# Motion — ApolloMedia Corp. v. Reno

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1061

## Text

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)

IV

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

VI

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
© OR, 130 Seat. 186 ois iis cssccnrudliniessnieaueiebels 2
© SGT (e), T8G Beas, EOD nis ca csscscssncetnssesecaineneaanits 1,4
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)

2

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.

3

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

4

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.

5

* * * 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

6

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”

7

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—

8

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,

9

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

10

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

11

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

12

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).

13

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-

14

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,

15

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

16

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

17

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,’

18

‘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

19

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).

20

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

21

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).

22

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

23

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

24

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

25

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

26

* * * 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

27

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.

28

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)

2a

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.

3a

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”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1411%3A2. Public record. Not legal advice.