CATHLEEN A. CLEAVER BRUCE A. TAYLOR
Co-counsel for Amici Curiae NATIONAL LAW CENTER
FAMILY RESEARCH COUNCIL FOR CHILDREN AND FAMILIES
801 G Street, N.W. 4103 Chain Bridge Road, #410
Washington, D.C. 20001 Fairfax, VA 22030-4105
(202) 393-2100, Fax: -2134 (703) 691-4626, Fax: -4669
Counsel of Record
INTEREST OF AMICI CURIAE 1
CONSENT TO FILE BRIEF 1
THE ACT AND THE DECISIONS BELOW 1
SUMMARY OF ARGUMENT 2
LAW AND ARGUMENT 5
I. THE CDA'S INDECENCY TEST IS A VALID
AND PROPER STANDARD TO SEPARATE PROTECTED SPEECH FROM "ONLINE INDECENCY" THAT IS UNPROTECTED
FOR MINOR CHILDREN 5
INDECENCY TO MINORS ARE COMPELLED
BY THE NEED TO PROTECT CHILDREN. 16
III. CONGRESS CHOSE THE LEAST
RESTRICTIVE MEANS OF PROTECTING CHILDREN FROM ONLINE PORNOGRAPHY.
IV. COMPLIANCE WITH THE CDA IS
FEASIBLE AND NOT TECHNOLOGICALLY IMPOSSIBLE 24
These amici submit that this Court should interpret, construe, and declare the indecency sections of the CDA as constitutional, valid, and enforceable. Failure to recognize the power of Congress to extend reasonable protections for minor children to interactive computer services, including the Internet, would result in a serious departure from established law and cause a fundamental reversal in the way in which law and society handle children's access to pornography.
The District Court below misinterpreted the indecency test to be so broad that it could reach virtually any sexual speech, regardless of its specific context, purpose, or intent, and thus made the CDA appear unconstitutional.
Amici ask this Court to properly interpret the CDA as adopting a narrow test for indecency that does not reach serious expression that should be protected for adults, and thereby recognize its constitutionality.
This Court should find that the indecency standard, as tailored to this medium of communication, is a facially valid test for identifying patently offensive representations of sexual and excretory acts and organs that should be restricted from children and would not, in context, restrict legitimate, serious sexual works. Congress adopted a medium specific standard for online indecency and this Court can recognize that the scope of such indecency for the CDA does not restrict materials that are worthy of protection online. Judgments as to specific violations, defenses, compliance methods, or the nature of particular communications are evidentiary, as applied, factual considerations that should be reserved for case-by-case contextual analysis in actual cases or controversies.
The District Court created, in effect, a previously nonexistent license to knowingly send indecent pornography directly to known children and to knowingly display it to minor children on computer networks without taking any good faith steps to restrict it from their access. If allowed to stand, this ruling would force this nation's federal and state legislatures to surrender their compelling interests in protecting children from pornography, in favor of the economic interests and ideological wishes of computer pornography providers, leaving them unburdened and untroubled even by reasonable responsibilities for their pornography reaching children. This result is being increasingly exacerbated by the uniquely pervasive nature of the medium and the growing accessibility that America's children have to interactive computer networks, both at home and, more often, outside the home and outside parental control. This unique accessibility to children will only increase with the Government's incentives for helping schools provide Internet access to all students, and with libraries providing free, unsupervised Internet access to children of all ages.
Adults should not be granted an absolute First Amendment right to use the Internet to knowingly send or make indecency available to minor children, just as they cannot use billboards or magazine racks to knowingly sell or display pornography to minor children. Indecent material may be protected expression among adults, as this Court has said, but indecent and harmful material is not necessarily protected from restriction when disseminated to children, as this Court has also said.
The focus of this Court should not be on whether adults who wish to show patently offensive sexual or excretory depictions would find it bothersome to restrict them from minors. Instead, this Court must decide whether the provider of such patently offensive material should be relieved of all burden of making any good faith effort to restrict his indecency from children, in light of the compelling interest that government and all of society have in protecting minor children from premature exposure to patently offensive pornography.
Amici suggest that three actions should be taken by the Court in this appeal from the preliminary injunction:
1. Reverse the unprecedented decision below that this Court's test for indecency and patent offensiveness is unconstitutionally vague and overbroad and uphold the CDA as adopting the medium specific, constitutionally valid test of online indecency for telecommunications devices and for the Internet and other interactive computer services.
2. Reverse the decision below that 47 U.S.C. § 223 (a)(1)(B) and (a)(2) are invalid for using the standard of indecency and uphold this section as creating a valid offense of knowingly using a telecommunications device to send indecent messages directly to a known, minor recipient.
3. Reverse the decision below that 47 U.S.C. § 223 (d)(1) and (d)(2) are facially invalid in all respects and make four separate findings: (1) uphold subsection (d)(1)(A) as creating a valid offense of using an interactive computer service to knowingly send online indecency to a specific minor; (2) uphold subsection (d)(1)(B) as creating a valid offense of knowingly displaying online indecency in a manner available to minors on commercial sites or services, without taking good faith steps under available technology to restrict access by minors to such indecency; (3) uphold subsection (d)(1)(B) as creating a facially valid offense as to persons who knowingly display online indecency in a manner available to minors without taking any good faith steps under available technology to restrict access by minors to such indecency; and (4) uphold (d)(2) as creating a valid offense as to interactive computer service owners and operators who knowingly permit the facilities under their control to be used for the known sending of indecent material to specific minors or for the known display of indecency in a manner that is available to minors, without taking any available good faith action to restrict it from minors.
Amici also submit that the record of the preliminary injunction hearing below does not conclusively establish that pornography distributors cannot take reasonably effective steps online to restrict their indecency from children while making it available to adults and was, therefore, incomplete, inaccurate, and misleading. The seriousness of striking down the Act's provisions without complete discovery and full disclosure of facts concerning technically feasible and possible technologies for compliance with the CDA would at least warrant a remand for reconsideration and a rehearing or trial on the merits, rather than an affirmance on this record.
I. THE CDA'S INDECENCY TEST IS A VALID AND PROPER STANDARD
TO SEPARATE PROTECTED SPEECH FROM "ONLINE INDECENCY"
THAT IS UNPROTECTED FOR MINOR CHILDREN.
In its Conference Report on the CDA, Congress described the offenses added by the Act to protect minor children from online indecency, see Conf. Rep. at 188, 1996 U.S.C.C.A.N. at 201-02:
New subsection 223(d)(1) applies to content providers who send prohibited material to a specific person or persons under 18 years of age. Its "display" prohibition applies to content providers who post indecent material for online display without taking precautions that shield that material from minors. Defenses to violations of the new sections assure that attention is focused on bad actors and not those who lack knowledge of a violation or whose actions are equivalent to those of common carriers.
The District Court below found the CDA unconstitutional on its face for two main reasons, separately discussed by each of the three judges sitting on the panel. The first was that the test for "indecency" and "patent offensiveness" was unconstitutionally vague and overbroad and would totally ban indecent speech for adults and some speech protected even as to minors. The second was that the CDA was not a least restrictive means because existing protocols and practices on the Internet, Usenet, and World Wide Web made compliance difficult or impossible for potential providers of indecency.
This Court can address both of these perceived defects by recognizing the test for indecency for interactive computer services and telecommunications devices as a uniquely suited test for online indecency and recognizing the broadly flexible compliance defenses for the various components of the interactive computer media.
Amici recognize that a standard of online indecency for interactive computer services that are available to minors would be more permissive than broadcast indecency and would allow unrestricted availability of anything that can be aired on radio or TV, or lawfully sold or displayed to a minor in a store, on a billboard, on one's jacket in public, or provided to a minor by phone, fax, mail, cable, or in a school, museum, or library. Congress's Conference Report on the CDA demonstrates just such an expectation and this Court's precedent protects such a level of expression, even to minors, without violating the indecency standard. This is not so for broadcast indecency, which is the broadest test for indecency and covers a wider breadth of sex and nudity because it is designed to protect both minors and unconsenting adults over radio and TV. See FCC v. Pacifica Foundation, 438 U.S. 726, 748-50 (1978). The CDA chose the less restrictive measure of only prohibiting the knowing transmission or display of indecent material to minors, not unconsenting adults, so the offense is narrower than under 18 U.S.C. § 1464 and differs markedly from broadcasting law. Unlike for broadcasting, adults are not protected by the CDA even if they inadvertently access online indecency. This Act requires only the protection of minor children.
Online indecency was not intended and should not be held to have the same scope as broadcast indecency and the two standards are not co-extensive. Adults under the CDA need not avoid all the sex and nudity that would be prohibited or restricted to safe harbor hours on radio or TV under the broadcast standard of indecency and its enforcement policies. Adults need only avoid sending to children, or displaying to minors on sites that are available to children, that type of explicit sexual depiction or description that constitutes "online indecency" because its offensiveness is patently clear under the circumstances when considering the host of variables of value, intent, prurience, purpose, audience, subject matter, etc. As such, the type of pornographic indecency that is unlawful to display to minors online encompasses all that would be unlawful to display or sell to minors in all public streets, places, and stores. However, what could lawfully be available to all adults and even children online can include any seriously valuable sexual material that would not be indecent online, even if it could be unlawful to broadcast (if indecent for unconsenting adults and children) or prohibited from display in a commercial store or public place (if harmful to minors). Therefore, the federal standard of "online indecency" is not more restrictive than the state standard of "harmful to minors" and can be less so when considered "in context."
It should be noted that the online indecency standard provides even more latitude to consider serious literary, artistic, political, and scientific value for adults, since it is based on the second prong of the "Miller" obscenity test, than would the state "harmful to minors" standard, which is based on a variable standard that considers what is offensive in light of what is suitable for minors and what prurience and value it would have only in relation to minors. See Miller v. California, 413 U.S. 15, 24-25 (1973); Ginsberg v. New York, 390 U.S. 629, 634 (1968).
The court below mistakenly arrived at just the opposite conclusion and found that Congress adopted a more broadly encompassing test with indecency than it would have with harmful to minors. This misinterpretation alone warrants reversal of the District Court's opinion that Congress should have no power to protect children by use of the indecency standard for any regulation of telecommunications devices and interactive computer services.
The court below failed to read the law as this Court required in Pacifica and created a hypothetical overbreadth that was unwarranted by the plain words of the statute and made the CDA falsely appear unconstitutional. Faithfulness to Pacifica would have avoided such a result.
A faithful application of Pacifica and Denver Area, recognizing the true capabilities and knowledge of the parties and accepting the true nature of the test, is illustrated in the recent decision of another three-judge court hearing a challenge to certain cable TV provisions in the CDA and finding the harm to children a serious matter warranting Government attention toward the most egregious offenders who are well aware of the type of sexual exploitation materials within the meaning of indecent. Playboy Entertainment Group, Inc. v. United States, 945 F. Supp. 772 (D. Del. 1996).
A reasonable understanding of the test for "online indecency" for the Internet and other computer and telecommunications systems, would be to recognize that the CDA's use of the indecency standard is in a specific contextual fashion that is uniquely applicable to these interactive computer services and networks, as Congress intended. In this regard, this Court need not "construe" the statute so as to change it, but only to read it within its constitutional scope, as the Court did in Pacifica, and make clear its lawful and intended reach. These amici submit that the court below "construed" the law and did change its plain meaning, but did so in a way that improperly expanded its sweep and, by doing so, the District Court created a perceived overbreadth that is beyond the scope of the test mandated in Pacifica and intended by Congress to be the standard for the CDA. This Court, therefore, is faced with resolving this conflict and should uphold the law within its proper limits and for its intended and necessary purposes.
As mandated in Pacifica, 438 U.S. at 750, the use of the indecency standard in any medium is "rested entirely on a nuisance rationale under which context is all-important." This concept of "context" was explicitly incorporated into the CDA by Congress, in recognition of the following holding of the Court in Pacifica, id. (emphasis added):
The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and the differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant.
The indecency standard, as thus interpreted by this Court and applied by the FCC, "does not by any means reduce adults to hearing only what is fit for children," id. at 750 n. 28, since consenting adults can obtain indecent materials at stores and theaters and at times or under circumstances where the dissemination of the offensive material may not be "indecent" or may be channeled to adults or by a safe harbor policy.
Amici submit that Congress made its intent and understanding clear in the "Conference Report on the CDA" by stating that this law was adopting a standard of indecency for online services that was particularly sensitive to the presence of serious value:
The conferees intend that the term indecency (and the rendition of the definition of that term in new section 502 [§ 223 (d)(1)(B)]) has the same meaning as established in FCC v. Pacifica Foundation, and Sable Communications of California, Inc. v. FCC, that the indecency standard is ... specifically limited in its reach so that the term is not unconstitutionally vague. ... [citing Circuit indecency cases]
The precise contours of the definition of indecency have varied slightly depending on the communications medium to which it has been applied. The essence of the phrase - patently offensive descriptions of sexual and excretory activities - has remained constant, however. ...
The conferees considered, but rejected, the so-called "harmful to minors" standard. See Ginsberg v. New York, . The proponents of the "harmful to minors" standard contended that that standard contains an exemption for material with "serious literary, artistic, political, and scientific value," and therefore was the better of the two alternative standards. ... This assertion misapprehends the indecency standard itself, and disregards the Supreme Court's various rulings on this issue. See Pacifica, at 743, n. 18, and its progeny.
The gravamen of the indecency concept is "patent offensiveness." Such a determination cannot be made without a consideration of the context of the description or depiction at issue. It is the understanding of the conferees that, as applied, the patent offensiveness inquiry involves two distinct elements: the intention to be patently offensive, and a patently offensive result. . . .[citing FCC rulings] Material with serious redeeming value is quite obviously intended to edify and educate, not to offend. Therefore, it will be imperative to consider the context and the nature of the material in question when determining its "patent offensiveness."
[U]se of the indecency standard poses no significant risk to the free-wheeling and vibrant nature of discourse or to serious, literary, and artistic works that currently can be found on the Internet, and which is expected to continue and grow. As the Supreme Court itself noted when upholding the constitutionality of indecency prohibitions, prohibiting indecency merely focuses speakers to re-cast their message into less offensive terms, but does not prohibit or disfavor the essential meaning of the communication. . . . Likewise, requiring that access restrictions be imposed to protect minors from exposure to indecent material does not prohibit or disfavor the essential meaning of the indecent communication, it merely puts it in its appropriate place: away from children.
[Conf. Rep. at 188-89, 1996 U.S.C.C.A.N. Leg. Hist. at 202-03] [Emphasis added, citations omitted.]
The enactment of the CDA with the federal indecency standard was not, therefore, a rejection of the serious value prong of the "harmful to minors" test. Congress adopted an even less restrictive test with indecency, since only a lack of serious value for minors is relevant to the state standard whereas indecency considers serious value for adults as well as minors. The presence of truly serious value or purpose is a significant factor in a finding that a presentation does not offend or was not intended to offend. Conversely, that which is "pandered" for its prurience could be found not to be offered for a serious purpose or for any serious value.
Under the "online indecency" test, the Government need not affirmatively prove the presence of prurience or lack of serious value. However, the trier of fact must nevertheless consider the presence of value and, in addition, may consider any evidence of pandering to prurient interests in determining the patent offensiveness of the material in the specific factual context of the "host of variables" that are inherent in the legal "term of art" the law calls "indecency."
Therefore, this Court can recognize that online indecency is
a medium specific standard for the CDA and is a proper synthesis
of the "host of variables" in a nuisance rationale,
as required by Pacifica and Denver Area, such as the following:
"Online indecency" means any communication that,
"in context, depicts or describes, in terms patently offensive
as measured by contemporary community standards, sexual or excretory
activities or organs". Any determination of patent offensiveness
must consider the presence, lack, or inherent involvement of the
following host of variables: any serious literary, artistic,
political, or scientific value inherent in the material itself;
any serious literary, artistic, political, or scientific purpose
to which the material was intended or used by the communicator;
the time, place, and manner of the communication; the content,
theme, and context of the material in relation to its subject
matter, program, forum, and manner of presentation; the composition
and age of the audience; the pervasiveness of the medium used
and its availability to minor children under the circumstances;
any evidence of intention to be patently offensive; and any evidence
of pandering or exploiting a prurient interest in nudity, sex,
or excretion in the creation, marketing, or dissemination of the
As used, the CDA's indecency test for online computer services need not make each variable a separate element, but clarifies that it is the totality of the circumstances that shall be considered in making the ultimate determination of whether the communication was "patently offensive" in the context in which it was made, disseminated, and received. One need not pre-judge its application in every future or hypothetical circumstance to know that the fairness of the result will be governed by the mandate that each future judgment be guided by constitutional principles, such as "beyond reasonable doubt" and "presumption of innocence", or an objective rule such as the "reasonable man" of fact finding.
Such a judicial melding of the generic definition with its constitutional considerations is faithfully consistent with this Court's development of the tests for obscenity, child pornography, harmful to minors, and indecency, and with the intent of Congress as expressed in the CDA and its accompanying Conference Report. This would accomplish the same sensitivity to First Amendment values and allow this test to be used, like that for obscenity and harmful to minors, as a constitutionally valid method of separating protected speech, that may be freely and openly distributed to everyone online, from patently offensive sexual and excretory depictions that are indecent in the online context and clearly inappropriate for knowing transmissions or displays to minor children.
This is the mandate of Pacifica. As the Conference Report explains, it is also the affirmatively expressed intent of Congress in adopting the indecency test of Pacifica for the computer medium. In determining whether material is patently offensive in the context of interactive computer services, and therefore meets the test for online indecency, courts and triers of fact must consider its offensiveness in the context of the host of variables mandated by this Court in Pacifica and Denver Area, including the presence of serious value or purpose and, if evident, any pandering to prurient interests. As such, the CDA would not reach legitimate and serious sexual information that should be protected, as the Government properly represented below.
The CDA is not a total ban on indecency, and should not
be interpreted to have the same effect as a ban.
In contrast, the CDA criminalizes the knowing transmission
of indecent material to a specific minor child and the knowing
display of indecent material to minors. The offenses in this
Act require an offender to act "knowingly" by knowing
of the sexually explicit character of the communication and knowing
that it is going to or is available to minors. This dual scienter
element further narrows the reach and scope of the law, since
it prevents totally innocent or mistaken transmissions to minors,
even if indecent. Ginsberg v. New York, 390 U.S. 629,
644 (1968); Hamling v. United States, 418 U.S. 87, 119-24
(1974); Osborne v. Ohio, 495 U.S. 103, 113 n.9, 115 (1990);
U.S. v. X-Citement Video, Inc., __ U.S. __, 115 S. Ct.
464, 130 L.Ed.2d 372 (1994).
INDECENCY TO MINORS ARE COMPELLED BY
THE NEED TO PROTECT CHILDREN.
The CDA is carefully tailored to do no more than is necessary to further the compelling interest in protecting children from accessing online indecency.
Sexually explicit images are undeniably present and available online, and "pornographic repositories tend to be heavily accessed" making it "more freely available over the Internet than in other mass communications media in the United States." "Until the CDA, the only barrier to viewing free pornographic images on the Web was often a mouse click affirming that the viewer is of requisite age." Id.
This Court's precedent is unmistakably clear that the Government does have a compelling interest in protecting children from pornography. This Court articulated such an interest in Ginsberg v. New York, 390 U.S. at 636-43; Pacifica, 438 U.S. at 748-50; Sable, 492 U.S. at 128; Denver Area, 116 S. Ct. at 2391, and has consistently reaffirmed it, most recently in Denver Area, 116 S. Ct. 2374, 2391 (1996).
The court below concluded that it is "highly unlikely" that a young child will "come across" pornographic material while surfing the Web, and regarded as significant the notion that "the receipt of information requires a series of affirmative steps." 929 F. Supp. at 852. The extent to which children will affirmatively search for or inadvertently observe sexually explicit pictures on their computer screens is completely irrelevant to the issues in this case, since the compelling interest in protecting them from seeing such material remains the same in either event. Id. at 883.
The District Court also emphasized that "a child requires some sophistication and some ability to read to retrieve material." 929 F. Supp. at 845
These conclusions reveal the lower court's lack of recognition of the ease with which children can maneuver today's computers, especially in the point-and-click icon format of the World Wide Web which demands neither computer nor English literacy.
[I]t is relatively simple for persons of any age and modest experience with the Internet to set up their computers so that reaching repositories of pornography is as simple as selecting a TV channel.
The interactive nature of this new medium, if anything, deepens the Government's interest in protecting children from access to or receipt of online pornography. That is why Congress passed the CDA.
A review of the Telecommunications Act as a whole reveals Congress's
intent to expand the development of the Internet, through various
means including financial incentives and discounts for schools
to provide Internet access to all of American's children. The
goal of stimulating the growth and use of the Internet for all,
including children, requires a concomitant responsibility to take
steps to make the Internet safely available to them. If pornography
is allowed to proliferate and is freely available to minor children,
then there will be a disincentive to universal access and use
of the Internet at home and in schools and libraries. Therefore,
Congress considered protecting children a necessary part of its
interest in facilitating the growth of this important educational
and social medium.
III. CONGRESS CHOSE THE LEAST RESTRICTIVE MEANS OF PROTECTING
CHILDREN FROM ONLINE PORNOGRAPHY.
Congress enacted the CDA because it was the least restrictive, yet effective, means of promoting its interest in protecting children from access to and receipt of patently offensive sexual and excretory depictions online.
The court below recited in its Findings of certain assertions about the nature of the Internet and conclusions that the CDA would criminalize all sexual speech, that compliance is "technologically impossible" and "economically prohibitive" and therefore not a least restrictive means, 929 F. Supp. at 854, and that the CDA will not prevent children from getting pornography and therefore it fails for underbreadth. The court held that its Findings "lead to the conclusion that Congress may not regulate indecency on the Internet at all." 929 F. Supp. at 877 (emphasis added).
This Court's precedent is to the contrary: "[O]ur cases have not left Congress or the States powerless to address the most serious problems." Denver Area, 116 S. Ct. at 2384. The First Amendment is committed to protecting most speech from regulation,
but without imposing judicial formulae so rigid that they become a straightjacket that disables Government from responding to serious problems. This Court, in different contexts, has consistently held that the Government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech.
Denver Area, 116 S. Ct. at 2385.
The decision below renders the Government helpless to do anything but hope that parents will purchase and install blocking software in the family computer, and concludes that this is all that is necessary to protect children from online indecency. To the contrary, Congress has a compelling interest to affirmatively protect children so that they may participate in this new and extraordinary medium, especially where private actors fail to use even the blocking and screening methods at their disposal to protect children from the domestic and foreign pornography that is available online.
Inherent in a least restrictive means analysis is the expectation that the "means" are actions constitutionally taken by Congress, not by private actors. They are legislative in nature, and therefore mandatorynever voluntary. Hypothetical, ad-hoc ways for private individuals to address the problems in which Government has a compelling interest are inapposite to the means by which Government may attempt to promote its compelling interest. "[P]arents and others . . . who have th[e] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Dial Information Services v. Thornburgh, 938 F.2d 1535, 1541 (2nd Cir. 1991), cert. denied 502 U.S. 1072 (1992). See also Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991).
It stretches the limits of logic and legal precedent to suggest that the Government may take steps to fulfill its compelling interest in protecting children from pornography in every medium, including print, video, television, radio, and the private telephone, but the Government may do nothing to further its compelling interest where pornography reaches children by online computers, faxes, videophones, and other interactive computer services and telecommunication devices. Further, it has the untenable and intolerable result that even direct, knowing transmissions of pornography to a known child must be tolerated because "the Government may not, through the CDA, interrupt that [world-wide Internet] conversation." 929 F. Supp. at 883. Absent from the opinion below is any discussion acknowledging that it is fundamentally wrong for adults to knowingly give pornography to children.
As a matter of law, Congress has an independent interest in protecting children from exposure to or receipt of patently offensive sexual or excretory depictions, and is not required and should not be compelled to rely on the private, voluntary actions of others, such as parents, but can encourage their assistance.
Plaintiffs below proffered parental screening software products as a less restrictive alternative to the CDA. Even if they were relevant, however, such actions are not effective, and therefore do not constitute a less restrictive but "as effective" alternative to the CDA.
Although all parents, schools, and libraries may and should make use of whatever software products are available (i.e. X-Stop, Rated-PG, Library Safe, CyberPatrol) to gain whatever benefits that they can offer, not all parents will purchase such software, and, even if they do, children have access to many computers which will not employ software filtering devices such as in schools, libraries, and neighbors homes.
That the CDA rests the burden of compliance upon the speaker of patently offensive sexual or excretory depictions and not on the consumer of these depictions, including children, not only carries the weight of unanimous precedent, but also has the benefit of being highly practical. Law and logic compel the conclusion that, as between speaker and consumer, the speaker is in the better position to know the content of his speech. Plaintiffs would transfer the obligation from those who are in the best position to know whether something is a patently offensive sexual or excretory depiction to the consumers, who must search, find, identify, and then attempt to block the hundreds of thousands of available pornographic images from their children.
Steps like parental involvement in their children's use of the
Internet, the installation of filtering software, and content-rating
protocols are each important elements in protecting children on
the Internet. These self-help measures should be regarded as complements
to the CDA, much as the parental admonition, "don't talk
to strangers" complements laws against kidnapping. None
of them, however, individually or in the aggregate, eliminates
the need for legal prohibition of sending or displaying pornography
to children, or supplants Congress's constitutional authority
to take action in furtherance of its compelling interest.
IV. COMPLIANCE WITH THE CDA IS FEASIBLE AND NOT TECHNOLOGICALLY
The flexibility and capability of Internet technology makes few, if any, desired goals impossible to attain. The CDA restrictions and defenses were designed with this flexibility and potential for creativity in mind.
Under the challenged sections of the CDA, it is not a crime for adults to provide online indecency to other adults, consenting or not. Furthermore, even if a child does obtain patently offensive sexual or excretory depictions, it is a defense to criminal or civil liability, under § 223 (e)(5) and (f)(1), that the provider of the depictions took good faith actions under available technology to limit such depictions to adults. Such good faith actions are an essential aspect of this law, both legally and technologically. The CDA is a technology flexible statute that allows pornography providers to take actions with the means now available, but expects that more will be done when more can fairly be done.
The defenses provided in the CDA are both all inclusive of true good faith efforts and allow for more defenses than are available under any other federal indecency law, including broadcasting, cablecasting, or dial-a-porn. The CDA not only incorporates the defenses applicable to the dial-a-porn offenses in § 223 (b) and (c), which were promulgated by the FCC and specifically referred to with approval by this Court in Sable, but also provides good faith defenses to those who take steps of their own device or pursuant to any future FCC regulation in order to protect children from accessing their patently offensive sexual or excretory depictions. The CDA's criminal and civil immunities for good faith and "Good Samaritan" acts are available to those who take affirmative steps to restrict indecency from minors, not for taking no action.
The court below granted the injunction against the CDA in part because it concluded that compliance is "either technologically impossible or economically prohibitive for most plaintiffs." The lower court overestimated the difficulties of compliance with the CDA and underestimated the capabilities of interactive computer technology. One of the ways in which the court below distorted the problem of compliance was in its misconstruction of the indecency standard to include communications related in any way to sexuality, which, as stated above, is a patent misapprehension of the constitutional parameters of indecency and the stated intent of Congress. And to proceed, as the lower court did, from the observation that the "the strength of the Internet is [its] chaos" is to misunderstand the true systematic orderliness of the Internet.
It is certainly difficult to relate the observation that compliance is "either technologically impossible or economically prohibitive" to the prohibitions of subsection 223(a)(1)(B) and (d)(1)(A) against knowingly sending indecent material directly to a known child. Amici submit that, in light of the scienter element, there is no legal or logical reason for finding these direct transmission crimes facially unconstitutional. This Court's precedent, from Ginsberg to Pacifica to Sable, is unequivocally clear about the constitutionality of such a prohibition.
In addition, Judge Sloviter concluded below that it would be a "burden . . . impossible to sustain" (929 F. Supp. at 856) for people online to review their content for patently offensive sexual or excretory depictions. Such a conclusion, if accepted here, would seem to render infeasible any Internet regulation, and certainly other pornography-related prohibitions to which Plaintiffs have made no challenge. Internet content and access providers are no more or less able to evaluate their material pursuant to obscenity and child pornography laws which apply online than they would be pursuant to the CDA.
Since content and service providers must provide solutions to the problem of obscenity and child pornography and since those solutions are likely to be equally effective in regulating indecent or patently offensive expression as well, the technological impossibility argument is not necessarily a persuasive argument, either factually or legally.
That reasonable methods of compliance are technologically feasible is further demonstrated by the fact that many sites are now screening children from access to pornographic materials. There will undoubtedly be more ways to comply in the future, especially when the market is encouraged by the presence of a legal obligation. While evolving technologies are increasing and improving the means of restricting pornography from children, and the FCC can lend its expertise in defining further good faith defense measures pursuant to subsection 223 (e)(6), it should not be a matter for dispute that there are sufficient and adequate means already available under present technology for adults to keep their patently offensive sexual or excretory depictions from minors.
The act does not require the impossible, but only requires reasonable, effective, and appropriate actions to prevent children's access to or receipt of pornography. The lower court ignored that there are a variety of "no tech" and "low tech" means to comply with the CDA as simple as knowing who you are communicating with, channeling indecent communications to "adults only" areas, utilizing contractual obligations with subscribers, access providers, and content providers for monitoring.
Other potential means of compliance include system-wide protocols for screening children's access, server-level filtering software, mechanisms which allow content providers to identify adult visitors to their sites, pages, or GIFs, and digital IDs for adults or minors that could provide an age to visited sites, age-tagging programs or protocols, such as the successful "-L18" program illustrated in the hearing below, or an adaptation of the next generation's Internet Protocol for address and routing packets ("IPv6") to code for age in its expanded header extensions for authentication and privacy capabilities, a modification of the existing "finger" program for requesting visitor identification which could be relayed back to the visitor's ISP for a reply that the subscriber is of a certain age without giving a name (thus preserving anonymity and privacy protections for children).
Although not added to the Findings, it was admitted in the opinion below that sites on the World Wide Web have the present capacity to use "cgi scripts" to exclude minors from accessing pornography. 929 F. Supp. at 854. This situation is likewise with the Usenet, where much of the most graphic and notorious pornography is made available, both hard- and soft-core, normal and perverted, actual and simulated. The Findings below describe the Usenet as an open and uncontrolled medium, yet each Internet service or access provider must choose which Usenet feeds to accept. The Plaintiffs did not disclose, and the court failed to find, that the Usenet is actually a privately owned, proprietary, commercial subscription service with closed access and control over each newsgroup, moderated or not, by an administrator. If an ISP does not subscribe to a particular hierarchy or newsgroup feed, it cannot be accessed by customers through that ISP, who would read the groups from the ISP's local server rather than from some remote server or Usenet backbone server somewhere else. The Usenet is totally within the control of the ISP, who could be subject to prosecution for obscenity, child pornography, stalking, and even providing known access to minors, since this is not a "common carrier" service and not within the exemption of § 223 (e)(1).
Moreover commercial online services must decide which commercial services to subscribe to, such as encyclopedias, news, financial data services, Usenet hierarchies, or other special interests. Many commercial Bulletin Board Services do the same and either use the Internet to advertise their BBS telephone number or contract to have their board's content offered by a commercial online content or access provider. Such contractual arrangements are obviously and legally subject to control and existing technology could be used to screen for minors on any such subscription services that would contain pornography.
The commercial, educational, institutional, and corporate online service providers, in addition to acting as ISPs and providing access to the Internet and World Wide Web, can and often do, offer other material over which they have absolute editorial control (such as services, boards, chat rooms, and pages). A service provider must also exercise conscious and deliberate subscription control over which commercial or privately owned services it will take onto its own servers in order to re-offer it to its customers or users.
This Court in Sable, supra, 492 U.S. at 126-27: recognized the constitutionality of compliance by making private arrangements with third parties.
In all of these instances, every Internet service and access provider can use available server-level screening software to protect the children on their computer systems from pornography. Though the first generation end-user programs were unreliable, as the "online demonstration" in the hearing which failed below illustrates, the next generation server-based applications offer better protection, and ISPs should employ software for minors on their systems, and leave it to parents to unblock if any parent so chooses.
Some members of the industry may consider solving the problem to be against their economic interests. Whether the defenses are economically unpleasant is not dispositive for First Amendment analysis. The Court in Sable, supra, 492 U.S. at 126-27, made it clear that compliance costs for the providers of patently offensive sexual or excretory depictions do not affect the constitutionality of the statute:
While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages.
While those who provide patently offensive sexual or excretory depictions may well incur some costs in order to attempt to screen their depictions from children, the cost to children of their failure to do so is incalculable.
In light of the possibilities for complying with the CDA's limited
requirements, the assertion of impossibility may portend simply
seen an unwillingness to undertake the effort.
Each time the pornographers break through a new barrier, society's best reaction should be the honorable one - to protect the children first.
As one of the CDA's original sponsors said on the day this law was enacted by the Congress:
Sometimes our technology races beyond our reflection, and we are left with a dangerous gapa period when society is unprepared to deal with the far-reaching results of rapid change. That is the situation we have on the Internet. This is the situation which [the CDA] will address.
BRUCE A. TAYLOR,
Counsel of Record
CATHLEEN A. CLEAVER
Attorneys for Amici Curiae
January 21, 1997 MEMBERS OF CONGRESS