Brief filed by
The National Law Center for Children and Families,
Family Research Council,
"Enough Is Enough!" Campaign,
National Coalition For The Protection of Children & Families,
and Morality in Media
in support of Janet Reno, Attorney General, and the U.S. Department of Justice
PARTIES AMICUS CURIAE
National Law Center for Children and Families
Bruce A. Taylor, Chief Counsel
Janet M. LaRue, Senior Counsel
4103 Chain Bridge Road, #410
Fairfax, VA 22030-4105
(703) 691-4626, (714) 435-9090
Family Research Council
Cathleen A. Cleaver, Legal Studies Director
700 13th Street, N.W. #500
Washington, D.C. 20005
(202) 393-2100
"Enough is Enough!" Campaign
Mrs. Dee Jepsen, President
4103 Chain Bridge Road, Suite 420
Fairfax, VA 22030
(703) 278-8343
National Coalition for the Protection of Children and Families
Dr. Jerry R. Kirk, President
800 Compton Road, Suite 9244
Cincinnati, OH 45231
(513) 521-6227
Morality in Media
Paul J. McGeady, General Counsel
475 Riverside Drive, #239
New York, NY 10115
(212) 870-3222
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 96-963 ) Civil Action No. 96-1458
)
AMERICAN CIVIL LIBERTIES ) AMERICAN LIBRARY ASSOCIATION, INC.,
UNION, et al., ) et al.,
PLAINTIFFS ) PLAINTIFFS
)
V. ) V.
)
JANET RENO, ATTORNEY GENERAL)U.S. DEPARTMENT OF JUSTICE,
OF THE UNITED STATES, ) et al.,
DEFENDANT ) DEFENDANTS
)
BRIEF AMICUS CURIAE OF
THE NATIONAL LAW CENTER FOR CHILDREN AND FAMILIES,
FAMILY RESEARCH COUNCIL,
"ENOUGH IS ENOUGH!" CAMPAIGN,
NATIONAL COALITION FOR THE PROTECTION OF CHILDREN & FAMILIES,
and MORALITY IN MEDIA,
AS AMICI CURIAE IN SUPPORT OF DEFENDANTS,
JANET RENO, ATTORNEY GENERAL, and
the U.S. DEPARTMENT OF JUSTICE
CATHLEEN A. CLEAVER BRUCE A. TAYLOR, Chief Counsel
Director of Legal Studies JANET M. LARUE, Senior Counsel
FAMILY RESEARCH COUNCIL NATIONAL LAW CENTER
700 Thirteenth Street, N.W. FOR CHILDREN AND FAMILIES
Suite 500 4103 Chain Bridge Road, #410
Washington, D.C. 20005 Fairfax, VA 22030-4105
(202) 393-2100, (703) 691-4626,
Fax: 202-393-2134 Fax: 703-691-4669
CO-COUNSEL FOR AMICI CURIAE
JAMES J. WEST
PA. BAR NO. 331
LOCAL COUNSEL FOR AMICI CURIAE
TABLE OF CONTENTS
PAGE
I. INTRODUCTION 1
II. THIS COURT IS OBLIGED TO INTERPRET THE CDA
NARROWLY,
SO AS TO SAVE IT, AND, IF NECESSARY, LEND IT AN
AUTHORITATIVE CONSTRUCTION, SO AS TO MAKE IT
CONSTITUTIONALLY ENFORCEABLE. 5
III. THE CDA IS CONSTITUTIONAL
8
A. THE TEST FOR VAGUENESS IS NOT
MERE UNCERTAINTY BUT SUFFICIENTLY
DEFINITE WARNING OF CRIMINALITY. 8
B. UNCONSTITUTIONAL OVERBREADTH MUST BE
BOTH REAL AND SUBSTANTIAL AND IS CURED
BY CONSTRUCTION. 10
C. AUTHORITATIVE CONSTITUTIONAL CONSTRUCTION IS
PARTICULARLY APPROPRIATE FOR FIRST AMENDMENT
RELATED LAWS SUCH AS THE COMMUNICATIONS
DECENCY ACT. 11
D. THE CDA IS SUBJECT TO PROPER NARROWING AND
CAN BE INTERPRETED AS FULLY CONSTITUTIONAL,
AS HAS BEEN DONE WITH EXISTING OBSCENITY AND
SEXUAL EXPRESSION RELATED LAWS. 15
E. CONGRESS ANTICIPATED THE LEGITIMATE
PROTECTION OF THE RIGHTS OF ADULTS TO
ENGAGE IN PROTECTED, BUT INDECENT SPEECH,
BUT REQUIRED IT TO BE CHANNELED SO THAT
CHILDREN ARE ALSO PROTECTED. 20
III. PLAINTIFFS' INTERPRETATION OF THE LEAST
RESTRICTIVE MEANS TEST IN DETERMINING THE
FACIAL CONSTITUTIONALITY OF THE CDA IS ERRONEOUS
AND SHOULD BE REJECTED 24
A. THE GOVERNMENT INTEREST UPON WHICH THE
CDA IS BASED IS LEGITIMATE AND COMPELLING 26
B. THE GOVERNMENT MAY REGULATE TO FURTHER ITS
COMPELLING INTEREST. 28
C. THE SUBJECT OF THE REGULATION IS THE SPEECH,
NOT THE CONSUMER OF THE SPEECH 31
IV. "INDECENCY" IS A VALID STANDARD FOR THE INTERNET
AND OTHER INTERACTIVE COMPUTER SERVICES 38
A. THE INDECENCY STANDARD IS APPROPRIATE
FOR A PUBLIC FORUM, SUCH AS THE PUBLIC
AREAS OF THE INTERNET 39
B. INDECENCY IS NOT AND CANNOT BE
VAGUE OR OVERBROAD 41
V. COMPLIANCE WITH THE CDA IS POSSIBLE
AND NOT UNREASONABLE 48
VI. THE CDA IS A REASONABLE TIME, PLACE, AND
MANNER REGULATION 58
VII. SOME ADDITIONAL COSTS INCURRED FOR COMPLIANCE
WITH A LAW DO NOT AFFECT ITS CONSTITUTIONALITY 62
VIII.THE CDA IS NOT UNDER INCLUSIVE BECAUSE IT
PROVIDES FOR PROSECUTION FOR IMPORTING FOREIGN
COMPUTER PORNOGRAPHY AND OF DISTRIBUTORS WHO
EXPLOIT U.S. CHILDREN 65
PART II
Morality in Media
I. INDECENT COMMUNICATIONS WHICH, BY MEANS OF
COMPUTER, INTRUDE INTO THE PRIVACY OF THE HOME AND
ARE READILY ACCESSIBLE TO CHILDREN, ARE A FORM OF
'NUISANCE SPEECH' WHICH CONGRESS CAN PROHIBIT OR
REGULATE 68
II. APPLYING INDECENCY STANDARD TO THE INTERNET
WILL NOT REDUCE ADULTS TO VIEWING ONLY WHAT
IS FIT FOR CHILDREN 72
III. THE 'INDECENCY' STANDARD IS NEITHER
VAGUE NOR OVERBROAD 77
CONCLUSION 83
TABLE OF AUTHORITIES
PAGE
Alliance for Community Media v. FCC,
56 F.3d 105 (D.C. Cir. 1995) 33, 46, 56
Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991) 73
Bethel School District No. 403 v. Fraser,
478 U.S. 675 (1986) 71, 73
Breard v. Alexandria,
341 U.S. 622 (1951) 69
Broadrick v. Oklahoma,
413 U.S. 601 (1973) 10
Brockett v. Spokane Arcades, Inc.,
472 U.S. 491 (1985) 19, 64
Chaplinsky v. New Hampshire,
315 U.S. 558 (1942) 68
City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986) 59
Clark v. Community for Creative Non-Violence,
468 U.S. 288 (1984) 58
Dial Information Services Corp. of New York v. Barr,
937 F.2d 1465 (2nd Cir. 1991) 76
Dial Information Services v. Thornburgh,
938 F.2d 1535 (2nd Cir. 1991) 24, 33, 45
Dombrowski v. Pfister,
380 U.S. 479 (1965) 19
Erznoznik v. City of Jacksonville,
422 U.S. 205 (1975) 44-45
FCC v. Pacifica Foundation,
438 U.S. 726 (1978) 15, 46, 49, 70, 73
Frisby v. Schultz,
487 U.S. 474 (1988) 74
Ginsberg v. New York,
390 U.S. 629 (1968) 7, 25, 27, 30-31, 56, 75
Grayned v. City of Rockford,
408 U.S. 104 (1972) 8, 11, 17
Hamling v. United States,
418 U.S. 87 (1974) 7, 9, 10-11, 18
Hess v. Indiana,
414 U.S. 105 (1973) 69
Information Providers' Coalition v. FCC,
928 F.2d 866 (9th Cir. 1991) 45, 76
Jenkins v. Georgia,
418 U.S. 153 (1974) 44, 45
Kaplan v. California,
413 U.S. 115 (1973) 32
Kolender v. Lawson,
461 U.S. 352 (1983) 11
Kovacs v. Cooper,
366 U.S. 77 (1949) 69
M.S. News Co. v. Casado,
721 F.2d 1281 (10th Cir. 1983) 59
Manual Enterprises, Inc. v. Day,
370 U.S. 478 (1962) 72
Memoirs v. Massachusetts,
383 U.S. 413 (1966) 9
Miller v. California,
413 U.S. 15 (1973) 6, 9, 43, 77
New York v. Ferber,
458 U.S. 747 (1982) 11, 12, 17, 27
Osborne v. Ohio,
495 U.S. 103 (1990) 7, 27
FCC v. Pacifica Foundation, Inc.,
438 U.S. 749 (1978) 15, 16, 23, 30, 35, 27, 45-48, 74, 76, 79
Paris Adult Theatre v. Slaton,
413 U.S. 49 (1973) 32, 56, 59
Portland Fem. Women's H. Ctr. v. Advocates For Life,
859 F.2d 681 (9th Cir. 1988) 59
Rosenfeld v. New Jersey,
408 U.S. 901 (1972) 69
Roth v. United States,
354 U.S. 476 (1957) 8, 9, 66, 72
Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115 (1989) 7, 22, 23, 25, 28, 45, 49, 55, 56, 63, 75
Smith v. California,
361 U.S. 147 (1959) 18
Turner Broadcasting System, Inc. v. F.C.C.,
512 U.S. __, 129 L.Ed.2d 497 (1994) 58
U.S. v. X-Citement Video, Inc.,
__ U.S. __ , 115 S. Ct. 464, 130 L.Ed.2d 372 (1994) 7
United States v. 12 200-ft. Reels of Film,
413 U.S. 123 (1973) 9, 10, 11
United States v. 37 Photographs,
402 U.S. 363 (1971) 11, 18
United States v. Thomas,
74 F.3d 701 (6th Cir. 1996) 55, 57
Upper Midwest Booksellers v. City of Minneapolis,
780 F.2d 1389 (8th Cir. 1986) 60
Village of Hoffman Estates v. Flipside,
455 U.S. 489 (1982) 22
Ward v. Rock Against Racism,
491 U.S. 781 (1989) 58, 59
Watson v. Buck,
313 U.S. 387 (1941) 22
World Wide Video of Washington, Inc. v. City of Spokane,
75 F.3d 663 (9th Cir. 1996) 64
Young v. American Mini Theatres, Inc.,
427 U.S. 50 (1976) 59, 61
STATUTES
Communications Decency Act of 1996,
Title V, Telecommunications Act of 1996,
Act of Feb. 8, 1996, Pub. L. No. 104-104 (S.652),
1996 U.S.C.C.A.N. (110 Stat.) 133-43 1
18 U.S.C. § 1462 1
18 U.S.C. § 1464 27, 38, 48, 70
19 U.S.C. § 1305 (a) 18
42 U.S.C. § 1983 11
47 U.S.C.§ 223 1
§ 223 (a)(1)(B) & (a)(2) 6
§ 223 (b) 7, 49, 55
§ 223 (c) 55
§ 223 (d)-(h) 1
§ 223 (e)(5) 7
§ 223 (e)(5)(A) 8, 49
§ 223 (e)(6) 6
§ 223 (f)(1) 7
OTHER AUTHORITIES
"Conference Report on the CDA",
Joint Explanatory Statement of the Committee of Conference,
Report for P.L. 104-104, Title V-Obscenity and Violence,
1996 U.S.C.C.A.N. Leg. Hist. 200-11 3, 8, 21
141 Cong. Rec. S8328, 8337, 8386, et seq.
(daily ed. June 14, 1995) (statements of Sen. Exon) 3
141 Cong. Rec. S9770-75
(daily ed. July 12, 1995) (statements of Sen. Exon) 3
[ACLU] Plaintiffs' Brief in Support
of a Motion for TRO and Prelim. Inj., at 2 4, 37
Treaty Series, No. 559,
Arrangement Between The United States And
Other Powers Relative To The Repression of the
Circulation of Obscene Publications, 65
White House letter of Feb. 28, 1996,
to Senator James Exon
from Jack Quinn, Counsel to the President, 3
I. INTRODUCTION
The .i.Communications Decency Act of 1996, the "CDA";, was
passed by the United States Congress on February 1, 1996, and
signed by the President into law on February 8, 1996. It
updates federal obscenity statutes, codified at .i.18 U.S.C. §§
1462 ;(common carriage of obscenity) and 1465 (interstate and
foreign commerce in obscenity). It also amends the obscene and
harassing telephone and dial-porn law, .i.47 U.S.C. § 223;, to
add a new offense of knowingly providing indecent material to
minor children under age 18, codified at .i.§ 223 (d)-(h);, and
is alleged to invalidly do so in these consolidated facial
challenges. See .i.Communications Decency Act of 1996, Title V,
Telecommunications Act of 1996, Act of Feb. 8, 1996, Pub. L. No.
104-104 (S.652), 1996 U.S.C.C.A.N. (110 Stat.) 133-43 ;(Appendix
1 hereto).
In Plaintiffs' challenge to the indecency sections of the
CDA, Plaintiffs seek an unprecedented legal and social paradigm
shift of enormous proportion. In their zeal for unfettered
freedom to distribute all material, however pornographic,
without any consideration for the large audience of children
online, Plaintiffs urge this Court, in effect, to surrender the
legislature's compelling interests in protecting children in
favor of the economic interests and ideological wishes of
computer indecency providers so that they may be unburdened and
untroubled by even reasonable responsibilities for their
offensive discourse. Plaintiffs posit the issue as an either-or
proposition: either we have no law and technology flourishes,
or we have law and technological progress grinds to a halt.
This is a preposterous proposition. Internet technology will no
doubt continue to flourish undaunted by the presence of the
CDA.1 To suggest, as Plaintiffs do, that the CDA would
seriously hinder the healthy development of this important new
technology is to maintain that its development depends upon the
ability of adults to use this technology to give or show
patently offensive sexual or excretory depictions to children
and to each other in a way that is also available to children,
as if it were an indispensable feature of the medium.2
Plaintiffs interpret the CDA so broadly that it would reach
protected speech and thus be unconstitutional.
Amici interpret the CDA so narrowly that it doesn't reach
protected speech and thereby be fully constitutional.
As we do, Congress, the CDA's sponsors, and the President
viewed the CDA as narrowly applying to unprotected indecent
material and not as a threat to serious sexual discussions and
materials. See .i."Conference Report on the CDA", Joint
Explanatory Statement of the Committee of Conference, Report for
P.L. 104-104, Title V-Obscenity and Violence, 1996 U.S.C.C.A.N.
Leg. Hist. 200-11; (Appendix 2); .i.141 CONG. REC. S9770-75
(daily ed. July 12, 1995); and .i.141 CONG. REC. S8328, 8337,
8386, et seq. (daily ed. June 14, 1995) (statements of Sen.
Exon); (Appendix 3); .i.White House letter of Feb. 28, 1996, to
Senator James Exon from Jack Quinn, Counsel to the President;
(Appendix 4).
These Amici Curiae submit that this Court should, and is
bound by its constitutional obligations in reviewing federal
statutes to, interpret the CDA to protect legitimate sexual
treatment that should not be considered indecent and fashion
guidance on complying with this important new law.
The CDA was enacted by overwhelming votes of members of
both political parties in both chambers of the Congress in order
to protect minor children who use the new interactive computer
services and the Internet from being given harmful pornography
by adults. It requires that adults who wish to use "adult"
sexual expression that is "patently offensive" in its treatment
of sexual or excretory activities or organs to put electric
blinder racks in front of such pornography so their and our
children don't see it. This can be done to a great extent under
present custom, usage, and technology, can be assisted in great
degree by voluntary measures taken by industry and by parents
with developing screening devices, and will be possible to a
greater extent as the future unfolds with advancing technology,
computer communication protocols, standards of practice, and
hardware/software developments.
Adults do not have a First Amendment right to speak
indecently on publicly available sites of the Internet, World
Wide Web, or Usenet where children are present, any more than
they do in public streets, roadside billboards, privately owned
retail bookracks open to the general public, public airwave
radio and TV shows, CB radio bands, basic cable TV channels, the
dial-it phone services, or other public forums and mass
communications mediums. The issue before the Court should not
be whether consenting adults who wish to traffic in indecent
pornography on the Internet or within a commercial online
service provider's system would find it bothersome or difficult
to restrict it from minors, but whether the provider of such
indecency should bear the burden of taking good faith efforts to
restrict his indecent material from minor children. This case
should also clarify that the test for "indecency" is not vague
and will not be allowed to be overbroad in its interpretation or
application. Serious works of literature, art, science, and
politics are not realistically within the scope of the CDA, are
not "patently offensive" or "indecent" to the average person in
American society, and are neither obscene nor legally indecent.
Such truly legitimate communications were not intended by
Congress to be within CDA's scope and can be declared by this
Court to be outside its reach and fully protected on the
Internet, as in all other public forums, even for children.
The CDA only requires adults to refrain from sending
flagrantly offensive pornographic representations of sex and
nudity to children or posting them in "cyber" places where they
know children will get such harmful materials. Placing "adult"
material that is too indecent for children in "adults only"
areas of the Internet is possible under available methods and
practices and, where it is not possible to restrict it from
children and the provider knows it will be obtained and
available to children, then the provider has an obligation to
society and common decency to refrain from putting such harmful
pornography into the faces and minds of our children until such
time as the material can be screened from them. The CDA uses
the least restrictive yet effective means to frame the
parameters of the legal requirements placed on adults to protect
children from indecency.
.c.II. THIS COURT IS OBLIGED TO INTERPRET THE CDA
NARROWLY,
SO AS TO SAVE IT, AND, IF NECESSARY, LEND IT AN
AUTHORITATIVE CONSTRUCTION, SO AS TO MAKE IT
CONSTITUTIONALLY ENFORCEABLE.
The Complaints filed by the ACLU Plaintiffs and ALA
Plaintiffs allege that the CDA's indecency provisions, to be
codified at .i.47 U.S.C. §§ 223(a)(1)(B), 223(a)(2), and
223(d);, are unconstitutionally vague and overbroad in several
respects and ask this Court to declare them unconstitutional on
their face and enjoin their enforcement in toto.
These amici respectfully submit that this Court may not do
what Plaintiffs ask. The Court's obligation is to interpret
these sections narrowly and construe the CDA so as to be
constitutionally valid and enforceable now and in the future.
This may not be an expedient undertaking, and may require
present and future consideration of developments in technology
(as the FCC will also do in promulgating good faith defenses in
the future pursuant to .i.§ 223(e)(6);), but this Court's
supervisory jurisdiction and its duty to construe federal
legislation that is subject to narrowing limits, as is the CDA,
require such an analysis and interpretation in this case. The
Supreme Court feels this burden as well, as stated in .i.Miller
v. California, 413 U.S. 15, 29-30 (1973);, but faces up to the
"tough individual problem of constitutional judgment" involved
in these cases.
The CDA is not a total ban on indecency, and should not be
interpreted to have the same effect as a ban. Because it is not
a total ban of indecent speech, it is capable of narrowing
constitutional construction by this Court. The CDA is unlike
the indecent dial-a-porn statute that was before the Supreme
Court in .i.Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115 (1989);. There, the total ban version of prior .i.§ 223(b);
was incapable of any narrowing construction, since Congress
plainly criminalized the distribution of indecent material to
consenting adults. 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 new crimes in this Act require that an offender act
"knowingly" by knowing of the indecent character of the
communication and knowing that it is going to or is available to
minors. .i.Ginsberg v. New York, 390 U.S. 629, 644 (1968);;
.i.Hamling v. United States, 418 U.S. 87, 119-24 (1974);;
.i.Osborne v. Ohio, 495 U.S. 103, 113 n.9, 115 (1990);; .i.U.S.
v. X-Citement Video, Inc., __ U.S. __ , 115 S. Ct. 464, 130
L.Ed.2d 372 (1994);.
Under the CDA, it is not a crime and is lawful activity for
adults to speak indecently to other adults, consenting or not.
Furthermore, even if a child or juvenile does obtain indecent
material, it is a defense, under .i.§ 223(e)(5) and (f)(1);, to
criminal or civil liability, that the provider of the indecent
content took good faith actions under available technology to
limit such speech to adults. This is the point upon which this
case must turn, legally and technologically. This Court should
render an interpretation of the CDA that allows for compliance
under present technology as well as in the future according to
what is feasible at that time. The CDA nicely lends itself to
this type of interpretation by defining good faith defenses as
"any method which is feasible under available technology". .i.§
223(e)(5)(A);; "Conference Report on the CDA," .i.1996
U.S.C.C.A.N. Leg. Hist. at 204;.
.c.III. THE CDA IS CONSTITUTIONAL.
.c.A. THE TEST FOR VAGUENESS IS NOT MERE
UNCERTAINTY BUT SUFFICIENTLY DEFINITE WARNING
OF CRIMINALITY.
"Condemned to the use of words, we can never expect
mathematical certainty from our language." So stated the Court
in .i.Grayned v. City of Rockford, 408 U.S. 104, 110 (1972);.
The Court in .i.Grayned, at 107-09;, upheld a city noise
ordinance in light of three concerns in reviewing for
unconstitutional vagueness: first, fair warning; second,
prevention of arbitrary and discriminatory enforcement; and
third inhibition of First Amendment freedoms. These principles
are true when faced with First Amendment speech and expression
issues, as in other areas of the law. The First Amendment
sexual expression test for facial validity in response to a
vagueness challenge was developed by the Supreme Court beginning
with .i.Roth v. United States, 354 U.S. 476, 491-92 (1957);,
where Justice Brennan noted that the statutory phrase of
"obscene, lewd, lascivious, or filthy..or...of an indecent
character" was not perfectly precise but was subject to
reasonable interpretation, construction, and application (by
combining them into the term "obscenity" and providing a Court
announced test for applying that term in future cases):
The thrust of the argument is that these words are
not sufficiently precise because they do not mean the
same thing to all people, all the time, everywhere.
Many decisions have recognized that these terms of
obscenity statutes are not precise. This Court,
however, has consistently held that lack of precision
is not itself offensive to the requirements of due
process.
* * *
"...[T]he Constitution does not require impossible
standards"; all that is required is that the language
"conveys sufficiently definite warning as to the
proscribed conduct when measured by common
understanding and practices...."
The Court in .i.Roth; construed the obscenity law and gave
us the "Roth Test" -- basically, that obscenity be predominantly
prurient in its intended appeal. Later the Court would give us
the "Roth-Memoirs Test" by adding that obscenity must depict sex
in a patently offensive way and be utterly without redeeming
social value". .i.Memoirs v. Massachusetts, 383 U.S. 413, 418
(1966);. The Court then settled on a formula for the "Miller
Test" that requires that unprotected material lack "serious
literary, artistic, political, or scientific value". .i.Miller
v. California, 413 U.S. 15, 24-25 (1973);. A year later, in
.i.Hamling v. United States, 418 U.S. 87, 114-15 (1974);, the
Court was faced with a federal statute and avoided a vagueness
problem by construing it to adopt the "Miller Test" as a
constitutional standard to give "notice" of criminality, not
absolute universal certainty, stating:
As noted above, we indicated in .i.United States v.
12 200-ft. Reels of Film;...that we were prepared to
construe the generic terms in 18 U.S.C. § 1462 to be
limited to the sort of "patently offensive
representations or descriptions of the specific 'hard
core' sexual conduct given as examples in Miller v.
California." We now so construe the companion
provision in 18 U.S.C. § 1461.... As so construed,
we do not believe that petitioners' attack on the
statute as unconstitutionally vague can be sustained.
* * *
And while the Court in Miller did refer to "specific
prerequisites" which "will provide fair notice to a
dealer in such materials," ...the Court immediately
thereafter quoted the language of the Court in
Roth...concluding with these words:
"That there may be marginal cases in which it is
difficult to determine the side of the line on which
a particular fact situation falls is no sufficient
reason to hold the language too ambiguous to define a
criminal offense....'"
[citations omitted]
.c.B. UNCONSTITUTIONAL OVERBREADTH MUST BE BOTH
REAL AND SUBSTANTIAL AND IS CURED BY
CONSTRUCTION.
The "substantial overbreadth" doctrine of .i.Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973);, is that, to be
unconstitutionally overbroad, "the overbreadth of a statute must
not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep".
The Court in .i.Hamling;, at 113, prefaced it holding that
§ 1461 was valid, as construed that day and understood in light
of previous precedent, by quoting from .i.12 200-ft. Reels,
supra, 413 U.S. 123, at 130 n. 7 (1973);:
"We further note that, while we must leave to state
courts the construction of state legislation, we do
have a duty to authoritatively construe federal
statutes where a 'serious doubt of constitutionality
is raised' and '"a construction of the statute is
fairly possible by which the question may be
avoided."'
The Court has "traditionally viewed vagueness and
overbreadth as logically related and similar doctrines",
.i.Kolender v. Lawson, 461 U.S. 352, 358 n. 8 (1983);, but the
duty of federal courts differs with regard to their review of
federal, as opposed to state, laws. If this were a state law
challenge under .i.42 U.S.C. § 1983;, this Court would have no
jurisdiction to authoritatively construe its language. As
stated in .i.Grayned, supra, 408 U.S. at 110;, federal courts
cannot "extrapolate its allowable meaning...for it is not within
our power to construe and narrow state laws". The task is
appositive for federal laws, however, as the Court also noted in
.i.Grayned;, Id., where it referred to its decision in .i.United
States v. 37 Photographs, 402 U.S. 363, 369-70 (1971); (a quote
relied on in .i.Hamling; and .i.12 200-ft. Reels;, supra,
above), where it was held that "we lack jurisdiction
authoritatively to construe state legislation...[but in] dealing
with a federal statute...[federal courts have the] power to give
it an authoritative construction...consistent with its
legislative purpose". This duty was highlighted in the Court's
child pornography case, .i.New York v. Ferber, 458 U.S. 747, 769
n. 24 (1982);, where the Court reminded:
When a federal court is dealing with a federal
statute challenged as overbroad, it should, of
course, construe the statute to avoid constitutional
problems, if the statute is subject to such a limited
construction.
.c.C. AUTHORITATIVE CONSTITUTIONAL CONSTRUCTION
IS PARTICULARLY APPROPRIATE FOR FIRST AMENDMENT
;RELATED LAWS SUCH AS THE COMMUNICATIONS
DECENCY ACT.
Plaintiffs in this case make much of the narrowness of
their challenge to the CDA as questioning only the indecency
provisions and not its obscenity law amendments to argue that
this case is not about "obscenity" or "child pornography", but
the "indecency" standard they challenge was developed with and
because of the same First Amendment principles applicable to
separating protected expression from unprotected obscenity and
child pornography and materials harmful to minors. As discussed
below, the test for determining whether the manner of treating
sex and nudity is "indecent" had its roots and derives from the
second prong of the "Miller Test" for patent offensiveness. The
vagueness and overbreadth arguments made here as to "indecency"
and "patently offensive" under "contemporary community
standards" have been met and rejected and/or corrected in
previous obscenity, and child exploitation, harmful to minors,
and indecency cases in the Supreme Court.
In .i.New York v. Ferber;, supra, 458 U.S. at 766-74, the
Court discussed the rules governing facial challenges and those
to statutes as applied. The New York Court of Appeals thought
its child pornography statute "could" reach protected speech in
some hypothetical applications and, instead of narrowing it by
construction, struck the statute. The Supreme Court found, 458
U.S. at 769, that the court below misapplied the "substantial
overbreadth" doctrine of Broadrick and reiterated that facial
invalidity is a drastic and narrow exception that must be
"carefully tied to the circumstances in which facial
invalidation of a statute is truly warranted" and is "strong
medicine" employed "only as a last resort". The Court, at 773-
74, explained:
While the reach of the statute is directed at the
hard core of child pornography, the Court of Appeals
was understandably concerned that some protected
expression, ranging from medical textbooks to
pictorials in the National Geographic, would fall
prey to the statute. How often, if ever, it may be
necessary to employ children to engage in conduct
clearly within the reach of § 263.15 in order to
produce educational, medical, or artistic works
cannot be known with certainty. Yet we seriously
doubt, and it has not been suggested, that these
arguably impermissible applications of the statute
amount to more than a tiny fraction of the materials
within the statute's reach. Nor will we assume that
the New York courts will widen the possibly invalid
reach of the statute by giving an expansive
construction to the proscription on "lewd
exhibition[s] of the genitals." Under these
circumstances, § 263.15 is "not substantially
overbroad and...whatever overbreadth may exist should
be cured through case-by-case analysis of the fact
situations to which its sanctions, assertedly, may
not be applied." [citing Broadrick]
An analogous statement is evident for this case as to the
use of indecent material to make a serious point on the
Internet. How often, if ever, it may be necessary to use
patently offensive sexual or excretory language or pictures in
order to produce educational, medical, or artistic works cannot
be known with certainty, but these arguably impermissible and
certainly rare applications of the indecency standard can and
should be considered to be beyond the legitimate reach of the
law.
For an illustration of the lack of impact that indecency
laws and regulations have had in broadcasting, or would have on
public BBS and other interactive computer systems, the courts
need only inspect the dismissal letters and decisions of the
Federal Communications Commission's Enforcement Division of the
Mass Media Bureau, several of which are in Appendix 8 hereto.1
Speculation is easy, but the courts and the public can look at
the public FCC record to see that legitimate speech is not
brought within the ambit of indecency regulation over the public
airwaves. Even if speakers and content providers have to hold
off using indecent language or images on public areas of the
computer networks where children are invited as part of the
general public, the messages the speakers convey can remain
unchanged. The subject matter is not what can be found
indecent, only the patently offensive sexual references used to
convey the message need be tailored for the audience, when it
contains minor children, or restricted only to reach adults, for
whom it is protected.
One of the most important legal quotations for use in
understanding and deciding the instant controversy is that from
the Court in .i.FCC v. Pacifica Foundation, 438 U.S. 726, 743 n.
18 (1978);, where the First Amendment principle of free
expression of ideas was guaranteed its due protection by the law
and the Government and the courts (emphasis added):
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.
Furthermore, there is absolutely nothing in the record
before this Court to prove or suggest or even imply that the
indecency standard will apply to or should restrain serious
treatment of sexual subjects such as alleged by some plaintiffs
and their witnesses as to non-pornographic medical, public
health, education, and political materials. The burden is on
the Plaintiffs to show the likelihood of success on their
complaint that the CDA would in fact cause a real and
substantial prior restraint upon protected expression. They did
not and cannot. This Court can and should reject their claim of
facial invalidity and then interpret the CDA so that it could
not have such allegedly unconstitutional applications. The
issue need not be left unresolved.
.c.D. THE CDA IS SUBJECT TO PROPER NARROWING AND
CAN BE INTERPRETED AS FULLY CONSTITUTIONAL, AS
HAS BEEN DONE WITH EXISTING OBSCENITY AND
SEXUAL EXPRESSION RELATED LAWS.
If the Court decides that the indecency standard for the
Internet would and should not apply to serious art and
literature in our museums and libraries, nor to serious
discussions and illustrations of sexual disease, medicine, or
education programs, nor to protected political speech, nor to
public discussions of law and legal cases on pornography, etc.,
then this Court is obliged to so state on the record and thus
narrow the scope of the CDA to reach only the type of patently
offensive, indecently pornographic sexual exploitation that is
unprotected and harmful for minors. As it should be understood
by this Court and by the public after an opinion is released in
this case, Plaintiffs' hypothetical fears of prosecution for
protected speech would cease to be any real or conjured
restraint of free speech.
The application of indecency under the CDA to the Internet,
World Wide Web, Usenet, and within the proprietary services of
online service providers like America Online, Prodigy, and
CompuServe, may vary within each of these forums. It may also
vary from its application to broadcast, telephone dial-a-porn,
or cable TV mediums. An important feature of the indecency
standard is its ability to adapt to its applicable context, as
mandated by .i.Pacifica;, supra, 438 U.S. at 750 under the
nuisance rationale (discussed by Amicus Morality in Media in
Part II of this Brief, infra).
As interpreted by the Supreme Court in .i.Pacifica;, by the
FCC in its decisions finding indecency complaints either well
taken or worthy of dismissal (for several examples of orders,
opinions, and letters of liability and of dismissal, see
Appendix 8, separately bound as Volume 2 of the Appendix
hereto), and the Department of Justice in these instant suits,
the indecency standard would not apply to serious uses of merely
graphic sexual language or medical or artistic nudity or sex.
Unlike in the child pornography context, where a photo of a
child having sexual conduct with another is per se contraband,
but might still be saved by an overriding serious medical or law
enforcement purpose as mentioned in .i.Ferber;, indecency
considers serious value and purpose as part of the consideration
of whether the treatment is "patently offensive" in context.
First Amendment protections are preserved by both methods of
judicially narrowing a law so as not to apply to protected
speech. A serious use of otherwise offensive sexual references
would render it not "patently" indecent to begin with, thus
avoiding an impermissible application of the indecency standard.
As the Court said in .i.Grayned v. City of Rockford, supra,
408 U.S. at 110 n. 15;:
It will always be true that the fertile legal
'imagination can conjure up hypothetical cases in
which the meaning of [disputed] terms will be in nice
question'.
Although a reviewing court must construe a statute so as to
prevent invalid applications, some of which may be merely
arguably possible though not plausible, this task is not all
encompassing nor one that cannot vary with time and
circumstance. The courts can only announce principles to guide
future conduct, as all laws do. When the Supreme Court held
that some degree of guilty knowledge of the content and
character of the material involved in an obscenity case was
required by the Constitution, it did not try to place absolute
limits or bounds on what type of scienter would be required.
See .i.Smith v. California, 361 U.S. 147, 154-55 (1959); ("We
need not...pass today on what sort of mental element is
requisite to a constitutionally permissible prosecution....").
When faced with a federal statute, however, the Court in
.i.Hamling v. United States, supra, 418 U.S. at 119-24;,
provided the parameters of the scienter element.1
The Supreme Court recognized that statutory construction
can sometimes take on a substantial scope, if the situation
warrants such detailed analysis and authoritative
interpretation. As discussed in .i.United States v. 37
Photographs, supra, 402 U.S. 369-75;, the Court added time
periods for judicial review of customs forfeitures of allegedly
obscene material under .i.19 U.S.C. § 1305(a); and held that
"[s]o construed, § 1305(a) may constitutionally be applied to
the case before us". Id. at 374. The Court prefaced its holding
by saying that "we do not now decide that these are the only
constitutionally permissible time limits. We note, furthermore,
that constitutionally permissible limits may vary in different
contexts...." Id. The Court also discussed how, in order to
save a statute, the Court may be required to provide
authorizations to administrative agencies and "create mechanisms
for carrying it into effect". Id. at 370. The Court then
foreshadowed a recent case mandating limiting construction or
partial invalidation, rather than wholesale facial invalidity,
when it said, at 375 n. 3, that if a lower court had thought
some conduct could be proscribed but that other conduct would be
protected, that "the proper approach...was not to invalidate the
section in its entirety, but to construe it narrowly and hold it
valid in its application to" the valid purpose. The Court
continued by stating: "This was made clear in .i.Dombrowski v.
Pfister, 380 U.S. 479, 491-492...(1965);, where the Court noted
that, once the overbreadth of a statute has been sufficiently
dealt with, it may be applied to prior conduct foreseeably
within its valid sweep." Id.
The partial invalidity rule was recently underscored in
.i.Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-05
(1985);, where the Ninth Circuit struck down an entire state
statute because it felt that including "lust" in the definition
of "prurient" could apply to protected speech which appealed
only to normal and healthy sexual interests. Although an
unhealthy or abnormally lustful interest can properly be
included in prurience, "had the Court of Appeals thought that
'lust' refers only to normal sexual appetites, it could have
excised the word...." Id. at 505 (emphasis in original).
Nevertheless, the Court held that any improper application of
the word "lust" should have been limited by declaring such
applications unconstitutional, not that the law be stricken:
"Unless there are countervailing considerations, the Washington
law should have been invalidated only insofar as the word 'lust'
is to be understood as reaching protected materials." (emphasis
added).
The Supreme Court also stated the rule of law that should
guide this Court as to some of the Plaintiffs and witnesses (and
more appropriately, for many legitimate parties not before the
Court) who honestly seek to engage in serious discussions of
sexual disease prevention, legitimate legal or sex education, or
disseminate valuable artistic or literary works such as are
found in museums and libraries:
If the overbreadth is "substantial," the law may
not be enforced against anyone, including the party
before the court, until it is narrowed to reach only
unprotected activity, whether by legislative action
or by judicial construction or partial invalidation.
...
It is otherwise where the parties challenging
the statute are those who desire to engage in
protected speech that the overbroad statute purports
to punish... The statute may forthwith be declared
invalid to the extent that it reaches too far, but
otherwise left intact. Id. at 503-04 [emphasis
added].
.c.E. CONGRESS ANTICIPATED THE LEGITIMATE
PROTECTION OF THE RIGHTS OF ADULTS TO ENGAGE IN
PROTECTED, BUT INDECENT SPEECH, BUT REQUIRED IT
TO BE CHANNELED SO THAT CHILDREN ARE ALSO
PROTECTED.
The clearly stated intent of Congress and the Act's
sponsors and supporters is to interpret the CDA narrowly so as
to save it from impacting truly legitimate, protected expression
and information on the Internet and computer systems. The
"Conference Report on the CDA" is the best evidence of
legislative intent and clearly states the applicable law and
First Amendment sensitivities that Congress recognizes as
important for the Internet. See .i.Joint Explanatory Statement
of the Committee of Conference, Report for P.L. 104-104, Title
V-Obscenity and Violence, 1996 U.S.C.C.A.N. Leg. Hist. 200-11;
(copy in Appendix 2).
Congress sought to protect the right of minors to learn and
benefit from this new global communications tool, not be
excluded from it as if it were a universal, in-home "adult"
bookstore full of hard-core pornography as well as soft-core
pornographic indecency. Both forms of pornography are harmful
to minors and the CDA would protect children from either on the
public areas of the BBS and Internet systems. These amici
submit that it is this Court's solemn duty to interpret the
Communications Decency Act to allow for its constitutional
application in the protection of children, while preserving
whatever legitimate rights adults have to communicate indecently
to other adults. Plaintiffs ask this Court to take the easy way
out for them and simply strike the indecency provisions from the
CDA. This is not an option unless this Court can find that the
rule of total invalidity is the only and last resort. This
would require a finding, as in .i.Watson v. Buck, 313 U.S. 387,
401-02 (1941);, that the CDA's proscription against knowingly
sending indecency to a minor or knowingly displaying such
patently offensive sexual material on public sites on the
Internet where it is available to minors as part of the general
public, without taking good faith efforts to limit the speech to
adults, is "flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort
might be made to apply it". See .i.Village of Hoffman Estates
v. Flipside, 455 U.S. 489, 494-95, n. 5 (1982); (holding that
the law was "invalid in toto -- and therefore incapable of any
valid application"). This, we submit, is impossible in light
of the record before this Court which proves, from witness from
both parties, that there is hard-core pornography that could be
considered obscene and other graphically indecent pornography
freely available to children on the Internet, World Wide Web,
and especially on the "alt.sex" news groups of the Usenet.
A reading of .i.Sable Communications of Cal., Inc. v. FCC,
492 U.S. 115 (1989);, should not lead one to find it analogous
to the indecency crimes fashioned by the Congress in the CDA.
The Court in .i.Sable; was forced to review a law that was
clearly intended "to prohibit indecent as well as obscene
interstate commercial telephone communications directed to any
person regardless of age...since a total ban was imposed on
dial-a-porn, making it illegal for adults, as well as children".
Id. at 122-23. No narrowing construction was possible to remove
the crime of consensual sale of indecent messages to an adult.
There, the Court had no choice. .i.Sable;, however, does not
mandate a similar remedy for an adult's unwillingness to take
some steps to obtain indecency in "cyberspace" so that it is
not readily accessible to children at the same time.
The forum for resolution of the complaints and concerns of
Plaintiffs is in this Court and the burden lies here to do the
hard construction work necessary to give effect to this
monumental act of Congress on behalf of children. Amici submit
that this is necessary, but sympathize that the task is not so
easy as Plaintiffs would have it. Guided by established
principles of First Amendment due process, and learning from
past obscenity, harmful to minors, and indecency cases, the CDA
is and can be fully constitutional. The last few pages of the
.i.Pacifica; decision and the application of the pandering and
scienter cases of the Supreme Court will answer most of the
legal questions. Time and technology will have to contribute to
solving some of the concerns about ease of compliance. Ease is
not a constitutional right, however, and this Court should admit
that at some point an adult must refrain from truly indecent
speech on the public Internet sites. With sensitivity to the
protection and rights of children and to the legitimate
expression rights of adults, this Court can fashion an order
which will make the CDA enforceable against truly indecent
material that reasonable minds would not differ as to its
inappropriateness for minors on the Internet's public square.
.c.III. PLAINTIFFS' INTERPRETATION OF THE LEAST
RESTRICTIVE MEANS TEST IN DETERMINING THE FACIAL
CONSTITUTIONALITY OF THE CDA IS ERRONEOUS AND
SHOULD BE REJECTED.
Plaintiffs assert that the CDA is not the least restrictive
means to further the Government's compelling interest in
protecting children from exposure to online indecency. However,
when Plaintiffs explain the reasons for their conclusion, it
becomes clear that they have misapplied the sum and substance of
the least restrictive means test.
A less restrictive means must be just as effective as the
means at issue in accomplishing the asserted interest. It would
be unreasonable to force Congress to enact legislation which
allowed a less restrictive, yet ineffective means that would not
achieve its purpose. The least restrictive means must be
effective in order for a Congress to achieve its compelling
interest.
In .i.Dial Information Services v. Thornburgh;,1 in
addressing the least restrictive means issue, the Court of
Appeals stated:
Accordingly, in order for appellees to prevail, it
must be determined that there are other approaches
less restrictive than the Helms Amendment but just as
effective in achieving its goal of denying access by
minors to indecent dial-a-porn messages.2
As to the district court's reference to disobedient
young people, 'parents 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.
The Court cited .i.Ginsberg; and held that "[t]he Helms
Amendment is such a law, 'narrowly tailored to serve [a
compelling] interest.'"1.
Plaintiffs argue for a "less" restrictive means to protect
children from online indecency than that which the CDA requires.
However, all that they have suggested are "non"-restrictive,
some are non-existent, and many are ineffective in restricting
access by children to the enormous amount of indecent material
available online.
The Supreme Court re-articulated the least restrictive
means test in the context of furthering the Government's
compelling interest in protecting children from exposure to
indecency in .i.Sable Communications v. FCC, 492 U.S. 115, 126
(1989);: "The government may...regulate the content of
constitutionally protected speech in order to promote a
compelling interest if it chooses the least restrictive means to
further the articulated interest."
The least restrictive means test has four components:
· Government has a legitimate compelling interest
· Government may regulate to promote this interest
· The subject of the regulation is speech
· The means employed by the regulation restricts only
that speech necessary to fulfill the interest
Plaintiffs have failed to sustain their burden to show that
the CDA is not a least restrictive means to accomplish its
legitimate purpose of shielding minors from online indecency and
the preliminary injunction should be denied.
.c.A. THE GOVERNMENT INTEREST UPON WHICH THE CDA
IS BASED IS LEGITIMATE AND COMPELLING.
The ALA Plaintiffs acknowledge that the Government has a
compelling interest in protecting children from computer
indecency. The ACLU Plaintiffs, however, disagree with the
premise that any government has a compelling interest in
protecting children from indecent speech. See .i.ACLU's
Complaint and the testimony of sex therapist and minister of
human sexuality, Dr. William R. Stayton, Preliminary Injunction
Hearing, March 21, 1996, PI Tr. at 200, 208; (testifying that,
in his opinion, viewing the types of sexually explicit pictures
in Playboy, Penthouse, and Hustler is not harmful to children
and that videos of sexual intercourse would be appropriate for a
child: "Yeah, My five-year-old saw them").
The ALA Plaintiffs, while conceding that the Government has
a compelling interest in protecting children from exposure to
patently offensive depictions of sexual or excretory activities,
argue that the Government may not employ the CDA's means to
further its compelling interest.
This Court need only imagine, if not take judicial notice,
what is learned in the instant that a young boy or girl, or even
a teenager, is staring into some of the images brought to this
Court's attention in the hearings. The CDA addresses a far more
pernicious danger to minor children on the Internet than George
Carlin's monologue of dirty words did on daytime radio. In
.i.Pacifica, supra, 438 U.S. 749;, the Supreme Court did not
panic over the thought that profane political speech on a
leather jacket could be seen by a few minors who might to be in
a courthouse during an anti-war demonstration. The Court did
state its concern, however, that "Pacifica's broadcast could
have enlarged a child's vocabulary in an instant" and upheld the
FCC's judgment that the station's callous disregard for public
decency and the protection of children was a flagrant
administrative violation of .i.18 U.S.C. § 1464.;1
It can't be overlooked that the Supreme Court has used
strong language to describe the interests of the States and the
Congress to protect children by requiring that adults take steps
not to disseminate "harmful" pornography to them or sexually
exploit them. See .i.Ginsberg;, .i.Ferber;, and .i.Osborne;,
supra. This, it should seem, forewarns a less than sympathetic
forum in the Supreme Court (than Plaintiffs would have this
Court believe from their misreading of .i.Sable;, supra) for an
argument that adults should have a protected right to use the
Internet's public forums to indiscriminately post patently
offensive pornography within the instant reach of children from
coast to coast.
.c.B. THE GOVERNMENT MAY REGULATE TO FURTHER ITS
COMPELLING INTEREST.;
The Supreme Court has concluded that governments may
regulate. to protect minors from exposure to non-obscene
materials in public places.1 Plaintiffs, however, submit that
the Government should not and, indeed, cannot regulate indecent
speech in public cyberspace. Plaintiffs submit, instead, that
the welfare of children must look only to commercially-available
optional devices for protection. In essence, Plaintiffs argue
that the marketplace is the only possible source for regulation
of computer indecency.2 Plaintiffs contend that software-
blocking is adequate to protect children and offered Ann Duvall
of SurfWatch, Inc. At the conclusion of Mrs. Duvall's
testimony, Chief Judge Sloviter asked the witness whether
SurfWatch was a money making project. "I hope so," responded
Duvall. See .i.PI Tr. at 158 (March 21, 1996);. Judge Sloviter
then asked "[T]here's no assurance to the public, the
Government, parents, that your particular company will remain in
existence and provide this alternative [to the CDA]. Is that
right?" The witness replied: "That's probably correct." Id.
at 159. In other words, Plaintiffs claim that the Government
may take steps to fulfill its compelling interest in protecting
children from pornography in every other medium, including
print, video, television, radio and the private telephone, but
as to computers connected via telephone and other communication
lines, the Government may do nothing but leave it up to the
market and to voluntary measures to further its compelling
interest.1
This concept of the market as a self-regulator can be
seductive, but it is not a legal substitute for obeying the law.
Still, good faith attempts at compliance can even be helpful,
since the market should respond and comply with the social
policy embodied in the law. The market is not known for
protecting the vulnerable nor tempering the ambitious or
exploitive, as noted in .i.Pacifica;, supra, n. 8, and the law
does not require child safety to be left entirely to the whim of
good will or the ability of parents to protect their children
from those who prey.
In addition, if the Government were to do nothing to
prevent children's access to online pornography, that disregard
would contribute to and become part of the harm visited upon the
young and impressionable. In .i.Ginsberg v. New York, 390 U.S.
629 (1968);, the Supreme Court upheld a state "harmful to
minors" statute prohibiting the sale of certain sexually
explicit material to minors under the age of 17. The Court
quoted Dr. Gaylin of Columbia University Psychoanalytic Clinic
on the harmful impact of sexually explicit material on minors,
wherein he emphasized that "a child might not be as well
prepared as an adult to make an intelligent choice as to the
matter he chooses to read." Id. at 643. The Court noted that
psychiatrists have made a distinction between the harm to
children from reading pornography and "the permitting of the
reading of pornography, which was conceived as potentially
destructive. The child is protected in his reading of
pornography by the knowledge that it is pornography, i.e.
disapproved." Id. (emphasis added). The Court cited Dr. Gaylin
further: "To openly permit implies parental approval and even
suggests seductive encouragement. If this is so of parental
approval, it is equally so of societal approval -- another
potent influence on the developing ego." Id. (emphasis added).
In .i.Ginsberg;, the Court got right to the heart of the matter:
an essential part of government's furthering its compelling
interest in protecting children from exposure to online
pornography is "official" societal disapproval -- through laws
in which this disapproval is manifested -- not only of children
consuming pornography, but especially of adults providing it to
them.
That government, which has always regulated in furtherance
of its compelling interests, could do nothing to further this
compelling interest in the world of computers would be an
enormous departure from precedent and is unjustified.
.c.C. THE SUBJECT OF THE REGULATION IS THE
SPEECH, NOT THE CONSUMER OF THE SPEECH.
In a least restrictive means analysis, the subject of the
regulation is the speech. Plaintiffs' challenge has the effect
of making the subject of the regulation be the consumer of the
speech. These amici submit that Plaintiffs have failed to show
why the law should now be powerless to deal with users of
computers as it does with users of phones, radio and TV systems,
satellites, common carriers, and all other means and facilities
of commerce and communication. Plaintiffs' position is legally
indistinguishable from the "consenting adults" argument rejected
by the Supreme Court in .i.Paris Adult Theatre v. Slaton, 413
U.S. 49, 57 (1973); ("[W]e hold that there are legitimate state
interests at stake in stemming the tide of commercialized
obscenity, even assuming it is feasible to enforce effective
safeguards against exposure to juveniles and to passersby.
Rights and interests 'other than those of the advocates are
involved.'"), and .i.Kaplan v. California, 413 U.S. 115, 120
(1973); ("[W]e can take note of the tendency of widely
circulated books of this category to reach the impressionable
young and have a continuing impact."). Though the Court there
dealt with an argument against the validity of obscenity laws,
the Court's reasoning that pornography is harmful and available
to children belies the Plaintiffs' position that publicly posted
computer pornography can be blocked by adults by simply keeping
them out of such electronic places.1
The Court in .i.Dial Information Services v. Thornburgh,
938 F.2d 1535 (2nd Cir. 1991), cert. denied 502 U.S. 1072
(1992);, upheld the requirement that the "speaker" of indecent
telephone speech bear the burden of keeping his speech away from
children, despite the existence of commercially available
blocking devices. The Court upheld the 1989 amendment, known as
the Helms amendment, that established a "safe harbor" defense
for dial-a-porn providers who comply with telephone company
presubscription procedures or engage in independent billing and
collection, all speaker-based actions. Id.
Recently in the .i.Alliance; case, the U.S. Court of
Appeals for the D.C. Circuit rejected the assertion that
indecent programming on leased access cable channels should be
"regulated" only by parents who obtain "lockboxes" from cable
operators. .i.Alliance for Community Media v. FCC, 56 F.3d 105
(D.C. Cir. 1995), cert. granted, 116 S.Ct. 471 (1995) (argued
Feb. 21, 1996);. For the Internet, Plaintiffs attempt to shift
the burden of mitigating harmful speech from the speaker to the
consumer of the speech. In other words, Plaintiffs seek to
absolve online content providers of any responsibility to
protect children from pornography they create or distribute, and
instead place it in the lap of the consumer-victims, the
children and their parents. This the law and the courts need
not and should not accede to.
The location of the regulatory burden upon the speaker and
not the consumer of the speech not only carries the weight of
unanimous precedent, but also has the benefit of being
practical. It is almost a truism to say that, as between
speaker and consumer, the speaker is in the better position to
know the content of his speech.1 The consumer of the speech
(under the CDA) does not know its content until it is "consumed"
by a child, as in .i.Pacifica;. Plaintiffs would remove the
obligation of those who already know where the material under
their control is located and who are in the best position to
know whether it contains patently offensive depictions of sexual
or excretory activities, and would instead create the enormous
and nearly impossible burden for the consumer to locate,
identify, and block children's access to the multiple thousands
of sites where pornographic material is located.
Expecting children to locate hidden Easter eggs sounds
reasonable and enjoyable, unless those who have hidden the eggs
are aware that they are rotten. No reasonable person, who cares
about the well-being of children, would leave it up to children
to find and dispose of rotten eggs. In the world of online
communications, parents will be left as children, hunting
frantically for thousands upon thousands of rotten eggs in a
cyberworld of indecency, scurrying to find all of them before
their children are contaminated.
Plaintiffs would have this Court decide not only that the
Government may do no more than hope that parents purchase and
install blocking software in the family computer, but that this is all that
is necessary to protect children from online indecency. The least
restrictive means of accomplishing the Government's compelling
interest must also be effective. Ignoring for a moment the fatal flaw
inherent in the argument that the Government may do nothing, these
amici find the ineffectiveness of Plaintiffs' suggested "means" to be
obvious.1 The ACLU Plaintiffs themselves admit that these programs
are ineffective in protecting children from accessing computer
indecency.1 After making this concession, ACLU Plaintiffs then make
the unsupported assertion that "the various blocking mechanisms are
much more effective than a government ban in keeping minors away
from material that their parents and teachers deem inappropriate."
.i.[ACLU] Plaintiffs' Brief in Support of a Motion for TRO and Prelim. Inj.,
at 24;. This type of reasoning presents a false conflict. Nothing in the
CDA prevents or even discourages the development and use of
commercial parental software blocking devices. In fact, this Court
should find that it was the Exon-Coats bill that spurred industry into
action in this regard. Even Plaintiffs should agree that the CDA and
software filters together would be more effective in protecting minors
than would either alone, even though they would argue that such
effectiveness is not constitutionally permissible or necessary. Moreover,
even if parents were very effective in finding indecent sexually explicit
material before their children found it, the government would still have
a legitimate, constitutionally-sound and compelling reason to
discourage, through law or regulation, adults from knowingly or
intentionally distributing or displaying indecent sexual material to
children. If all parents were encouraged to keep their children
continuously inside the home, they could be very effective at
preventing child molestation, but the Government would still have a
proper role in prohibiting child molestation through criminal laws
discouraging would-be molesters.
Still, the question of the effectiveness of Plaintiffs'
suggested "means" is just not relevant. The only relevant
question is whether the regulation imposed by the Government
through the CDA is the least restrictive, yet effective means of
protecting children from accessing online indecency.
.c.IV. "INDECENCY" IS A VALID STANDARD FOR THE
INTERNET AND OTHER INTERACTIVE COMPUTER SERVICES.
The Indecency standard as a prohibition on the public
dissemination of patently offensive representations and
references to sex and nudity derives from the test for obscenity
and is a sufficiently definite term of art so as to give notice
and guidance to all as to what manner of sexual description or
depiction must be channeled to adults on publicly accessible
sites on the Internet, bulletin board systems, and other
interactive computer services. As interpreted and applied by
the FCC as a prohibition on broadcast communications under .i.18
U.S.C. § 1464;, the indecency standard has been part of American
life since radio and television came into every home, school,
office, and vehicle. What is "indecent" is well known to the
public and the operators of mass communications media
facilities.1 Indecency is thus ingrained into American
culture by the presence of mass communications that are held to
the level of public decency that all citizens are familiar with
and derives from the application of the indecency standard.
Just as everyone is presumed to know the law and the law is
presumed to know what everyone knows, adults in America know
from their sense of common decency and from their universal
experience with radio and television what types of words and
pictures are "indecent" in such mass communications forums.
Such a practical and common sense judgment as to public
expression has made American TV, radio, and telephone services
accessible to all those who wish to access them, whether
selectively or incidentally. No one need avoid the public media
for fear of being offended by pornographic descriptions or
nudity and parents need not shield from nor deprive their
children of the programming that is openly available and
displayed to the general public.
.c.A. THE INDECENCY STANDARD IS APPROPRIATE FOR
A PUBLIC FORUM, SUCH AS THE PUBLIC AREAS OF THE
INTERNET.
Plaintiffs admit that the Internet is the future's most
public forum. The ACLU Plaintiffs, in their Brief supporting a
preliminary injunction and TRO, at 10, state:
Online networks represent a revolutionary synthesis
of several traditional means of communication and
places for communicating and exchanging information--
including the telephone system, the postal service, a
television or radio broadcast, a newspaper, a library
or book store, a fax machine, a town hall or public
park, and a shopping mall.
The ALA Plaintiffs, in the preliminary statement, p. 1, of their
Complaint, state: "The public square of the past...is being
replaced by the Internet...." It is hard to claim in the face
of these core admissions that the interactive computer systems
are not public or not pervasive or are not as uniquely
accessible to children or will be more so in the future. In
fact, in all other public forums and places to which both sets
of Plaintiffs claim to be incorporated or replaced online, minor
children are protected by indecency or harmful to minors
transaction prohibitions, display and/or access provisions,
and/or time, place, and manner restrictions. The CDA would
simply extend the same duties into the computer communications
medium that public decency and protection of minors laws do in
every other public medium.
Amici submit that the standard of indecency on the Internet
would be even more permissive than public broadcasting and would
therefore allow unrestricted public availability for virtually
all that which one could say on radio or TV, sell to a minor in
a store or in a mall, wear on one's jacket in the street or
park, provide to a minor by phone, fax, mail, cable, or in
school, library, or museum. If a treatment of sex or nudity is
so patently offensive that average adults could agree, and has
no serious value or purpose or is pandered as prurient
pornography, then its indecency is evident and its harmful
nature would make it illegal to provide to minors anywhere off-
line and, thus, should likewise cause it to be restricted from
minors online. The burden falls on adults to comply with all
other public decency provisions to shield children from such
inappropriate and harmful matter and the same duty applies to
the Internet. Adults must channel or avoid indecent speech
where and when children are in the audience.
As we enter the next century, the importance and
pervasiveness of computer systems and technologies will grow, no
doubt about it, and their accessibility to children and
importance to them will also grow. Cable, satellite, and phone
assisted audio-visual systems, as well as the Internet, will
dictate that such mass media facilities be available to the
entire public, young and old, rich and poor, urban and rural.
The Internet will be too important for it to be made "off
limits" to minors because of patently offensive pornography on
public access boards or sites. The Internet does not belong to
plaintiffs or porn pirates, but to all of us. The indecency
standard can protect children from the most offensive material
while permitting consenting adults to avail themselves of such
pornography in less public places, where appropriate
restrictions to shield children have been implemented (or in
other electronic hiding places in the dark corners of the Web).
.c.B. INDECENCY IS NOT AND CANNOT BE VAGUE OR
OVERBROAD.
The question of determining what material is indecent and
off-limits to minors is not burdensome. Retail stores place
"men's sophisticate" soft-core pornography magazines behind the
counter, behind a blinder rack, in shrink wrap plastic, on a top
shelf, on a rack from which an adult can monitor and keep kids
from congregating or reaching the matter that is "harmful to
minors". Everyone knows which magazines go into this display
treatment, since all adults have witnessed that the men's "skin"
mags are together out of reach of children and not displayed
next to magazines on news, sports, women's issues, fashion,
cars, comics, etc. Likewise, what is commonly found proper to
provide children as part of serious medical, sexual, disease, or
social education will be no less proper or any more offensive on
the Internet. There simply is no legitimate basis for hysteria
or fear that truly protected speech for minors in any other
media or forum would be prohibited from the same display
electronically online.
Indecency as a governing standard is the functional
equivalent of the second prong of the "Miller Test" on patent
offensiveness.1 The difference is not in the manner of its
application, but upon the types of acts or words to which it can
be applied and the contexts in which it is applied. The
obscenity test was stated to apply to "hard-core sexual conduct"
of the types given as "Miller Examples",1 whereas the indecency
test is applied to sex and nudity in mass communications when
amounting to "patently offensive references to excretory and
sexual organs and activities."2 It is the purpose to be served
by each standard that distinguishes the scope and breadth of
their applications. The obscenity test was designed to
provide "concrete guidelines to isolate 'hard-core' pornography
from expression protected by the First Amendment". .i.Miller,
413 U.S. at 29.;3 Because obscenity is unprotected in all
streams of commerce and public access, its patently offensive
representations of sexual conduct and genital exposure must also
be designed to appeal to a prurient interest4 and lack serious
literary, artistic, political, and scientific value,1 as a
matter of law and fact.
As a further guarantee that First Amendment principles
applicable to both obscenity and indecency, as presumptively
protected expression, will prevent the indecency standard from
being overbroad in its reach and encompass serious, non-
pornographic materials, this Court can also point to the Supreme
Court's guidance in .i.Jenkins v. Georgia, 418 U.S. 153, 161
(1974);, and .i.Erznoznik v. City of Jacksonville, 422 U.S. 205,
213-14, 216 n. 15 (1975);. In .i.Jenkins, at 161;, the Court
held that the movie "Carnal Knowledge" "could not be found under
the Miller standards to depict sexual conduct in a patently
offensive way" even though a jury might have thought so. As in
indecency, the standard is a constitutional test but the
independent supervision of trial courts and the required
appellate review places substantive limitations on the reach of
the standard, as a matter of law. .i.Jenkins; explained, Id.,
that:
While the subject matter of the picture is, in a
broader sense, sex, and there are scenes in which
sexual conduct including "ultimate sexual acts" is to
be understood to be taking place, the camera does not
focus on the bodies of the actors at such times.
There is no exhibition whatever of the actors
genitals, lewd or otherwise, during these scenes.
There are occasional scenes of nudity, but nudity
alone is not enough to make material legally obscene
under the Miller standards.
Likewise, in .i.Erznoznik, at 216 n. 15;, the Court held
that a city's nude display ordinance for drive-in screens could
not stand, since it was not narrowed by the state to apply to
that which was "harmful to minors" and banned all nudity to both
adults and minors. As explained at 213-14:
The ordinance is not directed against sexually
explicit nudity, nor is it otherwise limited.
Rather, it sweepingly forbids display of all films
containing any uncovered buttocks or breasts,
irrespective of context or pervasiveness. ...
Clearly, all nudity cannot be deemed obscene even as
to minors. See Ginsberg v. New York, supra. ...
Speech 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.
These laws were not held vague, but rather their
application was overbroad so as to reach protected speech as to
adults in .i.Jenkins; and even as to minors in .i.Erznoznik;.
Likewise, the test for indecency, having its roots in the
"Miller Test", is not unconstitutionally vague, as found by the
Supreme Court in .i.Pacifica; and .i.Sable; and by the Courts of
Appeals in .i.Dial Information Services v. Thornburgh, 938 F.2d
1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992);;
.i.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); .i.Alliance
for Community Media v. FCC, 56 F.3d 105, 129 (D.C. Cir. 1995),
cert. granted, 116 S. Ct. 471 (1995);(upholding requirement that
indecent programming on leased access channels be blocked to
prevent access by minors).
Applying the indecency standard does not require
affirmative or ancillary proof of prurience or lack of value, as
in obscenity, since "the normal definition of 'indecent' merely
refers to nonconformance with accepted standards of morality"
and "'indecency' as a shorthand term for 'patent
offensiveness'...[is] a usage strikingly similar to the
Commission's definition in this case." .i.FCC v. Pacifica
Foundation, 438 U.S. 726, 740, n. 15 (1978);. However, the
Court in .i.Pacifica, at 750;, held that "context is all-
important". Therefore, the standard of what is indecent
includes a consideration of any serious value or purpose in
making a judgment on patent offensiveness and the FCC,
Department of Justice, and the courts would also consider any
intentional pandering to the prurient interest as evidence that
a claim of serious value was unwarranted or that the
offensiveness of the material itself is more apparent.1
Indecency is an inherently variable standard that accounts
for the time, place, manner, and context in which it is
exhibited for a determination on a specific circumstance whether
a particular program is "indecent" or not in that setting. No
"safe harbor" is even needed, since what may be indecent at
three o'clock in the afternoon may not be indecent at three
o'clock in the middle of the night.1 The Supreme Court mandated
such variable "nuisance rationale" application of the indecency
standard in .i.Pacifica, 438 U.S. at 750;, when it held:
The Commission's decision rested entirely on a
nuisance rationale under which context is all-
important. 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 differences between radio,
television, and perhaps closed-circuit transmissions,
may also be relevant.
People do not have to "turn away" or tune out or forego use
of broadcast media in their homes, as they may in other more
publicly available settings outside the home. .i.Pacifica, 438
U.S. at 749 n. 27;. As stated in .i.Pacifica, at 748-50;, the
reasons for distinguishing broadcast media are twofold and
include both the rights of the adult public as well as the
juvenile public. The CDA chose only to prohibit the knowing
transmission or display of indecent material to minors, not
unconsenting adults, so the offense is even narrower than under
.i.18 U.S.C. § 1464;.1
.c.V. COMPLIANCE WITH THE CDA IS POSSIBLE AND NOT
UNREASONABLE.
First, despite plaintiffs' repeated characterization of the
CDA as a "ban" of indecency in cyberspace, the CDA, on its face,
does not ban indecency. The CDA does no more than that which is
necessary to further the compelling interest in protecting
children from accessing online indecency: prohibit adults from
knowingly distributing or displaying to minors online patently
offensive depictions or descriptions of sexual or excretory
activities or organs. Thus, the liability provisions of the CDA
are, on their face, constitutional restrictions.
Moreover, the defenses in the CDA further narrow its reach,
and ensure that no more speech than necessary is burdened. In
.i.Sable Communications of California, Inc. v. FCC, supra, 492
U.S. 115 (1989);, the Supreme Court upheld the ban on obscene
commercial dial-a-porn under .i.47 U.S.C. 223 (b);, as amended
by Congress in 1988, but struck down the total ban of indecent
dial-a-porn. The Court applied its holding in .i.FCC v.
Pacifica Foundation;, supra,1 and validated the FCC regulations,
enacted in 1988, which provided defenses to prosecution for
dial-a-porn providers. The "credit card, access code, and
scrambling rules were a satisfactory solution to the problem of
keeping indecent dial-a-porn messages out of the reach of
minors....[A] 'feasible and effective' way to serve the
Government's compelling interest in protecting children."2
(Emphasis added.)
In order to avail themselves of the good faith defenses in
.i.§ 223 (e)(5)(A);, a provider whose content is indecent, and
is knowingly available to minors, should have to demonstrate
that he or she:
has taken 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 has
restricted access to such communication by requiring
use of a verified credit card, debit account, adult
access code, or adult personal identification number.
Though the testimony is disputed between the parties, there
is evidence in the record to show that there ways to comply with
the CDA that are presently available, other means that are
technically possible and trivial to institute, and there will
undoubtedly be more and easier ways to comply in the future.
Potential mechanisms of compliance include:
1) designing system-wide protocols which allow screening of
children (this is much less complex than designing an electronic
system of commerce and billing to enable consumers to buy and
sell products/services via the Internet -- a process the
industry is vigorously working on with no complaints that it's
"impossible"),
2) server level screening, such as the "Exon Machine"
technology as dubbed by the Interactive Week report of March 25,
1996 (copy in Appendix 5)
3) agreement on an "L18" or digital ID or access provider
user ID or some other mechanism or combination of ID devices
which allow content providers to identify adult visitors to
their sites, pages, or GIFs and thereby exclude children,
4) simply removing patently offensive depictions of sexual
or excretory activities from universally available public areas
of the Internet to private electronic spaces where access is
controlled (since there is no constitutional right to distribute
bestiality or any other pornography that is harmful to minors or
indecent in the immediate presence of minor children).
Content providers, who have not already done so, could
identify their newsgroups, postings, chat rooms, Bulletin
Boards, Web pages, etc., and block access to children if the
material is indecent. The material available online is already
identified to some degree and is indexed by directories as well
as browsers.1
For example, a site might be currently identified as, "AIDS
Information-Sexually Explicit." If the site proved to be what
its name indicated, then, in "context", it may have serious
scientific value, although sexually explicit, and would not be
"indecent." Therefore, a minor could legally access the site,
and the good faith defenses would be unnecessary.
Alternatively, if a site were identified, "Alt.sex.bestiality",
to add an appropriate tag ("-L18"), and require some form of
adult verification: a credit card number, PIN, access code,
etc., to block access to minors would be both reasonable,
effective, and the least restrictive means of accomplishing
Congress' compelling interest.2 (However,
"alt.binaries.pictures.erotica...", with no restriction, it is
as now, is a magnet that attracts, rather than repels,
children.)
If a minor is somehow able to access the site despite the
blocking provisions in place, the good faith defenses would
apply. In addition, adults would be on notice of the kinds of
material offered at the site, and could avoid any material which
they would not choose to access.
Many existing sites available via the Internet already
identify content according to its general category, e.g.,
"alt.sex.bestiality" or "alt.binaries.pictures.erotica.
bestiality." "No new technology" is required for adding "-L18"
to the listing.1 Requiring content providers to identify
pornography through an appropriate tagging mechanism is not
unduly burdensome in light of the Government's compelling
interest in shielding children from such material. Indeed,
"tagging" such material would assist adults who want to access
pornography and, at the same time, it would allow providers to
restrict such material from children.
The "Internet Yellow Pages" lists specific pornographic
sites.2 The Yellow Pages also identifies content by categories,
e.g., "Sex", with sub categories that indicate the information
is sexually explicit (and could be patently offensive), e.g.,
"Amputee Fetish," "Bestiality," "Watersports."3 The Internet
Yellow Pages, therefore, is just one way in which content
providers can find the pornographic sites in order to restrict
them from minor subscribers.
The ALA's assertion that they would have to spend 100,000
dollars to hire people to read every book to find any
pornography in the library is absurd. Numerous indexing and
categorizing resources are available which help identify
pornographic content available via the Internet or in "adult"
bookstores. It would be very surprising to find any of this
hard-core pornography in a public library. Certainly, listing a
library's card catalogue on the Internet would not be patently
offensive. Therefore, libraries have virtually no burden
imposed by the CDA.
The Plaintiffs' assertions, that the Internet, World Wide
Web, and Usenet offer no reasonable means to identify sites is
patently false. This is a matter of doctrine, not feasibility.
The content of the material available on the Internet, the World
Wide Web, the Usenet, and Bulletin Board Services is completely
unregulated only because the content providers have refused to
regulate themselves, but the existing protocols and standards
are certainly not anarchic.1
For example, "FTP" (File Transfer Protocol) is one
electronic procedure by which a computer connects with another
computer to access and retrieve information.1 It requires
adherence to the "standard" computer "address" identifiers, much
like an area code and number identifier acts as a phone's
"address" in the telephone medium. One may call from Los
Angeles to New York City only if using the prescribed area code.
Without its use, no telephone connection with New York City can
be made.
The commercial, educational, institutional, and corporate
online service providers, in addition to being an ISP and
providing access to the Internet and World Wide Web, can and
usually do offer material over which they have editorial control
(services, boards, chat rooms, pages, etc.). A service provider
must also exercise conscious and deliberate subscription control
over which commercial or privately owned services it will take
onto its own server(s) in order to re-offer it to its customers
or users. For example, each service provider must choose which
Usenet feeds to accept (i.e., whether to take or subscribe to
all the "alt" hierarchies, or all but "alt.sex", or some of
those but not "alt.sex.bestiality" or "alt.sex.pedophilia" or
others). A provider must decide which commercial services to
subscribe to, such as encyclopedias, magazines (Time, Newsweek,
Playboy, Hustler, etc.), other news or financial data services
(AP, UPI, Reuters, NY Times, NYSE, NASDAC, etc.). Many
commercial "BBSs" (Bulletin Board Services) do the same and
either use the Internet to advertise their BBS telephone number
(as did the defendants in the .i.W.D. Tenn./6th Cir. case of
U.S. v. Thomas; involving the "Amateur Action BBS") or contract
to have their board's content offered by a commercial online
content or access provider.
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 .i.§ 223 (b)&(c);, which were promulgated by the FCC and
specifically referred to with approval by the Supreme Court in
.i.Sable;, but the CDA also provides good faith defenses to
those who take steps of their own device or choosing in order to
protect minors from indecent material or who comply with future
FCC approved defensive methods, if any.
For purposes of legal analysis of the current regulatory
scheme, there is a significant difference between impossibility
of compliance and an unwillingness to comply with Congress'
clear intent.
1) Many of the Plaintiffs concede in their submissions to
this Court that they could screen children from areas or
specific electronic addresses which pander pornographic
materials. Their objection is that they ought not to bear the
legal responsibility of implementing any screening mechanisms as
content providers. The argument is the equivalent of an adult
bookstore/peepshow owner complaining that the law requires him
to exclude children from the confines of the store. See .i.Paris
Adult Theatre, supra, 413 U.S. at 57 n. 19;.
2) With respect to speech in a public space, with
significant children in the audience, providers of patently
offensive sexual or excretory depictions rightly bear the burden
(including some increase in economic compliance costs) of
shielding children from this material. Society's interest is
compelling. See .i.Ginsberg, Sable, Alliance;, supra.
3) For those unwilling to implement any mechanisms to
protect children from patently offensive depictions of sexual of
excretory activity in widely available public areas of the
Internet, they still have the option of taking their materials
to electronic spaces which are private or which choose to
exclude children as a matter of policy. (As retail stores and
theaters do with "adult" materials that are made available to
adults but displayed out of reach of minors.)
4) Commercial bulletin board services provide adults with
thousands of additional outlets to electronically disseminate
hard and soft core pornography in areas easily restricted from
children. See .i.United States v. Thomas, 74 F.3d 701 (6th Cir.
1996);.
5) Plaintiffs' objection to shielding children from
patently offensive depictions of sexual or excretory activity
here is philosophical, not technical. Plaintiffs may take
positions that the law can't or shouldn't apply to them, that
indecency shouldn't exist as a category of regulated speech
regarding minors online, or that it's even beneficial to show 5
year olds sexually explicit pornography. It is no surprise that
several Plaintiffs complained that technical compliance is
difficult or impossible. It demonstrates the need for legal
sanction for those distributors of patently offensive depictions
of sexual or excretory activity unwilling to take any
responsibility to help protect children.
Purely selfish motivations based on one's desire to rebel
against the "government" and be free from society's code of
conduct in "cyberspace" is not a legal justification that should
be accepted by the courts, including the present tribunal
VI. THE CDA IS A REASONABLE TIME, PLACE, AND MANNER
REGULATION.
The CDA is really more like a content-neutral time, place,
and manner regulation because it does not affect the content or
message of speech, does not affect serious sexual speech and as
such, it is constitutional.
Content-neutral time, place, and manner regulations pose a
less substantial risk of excising certain ideas or viewpoints
from the public dialogue. .i.Clark v. Community for Creative
Non-Violence;.1
In .i.Turner Broadcasting System, Inc., et al. v. F.C.C.;,2
the Supreme Court gave instruction to courts when deciding
whether a regulation is content-based or content-neutral.
"Deciding whether a particular regulation is content-based or
content-neutral is not always a simple task. We have said that
the 'principal inquiry in determining content-neutrality . . .
is whether the government has adopted a regulation of speech
because of [agreement or] disagreement with the message it
conveys." .i.Ward v. Rock Against Racism;, [citation].'"
The purpose of Congress in enacting the CDA and the effect
of the CDA have nothing whatsoever to do with the Government's
"agreement or disagreement with the message" conveyed by
indecent online speakers. The purpose and effect of the
regulation is to protect children from harmful material.
Distribution of indecent computer speech is not illegal between
adults. The sole focus and purpose of the CDA is preventing
crime, i.e., the distribution of harmful indecent material to
minors. The CDA is akin to the content-neutral time, place, and
manner regulation focused on reducing and eliminating the
adverse secondary effects of "adult" businesses addressed in
.i.Young;, .i.Renton;, and their progeny, which have been
consistently upheld by the courts.
The Supreme Court held, in .i.Ward v. Rock Against
Racism;,1 that "[w]hile time, place or manner regulations must
also be narrowly tailored in order to survive First Amendment
challenge, we have never applied strict scrutiny in this
context."2
In .i.Portland Fem. Women's H. Ctr. v. Advocates For
Life;,3 the court held that the limitation on anti-abortion
protests:
is not a content-based restriction of expression. . .
. Rather, it focuses exclusively on the location and
manner of expression. Pro-Choice Network v. Project
Rescue, supra, [citation]. [Injunction limiting pro-
life protest activities 'is content-neutral'. . . .
It regulates when, where and how defendants may
speak, but not what they may say.] [T]he fact that
the injunction covered people with a particular
viewpoint does not itself render the injunction
content or viewpoint based.4
In .i.M.S. News v. Casado;,1 a harmful to minors display
case, a facial and as applied challenge was made to the section
of the statute which prohibited "promotion" of harmful to minors
materials through the use of "blinder racks."
The Court of Appeals held that the statute was "conduct
plus speech" because it regulated the manner in which material
can be disseminated, and therefore, required a finding of
substantial over breadth on its face. "We find no such
infirmity."2
Reasonable time, place and manner regulations are
permissible where the regulations are necessary to
further significant governmental interests, Young v.
American Mini Theatres, [citations] . . . .Similarly
the display provision of the Wichita ordinance is a
regulation based on content. We believe that it is
likewise justified by the substantial governmental
interest in protecting minors from exposure to
harmful adult material.3
In .i.Upper Midwest Booksellers v. City of Minneapolis;,4
The Eighth Circuit upheld the constitutionality of a display
ordinance which required sealing of any material harmful to
minors displayed for commercial purposes.
"Any burden here is the result of the permissible
regulation of material that is obscene as to minors. The
restriction in relation to adults is merely an incidental effect
of the permissible regulation and is minimal in its impact."1
In the present case, that the CDA is only applicable to
indecent material does not mean that the regulation is content-
based. In .i.Young v. American Mini Theatres, Inc.;,2 the
Supreme Court upheld the right of municipalities to regulate
"adult" theaters, which exhibited sexually explicit films
presumptively protected by the First Amendment, in a more
stringent way than other theaters. "We hold that the State may
legitimately use the content of these materials as the basis for
placing them in a different classification from other motion
pictures."3
The CDA regulates "how" the Plaintiffs may distribute their
indecent computer speech. It does not regulate "what they may
say." .i.Young;, supra.
The tobacco industry is prevented by federal and state law
from targeting minors by their advertising, despite their First
Amendment objections.4 If the tobacco or alcoholic beverage
industry even attempted to place their products, which are
illegal to sell to minors, in unattended vending machines on
public sidewalks, they would face criminal prosecution and
public outrage immediately.
The CDA is a valid, content-neutral time, place, and manner
regulation focused on eliminating the adverse secondary effect
of crime, i.e., the distribution to minors of harmful indecent
material to minors. It serves a substantial state interest and
does not unreasonably limit plaintiffs' alternative avenues of
communication. The CDA has no effect on the content of
plaintiffs' speech nor does it prevent adults from obtaining it.
.c.VI. SOME ADDITIONAL COSTS INCURRED FOR COMPLIANCE
WITH A LAW DO NOT AFFECT ITS CONSTITUTIONALITY.
The ALA plaintiffs argue that the CDA defenses "do not
provide a technologically or economically feasible means for
most Internet speakers to shield themselves from liability."1
Whether the defenses are economically feasible is not
dispositive for First Amendment analysis and should be rejected
as irrelevant under present situation. American Online or
CompuServe or Prodigy could give all its subscribers an adult ID
code for free and do it immediately, it's just not the way they
do things right now that's all. For most good faith efforts, it
could be free or cheap. If not yet, then take down the
pornography, leave up the serious works, and it won't cost
anything.
The Court in .i.Sable;, supra made it clear that additional
costs incurred by the providers of sexual expression, in order
to comply with the law, did not affect the constitutionality of
the statute:
Furthermore, Sable is free to tailor its messages, on
a selective basis, if it so chooses, to the
communities it chooses to serve. 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. Whether
Sable chooses to hire operators to determine the
source of the calls or engages with the telephone
company to arrange for the screening and blocking of
out-of-area calls or finds another means for providing
messages compatible with community standards is a
decision for the message provider to make. There is
no constitutional barrier under Miller to prohibiting
communications that are obscene in some communities
under local standards even though they are not obscene
in others. If Sable's audience is comprised of
different communities with different local standards,
Sable ultimately bears the burden of complying with
the prohibition on obscene messages.1
. . .
. . .The Government may, however, regulate the content
of constitutionally protected speech in order to
promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.
We have recognized that there is a compelling interest
in protecting the physical and psychological well-
being of minors. This interest extends to shielding
minors from the influence of literature that is not
obscene by adult standards. [citations].2
The Court of Appeals for the Ninth Circuit recently held
that decreased profits and costs of market participation are not
adequate grounds to support a First Amendment challenge in
.i.Spokane Arcade, Inc.;, and .i.World Wide Video of Washington,
Inc., v. City of Spokane;.1 The pornographers argued that the
city's ordinance, which regulated "adult" arcades ("peep booths"
for viewing sexually explicit videos), were invalid restrictions
on the manner in which protected speech may be expressed. They
complained that compliance with the ordinance would require
hiring more employees, thus increasing their payroll expenses
and decreasing their profits, thereby denying them access to the
adult entertainment market. In rejecting this argument, the
court held:
Even if World Wide Video demonstrated that the hiring
of additional employees was unavoidable, the adverse
economic impact it posits is irrelevant to First
Amendment analysis. . . .
. . .The ordinances do not prohibit World Video from
engaging in that protected speech which will allow it
to compete in the adult entertainment market, but
merely provide that the costs of doing so may
increase. This type of 'injury,' however, should not
inform First Amendment analysis: in Topanga, we
cautioned against inquiring into the costs of
continued market participation, and limited the scope
of permissible economic analysis to an examination of
whether one is permitted to enter or participate in
the market in the first instance. . .2
. . . Thus, an absolute bar in this matter would be a
regulation that prohibited arcade owners from engaging
in their protected speech, and not one that merely
prohibited them from realizing the profits to which
they were accustomed. . . .1
. . . .
.. . . Even if the costs of compliance were so great
that World Video would be forced out of business, the
ordinances do not pose any intrinsic limitation on the
operation of the arcades, but merely increase World
Video's vulnerability to such market forces as the
increased costs of labor and the decreased or stagnant
demand for pornography. Accordingly we hold that the
ordinances constitute valid manner restrictions.2
This Court should reject the "economically infeasible"
argument by Plaintiffs as irrelevant for First Amendment
analysis.
.c.VII. THE CDA IS NOT UNDER INCLUSIVE BECAUSE IT
PROVIDES FOR PROSECUTION FOR IMPORTING FOREIGN
COMPUTER PORNOGRAPHY AND OF DISTRIBUTORS WHO
EXPLOIT U.S. CHILDREN.;
The United States can and does punish those who bring
illegal material across its borders through foreign commerce.3
In addition to the aforementioned laws, the United States
is a signatory to .i.Treaty Series, No. 559, Arrangement Between
The United States And Other Powers Relative To The Repression of
the Circulation of Obscene Publications;, which was ratified by
the United States Senate, January 13, 1911 and by the President
on February 4, 1911. Ratification of the United States was
deposited with the Government of the French Republic, March 15,
1911, and was proclaimed, April 13, 1911. This .i.treaty is a
United States law, under Article VI § 2;. of the Constitution ".
. .and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the
land; . . ."
The Treaty was cited by the Supreme Court in New York v.
Ferber and in.i.Roth v. United States;:1 "This rejection [of
First Amendment protection of obscenity] for *that reason is
mirrored in the universal judgment that obscenity should be
restrained, reflected in the international agreement of over 50
nations, . . . . "2 Although the subject matter of the Treaty
is obscenity, its existence is significant to demonstrate the
universal, world wide condemnation of pornography and the
"resolve" to cooperate in "centralizing all information" and in
"supplying all information" and in "communicating the laws" by
the member nation-states to "repress" illegal material.3
.c.II
ARGUMENTS OF AMICUS MORALITY IN MEDIA
IN SUPPORT OF
THE COMMUNICATIONS DECENCY ACT.
.c.I. INDECENT COMMUNICATIONS WHICH, BY MEANS OF
COMPUTER, INTRUDE INTO THE PRIVACY OF THE HOME AND
ARE READILY ACCESSIBLE TO CHILDREN, ARE A FORM OF
'NUISANCE SPEECH' WHICH CONGRESS CAN PROHIBIT OR
REGULATE.
The United States Supreme Court has stated that there are
narrowly limited classes of speech which are not protected by the First
Amendment. One such class is "nuisance speech," and Amicus Morality
In Media contends that "indecent" speech which, by means of computer,
intrudes into the privacy of the home and is easily accessible to children
is a form of "nuisance speech"1 which Congress can constitutionally
prohibit or regulate.2
The concept of "nuisance speech," as a class of speech unprotected
by the First Amendment, was first alluded to by the Supreme Court in
.i.Chaplinsky v. New Hampshire;,3 where the Court stated:
There are certain, well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional
problem. These include the lewd and obscene...those which
by their very utterance inflict injury or tend to incite an
immediate breach of the peace ...[S]uch utterances are no
essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the
social interest in order and morality.1
The public nuisance rationale was also applied by three Justices
writing in dissent in .i.Rosenfeld v. New Jersey;2. Justice Powell, with
whom the Chief Justice and Mr. Justice Blackmun joined, wrote:
But the exception to the First Amendment protection in
Chaplinsky is not limited to words whose mere utterance
entails a high probability of an outbreak of physical
violence. It also extends to the willful use of scurrilous
language calculated to offend the sensibilities of an
unwilling audience. . . . [A] verbal assault on an unwilling
audience may be so grossly offensive and emotionally
disturbing as to be the ...subject of criminal proscription,
whether under a statute denominating it disorderly
conduct or, more accurately, a public nuisance. . . . The
Model Penal Code ... also recognizes a distinction between
utterances which may threaten physical violence and those
which may amount to a public nuisance, recognizing that
neither category falls within ... First Amendment
[protection].1 [Emphasis added].
In .i.Breard v. Alexandria; 2 and .i.Kovacs v. Cooper;,3 the Court
upheld nuisance ordinances aimed at means of communication that
intrude uninvitedly into the privacy of the home. In .i.Hess v.
Indiana;,4 the Supreme Court identified speech that amounts to a
public nuisance as outside the protection of the First Amendment:
It hardly needs repeating that '[t]he guarantees of freedom
of speech forbid the States to punish the use of words or
language not within narrowly limited classes of
speech'...Hess' words could [not] be punished as
obscene...could not withstand scrutiny. . . . In addition,
there is no evidence to indicate that Hess' speech amounted
to a public nuisance in that privacy interests were being
invaded.1 [Emphasis added].
In .i.F.C.C .v. Pacifica Foundation;,2 the Supreme Court
applied the "nuisance speech" rationale to the broadcast media,
affirming an F.C.C. ruling that the monologue, "Filthy Words,"
as broadcast, was indecent and prohibited by .i.18 U.S.C. 1464;.
In so doing, the Court observed that the F.C.C. decision "rested
entirely on a nuisance
rationale under which context is all important" and compared indecent
broadcast to a "pig in a parlor instead of the barnyard."3 The Court
also stated that
special regulation of broadcast indecency was justified because it
"confronts the citizen, not only in public, but also in the privacy of the
home" and because it is "uniquely accessible to children."4
In .i.Bethel School District No. 403 v. Fraser;,5 the Supreme Court
held that a student could be penalized for making an indecent speech
before a school assembly, attended by both minor students and adult
faculty. Justice Stevens (dissenting on due process grounds) noted:
[A] nuisance may be merely a right thing in the wrong
place-like a pig in the parlor instead of the barnyard. . . .
Vulgar language, like vulgar animals, may be acceptable in
some contexts, and intolerable in others. . . . It
seems...obvious that [the] speech would be inappropriate in
certain...settings.1
Amicus Morality in Media contends that indecency which, by
means of computer, intrudes into the privacy of the home and is readily
accessible to children and also amounts to a "nuisance" and is
unprotected by the First Amendment.2
.c.II. APPLYING INDECENCY STANDARD TO THE INTERNET
WILL NOT REDUCE ADULTS TO VIEWING ONLY WHAT IS FIT
FOR CHILDREN.
Amicus Morality in Media contends that there are many
circumstances in "cyberspace" where adults in the privacy of their
homes can be exposed unwillingly to patently offensive, indecent
material transmitted by means of computers 3 and that while
protecting children was Congress' immediate concern in enacting the
Communications Decency Act, it utilized a legal standard that protects
not just children but also adults.
The "Indecency" standard is determined by what offends
community standards, not by what is "harmful to minors."1 In .i.Roth v.
United States;,2 the Supreme Court stated: "This Court, as early as 1896,
said of the Federal Obscenity Statute: '...Every one who uses the
mails...must take notice of what...is meant by decency...in social life.'"
[Emphasis added].
In .i.Manual Enterprises, Inc. v. Day;,3 Justice Harlan stated that
indecency (viz. "patent offensiveness") involves application of
community standards: "The words...'obscene, lewd, lascivious, indecent,
filthy or vile,' connote something that is portrayed in a manner so
offensive as to make it unacceptable under current community
mores...[T]he statute reaches only indecent material. . . ."
In .i.F.C.C. v. Pacifica Foundation;, the Supreme Court stated that
the "normal definition of 'indecent' merely refers to non conformance
with accepted standards of morality.'"4 In .i.Bethel School District No.
403 v. Fraser;,1 the Supreme Court noted that members of Congress
were prohibited from using "indecent language" against the proceedings
of the House," and also stated: "[S]chools must teach by example the
shared values of a civilized social order. . . . The pervasive sexual
innuendo in [the student's speech was plainly offensive to...teachers and
students-indeed to any mature person."2 [Emphasis added].
In .i.Barnes v. Glen Theatre, Inc.;,3 the Supreme Court upheld an
Indiana statute prohibiting "Public indecency." In so doing, Chief Justice
Rehnquist noted: "Public indecency statutes of this sort...reflect the
moral disapproval of people appearing the nude among strangers in
public places. . . . Thus the public indecency statute furthers a
substantial government interest in protecting order and morality."4
Nor has the Supreme Court said that Congress may only regulate
indecency to protect children. In .i.Pacifica;, the Supreme Court held
that government could restrict indecent broadcast material to protect
"all Americans" in the privacy of their homes:
[T]he broadcast media have established a uniquely
pervasive presence in the lives of all Americans. Patently
offensive, indecent material presented over the airwaves
confronts the citizen...in the privacy of the home, where the
individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder...[P]rior warnings
cannot completely protect the listener or viewer from
unexpected program content.1 [Emphasis added].
In .i.Frisby v. Schultz;,2 the Supreme Court described the "interest"
in protecting the well-being, tranquillity, and privacy of the home as
being "certainly of the highest order in a free and civilized society." The
Court then stated:
One important aspect of residential privacy is protection of
the unwilling listener. Although in many locations we
expect individuals simply to avoid speech..., the home is
different. . . . Thus, we have repeatedly held that
individuals are not required to welcome unwanted speech
into their own homes and that government may protect
this freedom. See, e.g., F.C.C. v. Pacifica, 438 U.S. 726, 748-
749 (1978)...Id., at 750, 760 (Powell, J. concurring in part
and concurring in judgment).3
In .i.Sable Communications of California, Inc. v. F.C.C.;,4 the issue
was whether a TOTAL BAN on indecent dial-a-porn messages could be
justified. The Court said "No" but also stated that unlike the broadcast
medium, adults in the privacy of their homes were not likely to be
exposed, by means of telephone, to indecent communications
unwillingly.5
Clearly, the C.D.A., which restricts but does not prohibit the
display of depictions or descriptions of sexual or excretory activities or
organs, which are portrayed in a manner so offensive as to make them
unacceptable under current community mores, does not reduce the
adult population to viewing only what is fit for children.1 It does
reflect a judgment that the ease with which children may obtain access
to such material by means of computer, "coupled with the concerns
recognized in .i.Ginsberg;,"2 amply justify the C.D.A.'s minimal restriction
on adult access to indecent communications.
.c.III. THE 'INDECENCY' STANDARD IS NEITHER VAGUE NOR
OVERBROAD.
Plaintiffs argue that the definition of "indecent" is vague and
overbroad. In .i.Pacifica;, however, the Supreme Court rejected a very
similar challenge:
[Pacifica] argues that the Commission's construction of the
statutory language broadly encompasses so much
constitutionally protected speech that reversal is required. .
. . 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. . . . The danger dismissed so
summarily in Red Lion...was that broadcasters would
respond to the vagueness of the regulations by refusing to
present programs dealing with important social and
political controversies. Invalidating any rule on the basis
of hypothetical application to situations not before the
Court is 'strong medicine' to be applied 'sparingly and only
as a last resort.'1
Vagueness challenges to the term "indecent," as defined by the
F.C.C. for the telephone medium were also rejected by the Second Circuit
in .i.Dial Information Services Corp. of New York v. Barr;2 and by the
Ninth Circuit in .i.Information Providers' Coalition v. F.C.C.;3
In .i.Miller v. California;,4 the Supreme Court also pointed to the
"patently offensive sexual conduct" prong of its obscenity test as
providing "fair notice" to those who traffic in sex materials.5 This prong
of the .i.Miller; test is very similar to the F.C.C.'s "indecency definition,
and Amicus Moralilty in Media would contend that what provides
adequate notice for a prohibition on obscene speech also provides
adequate notice for a restriction on indecent speech.
Amicus also contend that the "nuisance rationale," combined with
the requirement that the depiction or description of sexual or excretory
activities be "patently offensive" when applying "community standards,"
obviate petitioners concern about "overbreadth."
The test of whether a depiction or description of sexual or
excretory activities is "indecent" is not whether some people in the
community are offended1 or even whether almost everyone is
"offended."2 The test is whether, when applying "community
standards," such depictions or descriptions are "patently offensive," and
Amicus would contend that the term "patently offensive" has a well-
defined meaning in the law.3
In addition, the "nuisance" concept "requires consideration of a
host of variables."1 In .i.Pacifica;, the "time of day"2 was emphasized.
"Serious value,"1 is another key variable to be considered in
determining whether content is "indecent." "Place", whether in the
physical realm or in "cyberspace", is also a key variable in determining
whether something is a nuisance. As noted in .i.Pacifica;, a "nuisance
may be merely a right thing in the wrong place, like a pig in the parlor
instead of the barnyard."2
What may be acceptable in a part of "cyberspace" devoted to the
discussion of health or human rights issues, or as part of a database on
"gay rights", may not be acceptable if displayed in other areas of the
Internet or World Wide Web, particularly if viewers would likely be
surprised and offended by the display.3 In "cyberspace", as in other
media, whether sexually explicit materials are indecent will often also
depend, in part, on whether the materials "appeal to the prurient
interest" or are pandered for that appeal.4
There is an extensive history of court and F.C.C. rulings to guide
program providers in determining what is "patently offensive"5 and
"indecent."1 Amicus Morality in Media would contend that the real
problem is not that the "indecency" concept is vague or overbroad, but
rather a failure to recognize that there are "rights and interests, 'other
than those of the advocates involved'"2-which include the "right of the
Nation...to maintain a decent society"3 and the compelling interest in
protecting children from patently offensive, indecent material.
Respectfully submitted,
Robert W. Peters
Paul J. McGeady
Counsel for amicus curiae,
Morality in Media, Inc.
.c..c.Conclusion
The CDA is narrowly tailored to serve the compelling
interest in protecting children from accessing computer
pornography. It is the least restrictive, yet effective, means
of accomplishing this interest and addresses a problem of
immediate importance.
This Court must decide whether to strike down the law's
protection for children in the next great communication
technology. America has never had a mass communications medium
that openly displayed indecent pornography in public. This Court
should not let the Plaintiffs start one now. Criminal
laws against distributing pornography to children have literally
saved countless lives. These laws are needed not for any threat
posed by men of good will, but rather by those who would exploit
the vulnerable and impressionable for their personal gain.
The Communications Decency Act is a narrowly drawn work of
art. It is sensitive to the First Amendment and the rights of
children. This Court should not accept the arguments of
Plaintiffs and should declare the CDA valid.
Senators Exon and Coats deserve thanks from every family in
America and the CDA deserves to be upheld.
Respectfully submitted,
Bruce A. Taylor
Cathleen A. Cleaver
Co-Counsel for Amici Curiae
Of Counsel:
James J. West
PA. Bar No. 331
FOOTNOTES
1 See Stern, Gressman, et al., SUPREME COURT PRACTICE (7th ed. 1993):
"Courts take judicial notice of "legislative facts," as distinct from
"adjudicative facts."
The Advisory Committee's Note to Federal [Evidence] Rule 201 explains that:
"Adjudicative facts are simply the facts of the particular case.
Legislative facts, on the other hand, are those which have relevance to legal
reasoning and the law making process, whether in the formulation of a legal
principle or ruling by a judge or court in the enactment of a legislative
body."
The Federal Rules of Evidence, Rule 201(b), states: "A judicially
noticed fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of the trial
court or (2) capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned."
* See, for example: INTERACTIVE WEEK, March 25, 1996, p. 1, "Exon
Machine Could Automate Censorship", p. 10, "'Censorship Server' Could
Enforce Decency Act", March 11, 1996, p. 7, "Politico Wants PICS
Standards", by Will Rodger; SAN JOSE MERCURY NEWS, March 3, 1996, p. 1D,
"How the decency fight was won", by Howard Bryant and David
Plotnikoff; WASHINGTON TIMES, Feb. 1, 1996, p. A19, OP-ED, "Who's
responsible for controlling cyberporn?", by Cathleen A. Cleaver; ST.
LOUIS POST-DISPATCH, Sept. 22, 1995, p. 7B, "Commentary: Cleanse
Pornography From Cyberspace", by Cathy Cleaver; PHILADELPHIA INQUIRER,
July 30, 1995, p. C1, "A free-for-all debate over stopping cybersmut",
and July 27, 1995, p. G1, "Steamy stuff on the Net? His findings raise
tempers", by Reid Kanaley; NEWSWEEK, July 3, 1995, p. 47, "No Place For
Kids?", by Steven Levy. (Copies in Appendix 5.)
1 As the rapid "development" of the PICS platform and proposed
"rating" system to go with it were developed in the past one year as a
way to forestall the obligations of the CDA to place responsibility only
on those who would knowingly provide or expose minors to patently
offensive indecency.
2 Imagine what would have happened if television and radio had
not had the benefit of indecency regulations -- part of the success of
these mediums was their universal accesibility. The CDA would also
help to make the Internet universally acceptable and accepted, and
thereby beneficial and profitable for everyone.
1 In fact, the form letters used by the FCC state either that "Material
will not be found to be indecent by virtue of subject matter alone." or
"Subject matter alone does not render material indecent." and discuss
the Commission's consideration of serious value and purpose and of
pandering to prurient interest in judging "patent offensiveness" in
context and under the particular circumstances, as do the opinions and
orders finding the presence of indecency.
1 The Court in Hamling, at 123, noted a like scienter requirement
for state "harmful to minors" laws, as announced in Ginsberg v. New
York, 390 U.S. 629, 643-45 (1968). The Court would apply a similar
rule for child pornography cases, hold that scienter is required both as
to the sexual character and minority of the performer, but not define
the precise limits of such a requirement other than to refer to the
obscenity/harmful to minors cases on scienter discussed above. See
New York v. Ferber, supra, 458 U.S. at 765, Osborne v. Ohio, 495 U.S.
103, 112 n. 9, 115 (1990), and United States v. X-Citement Video, Inc.,
__ U.S. __, 115 S.Ct. 464 (1994).
1 938 F.2d 1535 (2nd Cir. 1991); cert. denied 502 U.S. 1072 (1992).
2 Id. at 1541.
1 Id. at 1542-43.
1 What effect, in an instant, attends to seeing one of Thomas's
images, or reading a "Jake Baker" story? See Appendix 7.
1 Ginsberg v. New York, 390 U.S. 629 (1968); FCC. v. Pacifica
Foundation, 438 U.S. 726 (1978); New York v. Ferber, 458 U.S. 747
(1982); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989).
2 Cf. Pacifica, supra, 438 U.S. at 744 n. 19: "We are assured by
Pacifica that the free play of market forces will discourage indecent
programming.... [T]he prosperity of those who traffic in pornographic
literature and films would appear to justify skepticism."
1 Amici commend the good faith efforts of most of the screening
software developers (such as SurfWatch, Rated PG, Net Nanny, Cyber
Patrol, Cybersitter, etc.) and recommend to parents that they should
obtain and intitute whatever parental control and electronic restrictions
are currently available to protect their children as best they can from
the extreme types of hard-core and soft-core pornography now on the
Internet. These hunt and block screening indexes are less than perfect,
as testimony before this Court demonstrated. (Reviewers have found
glitches in the armor, as well, finding that filename based Cybersitter
won't catch cryptic titles, word based Net Nanny won't get porn images,
and SurfWatch doesn't work non-Internet sources, such as BBSs. PC
Magazine, Nov. 7, 1995.) Parents can only hope and trust that present
and future versions are better, since the stakes are high when the
defenses fail. As the conviction of the bestiality, torture, excretory, and
child exploitation pictures from the Amateur Action BBS illustrate, the
problem is severe no matter how small a percentage of the total
information available on the Net. See U.S. v. Thomas, 74 F.3d 701 (6th
Cir. 1996). Though commercial pornographers like Thomas can and may
comply with the adult access requirements of the CDA as for indecency,
the hard-core nature of the pornography makes them liable for
obscenity violations nonetheless. In addition, customers can and do
purchase such pornography from commercial BBS sources and post
them for free on WWW sites, Usenet news groups ("alt.sex..."). These
"porn pirate" customers have polluted cyberspace with the toxic
pornography (both obscene and indecent, and equally and instantly
available to children) that the CDA seeks to control.
1 See Paris, supra, at 57 n. 7 ("The legitimate interest in preventing
exposure of juveniles to obscene materials cannot be fully served by
simply barring juveniles from the immediate physical premises of
'adult' bookstores, when there is a flourishing 'outside business' in these
materials.")
1 Dr. Dan R. Olsen, Jr. states in his Declaration:
In summary, identifying sexually explicit material is a
human judgment that is not fully automatable using any
known technology. The process of evaluating sites and
producing lists of inappropriate sites is a huge task that is
already ineffective in its current efforts and will become
increasingly more difficult as the Internet grows. The only
economically viable mechanism for evaluating Internet
content is for content providers to assume the responsibility.
Technologically, if the number of inappropriate sites
continues to escalate the burden on users to store lists of
blocked sites can become large. There is no known
mechanism for automatically screening Internet content.
Declaration of Dr. Dan R. Olsen, Jr. pp. 38-44 (April 9, 1996). According
to Howard A. Schmidt:
[U]ser-based controls, while commendable, will inevitably be
trying to keep up with the addition of new and revised sites,
and in the long term may face attacks from those who may
distribute information on how to disable the program.
Declaration of Howard A. Schmidt, pp. 39-46 (April 9, 1996).
1 The ineffectiveness of this bald assertion is obvious
and is supported as well by the following facts and the
opinions of Defendant's expert witnesses: 1) Not all
parents can or will avail themselves of "blocking" software
and filtering and screening devices. 2) Children have
access to many computers which will not employ software and
filtering devices. 3) Children are capable of out-
maneuvering such technology. 4) Pornographers are capable
of out-maneuvering such devices.
1 The ineffectiveness of this bald assertion is obvious and
is supported as well by the following facts and the opinions of
Defendant's expert witnesses: 1) Not all parents can or will
avail themselves of "blocking" software and filtering and
screening devices. 2) Children have access to many computers
which will not employ software and filtering devices. 3)
Children are capable of out-maneuvering such technology. 4)
Pornographers are capable of out-maneuvering such devices.
According to Howard A. Schmidt:
[M]any parents do not have the same level of
sophistication with computers as many minors do today
-- nor the time to supervise their children's use of
computers online. For this reason, in my opinion,
relying on parental controls and supervision will only
be a part of the solution to restricting access by
minors to material that is inappropriate for them.
Declaration of Howard A. Schmidt, pp. 39-46 (April 9,
1996).
1 Ann Duvall, President of Surfwatch, Inc., testifies for plaintiffs on
Mar 21, 1996 that Surfwatch finds "between a hundred and 200
[sexually explicit] sites a week" that are new and not blocked by
Surfwatch. See PI/TRO Hearing, transcript p. 145 (March 21, 1996).
"These programs are not foolproof. New online sites are created daily
and no software can guarantee that it will block access to every site that
discusses sex or uses 'vulgar' words." See Plaintiff ACLU Brief In
Support of a Motion for a Temporary Restraining Order and Preliminary
Injunction, p. 24.
1 These amici submit that this is more so than with obscenity due to
the nature of hard-core pornography as a traditionally closeted,
shameful, and morbid fetish associated with voyeurs and "dirty old
men" outside the mainstream of normal adult society. Notwithstanding
some hard-core videos now available to the general public at video
stores, rather than exclusively at "adult" porn shops and theatres,
obscenity as a legal concept is not as easily recognized or understand by
the average citizen or businessperson.
1 Miller v. California, 413 U.S. 15, at 24 (1973).
1 Miller, 413 U.S. at 25: "patently offensive representations
of ultimate sexual acts, normal or perverted, actual or
simulated...masturbation, excretory functions, and lewd
exhibitions of the genitals".
2 Pacifica, 438 U.S. at 743; Public Notice: New Indecency
Enforcement Standards... (4-27-87), 2 FCC Red. at 2726.
3 See also: B. Taylor, "Hard-Core Pornography: A Proposal For A
Per Se Rule", 21 U. Mich. J.L. Ref. 255 (1988).
4 Prurience refers to the commercially exploited erotic or
lustful qualities of a work, Roth v. United States, 354 U.S.
476, 487, n. 20 (1957), Mishkin v. New York, 383 U.S. 502, 508-
10 (1966), Cohen v. California, 403 U.S. 15, 20 (1971), Miller
v. California, 413 U.S. at 18, n. 2, rather than serious sexual
treatment that provokes "only normal, healthy sexual desires",
Brockett v. Spokane Arcades, 472 U.S. 491, 498, n. 8 (1985).
See also Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987),
United States v. Guglielmi, 819 F.2d 451, 454-55 (4th Cir.
1987), Ripplinger v. Collins, 868 F.2d 1043, 1051-54 (9th Cir.
1987), United States v. Pryba, 678 F.Supp. 1225 (E.D. Va. 1988).
It is the evidence of commercial or public "pandering" to this
prurience that distinguishes obscene "hard-core" pornography
from fine art and literature that may be sexually explicit. See
Ginzburg v. United States, 383 U.S. 463, 466-67, 471-74 (1966),
Hamling v. United States, 418 U.S. 87, 127-29 (1974), Splawn v.
California, 431 U.S. 595, 598 (1977), Pinkus v. United States,
436 U.S. 293, 303-04 (1977).
1 Pope v. Illinois, 481 U.S. 497, 500-01 (1987).
1 The indecency standard, thus applied, may apply to less speech than
would the "harmful to minors" test, which considers each prong --
prurience, offensiveness, and value -- in relation to minors only, rather
than as a general judgment. As the FCC interprets the indecency
standard and the mandate of Pacifica, pandering pornographically for
prurient appeal and serious value or lack of it are essential components
of a judgment that a description or depiction of a sexual or excretory act
or organ is "patently offensive". For many examples of this contextual
judgment, see the liability and dismissal opinions of the FCC that are
included in Appendix 8. In this regard, indecency can be more
protective of a broader range of speech than a state "harmful to minors"
display or sale statute. The "harmful to minors" test may vary even as
to age groups of minors, as in Commonwealth v. American Booksellers
Ass'n., 372 S.E.2d 618 (VA. 1988)(on certified questions from the
Supreme Court), and American Booksellers Ass'n. v. Com. of Va., 882
F.2d 125 (4th Cir. 1989)(upholding Virginia's harmful to minors display
law, on remand from the Supreme Court, in light of the Supreme Court
of Virginia's opinion), and this rule of context could be equally
applicable to the application of indecency on the Internet as mandated
in Pacifica, supra, at 750 ("content of the program ...will also affect the
composition of the audience"). See Actions for Children's Television v.
FCC, 11 F.3d 170, 178-80 (D.C. Cir. 1993) ("ACT III")
1 It cannot be said that there are few children online.
1 One main factor given in Pacifica, at 750, is equally applicable to the
Internet and will be increasingly relevant as plaintiffs and the rest of
the industry succeed at getting more families and children online: "The
ease with which children may obtain access to broadcast material,
coupled with the concerns recognized in Ginsberg, amply justify special
treatment of indecent broadcasting."
1 438 U.S. 726 (1978).
2 Sable, at 128.
1 See, Declaration of Dr. Dan R. Olsen, Jr., at 9-25 (Apr. 9, 1996).
2 Id. at 25-37.
1 Id. at 46.
2 See, Hahn & Stout, THE INTERNET YELLOW PAGES (Osborne McGraw-Hill:
2d ed 1995).
3 Another category in the Yellow Pages is "Sexuality," with sub
categories such as: "Abuse and Recovery," "Homosexuality," "Lesbian,
Gay and Bisexual Mailing Lists." In context, the material offered at
these sites may have serious literary, artistic, political or scientific
value, and therefore, would not be patently offensive in their depictions
or description of sexual or excretory organs or functions under
contemporary community standards for the interactive computer
medium. As such, it would be legal to allow minors access to the
material offered and the good faith defenses of § 223 would be
unnecessary.
1 See, Declaration of Dr. Dan R. Olsen, Jr. at 4-5 (Apr. 9, 1996).
1 CRS at 1-2.
1 468 U.S. 288, 293 (1984).
2 512 U.S. ___, 129 L. Ed. 2d 497, 516, 581 (1994).
1 491 U.S. 781 (1989).
2 Id., at 798.
3 859 F.2d 681 (9th Cir. 1988).
4 Id. at 686.
1 721 F.2d 1281 (10th Cir. 1983).
2 Id. at 1289.
3 Id. at 1288.
4 780 F.2d 1389 (8th Cir. 1986) "The Minneapolis ordinance relates to
both conduct and speech because it regulates the manner in which
certain speech may be disseminated. The ordinance, therefore, must be
substantially overbroad before we will invalidate it on its face.".
1 Id. at 1395.
2 427 U.S. 50 (1976).
3 Id. at 70, 71.
4 15 U.S.C. § 1331 et seq; Cipollone v. Liggett Group, Inc., 505 U.S. __
[112 S. Ct. 2608 (1994)]; California Penal Code § 308 (a) and (b)
prohibit the sale to or purchase of tobacco products by minors.
1 See, ALA Plaintiffs' Motion for A Preliminary Injunction, at 16-20.
1 Sable, 492 U.S. at 126.
2 Id at 127.
1 75 F.3d 663 (9th Cir. 1996); 96 Daily Journal D.A.R. 797 (1/24/96).
2 Id. at 798.
1 Id. at 799.
2 Id. at 799.
3 See 18 U.S.C. § 1462 which prohibit the importation of obscenity into
the United States through foreign commerce and § 2252 which prohibit
the importation of child pornography into the United States through
foreign commerce.
1 Ferber, 458 U.S. 747, 754 (1982);
Roth, 354 U.S. 476, 485 n. 15 (1957).
2 Id. at 485.
3 Treaty Series, No. 559, at 7; 37 Stat. 1511,
Treaties in Force 209 (U.S. Dept. State, Oct. 31, 1956).
1 Cf., 50 Am.Jur.2d, Lewdness, Indecency, pp. 484-85 ("use of indecent
language...under the circumstances...considered a nuisance."); Am.Jur.
Proof of Facts, Vol. 8, p. 530 (1960): ("(A)nuisance may be established
by showing that the thing involved violates the laws of decency; and a
showing of hurt to moral sensibilities is deemed sufficiently substantial
to justify judicial interposition.").
2 Amicus does not say that indecency is unprotected in every medium
or context. Cf., Pacifica, 438 U.S. 726, At 746. ("We may assume,
arguendo, that this monologue would be protected in other contexts.")
Time of day is one variable to be considered. Id. at 750.
3 315 U.S. 558 (1942).
1 Id. at 571-572. Amicus says "alluded to" because the above quoted
material, while not specifically mentioning nuisance speech, twice cites
the book, Free Speech in the United States, by Zechariah Chafee, Jr.
(1941), which does so at pp. 149, 150:
But the law also punishes a few classes of words
like obscenity, profanity ...because the very
utterance of such words is considered to inflict a
present injury upon listeners, readers. . . . This is
a very different matter from punishing words
because they express ideas thought to cause
future danger to the state. . . . [P]roperly limited
they fall outside the protection of the free
speech clauses. . . . [P]rofanity, indecent talk and
pictures, which do not form an essential part of
any exposition of ideas, have a very slight social
value as a step toward truth, which is clearly
outweighed by the social interests in order,
morality, the training of the young and the peace
of mind of those who hear or see. . . . The man
who swears in a street car is as much of a
nuisance as the man who smokes there.
[Emphasis supplied].
2 408 U.S. 901 (1972).
1 Id. at 408 U.S. 905-906.
2 341 U.S. 622 (1951).
3 366 U.S. 77 (1949).
4 414 U.S. 105 (1973).
1 Id. at 107-108. Cf Redrup v. New York, 358 U.S. 757, 765 (1967) and
Close v. Lederele, 424 F.2d 988, 990 (1st Cir. 1970), cert. den., 400 U.S.
903 (1970), both of which recognize a need for government protection
against an "assault upon individual privacy."
2 438 U.S. 726 (1978); see also, Tollman v. United States, 465 F.2d 282,
285-286 (7th Cir. 1972).
3 Id. at 750.
4 Id. at 748-749.
5 478 U.S. 675 (1986).
1 Id. at 696.
2 If Amicus is correct that "nuisance speech" is unprotected, then "strict
scrutiny" is not the level of scrutiny to be applied. Cf., City of Dallas v.
Stanglin, 109 S. Ct. 159, 57 LW 4406, 4407 (1989): "Unless laws 'create
suspect classifications or impinge upon constitutionally protected
rights,'...it need only be shown that they bear 'some rationale
relationship to a legitimate state purpose.'"
3 Cf., op ed article, The Internet's Private Side, N.Y. TIMES, March 2,
1996, wherein author David S. Bannahum, publisher of MEME, an online
newsletter, states:
During a jaunt through the World Wide Web, I
came across a seemingly innocuous invitation,
'This is a HOT link.' I clicked on the glowing
words which connected me with another
computer that generated a picture of a nude
woman with the tag line, 'Slut for Rent.'... This
phone-sex service advertising its wares, just an
accidental mouse click away, shows how easily
browsers can stumble across pornography on
computer networks. [Emphasis supplied by
Amicus].
1 See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968).
2 354 U.S. 476, at 491, n.28 (1957).
3 370 U.S. 478, at 482 (1962).
4 438 U.S. 726, at 740.
1 478 U.S. 675, at 682 (1986).
2 Id. at 683.
3 501 U.S. 560 (1991).
4 Id. at 568-569.
1 438 U.S. 726, at 748-749 (1978). Justice Powell, concurring, agreed
that protecting adults was a valid concern. Id., at 759-760.
2 487 U.S. 474 (1988).
3 Id. at 485-486. See also, People v. Starview Drive-in Theatre, 427
N.E.2d 201 (Ill. App. Ct. 1981), appeal dism'd sub nom., Starview Drive-
in Theatre, Inc. v. Cook Co., 457 U.S. 113 (1982).
4 492 U.S. 115 (1989).
5 492 U.S. 115, at 127-128 (1989). Amicus notes that the Federal Dial-
a-Porn law 47 U.S.C. § 223 (b) now prohibits making, by means of
telephone, any indecent communication for commercial purposes both
to minors AND to "any other person without that person's consent."
Like the dial-a-porn medium, adults, usually are "forewarned" about
indecent content in "cyberspace." There are circumstances, however,
where they are unwilling viewers. In such circumstances, Amicus
would contend that the Pacifica nuisance rationale controls.
1 Cf., F.C.C. v. Pacifica Foundation, 438 U.S. at 750, n. 28.
2 Id., at 438 U.S. 750. See also, Alliance for Community Media v. F.C.C.
56 F.3d 105 (D.C. Cir. 1995), rev. granted, 64 LW 3347 (1995)
(restricting children's access to indecent material on cable TV access
channels); Dial Information Service Corp. of New York v. Barr, 937 F. 2d
1485 (2nd Cir. 1991), cert. den., 60 LW 3520 (U.S. 1992) (restricting
children's access to indecent communications by means of telephone).
1 Id. at 742-743.
2 937 F.2d 1465 (2nd Cir.199l), cert. den. 60 LW 3520 (U.S. 1/27/92).
3 928 F.2d 865 (9th Cir. 1991).
4 413 U.S. 15 (1973).
5 Id. at 27-28.
1 While some Federal judicial districts may be more conservative than
others, every district contains both "liberals" and "conservatives,"
religious and non religious citizens. Even among devoutly religious
Americans, there are differences as to what is deemed "indecent." The
test is not what the most sensitive individuals and groups find
acceptable, but what the community as a whole finds acceptable.
2 As noted in the Supreme Court's "Seven Dirty Words Case" (F.C.C. v.
Pacifica Foundation, 438 U.S. at 745-748):
[T]he fact that society may find speech offensive
is not a sufficient reason for suppressing it.
Indeed, if it is the speaker's opinion that gives
offense, that...is a reason for according it
constitutional protection. . . . But...[t]hese words
offend for the same reasons that obscenity
offends. . . . [S]uch utterances are no essential
part of any exposition of ideas, and are of such
slight social value as a step to truth that any
benefit derived from them is clearly outweighed
by the social interest in order and morality.
[Emphasis added].
3 See, e.g., United States v. Ginzburg, 338 F.2d 12, at 14 (3rd Cir. 1964),
aff'd. 383 U.S. 463 (1966). The origin in case law and meaning of
"patent offensiveness" are annotated and described in Volume 1,
¶7000-"Patent Offensiveness," the Obscenity Law Reporter (National
Obscenity Law Center, 1986), at pp. 7002-42, and is summarized at
7002-03 as follows:
In Manual Enterprises v. Day, 370 U.S. 478
(1962), Justices Harlan and Stewart, in a
plurality opinion, added a new element to
the...test for obscenity by requiring that the
material...also be "patently offensive" before it
can be labeled "obscene." They stated, "These
magazines cannot be deemed so offensive on
their face as to affront current community
standards of decency-a quality that we shall
hereafter refer to as 'patent offensiveness' or
'indecency.' The two Justices also noted that the
American Law Institute's draft of a Model Penal
Code took the position that...for a thing to be
obscene, it must go substantially beyond the
limits of candor in description or representation
of such matters. . . . Justices Harlan and Stewart
indicated that...obscenity connotes something
that is portrayed in a manner so offensive as to
make it "unacceptable under community mores."
and is aimed at "obnoxiously debasing portrayals
of sex." [Emphasis supplied by Amicus]. . . . It is
also to be observed that the Supreme Court in
Hamling v. United States, 418 U.S. 105 [at 112]
(1974) treated Manual Enterprises as an
authoritative binding precedent....
1 Pacifica, 438 U.S. at 750 (1978).
2 Id. at 750. While not all indecent communications in "cyberspace"
can be "time channeled", many such communications can be displayed
only after 10 p.m. or midnight.
1 Cf. Pacifica, 438 U.S. at 732, n.,6; Action for Children's Television v.
F.C.C., 852 F.2d 1332, at 1339-1340 (D.C. Cir. 1988).
2 Pacifica at 750.
3 Cf., Sable Communications of Cal., Inc. v. F.C.C. 492 U.S. 115, at 127-
128 (1989).
4 In F.C.C. v. Pacifica Foundation, the Supreme Court held that while
"prurient appeal" is an element of the obscene, it is not an "essential
component of indecent language." Id. at 438 U.S. at 741. As noted in
Manual Enterprises v. Day, 370 U.S. 478, at 486 (1961). However, the
two elements tend to coalesce, for that which is patently offensive will
also usually carry the requisite 'prurient interest' appeal."
5 Cf., Obscenity Law Reporter, Vol. 1, pp. 7002, et seq. (NOLC 1986).
1 Cf., F.C.C. v. Pacifica Foundation, 438 U.S. at 741, n. 16; 5 Indecency
Complaints Dismissed by the F.C.C., N.Y. TIMES, April 9, 1988 (copy in
Appendix 5), [describing dismissals of five indecency complaints,
including one against a TV station that broadcast a "sex education"
program for teenagers (with "frank discussions of sexual topics, the use
of sex organ models and simulated demonstrations of various birth
control devices") [In re King Broadcasting, 5 FCC Rcd. 2971 (1990)] and
one against a radio station for airing a reading of the "Penelope" chapter
of "Ulysses" (with "sexual and excretory references" "dispersed"
throughout the three-hour reading) [Letter to William J. Byrnes, Esq., 63
Radio Reg.2d 216 (1987)] (copies of F.C.C. ops. in Appendix 8).
2 Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 58 (1973) [quoting
from Breard v. Alexandria, 341 U.S. 622, 642 (1951)].
3 Id., 413 U.S. at 59-60 [quoting from Jacobellis v. Ohio, 378 U.S. 184,
199 (1964) (Chief Justice Warren, dissenting)].
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