UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ________________________________________ ) AMERICAN CIVIL LIBERTIES UNION, et al., ) ) Plaintiffs, ) ) v. ) Civ. No. 96-963 ) JANET RENO, in her official capacity as ) ATTORNEY GENERAL OF THE UNITED STATES, ) ) Defendant. ) ) _________________________________________) DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER FRANK W. HUNGER Assistant Attorney General Civil Division MICHAEL R. STILES United States Attorney MARK R. KMETZ Assistant United States Attorney DENNIS G. LINDER Director, Federal Programs Branch THEODORE C. HIRT Assistant Branch Director ANTHONY J. COPPOLINO JASON R. BARON MARY E. KOSTEL JAMES E. GILLIGAN Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 901 E. Street N.W. Washington, D.C. 20530 Tel: (202) 514-4782 Date: February 14, 1396 TABLE OF CONTENTS INTRODUCTION FACTUAL BACKGROUND 1. Congress Has Regulated Access by Minors to Indecent Materials in Several Communications Media 2. Interactive Computer Services and the Internet 3. Children "Surfing the Net" 4. Availability of Obscene and Indecent Materials Online STATUTORY BACKGROUND ARGUMENT 1. AN ACT OF CONGRESS MAY NOT BE ENJOINED ABSENT A SHOWING OF COMPELLING CIRCUMSTANCES 2. PLAINTIFFS' ALLEGATIONS OF IRREPARABLE HARM ARE INSUFFICIENT AND DO NOT OUTWEIGH THE GOVERNMENTAL INTERESTS AT STAKE 3. DEFENDANTS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS 1. Congress Has Acted Permissibly Under The First Amendment In Restricting The Availability To Minors Of Online Indecency 1. Congress Has A Compelling Interest In Preventing Minors From Obtaining Access To Online Indecency 2. Congress Has Provided For The "Least Restrictive Means" By Which Online Indecency May Continue To Be Made Available To Adults Although Inaccessible To Minors 1. The Defenses To Criminal Liability Provided For In Section 223(e)(5)(B) Incorporate Valid Restrictions Which Have Been Upheld in the "Dial-A-Porn" Context 2. Section 223(e)(5)(A) Provides For Additional "Safe Harbors" From Liability For Providers Of Online Indecency 32 3. The Availability to Parents of Voluntary Measures Does Not Constitute a Least Restrictive Alternative .35 2. The Indecency Standard is Not Void-for-Vagueness 1. It is Settled Law That the CDA's Indecency Standard is Not Unconstitutionally Vague 2. The Patent Offensiveness Standard is Not Unconstitutionally Vague 3. The Indecency Standard is Not Unconstitutionally Overbroad 4. The Act is Not Impermissibly Underinclusive 5. The Act Violates No Right to Privacy in Private "E-mail" 6. The Act Violates No Right of Anonymity 4. HARM TO DEFENDANT AND THE PUBLIC INTEREST OUTWEIGHS PLAINTIFFS' SPECULATIVE HARM 5. SHOULD THE COURT DECIDE TO ENTER A TRO, PLAINTIFFS' PROPOSED INJUNCTION IS FLAWED AS A MATTER OF LAW 6. CONCLUSION INTRODUCTION This case concerns whether Congress may, consistent with the First Amendment, protect children from access to patently offensive "indecent" sexual material easily available to them through online computer services. On February 8, 1996, President Clinton signed into law the Telecommunications Act of 1996. Title V, Section 502 of the Act includes the provisions of the Communications Decency Act of 1996 (the "Act" or "CDA") (to be codified at 47 U.S.C. Section 223(a) to (h)).1 This legislation, inter alia, regulates the transmission of indecent material over an "interactive computer service, including materials available on the Internet. 47 U.S.C. Section 223(d). The core of plaintiffs' challenge is to the provisions of the CDA that establish criminal penalties for anyone who knowingly uses an interactive computer service to send to a specific person under 18 years of age, or to display in a manner available to a person under 18, any comment, request, suggestion, proposal, image, or other communication that is "indecent" -- that is, which "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." 47 U.S.C. Section 223(d). Plaintiffs' attack on the CDA concerns its speculative application to communications that have educational, political, medical, artistic, literary, and social value concerning issues such as sexuality, reproduction, human rights, and civil liberties. The narrow question presented at the outset of this important case is whether the plaintiffs have satisfied the standards for obtaining the extraordinary injunctive relief of a temporary restraining order against an Act of Congress. The answer, we submit, is "no." First, like other Acts of Congress, this statute is presumptively constitutional and should not be enjoined preliminarily. This is especially the case here because both the government (and the Court) should have a reasonable opportunity for a more plenary consideration of the statute's constitutionality. Second, plaintiffs' claims of irreparable injury based on how the indecency standard of the CDA might conceivably be applied (e.g., to speech that generally relates to sexual matters, such as in a health- or policy-related context), is wholly speculative. Plaintiffs fail to show a realistic threat of suppression of their speech. The clear purpose of the Act is to restrict access by minors to "patently offensive depictions of sexual or excretory activities," that is to widely available pornographic images and materials online. Moreover, the government is likely to succeed on the merits of the plaintiffs' First Amendment claim. The government's interest in safeguarding the well-being of children has consistently been recognized as compelling. Ginsberg v. New York, 390 U.S. 629, 639-640 (1968). The CDA establishes a broad "safe harbor" whereby those who make patently offensive sexual material available online may seek to block access by minors by such means as requiring a credit card or other means of identification by adults, measures which have been upheld in the context of regulating indecent "dial-a-porn." See 47 U.S.C. Section 223(e)(5)(B). Similarly, the Act exempts from liability those who utilize "reasonable, effective, and appropriate actions" to prevent access by minors to indecent material, including "any appropriate measure [or] method" which is "feasible under available technology." Id. Section 223(e)(5)(A); Before a TRO can issue, it is plaintiffs' burden to demonstrate that this "safe harbor" cannot be utilized in any manner to preclude access by minors to indecent materials while preserving access by adults. Finally, the indecency standard has been upheld in three circuits against challenges that it is void-for-vagueness. The Supreme Court itself has made clear that indecency must be assessed in the context of the communication. The standard has been construed to apply to communications concerning sexual or excretory activities that, in context, are made in a patently offensive way. Since plaintiffs' challenge to the indecency standard is a facial one, they must show that there is no set of circumstances under which the Act could be validly applied to the indecent pornographic images online that Congress had in mind when it enacted the CDA. Given plaintiffs' failure to present sufficient allegations of irreparable harm or a likelihood of success on the merits, the Court should not enjoin a provision of law which would obligate those who place indecent pornographic images and textual materials online to take reasonable steps to block access by minors, steps which plaintiffs acknowledge are already within the technical ability of many such providers. The Attorney General's ability to protect children and serve the public interest through this additional measure should not be deferred. FACTUAL BACKGROUND A. Congress Has Regulated Access by Minors to Indecent Materials in Several Communications Media. The Communications Decency Act is the latest in a long line of congressional efforts to protect children from exposure to indecent material. Congress has acted to regulate the exposure to children of indecent material in the broadcast medium. See 18 U.S.C. Section 1464. This includes broadcast of indecent material on the radio, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978), as well as on television. Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) ("ACT III"), cert. denied, 116 S. Ct. 701 (1996) (upholding ban on television broadcast of indecent materials from 10 p.m. to 6 a.m.). Congress has also regulated access by minors to indecent "dial-a-porn" telephone messages 47 U.S.C. 223(c); see Dial Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992); Information Providers' Coalition For Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991) (upholding criminal prohibition on transmission of indecent communication to persons under 18 through telephone facilities). In addition, Congress has regulated access by minors to indecent material transmitted over certain cable television channels. Alliance for Community Media v. FCC, 56 F.3d 105, 129 (D.C. Cir. 1995), cert. granted, 116 S. Ct. 471 (1995) (upholding requirement that indecent programming on leased access channels be blocked to prevent access by minors). B. Interactive Computer Services and the Internet. The newly established section 223(d) of Title 47 continues this well-established regulation of indecent materials, applying it next to the most rapidly evolving communications medium -- "interactive computer services." The CDA defines "interactive computer service" to mean: any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions. 47 U.S.C. Section 230(e)(2). Common examples of interactive computer services include those provided by commercial entities such as America Online, Prodigy, and CompuServe that, in addition to providing subscribers with access to information in their own databases, provide access to the Internet. Interactive computer services also include other entities called Internet Service Providers ("ISP"), which provide software and a direct connection to the Internet. In addition, so-called bulletin board services ("BBS") are separate computer sites that can be logged onto through a telephone modem, and from which text and graphical images can be downloaded to a home computer. The Communications Decency Act defines "the Internet" as "the international computer network of both Federal and non-Federal interoperable packet switched data networks." 47 U.S.C. Section 230(e)(1). In simpler terms, "the Internet is an international, cooperative computer network of networks, which links many types of users, such as governments, schools, libraries, corporations, hospitals, individuals, and others." See Rita Tehan, Welcome to Cyberia: An Internet Guide, Congressional Research Service, Library of Congress, May 12, 1994 (Attached hereto as Exh. 5) at 1 (hereafter "CRS").2 The Internet provides access to a vast source of information world- wide on all manner of topics, from world events, politics, education, art, sports, hobbies, entertainment, science, healthcare, and law. The Internet is growing exponentially, and is an increasingly pervasive medium of communication and information. According to CRS, in March 1994, the Internet connected over 28,000 networks of more than 2 million "host" computers in 60 countries. Id. at 3. By July 1995, the number of host computers had risen to 6.6 million. See "Internet 95," Internet World Magazine, November 1995 at 47-52 (Exh. 7). It is estimated that, by the end of the decade, 120 million computers will be connected to the Internet. Id. at 47. Estimates of the total number of Internet users range from 20 million to 40 million people worldwide, with another 200 million to join by 1999. Id. The Internet is comprised of tens of thousands of commercial enterprises, as well as educational groups. See Internet World (Exh. 7) at 47. A major development in the Internet's growth in the 1990s has been in the so-called "World-Wide Web" (or "WWW"). Id. "The Web, unlike earlier Net services, combines text, pictures, sound, and even animation, and  lets [users] move around with a click of [a] computer mouse." Internet for Dummies (Exh. 6) at 9. The key to the growth of the Web has been the development of "Web Browsers" -- software programs that allow for easy searches of web sites. See Internet World (Exh. 7) at 47-48. The number of Web servers online by the end of 1995 is estimated to be over 40,000. Id. at 47. Through an innovation called "hypertext links" -- which is literally highlighted text on a web site's "Home Page" -- a user may, with a point and click of a mouse, jump from site to site and view photographic images, listen to audio files, or see motion pictures through the World Wide Web. See CRS at 5-6. 3 Other popular aspects of online services include "email" -- i.e, electronic mail -- a medium by which individual users can transmit messages to specific recipients or to multiple users through mailing lists. See Internet for Dummies (Exh. 6) at 9. Individuals can also post and read news articles, messages, and pictures of common interest on "newsgroups." One such service, called "USENET," consists of an estimated 12,000 different topic groups. As discussed infra, there are a multitude of newsgroups that include sexually oriented and explicit text and graphical images. Id. In addition, a broad range of files of information can be retrieved from various computers on the Internet through the so-called File Transfer Protocol (FTP), which "allows an Internet-connected computer to contact another computer, log-on anonymously, retrieve text, graphics, audio, or computer program files, and transfer desired files back to itself." CRS at 1-2. C. Children "Surfing the Net". During the debate on the CDA, the Senate was informed that "[o]f the 6.8 million homes with online accounts currently available, 35 percent have children under the age of 18." Remarks of Senator Coats, 141 Cong. Record S8333 (June 14, 1995) (Exh. 3).4 Online computer services, including the Internet, have an array of information and material directed at informing, educating, and entertaining children. For example, one publication describing material for children on the Internet lists such items as "Disney" -- information about Disneyland, lyrics to Disney songs, EuroDisney reports, and other material form the Magic Kingdom. See Hahn & Stout, The Internet Yellow Pages (Osborne McGraw-Hill: 2d ed 1995) at 371 (Exh. 8). There is also a related "chat" channel to talk about "all things Disney." Id. Another listing for "Kids Internet Delight" is a "gathering of sites children might enjoy, such as dinosaurs, sports information, and links to elementary schools across the country." Id. at 372. Sites are also listed for "youth" that concern scouting and nature activities. Id. at 739-40. The Internet is a place where millions of children are online looking for information on fun and games, educational interests, and hobbies. More and more households are purchasing computers to enable their children to access, as effectively as possible, educational and recreational materials. D. Availability of Obscene and Indecent Materials Online.5 As the Senate debate on the Communications Decency Act made graphically clear, there is also a very seamy side of the Internet and related computer services. The range of such material runs from the extreme of the most graphic obscenity and child pornography, to less extreme pornography. As the Act's chief sponsor, Senator James Exon, put it: It is no exaggeration to say that the most disgusting, repulsive pornography is only a few clicks away from any child with a computer. I am not talking just about Playboy and Penthouse magazines. . . . I am talking about the most hardcore, perverse types of pornography, photos, and stories featuring torture, child abuse, and bestiality. Remarks of Senator Exon, 141 Cong. Rec. S8330 (June 14, 1995). Senator Exon inserted in the Congressional record graphic descriptions of the types of sexually explicit pictures materials available online, such as pictures of "nude celebrities," "erotica females," "erotica animal," "erotica blondes," and even more graphic material. See Remarks of Senator Exon, 141 Cong. Rec. S8089 (June 9, 1995). Senator Exon also described the availability of "free" pornography on bulletin board services. As noted, bulletin boards are separate computer sites that can be accessed through a telephone modem-connection either directly or, increasingly, through online Internet services. 6 What these pornographers do is place free-of- charge material on the Internet that is designed to lure people over to their bulletin board so they can maybe hook them into a monthly charge of some type, to have available whenever they want from their pornography which is a library full-of everything you can imagine. Remarks of Senator Exon, 141 Cong. Rec. S8340 (June 14, 1995). Senator Exon's observations are verified by a cursory look at publicly available sources. For example, The Internet Yellow Pages contains many listings for "sex" and "X-rated" sites online. See Exh. 10. This includes materials on various sexual fetishes, masturbation, and Playboy Centerfolds. Id. at 601-602. There are web sites for locating "X-rated pornographic photos." Id. at 602. There is a site for a "cyber-brothel" available for exchanging erotic mail and pictures. Id. at 732. There is a long list of "newsgroup" sites called "alt.binaries" and "alt.sex" where erotic pictures and stories can be downloaded over a computer. Id. 7 None of this array of sexual and X-rated materials was discussed in plaintiffs' papers. But it was the major cause of concern that led to enactment of the CDA. Beyond this, following the Senate's initial consideration of the CDA, Senator Grassley chaired a hearing of the Senate Judiciary Committee on July 24, 1995, on the subject of "Cyberporn and Children: The Scope of the Problem, the State of Technology, and the Need for Congressional Action." See Exh. 4. This hearing discussed a range of problems associated with obscenity and indecency online, including sexual solicitation and harassment of minors through an online service, i. at 30-32, 34- 37; the availability of sexually explicit pornographic images on computers, i. at 39-41; and the existence of "chat-groups" discussing obscene and indecent matters i. at 69-76. The committee also heard testimony from access providers on the problem, i. at 78-87, and proposals for rating or "labelling" the content of online material, i. at 89-93. It is against the backdrop of this information that the provisions -- and the constitutionality -- of the CDA must be initially assessed in deciding plaintiffs' request for a TRO. STATUTORY BACKGROUND Two distinct aspects of the Communications Decency Act are at issue in this case. Plaintiffs challenge section 22.(a)(1)(B), which prohibits a person in interstate or foreign communications who uses a "telecommunications device" from knowingly making, creating, or soliciting "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." 47 U.S.C. Section 223(a)(1)(B). 8 Plaintiffs also challenge section 223(d) of the Act, which provides that 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 communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; 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. 47 U.S.C. Section 223(d). Section 223(d)(1) applies to "indecent" communications -- which is material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Id. In this regard, the conference report states that "[t]he gravamen of the indecency concept is "patent offensiveness," and that "such a determination cannot be made without a consideration of the context of the description or depiction at issue." Conf. Rep. at 189. The conference report also indicates that this standard shall have the same meaning as in prior Supreme Court decisions, noting also other judicial decisions that have applied and upheld the indecency standard to regulate access by minors to patently offensive communications. Conf. Rep. at 188 (citing Pacifica, supra; Sable Communications v. FCC, 492 U.S. 115, 126 (1989); Action for Children's Television, supra; Dial Information Services, supra; Information Providers' Coalition For Defense of the First Amendment, supra) In establishing liability for indecent communications to minors over an interactive computer service, the Act distinguishes between those entities that provide access to information online ("access software provider") and those who provide the content of that information ("content provider"). An "access software provider" means a provider of software that allows access to and the organization of content on the computer. 47 U.S.C. Section 230(e)(4).9 An "information content provider" under the Act means "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. Section 230(e)(3). Based in part on the foregoing distinctions, the Act establishes statutory defenses to violations of sections 223(a) and (d). The target of criminal penalties under CDA are "content providers who violate [the Act] and persons who conspire with such content providers, rather than entities that simply offer general access to the Internet and other online content." See Conf. Rep. at 190. Those who solely provide access or connection to a computer network, and are not involved in the creation of the content of the communication, are not liable for violations of Sections 223(a) and (d) of the CDA. 47 U.S.C. Section 223(e)(1). 10 Most importantly for purposes of this case, the CDA also establishes a defense for a person that (A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. 47 U.S.C. Section 223(e)(5). The conference report states that the word "effective" under the good faith defenses "is given its common meaning and does not require an absolute 100% restriction of access to be judged effective." Conf. Rep. at 190. In connection with the good faith defense, the statute also provides that the Federal Communications Commission "may describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d)." 47 U.S.C. Section 223(e)(6). "The use of such measures shall be admitted as evidence of good faith efforts for purposes of paragraph (5) in any action arising under subsection (d)." Id. ARGUMENT I. AN ACT OF CONGRESS MAY NOT BE ENJOINED ABSENT A SHOWING OF COMPELLING CIRCUMSTANCES. Plaintiffs ask this Court "to judge the constitutionality of an Act of Congress -- 'the gravest and most delicate duty that [a court] is called upon to perform,'" Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (internal quotations omitted). It is well established that acts of Congress are presumptively constitutional. See United States v. National Dairy Prods., 372 U.S. 29, 32 (1963). 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." Mistretta v. United States, 488 U.S. 361, 384 (1989) (internal quotations omitted). Despite the enormity of this task, plaintiffs make this request at the most preliminary stage of proceedings. Even outside the context of a constitutional challenge to a federal statute, "the grant of injunctive relief is an extraordinary remedy ... which should be granted only in limited circumstances." AT&T Co. v. Winback and Conserve Program, 42 F.3d 1421, 1426-27 (3d Cir. 1994) (internal quotation omitted), cert. denied, 115 S.Ct. 1838 (1995). For this reason, in order for preliminary injunctive relief to be granted, the Court must conclude that each of the four factors considered when ruling on such a motion must weigh in favor thereof. S&R Corp. v. Jiffy 17 Lube International, 968 F.2d 371, 374 (3d Cir. 1992). The factors are: "(1) the likelihood that the applicant will prevail on the merits at a final hearing; (2) the extent to which the plaintiffs are being irreparably harmed by the conduct complained of; (3) the extent to which the defendants will suffer irreparable harm if the preliminary injunction is issued; and (4) the public interest." Id. Because "the Government should not be obliged to abandon an important statutory scheme without an opportunity for plenary consideration," Rostker, 448 U.S. at 1310 n.3, plaintiffs' burden here is especially weighty. "[J]udicial power to stay an act of Congress, like judicial power to hold that act unconstitutional, is an awesome responsibility calling for the utmost circumspection in its exercise." Heart of Atlanta Motel v. United States, 85 S. Ct. 1, 2 (Black, Circuit Justice 1964). Therefore, the challenged statute "should remain in effect pending a final decision on the merits by [the courts]." Turner Broadcasting Sys. v. FCC, 113 S. Ct. 1806, 1807 (1993) (internal quotation omitted). Accord Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, J., in chambers). This form of measured approach -- in which courts weigh evidence prior to enjoining statutes where acts of legislatures -- has been followed in this Circuit. In Fabulous Associates v. Pennsylvania Public Utility Comm'n, 896 F.2d 780, 783 (3d Cir. 1990), a case on which plaintiffs otherwise place great emphasis, the district court denied the temporary restraining order there requested, and subsequently enjoined the state "dial-a-porn" statute at issue only after a full evidentiary hearing had been afforded at the preliminary injunction stage. Because enjoining an Act of Congress is such an extraordinary step, plaintiffs' request for a TRO should be denied on this basis alone. In addition, plaintiffs otherwise have failed to satisfy the requirements for a TRO.11 II. PLAINTIFFS' ALLEGATIONS OF IRREPARABLE HARM ARE INSUFFICIENT AND DO NOT OUTWEIGH THE GOVERNMENTAL INTERESTS AT STAKE. "The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Sampson v. Murray, 415 U.S. 61, 88 (1974) (internal quotation omitted); see also Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 542 (1987). Therefore, "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. United Farm Workers National Union, 442 U.S. 289 298 (1979). Although "it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution," Steffel v. Thompson, 415 U.S. 452, 459 (1974), "persons having no fears of ... prosecution except those that are imaginary or speculative, are not to be accepted as appropriate plaintiffs." Younger v. Harris, 401 U.S. 37, 42 (1971). The burden is on plaintiffs to prove a "clear showing of immediate irreparable injury." ECRI v. McGraw-Hill, 809 F.2d 223, 226 (3d Cir. 1987) (internal quotation omitted). This is true even where violations of First Amendment rights are claimed. "[T]he assertion of First Amendment rights does not automatically require a finding of irreparable injury." Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir.), cert. denied, 493 U.S. 848 (1989). "Constitutional harm is not necessarily synonymous with the irreparable harm necessary for issuance of a preliminary injunction." Id. at 73. Rather, it is the "purposeful unconstitutional [government] suppression of speech [which] constitutes irreparable harm for preliminary injunction purposes ...[,] the direct penalization, as opposed to incidental inhibition, of First Amendment rights ..." Id. (internal quotations omitted). Plaintiffs are therefore required to show that they suffer a "credible threat of prosecution." Babbitt, 442 U.S. at 298. Plaintiffs have failed to meet this burden. Instead, they proffer speculation that the Communications Decency Act is targeted at, and could be used to prosecute, those who engage in literary, artistic, scientific, political or health-related speech. In fact, the clear intent of Congress in enacting the CDA is to regulate access by minors to materials that, in context, are patently offensive depictions of sexually explicit activities, l.e., to control the widespread availability to children online of what is colloquially referred to as pornography. The statutory "indecency" standard at issue has been used to regulate sharply offensive language and sexually explicit material on broadcast media, as well as "adult"-oriented fare on cable television and sexually explicit "dial-a-porn" messages. Without any basis of support, other than their own academic reading of the statute, plaintiffs contend that the CDA would be immediately applied to all manner of expression that, in context, may not be indecent. At best, any alleged "chill" on such expression would be incidental to carrying out the legitimate purposes of the Act to limit access by children to pornography online. While the Court may consider plaintiffs' claim that the statute is so vague that it would cover the type of speech they describe in their pleadings (a claim that, on its merits, should rejected), the question presented here is whether such a threat is so plausibly imminent as to warrant emergency injunctive relief. Plaintiffs have made no such showing to support the issuance of a TRO. III. DEFENDANTS HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS. A. Congress Has Acted Permissibly Under The First Amendment In Restricting The Availability To Minors Of Online Indecency. Section 223(d), as amended, is a lawful exercise of Congress' authority to restrict access to indecent speech by children. Although indecent images and texts (including non- obscene pornography) are not outside the realm of the First Amendment, and Congress may not proscribe them totally, indecent communications have such little social value that they are at the bottom of the scale of protected speech. See Pacifica, 438 U.S. at 743 (patently offensive references to sexual or excretory activities or organs "surely lie at the periphery of First Amendment concern"); Young v. American Mini Theatres, 427 U.S. 50, 70 (1976) (Stevens, J., concurring) (with respect to sexually explicit, non-obscene speech, "society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate..."). Thus, Congress' authority to restrict indecent speech is greater than its authority to restrict other forms of speech. In analyzing the constitutional validity of Congress' effort to restrict online indecency, the Court should bear in mind that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." Red Lion Broadcasting v FCC, 395 U.S. 367, 386 (1969); see also Pacifica, 438 U.S. at 748 ("each medium of expression presents special First Amendment problems"). However, as Congress made clear in the legislative history of section 223(d), this Court may be fairly guided by a substantial body of First Amendment case law in the area of broadcasting (radio and television), cable television, and telephone communications -- most notably in the so-called "dial-a-porn" cases -- in making a determination that Congress has acted within its constitutional authority to restrict transmission or posting of patently offensive images and texts regarding sexual or excretory activities or organs made available to minors over computer networks. Assuming, arguendo, that this Court is to apply "strict scrutiny" under the First Amendment to Congress' enactment of section 223(d), the standard as articulated is whether, in "regulat[ing] the content of constitutionally protected speech in order to promote a compelling interest," the government "chooses the least restrictive means to further the articulated interest." Sable Communications, 492 U.S. at 126. As the Court in Sable went on to state: The Government may serve this . . . interest, but to withstand constitutional scrutiny, it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends. Id. (internal quotations omitted); cf. ACT III 58 F.3d at 660 (noting that while strict scrutiny is applied across various broadcast media, whether Congress' actions "survive that scrutiny must necessarily take into account the unique context of the broadcast medium").12 1. Congress Has A Compelling Interest In Preventing Minors From Obtaining Access To Online Indecency. "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies." Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Thus, the Supreme-Court has often affirmed that the government has a "compelling interest in protecting the physical and psychological well-being of minors, Sable Communications, 492 U.S. at 126, an interest that "extends to shielding minors from the influence of literature [and other indecent forms of expression] that is not obscene by adult standards." Id. See Bethel School District No. 403 v. Fraser, 478 U.S. 675, 684 (1986) ("First Amendment jurisprudence has acknowledged limitations on the otherwise absolute interest of the speaker in reaching an unlimited audience where the speech is sexually explicit and the audience may include children") (emphasis added); New York v. Ferber, 458 U.S. 747, 756-64 (1982) (individuals may be prosecuted for distribution of pornographic materials using depictions of sexually explicit conduct by children, even if materials are not legally obscene); Ginsberg v. New York, 390 U.S. 629, 638-640 (1968) (court upheld conviction of store owner for selling a non-obscene "girlie" magazine to a minor, recognizing that the power of the state to regulate conduct of minors is greater than control of conduct of adults). Collectively, these cases stand for the proposition that the government may take steps to restrict the distribution of indecent materials to minors -- including provision for criminal penalties -- even though access to such materials could not constitutionally be denied to adults. Moreover, apart from the government's "independent interest in the well-being of its youth," Ginsberg, 390 U.S. at 640; Sable Communications, 492 U.S. at 126; Ferber, 458 U.S. at 756-57, the government has an equally compelling interest in helping parents exercise "authority in their own household to direct the rearing of their children." Ginsberg, 390 U.S. at 639; see ACT III, 58 F.3d at 661. The interest of parents in the "care, custody, and management" of children "occupies a unique place in our legal culture, given the centrality of family life as the focus for personal meaning and responsibility." Lassiter v. Department of Social Services, 452 U.S. 18, 38 (1981) (Blackmun, J., dissenting) (quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). The government's interest in shielding children from online indecency (including, but not limited to, in the form of images and texts available on computer bulletin boards, Internet web pages, or newsgroups), is no less vital than its interest in shielding them from indecent messages conveyed in "dial-a-porn" messages, see Sable Communications, 492 U.S. at 126, in school assemblies, see Bethel School District, 478 U.S. at 683-84, through the airwaves, see Pacifica, 438 U.S. at 749-50, or in pornographic magazines, see Ginsberg, 390 U.S. at 639-40. In each case, the harm that the government seeks to foreclose -- a child's exposure to patently offensive depictions of sexual and excretory activities -- is exactly the same. As the Supreme Court has recognized, premature and repeated exposure to such material can "seriously damag[e]" a child's development, particularly the development of younger children "on the threshold of awareness of human sexuality." Bethel School District, 478 U.S. at 683. Indeed, this case has compelling parallels to Pacifica, where the Court held that indecent broadcasts could be regulated based on factors including the "uniquely pervasive presence" of radio, and the fact that such broadcasts were "uniquely accessible to children." 438 U.S. at 748-49. Plaintiffs would be hard pressed to discount that home computers have become commonplace; that millions of homes are "on-line"; that there are large numbers of juveniles and children who have developed computer literacy (in many cases far beyond the simple act of pointing and clicking to get into World Wide Web pages, or newsgroups); and that, in general, there is a generational gap between children and their less computer-sophisticated parents. (Indeed, a number of plaintiffs' declarants highlight the fact that minors do indeed access their services.) To paraphrase Pacifica, "[t]he ease with which children may obtain access to [on-line indecent] material, coupled with the concerns recognized in Ginsberg, amply justify special treatment [of the online medium]." 438 U.S. at 750. 13 Plaintiffs argue that there is no "compelling government interest" here where Congress, in their view, has failed to make appropriately tailored legislative findings concerning the actual psychological harm suffered by children from exposure to "indecent" pornography. See Pls.' Mem. at 28-29. Plaintiffs' attack on Congress' actions fails for two straightforward reasons. First, any doubts regarding Congress' knowledge of the looming, if not overwhelming, nature of the problem of online pornography, are readily dispelled by the available record before Congress prior to passage of the Act, including that presented in floor testimony and in hearings (see Exhs. 3, 4, 9, 10).14 Second, there is simply no constitutional infirmity in Congress having acted to enact legislation in the absence of making such detailed legislative findings. As the Third Circuit recently held in a different context, plaintiffs' argument assumes that Congress must meet a strict standard of specificity in finding facts and reporting its conclusions. That is not so. 'Congress is not obligated, when enacting its statutes, to make a record of the type that an administrative agency or court does to accommodate judicial review.' Turner Broadcasting System. Inc. v FCC, 114 S. Ct. 2445, 2471 (1994) (Kennedy, J.). Congress need not even rely solely upon evidence provided in hearings. See Stafford v. Wallace, 258 U.S. 495, 513 (1922). United States v. Bishop, 66 F.3d 569, 582 (3d Cir. 1995), cert. denied, 116 S. Ct. 681 (1996); accord, Fullilove v. Klutznick, 448 U.S. 448, 502-03 (1980) (Powell, J., concurring) (noting that legislative bodies have a "broader mission"). In the end, plaintiffs cannot dispute that a large and growing amount of pornography is presently available online and easily accessible to children in the home, far exceeding anything available prior to the advent of online computer services. Given this fact, Congress' bedrock concern for the protection of children takes on paramount importance. 2. Congress Has Provided For The "Least Restrictive Means" By Which Online Indecency May Continue To Be Made Available To Adults Although Inaccessible To Minors. Contrary to plaintiffs' contention,15 Congress neither purported to ban, nor effectively ban, online indecency in all its various forms. Cf. Sable Communications, 492 U.S. at 127 (statute denied adults as well as children access to indecent "dial-a-porn" messages). Rather, in several narrowly tailored provisions located in section 223(e), Congress acted in a sophisticated way to provide "information content providers" with broad defenses to criminal liability for the posting of indecent material, provided that they have employed one or more technical means of blocking access to minors as set forth in section 223(e)(5)(A) & (B). Thus, those who create or "post" indecent images or texts in cyberspace are on notice that they are free to do so, so long as they have taken reasonable and appropriate measures to block access to children effectively. As the Congressional history makes clear, Congress borrowed from a solid foundation of case law upholding similar measures in formulating a scheme which places the burden on the information content provider to restrict access to indecent communications. a. The Defenses To Criminal Liability Provided For In Section 223(e)(5)(B) Incorporate Valid Restrictions Which Have Been Upheld in the "Dial-A-Porn" Context. Section 223(e)(5)(B) provides that it is a complete defense to prosecution for a content provider to have restricted access to indecent communications "by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." 47 U.S.C. Section 223(e)(5)(B). As such, Congress has done no more than incorporate the standards for blocking access to "dial-a-porn" messages -- which were developed by the FCC in response to 47 U.S.C. Section 223(b), as amended in 1989, and which have been subsequently upheld by the Courts -- as one option that content providers may take to ensure against children's online access to posted indecent material. See 47 C.F.R. Section 64.201; Dial Information Services, supra; Information Providers' Coalition, supra.16 Plaintiffs do not dispute that such measures are feasible and are being employed in a variety of areas in "cyberspace." See, e.a., Hauman Aff., paragraph 9 ("BiblioFile Books on Computer" currently requires credit card for purchase of electronic books);17 Pls.' Mem. at 11 n.26 ("computer bulletin board systems that specialize in adult material generally require identification and payment and screen out minors, and are thus not at issue in this case"). Certainly, with respect to content providers to bulletin boards, Internet web pages, and other sites, who have the technical means to control and block access to their content, it should be undisputed that section 223(e)(5)(B) constitutes a sufficient "least restrictive means" of regulating indecency. 18 Other individuals and entities that communicate patently offensive material may likewise utilize such measures that allow for the identification of adults prior to obtaining access to particular Internet web pages and other online sites. There is simply insufficient evidence of record -- especially at this early stage of the proceedings -- to suggest that such measures would be so unduly burdensome on any of the plaintiffs, so as to justify invalidating this provision on constitutional grounds. b. Section 223(e)(5)(A) Provides For Additional "Safe Harbors" From Liability For Providers Of Online Indecency. Going one step further than the "dial-a-porn" regulations, Congress has included a second, broadly worded "safe harbor" provision, allowing for a good faith defense to liability if a person has taken "reasonable, effective, and appropriate actions" to "restrict or prevent" access by minors to indecent material, based on any appropriate measure or method which is "feasible under available technology." 47 U.S.C. Section 223(e)(5)(A) 19 In addition to whatever is feasible now, the legislative history makes clear that Congress understood that "content selection standards" and other technologies "currently under development" may be developed which provide-for effective restrictions on access by minors to online indecency. See Conf. Rep. at 190 (Exh. 2). Congress also does not expect perfection; the conference report makes clear that the statutory term "effective" is to be given "its common meaning and does not require an absolute 100% restriction of access to be judged effective." Id. 20 While plaintiffs interpose various objections to doing so, they concede that many content providers can presently attempt to comply with the Act, by utilizing a variety of such technical means for essentially "screening out" indecent material from various areas of cyberspace. See Pls.' Mem. at 48-50 .21 Other than largely ipse dixit assertions, plaintiffs present scant evidence of record that screening is impossible or unduly burdensome on those content providers liable under the statute. At bottom, plaintiffs are demanding that unlike physical space, cyberspace be free of any form of "cyberzoning" of indecent speech -- even if that means unlimited availability of pornography and indecency to minors in the home. This position flies in the face of a body of precedent in which the Supreme Court has upheld reasonable time, place, and manner limitations on indecency in "public" spaces. See, e.q., Bethel School District, 478 U.S. at 675-87 (upholding restrictions on indecent speech in a political address by high school student); City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) (upholding zoning restrictions on location of adult theatres); City of Newport v. Iacobucci, 479 U.S. 92 (1986) (upholding statute forbidding non- obscene nude or nearly nude dancing in pubs); see also American Booksellers Ass'n, Inc. v. Virginia, 882 F.2d 125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990) (upholding statute prohibiting the display of sexually explicit materials to juveniles in a manner whereby they may examine and peruse them).23 The Constitution does not forbid the legislature from requiring libraries and bookstores to shield adult magazines from minors, and similarly, plaintiffs have failed to provide a constitutional justification for requiring the application of a different rule in cyberspace. 24 c. The Availability to Parents of Voluntary Measures Does Not Constitute a Least Restrictive Alternative. Plaintiffs' argument that Congress failed to consider "least restrictive alternatives" also rests on the notion that "alternative ways to restrict children's access to indecent materials . . . exist." Pls.' Mem. at 30. Plaintiffs specifically discuss screening and filtering devices available to parents to control the content of material received from online sources. Id. at 21-24. They would have the Court find that Congress may do no more in this area than encourage parents to undertake voluntary self-help against access by minors to online pornography and indecency. The defects in this analysis should be apparent. 25 To begin with, plaintiffs' bald assertions that such voluntary filtering measures are effective and constitutionally sufficient are entirely inadequate on which to obtain a TRO. While plaintiffs trumpet such measures, they are equally quick to concede that "[t]hese programs are not foolproof. New online sites are created daily and no software can guarantee that it will block access to every site. . . ." Pls.' Mem. at 24 .26 In this regard, it is important to remember that "the focus should be on goals as well as means." Dial Information Services, 938 F.2d at 1542. "The goal . . . is to prevent access to indecent messages by children [and t]he means must be effective in achieving the goal." Id. (emphasis added). While the development and refinement of products and services available to parents is unquestionably commendable, the existence of such measures is not dispositive of whether Congress may enact independent measures to resolve a serious problem, and whether such measures are least restrictive. 27 Other courts that have considered a comparable argument have made clear "the Government's own interest in the well-being of minors provides an independent justification" for the regulation of indecency. ACT III, 58 F.3d at 661, 663 (citing Ferber, 458 U.S. at 756-57; Ginsberg, 390 U.S. at 640). In the context of broadcast indecency, the D.C. Circuit noted that "[i]t is fanciful to believe that the vast majority of parents who wish to shield their children from indecent material can effectively do so without meaningful restrictions on the airing of broadcast indecency." Id. Similarly, in the context of access to indecent cable television programming, the court in Alliance For Community Media, 56 F.3d at 125, also upheld governmental measures despite the presence of a voluntary block-out alternative. The court found that "given the pervasiveness of cable television and its accessibility to children," voluntary measures would not have achieved the government's aims. Id. The court found it was constitutionally permissible for Congress "to protect children and to enhance the ability of parents to shield their children from the influence of 'adult' programming." Id. at 127 (citing Ginsberg, 390 U.S. at 639-40). The court also made clear that Congress has every right to reverse the presumption and, instead of requiring parents to take affirmative steps to block incoming indecent material, can require those who provide such material to take steps to block its access to minors. Id. The court saw "no reason why leased access programmers should necessarily retain the advantage of inertia, and we can conceive of no constitutional principle entitling them to do so." Id. at 126. In the context of "dial-a-porn," the court in Dial Information Services, 938 F.2d at 1542, again evaluated and rejected the availability of voluntary measures that parents could utilize to block access of indecent telephone messages from their children. The court examined evidence as to the efficacy of the voluntary system and found it lacking. It noted, for example, that many parents might become aware of their child's contact with indecent pornography only after serious psychological damage from contact to indecent dial-a-porn has already occurred. Id. 26 While the online computer medium and the broadcast, cable, and telephone media have important differences, the availability of indecent and obscene sexually explicit material online is, nonetheless, highly pervasive. See, e.g., Exh. 10. Indeed, the content of indecent and obscene images and text available on line is far more pervasive than anything that might ever be available on the broadcast or cable television, or the telephone. Not only is there more of it from multiple sources, but much of it is far more extreme than anyone could ever obtain from off-line sources. And much of it is relatively easy for unsupervised children to point, click, find, and view. Thus, while undoubtedly the "'custody, care, and nurture of the child reside first in the parents,'" Pls.' Mem. at 30 (citing Ginsberg, 390 U.S. at 639), the government has an "independent interest in the well-being of its youth." Ginsberg, 390 U.S. at 640. The governmental and parental interests serve "complementary objectives mutually supporting limitations on children's access to material that is not obscene for adults." ACT III, 58 F.3d at 663 (citing Ginsberg, 390 U.S. at 639-40). B. The Indecency Standard is Not Void-for-Vagueness. 1. It is Settled Law That the CDA's Indecency Standard is Not Unconstitutionally Vague. Perhaps the heart of plaintiffs' complaint is that the indecency standard set forth in the Communications Decency Act is impermissibly vague. Pls.' Mem. at 34-42. They argue that "'[i]ndecency'... is a completely imprecise term -- wholly subjective and dependent on individual values and attitudes that no person engaged in speech can be expected to anticipate." Id. at 35. Through the collection of a number of parties, plaintiffs seek to set forth hypothetically impermissible applications of the indecency standard to literary, artistic, educational, health-related, or political speech. Indeed, plaintiffs' theory appears to be that the government cannot constitutionally regulate access by minors to any materials, unless they meet the standard of legally obscene or its variant of "harmful to minors." Id. at 36, 45-46. It is important to remember first that plaintiffs are challenging the facial validity of the CDA. Hence, the Court must look to whether the statute "can be construed in a such a manner that [i] can be applied to a set of individuals without infringing upon constitutionally protected rights." Rust v. Sullivan, 500 U.S. 173, 183 (1990). Even in a First Amendment context, the Supreme Court has recognized that "[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render [it] wholly invalid." Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Several courts have specifically upheld the indecency standard against vagueness challenges. To begin with, the Supreme Court in Pacifica upheld an FCC adjudication that an afternoon radio broadcast of the now-famous "seven dirty words" monologue by George Carlin was indecent. The FCC indecency standard at issue in Pacifica was defined as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs." 438 U.S. at 732. Section 223 (d) of the CDA mirrors the language at issue in Pacifica. It regulates the knowing transmission of "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." 47 U.S.C. Section 223 (d)(l). The Court in Pacifica also addressed vagueness concerns similar to those raised here. In that case, Pacifica argued that the indecency standard at issue was unduly vague because the language "encompassed so much constitutionally protected speech." 438 U.S. at 742. The Court rejected such over-arching vagueness concerns and limited its review to the specific FCC adjudication at issue. It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Id. at 743. The Court also stated that "[i]nvalidating any rule on the basis of its hypothetical application to situations not- before the Court is 'strong medicine' to be applied 'sparingly and only as a last resort.'" Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973)). The Court "decline[d] to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech." Id. Based on the Court's refusal to invalidate the indecency standard across-the-board in Pacifica, the Courts of Appeals for the D.C. Circuit, Second Circuit, and Ninth Circuit have upheld the indecency standard against vagueness challenges. First, in a decision upholding a requirement that television stations restrict the broadcast of "indecent!' programming to certain hours, the D.C. Circuit rejected petitioners' vagueness challenge, stating, "'the Supreme Court's decision in Pacifica dispelled any vagueness concerns attending the [Commission's] definition [of indecency]...'" ACT III, 58 F.3d at 659 (quoting Action for Children's Television v. FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) ("ACT II")). See also Alliance for Community Media, 56 F.3d at 129 (rejecting contention that the term "indecent" is unconstitutionally vague). Next, in a 1991 decision upholding a requirement that telephone companies "reverse block" dial-a-porn on telephone lines, the Second Circuit noted that "the Commission's most recent definition of 'indecent' tracks one that it developed in the radio broadcast context and that passed muster in the Supreme Court."29 Dial Information Services, 938 F.2d at 1541 (citing Pacifica). Finding that "'[i]ndecent'... has been defined clearly by the Federal Communications Commission," the court rejected petitioners' vagueness challenge. Finally, upholding the same restriction on dial-a-porn, the Ninth Circuit stated "the term 'indecent' has a judicially recognized meaning that is not unconstitutionally vague." Information Providers' Coalition, 928 F.2d at 874. The court noted that the FCC had "borrowed a definition that already had received the imprimatur of the Court." Id. (citing Pacifica) The court reasoned that "[i]f the indecency definition passes the void-for-vagueness test for persons of ordinary intelligence who broadcast radio communications, it certainly must pass the same test for those persons who offer indecent communications over the telephone line." Id. at 875. The conference report on the Communications Decency Act specifically embraces the indecency standard that was at issue in Pacifica. It explains that the term "indecent," as applied to the transmission of text or images over interactive computer devices, "codifies the definition of indecency from FCC v. Pacifica Foundation, 438 U.S. 726 (1978)," and is intended to have "the same meaning" as established in that case Indeed, three circuits have now upheld the use of the "indecency" standard as applied to minors. See ACT III, supra ("indecency" standard applied to restrict minors' access to television broadcasts); Alliance for Community Media, supra (same); Dial Information Services, supra (same, in dial-a-porn context); Information Providers' Coalition, supra (dial-a-porn). The idea, then, that the CDA is overbroad because it applies an indecency standard and not a "harmful to minors" one is clearly wrong. 37 D. The Act is Not Impermissibly Underinclusive. In the first of a number of make-weight arguments, plaintiffs contend that the Act "constructs an impermissible system of discrimination by imposing regulations on those who communicate through the online medium but not on those who communicate the same information through the print medium." Pls.' Mem. at 51. A like argument was recently advanced, and squarely rejected, in Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2467-69 (1994). In that case, the plaintiffs complained that certain statutory requirements imposed on cable television operators had not been imposed on other television media. On that basis, plaintiffs challenged the regulations in question as presumptively invalid under the First Amendment. Id. at 2467-68. The Supreme Court rejected this claim, explaining that "the fact that a law singles out a certain medium ... is insufficient by itself to raise First Amendment concerns.'" Id. at 2468 (citing Leathers v. Medlock, 499 U.S. 439, 452 (1991)). In so holding, the Court specifically distinguished such precedents as Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983), on which plaintiffs here rely. See Pls.' Mem. at 51. The Court explained that these cases involved laws which "targeted a small number of speakers, and thus threatened to distort the market for ideas." Turner Broad- casting, 114 S. Ct. at 2468 (internal quotations omitted). 38 By contrast, the indecency provisions challenged here "are broadbased," id., applying to millions of users of "telecommunications devices" and "interactive computer services." 47 U.S.C. Section 223(a)(1)(B), (d)(1). See Pls.' Mem. at 11-12. "As a result, the[se] provisions do not pose the same dangers of suppression and manipulation that were posed by the more narrowly targeted regulations in Minneapolis Star..." Turner Broadcasting, 114 S. Ct. at 2468. E. The Act Violates No Right to Privacy in Private "E-mail". Plaintiffs next argue that the CDA violates the constitutional right to privacy emanating from the First, Fourth and Ninth Amendments, which protects private e-mail "against governmental invasion or censorship." Pls.' Mem. at 53. This claim includes one of plaintiffs' few specific challenges to section 223(a)(1)(B). As a threshold matter, it is open to question whether this or any of plaintiffs' claims implicate this provision. The broad thrust of plaintiffs' challenge in this action is "to stop the enforcement of provisions... that criminalize their expression" over "computer communications systems," Pls.' Mem. at 1, and the "online medium." Id. at 25. Plaintiffs use both of these terms synonymously with "interactive computer services." Id. at 1 n.1. Under the statute, however, section 223(a)(1)(B) does not apply to "interactive computer services." 47 U.S.C. Section 223(h)(1)(B). Section 223(a)(1)(B) prohibits the knowing dissemination of obscene or indecent communications to minors "by means of a telecommunications device." Whatever meaning is encompassed by that term, it specifically "does not include an interactive computer service." Id. Section 223(h)(1)(B)). See also Sections 223(h)(2), 230(e)(2) (defining interactive computer service as including "a service or system that provides access to the Internet"). Thus, insofar as the "e-mail" communications at issue in this claim are through the use of "interactive computer services," section 223(a)(1)(B) is not implicated. Certainly plaintiffs do not show otherwise, and the Court should decline to enjoin enforcement of section 223(a)(1)(B) until it is ascertained that this aspect of the statute is properly at issue. Nor does section 223(d) run afoul of the "right to privacy. First, contrary to plaintiffs' suggestions, the Act does not "seek to suppress completely any information," Carey v. Population Services Int'l, 431 U.S. 678, 700 (1977), concerning "sexuality, reproduction and the human body." Pls.' Mem. at 53. Rather, it requires adults to block access to minors of communications that depict sexual or excretory activities in a patently offensive way. Plaintiffs' speculation this may mean anything about sex is unfounded. Moreover, plaintiffs' challenge to the indecency standard in the context of point-to-point email is easily their weakest contention. Either the sender will know that the recipient of any indecent material is a minor, and there would be no justification for relieving them of liability. Or the sender will not know the age of the recipient, in which case there should be no liability under the Act. Finally, the CDA fully respects any "reasonable expectation of privacy" that persons may have in their private e-mail, see Pls.' Mem. at 53, citing Katz v. United States, 389 U.S. 347 (1967), for it does not authorize the interception, disclosure, or any other "governmental invasion" of such communications. Indeed, federal law generally prohibits any person, including federal agents, from intercepting or disclosing any wire, oral or electronic communication without either a warrant, or the consent of one of the parties to the communication. 18 U.S.C. 2510(6); 2511(1), (2) (c), (d); 2515. The Constitution -- specifically, the Fourth Amendment -- requires no more. Katz, 389 U.S. at 354-59 (warrant requirement); United States v. Caceras, 440 U.S. 741, 744 (1979) (consent of a party). F. The Act Violates No Right of Anonymity. Plaintiffs also contend that the indecency provisions of the CDA violate a First Amendment right to "access information anonymously." Pls.' Mem. at 54. The argument appears to be that "[i]n order to comply with the Act," i.e., to take reasonable, effective and appropriate actions to restrict minors' access to indecent online communications, 47 U.S.C. Section 223 (e) (5) (A), both online speakers and receivers of information would have to sacrifice their anonymity, which might "deter the exercise of First Amendment rights." Pls.' Mem. at 55-56 (citing Brown v. Socialist Workers '74 Campaign, 459 U.S. 87 (1982); NAACP v. Alabama, 357 U.S. 449 (1958)). This line of authority has no bearing here. First, the courts have consistently upheld restrictions on access by minors to indecent material, even if such restrictions may necessitate that adults who desire such material must affirmatively request it or must identify themselves by providing a credit card number or by seeking an adult access code. See Alliance for Community Media, supra; Dial Information Services, supra; Information Providers' Coalition, supra. The cases cited by plaintiffs recognized a First Amendment right to be exempted from otherwise valid disclosure requirements for persons demonstrating a "reasonable probability" that compelled disclosure would result in "threats, harassment, or reprisals from either Government officials or private parties." Buckley v. Valeo, 424 U.S. 1, 74 (1976) (per curiam). See Brown, 459 U.S. at 101-02; NAACP v. Alabama, 357 U.S. at 462-63. This line of authority does not concern or preclude the use of narrowly tailored measures necessary to preclude minors from access to indecent materials. IV. HARM TO DEFENDANT AND THE PUBLIC INTEREST OUTWEIGHS PLAINTIFFS' SPECULATIVE HARM. For many of the reasons already discussed, the final two standards for preliminary injunctive relief also weigh in the government's favor. Individuals undoubtedly have an important interest in being free of purposeful and direct intrusions on First Amendment freedoms. Hohe, 868 F.2d at 72. But the governmental interests at stake here in controlling access by minors in indecent sexually explicit materials is compelling. Weighed in the balance, this interest easily outweighs what are ultimately speculative harms advanced by plaintiffs. It cannot be said that the type of speech plaintiffs describe is either the target of this statute, nor comparable to the kind of "adult" materials to which the government has sought to block access by minors. Absent a more compelling showing that the type of speech plaintiffs seek to vindicate is directly threatened by the CDA, the Court should not enjoin a provision of law which would obligate purveyors of indecent pornographic images and textual materials online to take reasonable steps to block access by minors. The Attorney General's ability to protect children and the public interest through this measure should not be deferred. V. SHOULD THE COURT DECIDE TO ENTER A TRO, PLAINTIFFS' PROPOSED INJUNCTION IS FLAWED AS A MATTER OF LAW If the Court decides that an extraordinary emergency injunction is called for in this case, then it must nonetheless reject the form of order submitted by plaintiffs. Plaintiffs' proposed TRO contains unqualified language that would bar enforcement of the indecency provisions on a nationwide basis. An injunction of such scope would be plainly overbroad. Even when a court seeks to correct a perceived offense to the Constitution, e.q., Zepeda v. I.N.S., 753 F.2d 719, 727 (9th Cir. 1983), "injunctive relief should be no broader than necessary to provide full relief to the aggrieved party." Ameron, Inc. v. U.S. Army Corps of Engineers, 787 F.2d 875, 888 (3d Cir. 1986), modified on other grounds, 809 F.2d 979 (3d Cir. 1986), cert. dismissed, 488 U.S. 918 (1988). Plaintiffs can be accorded complete relief by an order barring enforcement of the statute only against them. See also Baeder v. Heckler, 768 F.2d 547, 553 (3d Cir. 1985). In addition, insofar as the statutes in question extend to obscene communications that are not protected by the First Amendment, Sable Communications, 492 U.S. at 124, and to communications, not involving online media, that are not at issue in this case, then they must remain in effect. Defendants have submitted alternative proposed orders denying plaintiffs' motion for a TRO and, if the Court chooses to grant it, limiting the order to its lawful scope. 39 CONCLUSION For the foregoing reasons, plaintiffs' motion for a temporary restraining order should be denied. Respectfully Submitted, FRANK W. HUNGER Assistant Attorney General Civil Division MICHAEL R. STILES United States Attorney MARK R. KMETZ Assistant United States Attorney DENNIS G. LINDER Director, Federal Programs Branch THEODORE C. HIRT Assistant Branch Director ___________________ ANTHONY J COPPOLINO ______________ JASON R. BARON MARY E. KOSTEL JAMES E. GILLIGAN Trial Attorneys United States Department of Justice Civil Division Federal Programs Branch 901 E. Street N.W. Washington, D.C. 20530 Tel: (202) 514-4782 Date: February 14, 1996 ---------------------------------------------------------------------------- FOOTNOTES 1. The text of Title V of the Telecommunications Act as enacted into law is attached at Exhibit 1. Hereafter, the provisions of the CDA will be referred to by their U.S. Code citations (i.e., 47 U.S.C. Section 223(a) to (h)). The Joint Explanatory Statement of the Committee of Conference for Title V is at Exhibit 2. 2. The Internet began in the 1960s as a research project of the Department of Defense Advanced Research Project Agency. CRS at 3. The original ARPANET allowed DoD, contractors, and universities to communicate electronically. It was later supplanted by a network of computers funded by the National Science Foundation called NSFNET. Id.; see also John R. Levine, Carol Baroudi, Margaret Levine Young, The Internet for Dummies (3d Ed. 1995), IDG Books Worldwide at 13-14 (Exh. 6). The term "Internet" is derived from the name of a communications "protocol" called the Internet Protocol, which enables computer traffic to be networked from one computer to the other. See CRS at 2; Internet for Dummies at 12, 14. 3. Other related methods for searching for information on the Internet are described by CRS, Exh. 6 at 5. 4. Exh. 3 includes Senate floor debate on the Communications Decency Act, and related statements and materials presented on the Senate floor both before and after the Act was considered. 5. At this initial TRO stage, defendants present only an overview of the kinds of sexually explicit "adult" materials available on-line. Specific examples of such materials, and additional evidence as to where they are located and how they may be accessed, will be made available to the Court in further proceedings. 6. Plaintiffs' assertion that such bulletin board services are not at issue in this case is wrong. Pls.' Mem. at 11 n.26. While plaintiffs may not run adult bulletin boards, the CDA reaches these online entities, and the Act's facial validity turns on whether Congress is permissibly regulating these and other online sites that contain sexually explicit material. 7. See also Marketing Pornography on the Information Superhighways: A Survey of 917,410 Images, Descriptions, Short Stories, and Animations Downloaded 8.5 Million Times by Consumers in Over 2000 Cities in Forty Countries, Provinces, and Territories, 83 Georgetown Law Journal 1849 (June 1995) (Exh. 9). This article describes material located primarily on USENET newsgroups, i. at 1865-76, and on adult commercial bulletin boards (BBS), i. at 1876-1905. Defendants offer this as an initial reference of the availability and nature of obscene and indecent material from some on-line sources, such as USENET and BBS. BBS systems, which formed a major part of the study, are not considered to be a part of "the Internet" per se, but, as Senator Exon indicated, are covered by the CDA. 8. Section 223(a) is not a new provision of law. The principal amendment to it by the CDA is to replace the word "telephone" with "telecommunications device." The focus of plaintiffs' challenge concerns the use of "interactive computer services," which are at issue in section 223(d) and are specifically excluded from the definition of a telecommunications device. 47 U.S.C. Section 223(h)(1)(B). The specific basis for plaintiffs' challenge to section 223(a) is unclear. In the absence of a specific showing as to how this provision is applicable and might be in violation of the Constitution, it should not be enjoined. 9. Such software may function to "filter, screen, allow, or disallow" access to content, or to "pick, choose, analyze, or digest content." see 47 U.S.C. Section 230(e)(4)(B). It might also function to "transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content." Id. Section 230(e)(4)(C). 10. Two exceptions to this defense are if the access provider conspires with an entity actively involved in the creation or knowing distribution of a communication that is unlawful under the Act, or if the access provider "knowingly advertises the availability of such communications." 47 U.S.C. Section 223(e)(2). Second, the access provider defense is not available to an access provider who owns or controls a facility, system, or network engaged in the violation of section 223(a) or (d). Section 223(e)(3). 11. Nor is there any basis for the issuance of a TRO against the abortion-related provision of newly-amended 18 U.S.C. Section 1462(c). There is no credible threat that anyone, including plaintiffs, would be prosecuted thereunder. Both President Clinton, in his statement upon signing the Telecommunications Act of 1996, and Attorney General Reno, in letters transmitted to Congress, have made that point clear. See Exh. 13. Those statements note that the Department has a longstanding policy that previous such provisions are unconstitutional and will not be enforced. Last week, the district court in Sanger et al. v. Reno, CV 96-0526 (E.D.N.Y.), denied plaintiffs' motion for a TRO enjoining section 1462(c) as to abortion-related speech. 12. For purposes of opposing plaintiffs' request for emergency injunctive relief, we do not press here the argument that, following Pacifica, a more lenient standard of scrutiny under First Amendment law is appropriate for analyzing the constitutionality of section 223(d), in light of the ease of access to and intrusiveness of the patently offensive material available to minors "on-line" in the home. See Pacifica, 438 U.S. at 748- 749; cf. Fabulous Associates, 896 F.2d at 783-85 (Commonwealth argued for less searching scrutiny in "dial-a-porn" context). Because, however, the government is likely to succeed on the merits even under a "strict scrutiny" formulation, the Court need not reach the issue of the appropriate standard of review in ruling on plaintiffs' request. 13. Moreover, plaintiffs' varied attempts at distinguishing "cyberspace" from more traditional communications media only serve to underscore the concerns at stake over the well-being of children being exposed to this new medium in all of its aspects (good and evil). See Pls.' Mem. at 19-21. For example, the "interactivity" of communications, with the presence of an unlimited number of people on the sending and receiving end (including but not limited to "live chat rooms"), strongly suggests the need for the special protection of children from indecency. 14. Also, plaintiffs cannot take issue with the fact that exposure to pornography has profound, adverse effects on minors. See generally, "Note, The Regulation of Telephone Pornography -- Sable Communications, Inc. v. Federal Communications Commission," 24 Wake Forest L. Rev. 433, 433 (1989) (citing reports on the effect of pornography, including Attorney General's Commission on Pornography, U.S. Dep't of Justice, Final Report (1986)). 15. Throughout their brief, plaintiffs have chosen to characterize the CDA as a "ban" on indecent speech. See, e.a., Pls.' Mem. at 47 (CDA is "effectively a total ban"). 16. The holding to the contrary in Fabulous Associates is distinguishable, in that the only statutory provision at issue was a restriction placed in the Pennsylvania Public Utility Act that adults obtain a particular form of nine-digit access code from the telephone company, for the purpose of enabling the placement of "dial-a-porn" calls. 896 F.2d at 782. Also, the panel in Fabulous Associates had no occasion to examine federal law, including FCC regulations, see 47 C.F.R. section 64.201, which were subsequently upheld in Dial Information Services, supra and Information Providers' Coalition, supra. 17. While Mr. Hauman states he is "unsure" whether the use of credit cards constitutes a "good faith" defense, id., the statute and legislative history answer that question clearly in the affirmative. 18. Adult bulletin board services and other such content providers often utilize Internet web sites home pages, on which they display a free "sample" of pornographic or indecent material, as a means of advertising their products and services for which it is necessary to then pay by credit card. Plaintiffs' suggestion that Congress may do nothing to prevent free online access to such material consistent with the Constitution is clearly wrong. 19. Section 223(e)(6) authorizes the FCC to "describe measures which are reasonable, effective, and appropriate" actions under the circumstances to restrict access to indecency by minors, and the use of such measures can be used as evidence in any defense against prosecution. The FCC recently released for public comment a draft Implementation Schedule for S. 652 -- Telecommunications Act of 1996 (Exh. 12), including for section 223. Given this grant of authority to an administrative agency to study technological issues, and to issue an evaluation of available technologies, there should be special hesitation for a court, in the context of a facial challenge to the statute, to enjoin the CDA. At a minimum, this provision means that plaintiffs must prove that no possible set of FCC findings would be permissible under the Act, i.e., that the statute would still be unconstitutional on its face no matter what guidance the FCC may issue. 20. The broadness of Section 223(e)(5)(A) suggests that there may come to pass a variety of creative, technical means for effectively blocking access to minors, which by definition are not now fully susceptible to evaluation either at this stage, or at any later evidentiary stage, of the present facial challenge. Only in the concrete context of future prosecutions, when the effectiveness of a specific blocking technology may be at issue, will courts have adequate opportunity to assess how this aspect of the statute will be implemented. 21. One possible approach, suggested (but discounted) in plaintiffs' papers, would be to divide up what are currently, in plaintiffs' terms, "public spaces" in cyberspace, into sub-areas where messages or images would be posted in advance to either "adults only" or "unrestricted" forums. See Pls.' Mem. at 50. While at this early juncture defendant does not purport to pass on the efficacy or sufficiency of this approach under the statute, and while Section 223(e)(5)(A) does not on its face compel or imposes this type of solution to the exclusion of others, certainly plaintiffs' comments strongly suggest that there are indeed additional measures that can be taken to restrict or channel access to indecency. At present, however, plaintiffs have failed to meet their burden (in the context of a TRO to enjoin a statute on constitutional grounds), of adequately demonstrating that as a matter of both fact and law, no such technically effective means exist so as to fail to save the statutory provision under any circumstances. 22. Plaintiffs' objections that such screening mechanisms are economically infeasible, see Sears Aff.; Pls.' Mem. at 49 n.92, or would hinder the use of "linking" mechanisms on the Internet, see Pls.' Mem. at 49 nn.93 & 94, do not by themselves of constitutional dimensions. In concept, such measures are comparable to restricting minors' access from the "adult" section of a local video store. 23. Indeed, Pacifica itself can be viewed as an affirmance of a time, place, and manner restriction on the broadcasting of indecent material. The restrictions the CDA places on indecent on-line speech, must as in the case of radio broadcasting, "do not by any means reduce adults to [accessing on-line] only what is fit for children." 438 U.S. at 750 n.28. Rather, the statute would allow adults to access indecent online materials that must be restricted as to minors. 24. Plaintiffs also suggest that there is something ineffective, and therefore problematic, about the CDA, in that indecent material may be created and posted "on-line" outside the United States but nevertheless be available to minors here. See Pls.' Mem. at 32. The fact that some material may remain available on foreign computers does not mean that Congress may not police interactive computer services or the Internet within our own borders. 25. Again, while no constitutional requirement exists for Congress to have made particularized findings on voluntary controls, see supra, Congress did in fact receive ample testimony on parental blocking software, and therefore must be presumed to have acted with the knowledge of the efficacy (or lack thereof) of such voluntary measures. 26. For example, the Court may take notice of some available public assessments of the blocking products plaintiffs cite. One such product is reportedly "totally ineffective at screening pornographic images." See "Three Cybersmut Censors Try to Clean Up the Internet." PC Magazine, November 7, 1995 at 46; "Kids Safety: Advice About Internet and Web Safety," Family PC Magazine at 81 (February 1996) (Exh. 11). Another product reportedly controls Internet resources, but "doesn't work with non-Internet sources of on-line pornography, such as bulletin board systems." Id. If these assessments prove to be accurate, then on both counts some of the voluntary measures which plaintiffs cite may in fact be insufficient, at least at the present time. Graphical images on web sites and material on "adult" bulletin boards are among the principal sources of indecent and obscene material on- line. 27. Arguably, the very existence of a "market" for such software strongly suggests the depth of the problem Congress chose to address. 28. See also Pacifica, 438 U.S. at 748-49 ("To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place") (emphasis added). 29. The FCC had developed its definition during the notice- and-comment rulemaking process, stating that "in the dial-a-porn context, we believe it is appropriate to define indecency as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium." In re Regulations Concerning Indecent Communications by Telephone, Gen. Dkt. No. 90-64, paragraph 12 (Report and Order, released June 29, 1990) (quoted in Dial Information Services, 938 F.2d at 1540-41). 30. In Sable, the Court held that a complete ban on indecent dial-a-porn messages exceeded that which was necessary to protect minors from access to such messages, but did not address whether the indecency standard was vague. 492 U.S. at 126-131. 31. This question may again be considered by the Supreme Court on certiorari in Alliance for Community Media, supra. The questions on which certiorari was granted include whether Congress violates the First Amendment by permitting, but not requiring, cable operators to prohibit indecent programming on leased access or public channels (i.e., whether this constitutes "state action"), and whether Congress violates the First Amendment by requiring cable operators who choose not to ban indecent programming on such channels to block such programming and permit access only upon request. Whether the indecency standard is impermissibly vague is primarily implicated by the second question. 32. The Court in Pacifica noted that [a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. 438 U.S. at 743 n.18. 33. The obscenity test announced in Miller is: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; and (b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Miller, 4 3 U.S. at 24. See Pope v. Illinois, 481 U.S. 497, 500-501 (1987) (revising the Miller test to provide that a "reasonable person" should be the judge of the third prong -- whether the material has literary, artistic, political or scientific value). 34. Each of the three elements of the Court's obscenity definition is conceptually independent of the other two. It would be illogical to conclude that the legal standard embodied in one of those elements, i.e., "patent offensiveness," can be unconstitutionally vague where indecency regulation is concerned, but permissible in an anti-obscenity statute. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57-58 & n.6 (1989), (rejecting vagueness challenge to an Indiana statute that broadly deemed an, book or film "obscene" if, among other things, it "depicts or describes, in a patently offensive way, sexual conduct"). 35. Plaintiffs' contention that the access provider defense is impermissibly vague on its face is without merit. Pls.' Mem. at 42-43 (discussing 47 U.S.C. Section 223(e)(1). The conference report states that the target of criminal penalties under CDA are "content providers who violate [the Act] and persons who conspire with such content providers, rather than entities that simply offer general access to the Internet and other online content." Conf. Rep. at 190. In the absence of such conditions, "commercial and non-profit Internet operators who provide access to the Internet and other interactive computer services shall not be liable for indecent material accessed by means of their services." Id. 36. See American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 492 (1991); American Booksellers Ass'n v. Virginia, 882 F.2d 125 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1991); Upper Midwest Booksellers Ass'n v. Minneapolis, 780 F.2d 1389 (8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983). 37. Plaintiffs' argument that section 223(d) is overbroad because it impermissibly burdens adults' rights to access indecent material is, in substance, identical to their argument that the Act is not narrowly tailored, addressed above 38. Minneapolis Star, for example, dealt with a tax on paper and ink which, in practical application, fell upon only 14-16 newspapers. 460 U.S. at 578-79. 39. For the reasons stated supra, the Court should not enjoin 47 U.S.C. Section 223 (a) (1) (B) since plaintiffs have made no showing that this provision applies to their conduct. In addition, the Court should not enjoin 18 U.S.C. Section 1462 (c) regarding abortion- related speech since there is no possible imminent threat of prosecution under this section.
Return to the EPIC Censorship Lawsuit Page