The views of the members of the Court in support of these conclusions follow.
SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:
Section 223(a), the "indecency" provision, subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who:
The term "telecommunications device" is specifically defined not to include "the use of an interactive computer service," as that is covered by section 223(d)(1).(emphasis added).
- 1) in interstate or foreign communications . . .
- (B) by means of a telecommunications device knowingly --
- (i) makes, creates, or solicits, and
- (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; . . .
- (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity.
Section 223(d), the "patently offensive" provision, subjects to criminal penalties anyone who:
Two aspects of these provisions stand out. First, we are dealing with criminal provisions, subjecting violators to substantial penalties. Second, the provisions on indecent and patently offensive communications are not parallel.(emphasis added).
- (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.
The government uses the term "indecent" interchangeably with "patently offensive" and advises that it so construes the statute in light of the legislative history and the Supreme Court's analysis of the word "indecent" in FCC v. Pacifica Foundation.{1} However, the CDA does not define "indecent." Notwithstanding Congress' familiarity with Pacifica, it enacted 223(a), covering "indecent" communications, without any language confining "indecent" to descriptions or depictions of "sexual or excretory activities or organs," language it included in the reference to "patently offensive" in 223(d)(1)(B). Nor does 223(a) contain the phrase "in context," which the government believes is relevant.
The failure to define "indecent" in 223(a) is thus arguably a negative pregnant and subject to "the rule of construction that an express statutory requirement here, contrasted with statutory silence there, shows an intent to confine the requirement to the specified instance."{2} See also Gozlon-Peretz v. United States ("'[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion'").{3}
Plaintiffs note the difference but do not press this as a basis for distinguishing between the two sections in their preliminary injunction arguments and therefore I will also use the words interchangeably for this purpose, leaving open the issue for consideration at the final judgment stage if it becomes relevant.
In a case in which the injury alleged is a threat to First Amendment interests, the finding of irreparable injury is often tied to the likelihood of success on the merits. In Elrod v. Burns,{5} the Supreme Court emphasized that "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."{6}
Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Thus, this is not a case in which we are dealing with a mere incidental inhibition on speech, see Hohe v. Casey,{7} but with a regulation that directly penalizes speech.
Nor could there be any dispute about the public interest factor which must be taken into account before a court grants a preliminary injunction. No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.{8}
Thus, if plaintiffs have shown a likelihood of success on the merits, they will have shown the irreparable injury needed to entitle them to a preliminary injunction.
The government's position on the applicable standard has been less than pellucid but, despite some references to a somewhat lesser burden employed in broadcasting cases, it now appears to have conceded that it has the burden of proof to show both a compelling interest and that the statute regulates least restrictively.{12} In any event, the evidence and our Findings of Fact based thereon show that Internet communication, while unique, is more akin to telephone communication, at issue in Sable, than to broadcasting, at issue in Pacifica, because, as with the telephone, an Internet user must act affirmatively and deliberately to retrieve specific information online. Even if a broad search will, on occasion, retrieve unwanted materials, the user virtually always receives some warning of its content, significantly reducing the element of surprise or "assault" involved in broadcasting. Therefore, it is highly unlikely that a very young child will be randomly "surfing" the Web and come across "indecent" or "patently offensive" material.
Judge Dalzell's separate opinion fully explores the reasons for the differential treatment of radio and television broadcasting for First Amendment purposes from that accorded other means of communication. It follows that to the extent the Court employed a less than strict scrutiny standard of review in Pacifica and other broadcasting cases,{13} there is no reason to employ a less than strict scrutiny standard of review in this case.
Those statements were made in cases where the potential harm to children from the material was evident. Ferber involved the constitutionality of a statute which prohibited persons from knowingly promoting sexual performances by children under 16 and distributing material depicting such performances. Sable and Fabulous involved the FCC's ban on "dial-a-porn" (dealing by definition with pornographic telephone messages). In contrast to the material at issue in those cases, at least some of the material subject to coverage under the "indecent" and "patently offensive" provisions of the CDA may contain valuable literary, artistic or educational information of value to older minors as well as adults. The Supreme Court has held that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."{17}
In Erznoznik, the Court rejected an argument that an ordinance prohibiting the display of films containing nudity at drive-in movie theatres served a compelling interest in protecting minor passersby from the influence of such films. The Court held that the prohibition was unduly broad, and explained that "[s]peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."{18} As Justice Scalia noted in Sable, "[t]he more pornographic what is embraced within the . . . category of `indecency,' the more reasonable it becomes to insist upon greater assurance of insulation from minors."{19} It follows that where non-pornographic, albeit sexually explicit, material also falls within the sweep of the statute, the interest will not be as compelling.
In part, our consideration of the government's showing of a "compelling interest" trenches upon the vagueness issue, discussed in detail in Judge Buckwalter's opinion but equally pertinent to First Amendment analysis. Material routinely acceptable according to the standards of New York City, such as the Broadway play Angels in America which concerns homosexuality and AIDS portrayed in graphic language, may be far less acceptable in smaller, less cosmopolitan communities of the United States. Yet the play garnered two Tony Awards and a Pulitzer prize for its author, and some uninhibited parents and teachers might deem it to be material to be read or assigned to eleventh and twelfth graders. If available on the Internet through some libraries, the text of the play would likely be accessed in that manner by at least some students, and it would also arguably fall within the scope of the CDA.
There has been recent public interest in the female genital mutilation routinely practiced and officially condoned in some countries. News articles have been descriptive, and it is not stretching to assume that this is a subject that occupies news groups and chat rooms on the Internet. We have no assurance that these discussions, of obvious interest and relevance to older teenage girls, will not be viewed as patently offensive - even in context - in some communities.
Other illustrations abound of non-obscene material likely to be available on the Internet but subject to the CDA's criminal provisions. Photographs appearing in National Geographic or a travel magazine of the sculptures in India of couples copulating in numerous positions, a written description of a brutal prison rape, or Francesco Clemente's painting "Labirinth,"{20} all might be considered to "depict or describe, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."{21} But the government has made no showing that it has a compelling interest in preventing a seventeen-year-old minor from accessing such images.
By contrast, plaintiffs presented testimony that material that could be considered indecent, such as that offered by Stop Prisoner Rape or Critical Path AIDS project, may be critically important for certain older minors. For example, there was testimony that one quarter of all new HIV infections in the United States is estimated to occur in young people between the ages of 13 and 20, an estimate the government made no effort to rebut. The witnesses believed that graphic material that their organizations post on the Internet could help save lives, but were concerned about the CDA's effect on their right to do so.
The government counters that this court should defer to legislative conclusions about this matter. However, where First Amendment rights are at stake, "[d]eference to a legislative finding cannot limit judicial inquiry."{22} "[W]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law."{22}
Moreover, it appears that the legislative "findings" the government cites concern primarily testimony and statements by legislators about the prevalence of obscenity, child pornography, and sexual solicitation of children on the Internet. Similarly, at the hearings before us the government introduced exhibits of sexually explicit material through the testimony of Agent Howard Schmidt, which consisted primarily of the same type of hard-core pornographic materials (even if not technically obscene) which concerned Congress and which fill the shelves of "adult" book and magazine stores. Plaintiffs emphasize that they do not challenge the Act's restrictions on speech not protected by the First Amendment, such as obscenity, child pornography or harassment of children. Their suit is based on their assertion, fully supported by their evidence and our findings, that the CDA reaches much farther.
I am far less confident than the government that its quotations from earlier cases in the Supreme Court signify that it has shown a compelling interest in regulating the vast range of online material covered or potentially covered by the CDA. Nonetheless, I acknowledge that there is certainly a compelling government interest to shield a substantial number of minors from some of the online material that motivated Congress to enact the CDA, and do not rest my decision on the inadequacy of the government's showing in this regard.
The plaintiffs argue that the CDA violates the First Amendment because it effectively bans a substantial category of protected speech from most parts of the Internet. The government responds that the Act does not on its face or in effect ban indecent material that is constitutionally protected for adults. Thus one of the factual issues before us was the likely effect of the CDA on the free availability of constitutionally protected material. A wealth of persuasive evidence, referred to in detail in the Findings of Fact, proved that it is either technologically impossible or economically prohibitive for many of the plaintiffs to comply with the CDA without seriously impeding their posting of online material which adults have a constitutional right to access.
With the possible exception of an e-mail to a known recipient, most content providers cannot determine the identity and age of every user accessing their material. Considering separately content providers that fall roughly into two categories, we have found that no technology exists which allows those posting on the category of newsgroups, mail exploders or chat rooms to screen for age. Speakers using those forms of communication cannot control who receives the communication, and in most instances are not aware of the identity of the recipients. If it is not feasible for speakers who communicate via these forms of communication to conduct age screening, they would have to reduce the level of communication to that which is appropriate for children in order to be protected under the statute. This would effect a complete ban even for adults of some expression, albeit "indecent," to which they are constitutionally entitled, and thus would be unconstitutional under the holding in Sable.{24}
Even as to content providers in the other broad category, such as the World Wide Web, where efforts at age verification are technically feasible through the use of Common Gateway Interface (cgi) scripts (which enable creation of a document that can process information provided by a Web visitor), the Findings of Fact show that as a practical matter, non-commercial organizations and even many commercial organizations using the Web would find it prohibitively expensive and burdensome to engage in the methods of age verification proposed by the government, and that even if they could attempt to age verify, there is little assurance that they could successfully filter out minors.
The government attempts to circumvent this problem by seeking to limit the scope of the statute to those content providers who are commercial pornographers, and urges that we do likewise in our obligation to save a congressional enactment from facial unconstitutionality wherever possible. But in light of its plain language and its legislative history, the CDA cannot reasonably be read as limited to commercial pornographers. A court may not impose a narrowing construction on a statute unless it is "readily susceptible" to such a construction.{25} The court may not "rewrite a . . . law to conform it to constitutional requirements."{25} Although we may prefer an interpretation of a statute that will preserve the constitutionality of the statutory scheme,{26} we do not have license to rewrite a statute to "create distinctions where none were intended."{27} The Court has often stated that "absent a clearly expressed legislative intention to the contrary, [statutory] language must ordinarily be regarded as conclusive."{28}
It is clear from the face of the CDA and from its legislative history that Congress did not intend to limit its application to commercial purveyors of pornography. Congress unquestionably knew how to limit the statute to such entities if that was its intent, and in fact it did so in provisions relating to dial-a-porn services. See{29} (criminalizing making any indecent telephone communication "for commercial purposes"). It placed no similar limitation in the CDA. Moreover, the Conference Report makes clear that Congress did not intend to limit the application of the statute to content providers such as those which make available the commercial material contained in the government's exhibits, and confirms that Congress intended "content regulation of both commercial and non-commercial providers."{30}
The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther. Nor did Congress include language that would define "patently offensive" or "indecent" to exclude material of serious value. It follows that to narrow the statute in the manner the government urges would be an impermissible exercise of our limited judicial function, which is to review the statute as written for its compliance with constitutional mandates.
I conclude inexorably from the foregoing that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults.[1] In questions of the witnesses and in colloquy with the government attorneys, it became evident that even if "indecent" is read as parallel to "patently offensive," the terms would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities (e.g., Leaving Las Vegas) to controversial contemporary art and photographs showing sexual organs in positions that the government conceded would be patently offensive in some communities (e.g., a Robert Mapplethorpe photograph depicting a man with an erect penis).
We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution." Such a choice, forced by sections 223(a) and (d) of the CDA, strikes at the heart of speech of adults as well as minors.
In this case, the government relies on the statutory defenses for its argument of narrow tailoring. There are a number of reasons why I am not persuaded that the statutory defenses can save the CDA from a conclusion of facial unconstitutionality.
First, it is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring. Criminal prosecution, which carries with it the risk of public obloquy as well as the expense of court preparation and attorneys' fees, could itself cause incalculable harm. No provider, whether an individual, non-profit corporation, or even large publicly held corporation, is likely to willingly subject itself to prosecution for a miscalculation of the prevalent community standards or for an error in judgment as to what is indecent. A successful defense to a criminal prosecution would be small solace indeed.
Credit card and adult verification services are explicitly referred to as defenses in 223(e)(5)(B) of the CDA. As is set forth fully in the detailed Findings of Fact, these defenses are not technologically or economically feasible for most providers.
The government then falls back on the affirmative defense to prosecution provided in 223(e)(5)(A) for a person who "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 . . . including any method which is feasible under available technology." The government emphasizes that "effective" does not require 100% restriction, and that this defense is "open-ended" and requires only reasonable efforts based on current technology.
But, as the evidence made clear, there is no such technology at this time. The government proffered as one option that would constitute a valid affirmative defense under 223(e)(5)(A) a "tagging" scheme conceived by Dr. Olsen in response to this lawsuit whereby a string of characters would be imbedded in all arguably indecent or patently offensive material. Our Findings of Fact set forth fully the reasons why we found that the feasibility and effectiveness of tagging in the manner proposed by the government has not been established. All parties agree that tagging alone does nothing to prevent children from accessing potentially indecent material, because it depends upon the cooperation of third parties to block the material on which the tags are embedded. Yet these third parties, over which the content providers have no control, are not subject to the CDA. I do not believe a statute is narrowly tailored when it subjects to potential criminal penalties those who must depend upon third parties for the effective operation of a statutory defense.
Most important, the government's "tagging" proposal is purely hypothetical and offers no currently operative defense to Internet content providers. At this time, there is no agreed-upon "tag" in existence, and no web browsers or user-based screening systems are now configured to block tagged material. Nor, significantly, has the government stipulated that a content provider could avoid liability simply by tagging its material.
Third, even if the technology catches up, as the government confidently predicts, there will still be a not insignificant burden attached to effecting a tagging defense, a burden one should not have to bear in order to transmit information protected under the constitution. For example, to effect tagging content providers must review all of their material currently published online, as well as all new material they post in the future, to determine if it could be considered "patently offensive" in any community nationwide. This would be burdensome for all providers, but for the many not-for-profit entities which currently post thousands of Web pages, this burden would be one impossible to sustain.
Finally, the viability of the defenses is intricately tied to the clarity of the CDA's scope. Because, like Judge Buckwalter, and for many of the reasons he gives, I believe that "indecent" and "patently offensive" are inherently vague, particularly in light of the government's inability to identify the relevant community by whose standards the material will be judged, I am not persuaded by the government that the statutory defenses in 223(e) provide effective protection from the unconstitutional reach of the statute.
Minors would not be left without any protection from exposure to patently unsuitable material on the Internet should the challenged provisions of the CDA be preliminarily enjoined. Vigorous enforcement of current obscenity and child pornography laws should suffice to address the problem the government identified in court and which concerned Congress. When the CDA was under consideration by Congress, the Justice Department itself communicated its view that it was not necessary because it was prosecuting online obscenity, child pornography and child solicitation under existing laws, and would continue to do so.[2] It follows that the CDA is not narrowly tailored, and the government's attempt to defend it on that ground must fail.
Whether Congress' decision was a wise one is not at issue here. It was unquestionably a decision that placed the CDA in serious conflict with our most cherished protection - the right to choose the material to which we would have access.
The government makes what I view as an extraordinary argument in its brief. It argues that blocking technology needed for effective parental control is not yet widespread but that it "will imminently be in place."{32} It then states that if we uphold the CDA, it "will likely unleash the 'creative genius' of the Internet community to find a myriad of possible solutions." I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds.
The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene.{33} Even if we were to place confidence in the reasonable judgment of the representatives of the Department of Justice who appeared before us, the Department is not a monolithic structure, and individual U.S. Attorneys in the various districts of the country have or appear to exercise some independence, as reflected by the Department's tolerance of duplicative challenges in this very case.
But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments.