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                         UNITED STATES DISTRICT COURT
            Plaintiffs,                  )
                  v.                     )   Civ. No. 96-963
JANET RENO, in her official capacity as  )
             Defendant.                  )


Assistant Attorney General
Civil Division

United States Attorney

Assistant United States Attorney

Director, Federal Programs Branch

Assistant Branch Director

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




  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



       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
       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


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

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

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.


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

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

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.


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

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.



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


"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

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.


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

     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"

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

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."

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

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

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.


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.


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


For the foregoing reasons, plaintiffs' motion for a temporary restraining
order should be denied.

Respectfully Submitted,

Assistant Attorney General
Civil Division

United States Attorney

Assistant United States Attorney

Director, Federal Programs Branch

Assistant Branch Director



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



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

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

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.

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