) 22, 23, 24

H.R. Rep. No. 1109, 90th Cong., 2d Sess. (1968) <.eccccccscessose 19

United States Dep’t of Justice, United States

Attorney’s Manual (1992) 0.0.0.2... 14

In the Supreme Court of the GCnited States

OCTOBER TERM, 1998

No. 98-933

APOLLOMEDIA CORPORATION, APPELLANT

Vv.

JANET RENO, ATTORNEY GENERAL

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MOTION TO DISMISS OR AFFIRM

OPINION BELOW

The opinion of the three-judge district court (J.S.

App. la-43a) is reported at 19 F. Supp. 2d 1081.

JURISDICTION

The district court’s order was entered on the docket

on September 24, 1998. The notice of appeal was filed

on October 9, 1998. The jurisdiction of this Court is

invoked under 28 U.S.C. 1253.'

' Section 1253 provides for a direct appeal to this Court from

an order granting or denying an injunction in any case required by

an Act of Congress to be decided by a district court of three

judges. See J.S. 1. Section 561(a) of Pub. L. No. 104-104, 110 Stat.

142, requires that any civil action challenging the constitutionality,

on its face, of any provision of the Communications Decency Act of

(1)

STATEMENT

1. From 1968 to 1996, federal law imposed criminal

penalties on any person who

in the District of Columbia or in interstate or for-

eign communication by means of telephone * * *

makes any comment, request, suggestion or pro-

posal which is obscene, lewd, lascivious, filthy, or

indecent.

47 U.S.C. 223(a)(1)(A)(1994). Section 223(a)(2) imposed

criminal penalties on anyone who “knowingly permits

any telephone facility under his control to be used” for

the above purposes.

In 1996, as part of the Telecommunications Act, Sec-

tion 223(a) was amended to impose criminal penalties on

any person who

in interstate or foreign communications 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, lewd, lascivious, filthy, or indecent, with

intent to annoy, abuse, threaten, or harass another

person.

47 U.S.C. 223(a)(1)(A) (Supp. II 1996). See Communi-

cations Decency Act of 1996 (CDA), Pub. L. No. 104-

104, § 502, 110 Stat. 133. The amended Section 223(a)(2)

1996, shall be heard by a three-judge district court. See J.S. 1.

Section 561(b), 110 Stat. 143, authorizes a direct appeal to this

Court from judgments, decrees or orders holding unconstitutional

all or part of the Communications Decency Act, and any amend-

ment made by that Act. Because the district court’s order upheld

the constitutionality of 47 U.S.C. 223(a)(1)(A), Section 561(b) is

inapplicable to this case.

imposes criminal penalties on anyone who “knowingly

permits any telecommunications facility under his

control” to be used for the above above purposes “with

the intent that it be used for such activity.” 47 U.S.C.

223(a)(2)(Supp. IT 1996).

As relevant in this case, the 1996 Act made a number

of changes in Section 223(a)(1)(A). It broadened the

scope of liability from use of a “telephone” to use of a

“telecommunications device”; it added the “knowingly”

requirement; and it added “image or other communica-

tion” to the previous listing of “comment, request,

suggestion or proposal.” The 1996 Act also added the

requirement that the communication had to be made

“with intent to annoy, abuse, threaten, or harass any

other person.” 47 U.S.C, 223(a)(1)(C) (Supp. II 1996).

The 1996 Act did not, however, change one important

part of Section 223(a)(1)(A)—the basic characterization

of the communication that is forbidden; the amended

version, like the earlier version, imposes liability only if

the transmitted item is “obscene, lewd, lascivious,

filthy, or indecent.” This case involves the meaning of

those terms.

2. Appellant Apollomedia Corporation is a San

Francisco-based company that maintains an Internet

website—at “www.annoy.com”—intended to permit

persons to communicate views to public figures using

language that, appellant alleges, may be considered

indecent in some communities. J.S. App. 4a-5a. One

section of appellant’s website, for example, is designed

to permit persons to construct, from preselected

options, anonymous e-mail messages to public figures

named in articles by freelance authors taking pro-

vocative positions on various issues. Jd. at 5a n.5.

Another section permits persons to send “digital post-

cards” over the Internet by creating a postcard at a

specific location on the website and by e-mailing

instructions to the intended recipient explaining how to

retrieve the postcard. bid.

On January 30, 1997, appellant filed suit in federal

district court. seeking to enjoin the enforcement of

47 U.S.C. 223(a)(1)(A)(ii) and (2) on the ground that

the provisions on their face violate appellant’s First

Amendment rights, as well as the First Amendment

rights of visitors to its website, to make indecent com-

munications with the intent to annoy their recipients.

Pursuant to Section 561(a) of the CDA, 110 Stat. 142, a

three-judge court was convened to hear the suit.

3. After briefing and argument, the court denied

appellant’s motion for a preliminary injunction and

dismissed appellant’s complaint. J.S. App. 1a-43a.

Although the court held that appellant had standing to

assert its claims, id. at 8a-18a, the court agreed with the

government that 47 U.S.C. 223(a)(1)(A) proscribes only

obscene speech, to which the protections of the First

Amendment do not extend. J.S. App. 15a, 34a- 35a.

Referring to the statutory specification of the pro-

hibited communications (“obscene, lewd, lascivious,

filthy, or indecent”), the court observed that, beginning

with Roth v. United States, 354 U.S. 476 (1957), this

Court had construed statutory words “nearly identical

to those employed in § 223(a)(1)(A), to refer solely to

‘obscenity.’” J.S. App. 18a. See Roth, 354 U.S. at 491

(construing 18 U.S.C. 1461’s prohibition against the

knowing use of the mails to transport any publication

that is “obscene, lewd, lascivious, or BURY 2. SOF

* Because the court recognized that liability under 47 U.S.C.

223(a)(2) “is only established by proving a violation of 47 U.S.C.

§ 223(a)(1),” it did not engage in a separate analysis of 47 U.S.C.

223(a)(2). J.S. App. 16a n.11.

* * * of an indecent character”); Manual Enters., Inc.

v. Day, 370 U.S. 478, 482-483 (1962) (opinion of Harlan,

J.) (any matter that is “obscene, lewd, lascivious, inde-

cent, filthy or vile”); Hamling v. United States, 418

U.S. 87, 114 (1974) (same). See also United States v.

12 200-ft. Reels of Super 8 MM Film, 413 U.S. 123, 130

n.7 (1973) (“obscene,” “lewd,” “lascivious,” “filthy,”

“indecent,” or “immoral”). “These cases demonstrate,”

the court observed, “that, in the context of print media

and film, the Supreme Court has read statutory ‘strings

of words’ almost identical to that employed in

§ 223(a)(1)(A) to proscribe only material constitutin

obscenity.” J.S. App. 21a. -

The district court rejected appellant’s reliance on two

decisions of this Court which had held other federal

statutes to reach speech that was indecent but not

obscene—FCC vy. Pacifica Foundation, 438 U.S. 726

(1978) (construing 18 U.S.C. 1464’s prohibition against

“obscene, :adecent or profane” broadcasts), and Sable

Communications, Inc. v. FCC, 492 U.S. 115 (1989) (eon-

struing 47 U.S.C. 223(b)’s prohibition against “obscene

or indecent” prerecorded telephone messages). As the

court explained: “the ‘string of words’ employed in

§ 223(a)(1)(A) more closely resembles in both length

and syntax the ‘string of words’ used in 18 U.S.C.

§ 1461, as interpreted in Roth, Manual Enterprises,

and Hamling, than the words at issue in Pacifica and

Sable.” J.S. App. 23a. Moreover, the court stated, the

Roth interpretation of Section 1461 to encompass

only obscene speech “prevailed at the time that the

predecessor statute to § 223(a)(1)(A), which employed

the same ‘string of words’ as employed in § 223(a)(1)(A),

was enacted.” Ibid. Lastly, the court observed, the

Federal Communications Commission (FCC) “has long

interpreted § 1464 as encompassing more than the

obscene,” ibid. (quoting Pacifica, 438 U.S. at 741), but

“(t]here is no similar history of governmental regula-

tion with respect to § 223(a)(1)(A).” Ibid.

The court found “no indication” that when Section

223(a)(1)(A) was first enacted in 1968, “the provision

was intended to proscribe ‘indecent’ speech that is

not ‘obscene.’” J.S. App. 24a. In addition, the court

observed, the legislative record of the CDA “does not

state that Congress sought to change the nature of the

speech proscribed by the provision” when it amended

Section 223(a)(1)(A) in 1996. J.S. App. 25a. The court

was aware that the conference report on the CDA

discussed “Congress’ intent to limit ‘indecent’ com-

munications” in certain instances, but it noted that

those discussions “are limited to those parts of the

report which address the perceived need to protect

minors from harmful communications,” id. at 26a, and

that the CDA contained separate provisions proscribing

the transmission of “obscene or indecent” or “patently

offensive” communications to persons under 18 years of

age. Id. at 25a. See 47 U.S.C. 223(a)(1)(B) and (d)(1)

(Supp. II 1996). The court also emphasized that while a

few Senators opposed to the CDA stated that Section

223(a)(1)(A) “would proscribe merely ‘indecent’ com-

munications made with an intent to annoy,” there was

no indication “that the CDA’s sponsors, or the legisla-

ture generally, shared this view, nor does the con-

ference report reflect such an intent on Congress’ part.”

J.S. App. 28a.

The district court rejected appellant’s contention that

its interpretation would render Section 223(a)(1)(A)

redundant of the federal obscenity prohibitions of

18 U.S.C. 1462 and 1465 that the CDA extended to

Internet communications. J.S. App. 3la. The court

observed that the use of a “telecommunications device”

to which Section 223(a)(1)(A) applies, “is not the

equivalent of the use of an ‘interactive computer ser-

vice’ under § 1462 and § 1465.” J.S. App. 3la (citing 47

U.S.C. 223(h)(1)(B) (Supp. II 1996)). The court also

rejected the contention that because obscene speech is

unprotected by the Constitution, Section 223(a)(1)(A)’s

requirement that prohibited communications be mace

with “intent to annoy” serves no purpose. The court

explained that the intent requirement “clarifies Con-

gress’ intent that the statute proscribe only obscene

communications between non-consenting adults.” J.S.

App. 34a.

In the end, taking into account the canon that

“federal statutes are to be construed so as to avoid

serious doubts as to their constitutionality,” J.S. App.

34a, the court determined that it was “fairly possible’

to read § 223(a)1)(A) as applying only to ‘obscene’ com-

munications,” and that “[s]o construed, the provision

would clearly survive constitutional challenge.” J.S.

App. 35a.

Judge Illston dissented. J.S. App. 35a-43a. She

agreed that Congress could constitutionally prohibit

the transmission of obscene communications over the

Internet, but disagreed that Section 223(a)(1)(A) should

be read to cover only obscenity. J.S. App. 35a. Stating

that “[t]he present debate over the language * * *

seems academic,” she would have declared the statute

“as written” to be unconstitutional and severed “the

terms other than ‘obscene’ * * * from it.” Jd. at 43a.

ARGUMENT

This appeal should be dismissed. Appellant could

have had standing at the outset of this case only insofar

as appellant had a well-founded fear of prosecution

under Section 223(a)(1)(A) for transmitting indecent—

but not obscene—material by means of a telecommuni-

cations facility. In the unusual circumstances of this

case, any such fear was redressed by the combination of

the district court’s judgment holding that appellant

could not be prosecuted for transmitting indecent

material under Section 223(a)(1)(A) and by the rei-

teration in this case of the consistent position taken by

the Department of Justice that Section 223(a)(1)(A)

does not to extend to indecent communications that are

not obscene. These factors combined to eliminate any

well-founded fear of prosecution appellant might once

have had. Because standing must be demonstrated not

merely at the outset of a case, but also at each suc-

cessive stage of the case through appeal and final

judgment, the fac. that appellant no longer has any

well-founded fear of prosecution eliminates its standing

to appeal.

If the Court should conclude that appellant does have

standing to appeal, the judgment of the court below

should be summarily affirmed, because it is clearly

correct. Section 223(a)(1)(A) prohibits the transmission

of communications that are “obscene, lewd, lascivious,

filthy, or indecent.” This Court has long limited the

reach of virtually identical language in other federal

criminal statutes to obscene communication that is

unprotected by the Constitution. Moreover, this

~ Court’s decisions reaching that result were relatively

recent at the time Congress adopted the “obscene,

lewd, lascivious, filthy, or indecent” formulation in 1968,

thus lending special force to the presumption that Con-

gress legislated with this Court’s decis‘ons regarding

the meanifig of those statutory terms in view.

Although Congress changed several other terms in

Section 223(a)(1)(A) in 1996, it left the “obscene, lewd,

lascivious, filthy, or indecent” formulation untouched,

thus indicating that it intended no change in the settled

meaning of that formulation. Indeed, nothing in the

legislative history of either the 1968 enactment or the

1996 amendment suggests that Congress intended a

broader meaning. And even if there were any signifi-

cant doubt about the matter, it would be appropriately

resolved by the well-settled canon of construction that

federal statutes are to be read to avoid—rather than

magnify—constitutional doubts.

There is, in short, no basis for either an exercise of

appellate jurisdiction or plenary review by this Court.

Appellant challenges the district court’s holding that

Section 223(a)(1)(A) applies only to obscene communica-

tions, arguing that it reaches as well indecent com-

munications that are not obscene. But appellant does so

only as a predicate for its further contention that

Section 223(a)(1)(A), as so construed, is unconstitutional

precisely because it then would extend beyond obscene

communications. And as relief appellant seeks a

remand of the case to the district court “for the entry of

appropriate equitable relief prohibiting enforcement

of the statute except as to obscene material” (J.S.

25)—which is, of course, the very scope the district

court has already given to Section 223(a)(1)(A) as a

statutory matter. Article III of the Constitution does

not recognize a litigable stake in such an exercise. But

if the Court should conclude otherwise, that stake is so

attenuated—especially in view of the position of the

Department of Justice, reiterated in this case, that it

will not bring a prosecution under Section 223(a)(1)(A)

unless the communication at issue was obscene—that

there is no basis in equity for this Court to disturb the

district court’s denial uf injunctive relief. Accordingly,

if the Court were to conclude that appellant has

standing to appeal, the lack of equity would supply an

independent ground—in addition to the correctness of

the district court’s construction of Section 223(a)(1)(A)

—for the Court to summarily affirm the judgm, it

below.

1. Article III of the Constitution limits the juris-

diction of the federal courts to “cases” and “contro-

versies.” Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc., 454 U.S.

464, 471 (1982). One element of this “bedrock require-

ment,” ibid., is that a party that seeks judicial relief in

the federal courts must demonstrate that it has

standing to sue. Raines v. Byrd, 521 U.S. 811, 818

(1997). Standing is an Article III requirement that

“must be met by persons seeking appellate review, just

as it must be met by persons appearing in courts of first

instance.” Arizonans for Official English v. Arizona,

520 U.S. 48, 64 (1997); see also Steffel v. Thompson, 415

U.S. 452, 459 n.10 (1974) (“The rule in federal cases is

that an actual controversy must be extant at all stages

of review, not merely at the time the complaint is

filed.”).

When a plaintiff seeks an injunction barring future

prosecution under a law on the ground that it may be

applied to him, the plaintiff “must demonstrate a

realistic danger of sustaining a direct injury as the

result of the statute’s operation or enforcement.”

Babbitt v. United Farm Workers, 442 U.S. 289, 298

(1979). See also City of Los Angeles v. Lyons, 461 U.S.

95, 102 (1983) (plaintiff must “show that he ‘has sus-

tained or is immediately in danger of sustaining some

direct injury’ as the result of the challenged official

conduct and the injury or threat of injury must be both

‘real and immediate,’ not ‘conjectural’ or ‘hypotheti-

cal’”). That rule is applicable even to plaintiffs who

assert that the injury they suffer is a chilling of their

First Amendment rights of free speech. Where a

plaintiff “has alleged threats of prosecution that cannot

be characterized as ‘imaginary or speculative’” and his

concern with arrest for his allegedly constitutionally

protected conduct is not “climerical,” “it is not neces-

sary that [the plaintiff] first expose himself to actual

arrest or prosecution to be entitled to challenge a

statute that he claims deters the exercise of his consti-

tutional rights.” Steffel, 415 U.S. at 459. But “persons

having no fears of state prosecution except those that

are imaginary or speculative, are not to be accepted

as appropriate plaintiffs.” Babbitt, 442 U.S. at 298.

“Allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of specific present objective harm

or a threat of specific future harm.” Laird v. Tatum,

408 U.S. 1, 18-14 (1972).

The injury that appellant sought to redress in this

case is what the district court found to be its fear of

prosecution under Section 223(a)(1)(A) for communica-

tions that are indecent, but not obscene. J.S. App. 8a-

lla. That fear was at most marginally sufficient to

support standing at the inception of this case, since

appellant did not and could not allege that there had

been any threat by anyone to prosecute it under

Section 223(a)(1)(A) or, indeed, that anyone had in

recent decades been threatened with prosecution under

Section 223(a)(1)(A) for communications that were

indecent, but not obscene.’ But whatever fear of

% We are aware of only one instance, 29 years ago, in which

anyone was prosecuted under Section 223(a)(1)(A) for communi-

cations that may have been indecent, but not obscene. See United

States v. Darsey, 431 F.2d 963 (5th Cir. 1970). In that case, it

appears that the government in fact charged the defendant with

obscene communications. See id. at 963 (“The first two counts

charged the use of obscene language in interstate telephone

prosecution appellant might have had at the outset

of the case became entirely remote, speculative, and

conjectural after the district court’s ruling. Accord-

ingly, appellant had no standing to appeal that ruling.

a. First, the core of the district court’s opinion in

this case was its express holding that “the provisions

[challenged by appellant} regulate only ‘obscene’

communications.” J.S. App. la. That heiding would

have collateral estoppel effect against the government

should it ever attempt to prosecute appellant for

indecent communications under Section 223(a)(1)(A).’

As this Court explained in United States v. Stauffer

Chemical Co., 464 U.S. 165, 169 (1984), a party may

make defensive use of collateral estoppel against the

government if “there was mutuality of parties,” “the

issue sought to be relitigated was identical to the issue

already unsuccessfully litigated in [the earlier] court,”

and there has “been no change in controlling facts or

legal principles since the [earlier] action.” All of those

conditions would appear to be satisfied here. Accord-

ingly, the district court’s holding that Section

223(a)(1)(A) applies only to obscené communications,

and therefore does not apply to the conduct appellant

alleged it engages in, would generally preclude the

United States from prosecuting appellant for the

conduct appellant alleged in this case. See also 464 U.S.

at 170-171 (rejecting the government’s argument that

collateral estoppel does not apply to pure questions of

calls.”). Accordingly, the case is best explained as a possible

misapplication of the obscenity standard, rather than as a prose-

cution under a theory that the communications were indecent, but

not obscene.

* Collateral estoppel is available against the government in

criminal cases. See Dowling v. United States, 493 U.S. 342, 347

(1990).

law, and noting that “the doctrine of collateral estoppel

can apply to preclude relitigation of both issues of law

and issues of fact if those issues were conclusively

determined in a prior action”). That alone would

eliminate any well-founded fear of prosecution that ap-

pellant might have, and it accordingly would eliminate

appellant’s standing to appeal.

To be sure, the Court in Stauffer Chemical left open

the possibility that collateral estoppel might not be

applicable against the government in one additional

circumstance: if the legal issue already decided arose in

new litigation between the government and the same

private party in a circuit that had accepted the

government’s view of the governing law. See 464 U.S.

at 174. That possibility, however, is extremely remote

here. No court has ruled that Section 223(a)(1)(A),

either before or after its amendment in 1996, applies to

communications that are indecent, but not obscene.

Accordingly, even if the government believed that

Section 223(a)(1)(A) applied to non-obscene but inde-

cent communications and wanted to prosecute appel-

lant, but see pp. 14-16, infra, there is no court in the

country in which the United States could, at this time,

bring such a prosecution without being subject to

collateral estoppel. Before appellant could be pro-

secuted under Section 223(a)(1)(A) for non-obscene,

indecent communications, the United States would

have to alter its official position and conclude that

Section 223(a)(1)(A) applied to communications that are

indecent, but not obscene; some other individual would

have to be prosecuted under that theory, and the

theory would have to be accepted on appeal by a court

of appeals; venue for a prosecution of appellant would

have to lie in that circuit; the question left open in

Stauffer Chemical regarding whether collateral estop-

pel would apply in that situation to bar the government

from prosecuting appellant in that same circuit would

have to be decided in favor of the government; and the

government would have to surmount any other due

process objections that appellant may raise to such a

prosecution, see p. 15, infra. The remote possibility

that that series of events could occur surely does not

constitute the sort of well-founded fear of prosecution

necessary to support any continued standing by appel-

lant to appeal this case.

b. Second, on February 19, 1998, during the course

of the proceedings in the district court in this case, John

C. Keeney, the then-Acting Assistant Attorney General

for the Criminal Division, instructed all United States

Attorneys of the position of the Department of Justice

with respect to the scope of Section 223(a)(1)(A) after

enactment of the CDA. He pointed out that prior to its

amendment by the CDA, “the United States Attorneys

Manual interpreted this provision as prohibiting

obscene remarks,” App., infra, 2a (quoting United

States Dep’t of Justice, United States Attorney’s

Manual 9-63.410 (1992)). He then stated that after

its amendment, “[clonsistent with the pre-CDA inter-

pretation of this provision, * * * the provision * * *

continued to be limited to obscene communications,

albeit by telecommunications device.” App., infra, 2a.

The notification also instructed United States

Attorneys that “[t]his interpretation of the statute

shall govern the conduct of your office.” App, infra, 3a

(emphasis added). The notification was filed in the

district court in this case. See Notice of Filing, Feb. 27,

1998.

In the light of that assurance of the government’s

position, repeated in the government’s filings in this

case both in the district court and in this Court,

appellant would have a substantial due process objec-

tion to any prosecution brought against it under Section

223(a)(1)(A) for communications that are indecent, but

not obscene—at least unless and until the government

gave formal notice of a change in its position and

appellant had the opportunity either to challenge the

government’s new position or to conform its conduct to

that changed position. Cf. Raley v. Ohio, 360 U.S. 423,

438 (1959) (referring to “convicting a citizen for

exercising a privilege which the State clearly had told

him was available” as “the most indefensible sort of

entrapment”); United States v. Pennsylvania Indus.

Chem. Corp., 411 U.S. 655, 674 (1973) (“[T]o the extent

that the regulations deprived [defendant] of fair

warning as to what conduct the Government intended

to make criminal, we think there can be no doubt that

traditional notions of fairness inherent in our system of

criminal justice prevent the Government from pro-

ceeding with the prosecution.”); see also United States

v. Laub, 385 U.S. 475, 487 (1967) (“Ordinarily, citizens

may not be punished for actions undertaken in good

faith reliance upon authoritative assurance that punish-

ment will not attach.”); Cox v. Lowisiana, 379 U.S. 559,

571 (1965) (reversing convictions of the defendant for

picketing “near” a courthouse, where “the highest

police officials of the city, in the presence of the Sheriff

and Mayor,” advised the defendant “that a demonstra-

tion at the place it was held would not be one ‘near’ the

courthouse within the terms of the statute”).

Accordingly, even if the district court’s order, with

its collateral estoppel effect, were insufficient alone to

remove any well-founded fear of prosecution that appel-

lant might once have had, the addition of the repeated

and official assurances of the Department of Justice

that it construes Section 223(a)(1)(A) to apply only to

obscene communications would be sufficient to render

any remaining fear of prosecutivia chimerical. As a

result, although appellant did not obtain the injunction

it sought from the district court, the net effect is that

the only basis on which appellant had standing in this

case—its allegedly well-founded fear of prosecution—

has been entirely redressed. Its appeal therefore

should be dismissed.

2. If this Court does not dismiss this appeal, it

should summarily affirm the judgment below.

a. Section 223(a)(1)(A) prohibits a person from using

a telecommunications device to transmit any communi-

cation “which is obscene, lewd, lascivious, filthy, or

indecent,” if he has the requisite “intent to annoy,

abuse, threaten, or harass.” 47 U.S.C. 223(a)(1)(A)

(Supp. II 1996). While this Court has never interpreted

the scope of the string of words used in Section

223(a)(1)(A), it has had occasion to examine virtually

identical series of words in other federal criminal

statutes. In each case, the Court has determined that

the string is limited to speech that is obscene and does

not apply to speech that is merely indecent.

Thus, in Roth v. United States, 354 U.S. 476, 485

(1957), this Court upheld the constitutionality of 18

U.S.C. 1461 on the ground that “obscenity is not within

the area of constitutionally protected speech or press.”

As then at issue, Section 1461 imposed criminal penal-

ties on anyone who mailed any “obscene, lewd,

lascivious, or filthy book, pamphlet, picture, paper,

letter, writing, print, or other publication of an indecent

character.” See 354 U.S. at 479 n.1. It was argued that

the statute violated due process on the ground that the

language was “not sufficiently precise because they do

not mean the same thing to all people, all the time,

everywhere.” /d. at 491. Rejecting that argument, this

Court held that the statute, “applied according to the

proper standard for judging obscenity, [did] not offend

constitutional safeguards against convictions based

upon protected material, or fail to give men in acting

adequate notice of what is prohibited.” Id. at +92.

Roth thus “found, in effect, that in spite of the range of

terms employed in the statute, 18 U.S.C. § 1461 only

proscribes obscene speech.” J.S. App. 18a-19a.

The Court returned to the subject five years later in

Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962),

which overturned an administrative ruling under an

amended version of 18 U.S.C. 1461 that prohibited the

mailing of matter found to be “obscene, lewd, lascivious,

indecent, filthy or vile.” In announcing the judgment of

the Court, Justice Harlan emphasized that even though

the words of the statute “have different shades of

meaning, the statute since its inception has always been

taken as aimed at obnoxiously debasing portrayals of

sex,” 370 U.S. at 482-483, 7.e., “only indecent material

which, as now expressed in Roth v. United States,* * *

‘taken as a whole appeals to prurient interest.’” Jd. at

484.

The Court adhered to this approach after it refined

its test for obscenity in Miller v. California, 413 U.S. 15

(1973). In United States v. 12 200-Ft. Reels of Super

8MM Film, 413 U.S. 123 (1973), and United States v.

Orito, 413 U.S. 138 (1973), the Court rejected consti-

tutional challenges to 19 U.S.C. 1305(a), which pro-

hibited the importation of “obscene or immoral”

material, and 18 U.S.C. 1462, which prohibited the

shipment in interstate commerce of matter that is

“obscene, lewd, lascivious, or filthy * * * or * * * of

indecent character.” In doing so, the Court emphasized

that “[iJf and when * * * a ‘serious doubt’ is raised as

to the vagueness of the words ‘obscene,’ lewd,’

‘lascivious,’ ‘filthy,’ ‘indecent’ or ‘immoral’ as used to

describe regulated material in 19 U.S.C. § 1305(a) and

18 U.S.C. § 1462 * * * we are prepared to construe

such terms as limiting regulated material to patently

offensive representations or descriptions of that specific

‘hard core’ sexual conduct given as examples in Miller

v. California.” 12 200-Ft. Reels, 413 U.S. at 130 n.7.

The Court did just that in rejecting a vagueness

challenge to 18 U.S.C. 1461 the next year in Hamling v.

United States, 418 U.S. 87, 110-116 (1974), holding that

the terms—“obscene, lewd, lascivious, indecent, filthy

or vile”’—are “limited to the sort of ‘patently offensive

representations or descriptions of that specific hard

core sexual conduct given as examples in Miller v.

California.” 418 U.S. at 114 (quoting 12 200-Ft. Reels,

413 U.S. at 130 n.7).

Thus, in decisions rendered both before and after 47

U.S.C. 223(a)(1)(A) was first enacted in 1968 to prohibit

“obscene, lewd, lascivious, filthy, or indecent” telephone

conversations, see Pub. L. No. 90-299, § 1, 82 Stat. 112,

this Court had interpreted virtually identical terms in

other federal criminal statutes to encompass only

speech that is obscene and not indecent. Congress is

presumed to be aware of such settled prior judicial

interpretation, North Star Steel Co. v. Thomas, 515

U.S. 29, 34 (1995); Cannon v. University of Chicago,

441 U.S. 677, 698 (1979), and where, as here, the legisla-

ture adopts a statutory formulation that has been given

a specific meaning by this Court, it is reasonable to

conclude that Congress intended the formulation to be

construed in accordance with the prior judicial con-

struction.

b. There is no indication in the legislative history of

the 1968 enactment to suggest that Congress intended

the provision’s reach to extend to telephone calls

involving speech that is indecent without being

obscene. The House Report desci ed the purpose of

the statute as prohibiting “obscene, abusive, or harass-

ing telephone calls,” ° but nowhere suggested that the

term “indecent” was to have independent significance.

H.R. Rep. No. 1109, 90th Cong., 2d Sess. 2 (1968). The

Federal Communications Commission, in its comments

on the proposed enactment, similarly described its

reach as limited to “obscene or harassing telephone

calls.” Jd. at 7-8. And in the course of legislative

consideration, the Department of Justice informed Con-

gress that the statutory phrase would survive consti-

tutional challenge, resting its opinion on the decision in

Roth that obscenity falls outside the protections of the

First Amendment. See Abusive and Harassing

Telephone Calls: Hearings on S. 2825 and S. 3072 Be-

fore the Subcomm. on Communications of the Sen.

Comm. on Commerce, 89th Cong., 2d Sess. 27 (1966)

(Letter from Deputy Attorney General Ramsey Clark

to Committee Chairman Magnuson).

ce. Relying on FCC v. Pacifica Foundation, 438 U.S.

726 (1978), and Sable Communications, Inc. v. FCC,

492 U.S. 115 (1989), appellant contends (J.S. 9) that the

indecent materials covered by 47 U.S.C. 223(a)(1)(A)

° Besides prohibiting telephone conversations that involved

“obscene, lewd, lascivious, filthy, or indecent” language, the 1968

statute also prohibited persons from making anonymous telephone

calls with the intent to “annoy, abuse, threaten, or harass any

person at the called number,” or causing the telephone of another

“repeatedly or continuously to ring, with intent to harass any

person at the called number,” or make repeated telephone calls,

“during which conversation ensues, solely to harass any person at

the called number.” Pub. L. No. 90-299, § 1, 82 Stat. 112. Those

provisions remain in current law. See 47 U.S.C. 223(a)(1)(C), (D),

and (E) (Supp. IT 1996).

should be “recognized as distinct” from those that are

obscene. But Pacifica and Sable interpreted different

statutes employing different language, and they did so

years after Section 223(a)(1)(A) was first enacted.

At issue in Pacifica was 18 U.S.C. 1464, which for-

bids the use of “any obscene, indecent or profane langu-

age” by means of radio communications. This Court

treated the statute as regulating speech that is indecent

without being obscene in light of the FCC’s longstand-

ing interpretation of the statute “as encompassing more

than the obscene,” 438 U.S. at 741, and taking into

account Congress’s broader powers to regulate broad-

casting under the First Amendment. J/d. at 741-742 &

n.17. In Sabte; there was even less doubt about Con-

gress’ intent: the statute at issue prohibited “obscene or

indecent” commercial telephone communications, see

492 U.S. at 123 n.4, and had been modified during

the litigation to “specifically place[] the ban-on obscene

commercial telephone messages in a subsection sepa-

rate from the prohibition against indecent messages.”

Id. at 124 n.6. In addition, as the court below correctly

noted (J.S. App. 23a), “the ‘string of words’ employed in

§ 223(a)(1)(A) more closely resembles in both length

and syntax the ‘string of words’ used in 18 U.S.C.

§ 1461, as interpreted in Roth, Manual Enterprises,

and Hamling, than the words at issue in Pacifica and

Sable.” ®

6 Appellant also cites Denver Area Educational Telecom-

munications Consortium v. FCC, 518 U.S. 727 (1996), and

National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998)

(see J.S. 9-11), but those decisions interpreted statutory language

that bears even less resemblance to that employed in 47 U.S.C.

223(a)(1)(A). See Denver Area, 518 U.S. at 732-733 (reviewing

constitutionality of federal statute governing the carriage of cable

programming containing “patently offensive” depictions of “sexual

Appellant in addition contends that because Section

223(a)(1)(A) uses the disjunctive—“obscene, lewd,

lascivious, filthy, or indecent”—the necessary implica-

tion is “that each has a separate meaning.” J.S. 11

(quoting Pacifica, 438 U.S. at 739-40). But any such

implication is rebutted by this Court’s prior inter-

pretation of the virtually identical string of words in

Roth, Manual Enterprises, and Hamling, which re-

cognized that, despite the “different shades of meaning”

associated with the words used in the string, “the

statute since its inception has always been taken as

aimed at obnoxiously debasing portrayals of sex.”

Manual Enters., 370 U.S. at 483 (Harlan, J.). This

Court has often relied on the canon of statutory

construction “noscitur a sociis”—‘a word is known by

the company it keeps”—in order “to avoid ascribing to

one word a meaning so broad that it is inconsistent with

its accompanying words, thus giving ‘unintended

breadth to the Acts of Congress.’” Gustafson v. Alloyd

Co., 513 U.S. 561, 575 (1995) (quoting Jarecki v. G.D.

Searle & Co., 367 U.S. 303, 307 (1961)). That canon is

appropriately applied in this case to fix the meaning of

the single word “indecent” in the longer statutory

string. See, eg., Flying Eagle Publications, Inc. v.

United States, 273 F.2d 799, 803 (1st Cir. 1960)

(explaining that, in construing 18 U.S.C. 1461, “the

words ‘indecent, filthy or vile’ as used in the statute are

limited in their meaning by the preceding words

‘obscene, lewd, lascivious’”); United States v. Keller,

or excretory activities or organs”); Finley, 118 S. Ct. at 2173

(reviewing constitutionality of statute requiring the NEA to

“tak[e] into consideration general standards of decency and respect

for the diverse beliefs and values of the American public” in es-

tablishing regulations concerning grant decisions).

259 F.2d 54, 57 (3d Cir. 1958) (applying doctrine to hold

that, in construing 18 U.S.C. 1463, “language of an

‘indecent’ character must be equated with language of

an ‘obscene’ character”).

d. There is no basis for concluding that, in amending

Section 223(a)(1)(A) in 1996 as part of the CDA, Con-

gress intended to affect the interpretation of the

statutory phrase it had adopted in 1968. The

1996 amendments left the string of words at

issue—“obscene, lewd, lascivious, filthy, or indecent”

—unchanged. Compare Pub. L. No. 90-299, § 1, 82 Stat.

112, with 47 U.S.C. 223(a)(1)(A) (Supp. IT 1996). That

alone suggests that Congress did not intend to modify

the prior interpretation of that language. Pierce v.

Underwood, 487 U.S. 552, 567 (1988).

The legislative record relating to the 1996 amend-

ments also does not show that Congress intended to

expand the scope of the statute beyond obscene speech.

The Conference Report simply explains that the Senate

bill, which was adopted with minor modifications,

“updates section 223(a) * * * by using the term

‘telecommunications service’ as a replacement for or in

addition to ‘telephone’ references in the present law,”

and that “[t]he term ‘communication’ is added to

current law references to ‘conversation.’” H.R. Conf.

Rep. No. 458, 104th Cong., 2d Sess. 187 (1996). The

report also observes that the Senate bill added “[a]jn

intent requirement * * * [so] that liability is incurred

for ‘obscene, lewd, lascivious, filthy, or indecent’ com-

munications with the intent to ‘annoy, abuse, threaten,

or harass another person.’” Ibid. The legislation’s

sponsor similarly stated that the bill’s intent was

merely to “give law enforcement new tools to prosecute

those who would use the computer to make the equi-

valent of obscene telephone calls, to prosecute

electronic stalkers who terrorize their victims.” 141

Cong. Rec. $8330 (daily ed. June 14, 1995) (statement of

Sen. Exon); see also id. at S8333 (statement of Sen.

Coats) (“What we are doing here is not new, * * * We

are taking the standards adopted by the Senate, by the

Congress, signed into law, that apply to the use of these

kinds of communications over the phone wires and

applied it, now, over the computer wires.”).

In contending that Congress in 1996 intended Section

293(a)(1)(A) to reach “far beyond obscenity” (J.S. 20),

appellant takes out of context a statement in the

Conference Report that “the conferees intend that the

term indecency * * * has the same meaning as

established in FCC v. Pacifica Foundation, 438 USS.

726 (1978), and Sable Communications, Inc. v. FCC,

492 U.S. 115 (1989).” H.R. Conf. Rep. No. 458, supra, at

188. As the court below noted (J.S. App. 26a), that

statement was made in the section of the report

discussing the provisions of the CDA dealing with the

transmission of “obscene or indecent” and “patently

offensive” material to minors. See 47 U.S.C.

223(a)(1)(B) and (d) (Supp. II 1996). The portions of the

report preceding the sentence quoted by appellant thus

explain that “[nJew subsection [47 U.S.C.] 223(d)(1)

applies to content providers who send prohibited

material to a specific person or persons under 18 years

of age * * * [and] who post indecent material for

online display without taking precautions that shield

that material from minors.” H.R. Conf. Rep. No. 458,

supra, at 188 (emphasis added). Those portions also

state that it was “[nlew section 223(d)(1),” not section

223(a)(1)(A), that codified Pacifica’s indecency defini-

tion. Ibid. Similarly, the sentence following the one

quoted by appellant emphasizes that Pacifica and Sable

“establish the principle that the federal government has

a compelling interest in shielding minors from

indecency.” Ibid. (emphasis added).

Appellant points to several statements by opponents

of the CDA during the Senate floor debate that Section

223(a)(1)(A) would reach speech that is indecent but not

obscene. J.S. 20-22. But “(t]he fears and doubts of the

opposition are no authoritative guide to the construc-

tion of legislation.” Schwegmann Bros. v. Calvert

Distillers Corp., 341 U.S. 384, 394- 395 (1951). Accord-

ingly, this Court has “often cautioned against the

danger, when interpreting a statute, of reliance upon

the views of its legislative opponents,” since “[i]n their

zeal to defeat a bill, they understandably tend to

overstate its reach.” NLRB y. Fruit & Vegetable

Packers & Warehousemen Local 760, 377 U.S. 58, 66

(1964). Accord Edward J. DeBartolo Corp. v. Florida

Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.

568, 585 (1988). Appellant can point to no statement

by any of the CDA’s supporters that adopted the view

of Section 223(a)(1)(A) espoused by its opponents, and

“{t]here is no indication * * * that the CDA’s

sponsors, or the legislature generally, shared this

view.” J.S. App. 28a.

e. Appellant complains (J.S. 8-9, 13-14) that the

district court’s construction of 47 U.S.C. 223(a)(1)(A)

gives the term “indecent” in that subsection a meaning

different from that in 47 U.S.C. 223(a)(1)(B) (Supp. II

1996), which prohibits “obscene or indecent” communi-

cations to minors, see Reno v. American Civil Liberties

Jnion, 521 U.S. 844 (1997), and 47 U.S.C. 223(b)(2),

which prohibits indecent communications “by means of

telephone * * * for commercial purposes.” See Sable,

492 U.S. at 126. But “[i]t is not unusual for the same

word to be used with different meanings in the same

act, and there is no rule of statutory construction which

precludes the courts from giving to the word the

meaning which the legislature intended it should have

in each instance.” Atlantic Cleaners & Dyers, Inc. v.

United States, 286 U.S. 427, 433 (1932). In this case, the

term “indecent” as used in Section 223(a)(1)(A) has a

history and context that is distinctly different from that

of either of the other provisions in Section 223 upon

which appellant relies, and there is no reason to pre-

sume that its construction should be modified to fit that

of other provisions, with different histories and em-

bodying different purposes, which were added later.

Appellant also claims that the district court’s con-

struction renders 47 U.S.C. 223(a)(1)(A) “redundant of

other federal laws criminalizing the communication of

obscenity by computer, like 18 U.S.C. § 1465.” J.S. 15.

But Section 1465, which prohibits the interstate trans-

portation of obscene matter for distribution, applies to

materials transmitted through the use of “an inter-

active computer service.” 18 U.S.C. 1465 (Supp. II

1996). Section 223(a)(1)(A), by contrast, applies to

obscene matter transmitted by use of a “telecommuni-

cations device.” The two terms are not the same. An

“interactive computer service” is “any information

service, system, or access software provider that

provides or enables computer access by multiple users

to a computer server, including * * * aservice * * *

that provides access to the Internet.” 47 U.S.C.

230(e)(2) (Supp. II 1996). In contrast, as appellant

acknowledges (J.S. 3 n.1), “‘telecommunications de-

vices’ include telephones, computer modems and fax

machines.” See American Civil Liberties Union v.

Reno, 929 F. Supp. 824, 828 n.5 (E.D. Pa. 1996), aff’d,

521 U.S. 844 (1997). See also 47 U.S.C. 223(h)(1)(B)

(Supp. II 1996) (specifically providing that “[t]he use of

the term ‘telecommunications device’ in this section

* * * does not include an interactive computer

service”). To be sure, there is an area of overlap

between the two provisions, but that is hardly unusual

where federal legislation is concerned. See Babbitt v.

Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687, 703 (1995); Russello v. United

States, 464 U.S. 16, 24 n.2 (1983) (even if there are

“factual situations to which [two] subsections apply,” an

overlapping interpretation is not foreclosed where the

two subsections are “not wholly redundant”).

Finally, appellant asserts that interpreting Section

223(a)(1)(A) as limited to obscene communications

renders its “intent to annoy” requirement “surplusage,”

because “obscene communications can be proscribed

regardless of such intent.” J.S. 12. But Congress

always remains free to legislate short of constitutional

boundaries. In this case, the legislative history shows

that Congress intended in part to “codify Court and

FCC interpretations that [the statute] applies to com-

munications between non-consenting parties.” 141

Cong. Rec. S8091 (daily ed. June 9, 1995) (statement of

Sen. Exon). See J.S. App. 33a-34a (discussing United

States v. Carlin Communications, Inc., 815 F.2d 1367,

1372 (10th Cir. 1987), and Cohalan v. New York Tel.

Co., 55 Rad. Reg. 2d (P & F) 1249 (FCC Mar. 7, 1984).

There is nothing questionable about interpreting Sec-

tion 223(a)(1)(A) to prohibit only those obscene com-

munications that are made with an intent to annoy.

f. In the end, even if doubts regarding the meaning

of 47 U.S.C. 223(a)(1)(A) were more substantial, there

would be no basis for overturning the district court’s

interpretation. It is well settled that “an Act of Con-

gress ought not be construed to violate the Constitution

if any other possible construction remains available.”

NLRB v. Catholic Bishop, 440 U.S. 490, 500 (1979). See

generally Public Citizen v. United States Department

of Justice, 491 U.S. 440, 466 (1989); Crowell v. Benson,

285 U.S. 22, 62 (1932). Accordingly, “where an

otherwise acceptable construction of a statute would

raise serious constitutional problems, the Court will

construe the statute to avoid such problems unless such

construction is plainly contrary to the intent of Con-

gress.” Edward J. DeBartolo Corp., 485 U.S. at 575.

Appellant vigorously contends that if 47 U.S.C.

223(a)(1)(A) is construed to reach communications that

are indecent and not obscene, even with the limitation

that such communications must be made with the intent

“to annoy, abuse, threaten, or harass another person,”

the statute is unconstitutional. J.S. 23-27. If appellant

is correct, then the district court was under a duty in

accordance with this Court’s precedents to determine

whether there remained an alternative construction of

the statute by which the constitutional question could

be avoided. In this case, given this Court’s decisions

construing virtually identical language, it is plainly

possible to read Section 223(a)(1)(A) as applying only

to obscene communications. Appellant makes no

claim that, as so construed, the statute would be un-

constitutional—indeed, appellant concedes that “ob-

scene communications can be proscribed” by Congress.

J.S. 12. It was thus entirely appropriate for the district

court to interpret Section 223(a)(1)(A) to reach only

those indecent communications that are also obscene.

CONCLUSION

The appeal should be dismissed. In the alternative,

the judgment of the district court should be summarily

affirmed.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

BARBARA L. HERWIG

JACOB M. LEWIS

Attorneys

MARCH 1999

APPENDIX

[Department of Justice caption omitted]

February 19, 1998

MEMORANDUM FOR ALL UNITED STATES

ATTORNEYS

FROM: /s/ JCK John C. Keeney

Acting Assistant Attorney General

SUBJECT: Instructions on Interpretation of 47

U.S.C. § 223(a)(1)(A), Part of the

Communications Decency Act.

On February 8, 1996, the President signed the

Telecommunications Act of 1996, which contained the

Communications Decency Act (“CDA”). The CDA

amended, inter alia, 47 U.S.C. § 223(a)(1)(A) to prohibit

by means of a telecommunications device transmissions

of obscene, lewd, lascivious, filthy, or indecent materials

with the intent to annoy, abuse, threaten, or harass

another person. See 47 U.S.C. §§ 223(a)(1)(A), as

amended by Title V, Section 502 of the Telecommunica-

tions Act of 1996.

(la)

As originally enacted in 1968, 47 U.S.C. § 223(1(A)

lacked an intent requirement and prohibited using a

“telephone” “in the District of Columbia or in interstate

or foreign communication” to “make[] any comment,

request, suggestion or proposal which is obscene, lewd,

lascivious, filthy or indecent.” The United States

Attorneys Manual interpreted this provision as pro-

hibiting “obscene remarks.” See U.S. Attys. Man 9-

63.410 (1992) (section 223(a) “makes it a federal offense

for any person, by means of a telephone in the District

of Columbia or in interstate or foreign communication,

to * * * [mJake any obscene remark[.]”). See also,

U.S. Attys. Man. 9-75.093 (199"* and Criminal Resource

Manual at 1979 (47 U.S.C. § 223(a)(1)(A) (obscene phone

calls)).

A lawsuit was recently filed in which plaintiff

challenged solely the CDA’s prohibition on “indecent”

communications intended to “annoy” another person as

unconstitutionally vague and overbroad on its face and

as applied. See Apollomedia Corp. v. Reno, No. 97-346

(N.D. Ca.). Consistent with the pre-CDA interpreta-

tion of this provision, the Department took the position

in opposing plaintiff’s motion for preliminary injunction

that the provision at issue continued to be limited to

obscene communications, albeit by telecommunications

device. Oral argument on the stili-pending motion was

held on October 20, 1997.

This interpretation of the statute shall govern the

conduct of your office. In addition, the Child Exploita-

tion and Obscenity Section (“CEOS”) of the Criminal

Division continues to have supervisory responsibility

over section 223. Thus, “[clonsultation with the Section

is required before any criminal prosecution may be

instituted [there]under[.]” U.S. Attys. Man. 9-75.020

(“Authorization and General Prosecution Policies—

Department Priorities”).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.