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Subject: IP: Text of DCA Decision (fwd)
This is the text version of Judge Buckwalter's decision, courtesy of the
American Civil Liberties Union. An HTML version is available at EPIC's
website: www.epic.org/free_speech/censorship/lawsuit/
==========================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs
v.
JANET RENO,
Defendant
CIVIL ACTION
NO. 96-963
MEMORANDUM
BUCKWALTER, J.
February 15, 1996
I. BACKGROUND
Plaintiffs are providers and users of on-line communications. The
affidavits filed in support of plaintiffs' request for a temporary
restraining order (TRO) support the statement in plaintiffs' brief (page
2) that these communications deal with issues involving sexuality,
reproduction, human rights, social responsibility, environmental
concerns, labor, conflict resolution, as well as other issues, all of
which have significant educational, political, medical, artistic,
literary and social value.
On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996. Title V of the Act includes the
provisions of the Communications Decency Act of 1996 (CDA), codified at
47 U.S.C. Section 223 (a) to (h).
Pertinent to the matter now before this court, Section 223 (a) (1)
(B) provides:
(a) Whoever --
(1) in interstate or foreign communications --
(B) by means of a telecommunications device knowingly --
(i) makes, creates, or solicits, and
(ii) initiates the transmission of, any comment,
request, suggestion, proposal, image, or other communication which is
obscene or indecent, knowing that the recipient of the communication is
under 18 years of age, regardless of whether the maker of such
communication placed the call or initiated the communication;
Section 223 (d) provides:
(d) Whoever --
(1) in interstate or foreign communications knowingly --
(A) uses an interactive computer service to send to
a specific person or persons under 18 years of age, or
(B) uses any interactive computer service to
display in a manner available to a person under 18 years of age, any
comment, request, suggestion, proposal, image, or other communications
that, in context, depicts or describes, in terms patently offensive as
measured by contemporary community standards, sexual or excretory
activities or organs, regardless of whether the user of such service
placed the call or initiated the communication; or
(2) knowingly permits any telecommunications facility
under such person's control to be used for an activity prohibited by
paragraph (1) with the intent that it be used for such activity, shall
be fined under Title 18 United States Code, or imprisoned not more than
two years, or both.
In seeking a TRO with regard to the above provisions/1,
plaintiffs claim that they will be irreparably harmed because their
rights under the First Amendment will be infringed. They fear
prosecution under the CDA because as a result of the vagueness of the
crimes created by the Act, they do not even know what speech or other
actions might subject them to prosecution. Thus, even attempts to self-
censor could prove fruitless. There is also the concern by those
plaintiffs who rely on on-line providers and other carriers that these
providers will likely ban communications that they consider potentially
"indecent" or "patently offensive" in order to avoid criminal
prosecution themselves, thereby depriving plaintiffs of the ability to
communicate about important issues.
The defendant counters by stating that there must be a
realistic danger of sustaining a direct injury as a result of the
statute's enactment or enforcement, apparently suggesting that
plaintiffs' fears of prosecution are imaginary or speculative. There is
no evidence on the present record to suggest defendant's position is
correct in the latter regard.
Moreover, the defendant's brief quotes a portion of a Third
Circuit case for the proposition that "the assertion of First Amendment
rights does not automatically require a finding of irreparable injury."
What the defendant failed to cite from that case was the sentence
immediately preceding the above quote which was, "It is well established
that the loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury." Hohe v. Casey,
868 F.2d 69, at 72, 73 (3d Cir. 1989). The Hohe case goes on to explain
that plaintiff must show "a chilling effect on free expression." That
has been shown in this case by affidavits previously referred to.
What likelihood is there that plaintiffs will prevail on the
merits? In Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d Section 2948.3, it is suggested that this concept of
probability of success on the merits must be considered and balanced
with the comparative injuries of the parties.
As the Second Circuit put it, when
the balance of hardship tips decidedly toward plaintiff.
. .it will ordinarily be enough that the plaintiff has raised questions
going to the merits so serious, substantial, difficult and doubtful, as
to make them a fair ground for litigation and thus for more deliberative
investigation. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738,
740 (2d Cir. 1953).
I believe plaintiffs have, at least with regard to 47 U.S.C.
Section 223 (a) (1) (B) (ii) and (a) (2) raised serious, substantial,
difficult and doubtful questions which are fair grounds for this
litigation.
In explaining my reason for this conclusion, I will not go
through a piecemeal analysis of the cases, all of which have been set
forth in both plaintiffs' and defendant's briefs, except, perhaps, in
passing while discussing the respective arguments of the parties.
First of all, I have no quarrel with the argument that
Congress has a compelling interest in protecting the physical and
psychological well-being of minors. Moreover, at least from the
evidence before me, plaintiffs have not convinced me that Congress has
failed to narrowly tailor the CDA.
Where do I feel that the plaintiffs have raised serious,
substantial, difficult and doubtful questions is in their argument that
the CDA is unconstitutionally vague in the use of the undefined term,
"indecent." Section 223 (a) (1) (B) (ii).
This strikes me as being serious because the undefined word
"indecent", standing alone, would leave reasonable people perplexed in
evaluating what is or is not prohibited by the statute.
It is a substantial question because this word alone is the
basis for a criminal felony prosecution.
It is a difficult question, I think, because any laws
affecting freedoms such as the ones here in question have spawned
opinions which arguably support both sides.
Finally, it is a doubtful question because it is simply is not
clear, contrary to what the government suggests, that the word
"indecent" has ever been defined by the Supreme Court. See Alliance for
Community Media v. F.C.C., 56 F.3d 105 (D.C. Cir. 1995) p. 130, footnote
2:
We note that the Supreme Court has never actually passed on the FCC's
broad definition of "indecency". See Action for Children's Television
v. FCC, 852 F.2d. 1332, 1339-39 (D.C. Cir. 1988) (acknowledging that in
FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073
(1978), the Supreme Court never specifically addressed whether the FCC's
generic definition of indecency was unconstitutionally vague, but
arguing that because the Court "implicitly" approved the definition by
relying on it, lower courts are barred from addressing the vagueness
issue on the merits.
Parenthetically, I had reached the same conclusion as Judge
Wald, author of the above footnote, before reading Alliance for
Community Media. That, of course, does not mean that we are correct but
it did reinforce my belief that the question of vagueness is a difficult
and doubtful one.
In connection with the vagueness argument, the government
correctly states that plaintiffs face a most difficult challenge. That
challenge has been stated as one in which "the challenger must establish
that no set of circumstances exists under which the Act would be valid."
Rust v. Sullivan, 500 U.S. 173, 183 (1990) (quoting United States v.
Salerno, 481 U.S. 739, 745 (1987).
It is hard to imagine a set of circumstances where an act
proscribing certain conduct could be rendered valid if the description
of that conduct, the violation of which is a felony, is vague.
Defendant seems to argue that an indecent communication means
the same as a communication that in context, depicts or describes "in
terms patently offensive as measured by contemporary community
standards, sexual or excretory activities or organs. . . ."
While I do not believe the patently offensive provision of
Section 223 (d) (1), quoted above, is unconstitutionally vague, I do not
see how that applies to the undefined use of the word "indecent" in
Section 223 (a) (1) (B) (ii). Depending on who is making the judgement,
indecent could include a whole range of conduct not encompassed by
"patently offensive."
The remaining considerations relative to a TRO request weigh
in favor of plaintiffs. I have not overlooked or ignored the
outstanding argument made by the government in part 1 of its brief. I
particularly have pondered the oft cited quote: When a court is asked
to invalidate a "statutory provision that has been approved by both
Houses of the Congress and signed by the President, particularly an Act
of Congress that confronts a deeply vexing national problem, it should
only do so for the most compelling constitutional reasons." Mistretts
v. United States, 488 U.S. 361, 384 (1989), p. 17 of defendant's brief.
It is, of course, impossible to define conduct with
mathematical certainty, but on the other hand, it seems to me that due
process, particularly in the arena of criminal statutes, requires more
than one vague, undefined word, "indecent."
It is a most compelling constitutional reason to require of a
law that it reasonably informs a person of what conduct is prohibited
particularly when the violation of the law may result in fines,
imprisonment, or both.
An order follows.
n1/ Plaintiffs have also sought relief as to 18 U.S.C. Section 1462,
but at this early stage of the litigation, it seems clear that no
irreparable harm will befall plaintiffs. (See Gov't Ex. 13).
========================================================================
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs
v.
JANET RENO,
Defendant
CIVIL ACTION
NO. 96-963
ORDER
This case is before the court on plaintiffs' motion for a
temporary restraining order against enforcement of both 47 U.S.C.
Section 223 (a) (1) (B) (as amended by the Telecommunications Act of
1996, Section 502), and 47 U.S.C. Section 223 (d). The court having
considered plaintiffs' submissions in support of their motion, and
defendants' submission in opposition thereto,
IT IS HEREBY ORDERED THAT plaintiffs' motion for a temporary
restraining order is GRANTED, in part, as follows:
The defendant, her agents, and her servants are hereby
ENJOINED from enforcing against plaintiffs the provisions of 47 U.S.C.
Section 223 (a) (1) (B) (ii), insofar as they extend to "indecent", but
not "obscene". The plaintiffs' motion is in all others respects,
DENIED.
Unless previously ordered by this court, pursuant to 28 U.S.C.
Section 223 Section 2284 (b) (3), this order shall remain in force only
until the hearing and determination by the district court of three
judges of the application for a preliminary injunction.
SO ORDERED this 15th day of February, 1996
BY THE COURT:
__________________________
RONALD L. BUCKWALTER, J.
cc: Counsel of record via FAX by chambers 2/15/96.
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