IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
AMERICAN CIVIL LIBERTIES UNION, : CIVIL ACTION
et al. :
:
v. :
:
JANET RENO, Attorney General of :
the United States, : NO. 96-963
___________________________________________________________________
AMERICAN LIBRARY ASSOC., : CIVIL ACTION
INC., et al. :
:
v. :
:
UNITED STATES DEP'T OF :
JUSTICE, et al. : NO. 96-1458
ORDER
AND NOW, this 15th day of May, 1996, upon consideration of
plaintiffs' Motion to Clarify and Restate the Court's Orders
Concerning Defendants' Actions Pending Resolution of Plaintiffs'
Motions for Preliminary Relief, and the response of the Government
thereto, and the Court finding that:
(a) On February 15, 1996 this Court entered a Temporary Restraining
Order enjoining "[t]he defendant, her agents, and her servants . . .
from enforcing against plaintiffs the provisions of 47 U.S.C. §
223(a) (1) (B) (ii), insofar as they extend to 'indecent,' but not
'obscene'" Internet content, see docket no. 14;
(b) Thereafter, the parties entered a stipulation in which the
Attorney General promised that "she will not initiate any
investigations or prosecutions for violations of 47 U.S.C. § 223(d)
for conduct occurring after enactment of this provision until
the three-judge court hears Plaintiffs' Motion for Preliminary
Injunction... and has decided the motion" see docket no. 18;(1)
(c) This Court approved the Stipulation on February 26, 1996,
giving it the force of an Order of this Court;
(d) In March and April of 1996, Patrick A. Trueman, the Director of
Governmental Affairs of the American Family Association, sent
letters to the Attorney General, claiming that CompuServe, a
plaintiff in civil action no. 96-1458, "is a content provider
rather than merely an access provider of pornography, possibly
obscene material" see pls.' mot. ex. 3 (Letters of March 4, April
1, April 10, and April 29, 1996 from Patrick A. Trueman to Attorney
General Janet Reno);
(e) Attached to Mr. Trueman's March 4th letter was a Wall Street
Journal Article, and eight photographs of nude women in poses
analogous to Playboy or Penthouse centerfolds allegedly available
through a CompuServe database, id.;
(f) The sexual organs of the photos had been "blank[ed] out", but a
statement advised, "[y]ou can get the unretouched versions by
visiting" the CompuServe database, id.;
(g) In response to Mr. Trueman, Terry R. Lord, Acting Director of
the Child Exploitation and Obscenity Section of the Criminal
Division of the Department of Justice, explained that Mr. Trueman's
information "concerning potential violations of the Communications
Decency Act (CDA) by CompuServe" was "helpful" in determin[ing] the
best methods of identifying, investigating, and prosecuting
violators with the goal of deterring similar conduct", id. ex. 3
(April 29, 1996 from Terry R. Lord to Patrick A. Trueman);
(h) The Department of Justice then referred the matter to the
Federal Bureau of Investigation, which begin a "review" of
CompuServe, id.;
(i) The Columbus [Ohio] Dispatch reported the "review" in at least
two prominent news stories, and similar information was available
through a newswire, see id. exs. 1-2;
(j) The plaintiffs in C.A. No. 96-1458 have now moved this court
for an Order to clarify the February 15th Temporary Restraining
Order and the February 26th Stipulation and Order to prevent the
Department of Justice from "reviewing" Internet Content that falls
within the scope of the prohibitions in those two Orders;
(k) In its written response to the motion, the Government has
emphasized that the Attorney General retains her full discretion to
prosecute the CDA as it relates to obscenity and child pornography,
see defs.' resp. at 5-6;
(l) The Government echoed these arguments at oral argument on May
10, 1996, see Transcript of May 10, 1996 at 150, 154-55;
(m) Although the Government is correct about the Attorney General's
continued discretion under the obscenity and child pornography
provisions of the CDA, this point misses the mark entirely, for the
following reasons:
i. Under the Government's view of this case, nude depictions of
sexual organs alone are almost certainly not obscene, see, e.g.,
Transcript of May 10, 1996, at 92 ("[O]ur position would be that
the [CDA's indecency provisions] should apply to non-obscene
patently offensive sexual and excretory material . . ., namely the
sexually explicit sites on the Internet".), 99 ("It is conceivable
that [a] Mapplethorpe picture . . . might in some communities. . .
be a problem [under the CDA's indecency provisions] because it is
certainly a depiction of a sexual organ, we can agree to that."),
106 (rejecting the argument that "because . . . material appeals to
the prurient interest and arguably has no serious value, it is
necessarily obscene. That is a legal determination and I think that
that analysis is simply wrong."), 107 ("I can accept the colloquial
characterization of pornography [a]s appealing to the prurient
interest and lacking serious value, but I do not accept the
conclusion that that is necessarily obscene."), 107-08 (noting
that, although "a Playboy centerfold appeals to the prurient
interest . . . [,] I doubt it's obscene."), 117-17 (same) ;(2)
ii. The women in the photographs are almost certainly not minors;
iii. At most, then, the Government has initiated a "review" of
CompuServe purportedly for obscenity and child pornography based
only on the availability of indecent material there;
(n) Thus, neither actual obscenity nor child pornography provided
the impetus for the Department of Justice's referral of CompuServe
for "review" by the FBI;(3)
(o) Notwithstanding the Government's post hoc rationalization for
the actions of the Child Exploitation and Obscenity Division,(4)
its conduct in subjecting a content provider to private and public
scrutiny for displaying material that is neither obscene nor child
pornography clearly runs afoul of both this Court's Orders and the
Government's promises, as made in the Stipulation we approved on
February 26, 1996;
It is hereby ORDERED that:
1. Plaintiffs' Motion to Clarify and Restate the Court's Orders
Concerning Defendants' Actions Pending Resolution of Plaintiffs'
Motions for Preliminary Relief is GRANTED;
2. "Review" by the Attorney General or her agents, including the
Federal Bureau of Investigation, of sexually oriented Internet
content falls within this Court's Temporary Restraining Order of
February 15, 1996 and the Stipulation this Court approved by Order
on February 26, 1996, when that "review" is triggered by (1)
content that is neither obscene nor child pornography, or (2)
complaints of Internet content that, as described, constitute
neither obscenity nor child pornography;
3. The Attorney General and her agents are ENJOINED from engaging
in "review" of a content provider if that "review" is triggered by
either of the two circumstances described in paragraph two of this
Order; and
4. The Attorney General and her agents retain their full power to
"review" complaints regarding Internet content that constitutes
obscenity or child pornography, provided that, if, upon "review" it
appears that the material complained of is neither obscene or child
pornography, the "review" must than immediately cease. (5)
BY THE COURT:
[signature]
STEWART DALZELL, J.
FOOTNOTES
(1) For the purposes of this motion only, we refer to
the "indecency" provision of § 223(a) and the "patently offensive"
provision of § 223(d) as the "indecency provisions".
(2) Some of these quotations arose in discussions of the
content of the "Schmidt notebook." The Schmidt notebook is a set of
exhibits to the declaration of Howard A. Schmidt, a Government
expert. The notebook contained downloaded sexual images that range
from modestly titillating centerfold-type photographs to depictions
of hard-core sex acts. The Government's comments at oral argument
made clear that it views the Schmidt notebook as containing, for
the most part, indecent material. See e.g., Transcript of May 10,
1996, at 106 (arguing that Congress "needs to sweep into . . . the
indecency standard this type of stuff, the kind of stuff in the
Schmidt notebook"). Indeed, in the Government's view, "that's the
point":
JUDGE SLOVITER: You'll agree that all of those materials
in the Schmidt notebook. . . were designed to appeal
to the prurient interests of the viewer?
Mr. COPPOLINO: Yes , I would say that they would but . . .
that doesn't mean they're obscene , your honor[,] and
that's the point
Id. at 116-17. the images that led to CompuServe's "review" are no
more graphic than the less graphic images in the Schmidt notebook.
(3) The pictures at issue are somewhat murky in the copies
supplied us, but they clearly do not involve sex acts. They appear to be
centerfold-type images of women above the age of majority. In any
event, the Government's response to plaintiffs' motion does not suggest
that the photographs themselves constitute obscenity or child
pornography. The Government has also offered no facts to suggest that
either Mr. Trueman or another citizen provided other content from
CompuServe's database that is obscene or child pornography. To the
contrary, it would appear that these documents were the entire impetus
for the referral to the FBI. See pls.' mot. ex. 3 (undated letter from
Terry R. Lord to Bruce J. Ennis).
(4) A hypothetical further demonstrates the unpersuasiveness
of this explanation. Assume, for example, that a mother complained that
a subscriber to an access provider had said some, or most, of the Carlin
seven dirty words to her child in a chat room devoted to political
discussions. Under the Government's view of the Attorney General's
retained discretion under the CDA, Mr. Lord could then, without offending
this Court's Order, refer that access provider to the FBI for "review" for
violations of obscenity and child pornography statutes.
(5) We trust that the distinctions that we draw in these
paragraphs "described with sufficient particularity what [the
Government] must do in order to satisfy" them. Kolendar v.
Lawson, 461 U.S. 352, 361 (1983).
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