Causes of Action

COUNT 1 150. Plaintiffs repeat and reallege paragraphs 1-149.
151. With respect to constitutionally protected communications which might be deemed "indecent" or "patently offensive" for persons under 18, the Act, in plain terms and practical effect, bans a substantial amount of speech by and to adults, including speech by and to plaintiffs, their members, and their subscribers, patrons and customers, in violation of the First Amendment of the United States Constitution.

COUNT 2 152. Plaintiffs repeat and reallege paragraphs 1-149.
153. With respect to constitutionally protected communications which might be deemed "indecent" or "patently offensive" for persons under 18, the Act, in plain terms and practical effect, unduly burdens and deters a substantial amount of speech by and to adults, including speech by and to plaintiffs, their members, and their subscribers, patrons, and customers, in violation of the First Amendment of the United States Constitution.

COUNT 3 154. Plaintiffs repeat and reallege paragraphs 1-149.
155. Sections 502(1) and 502(2) of the Act unduly chill and compel self-censorship of constitutionally protected speech of plaintiffs, their members, and their subscribers, patrons, and customers, in violation of the First Amendment of the United States Constitution.

COUNT 4 156. Plaintiffs repeat and reallege paragraphs 1-149.
157. Section 502(2) of the Act, 47 U.S.C. § 223(d), is fatally overbroad. In particular, it bans, burdens, and criminalizes speech that is constitutionally protected for adults, and for older minors, restricting both adults and 17 year-olds to communications appropriate for 7 year olds. And it bans, burdens, and criminalizes a much broader range of constitutionally protected expression than is constitutionally permissible. Accordingly, the provision violates the First Amendment.

COUNT 5 158. Plaintiffs repeat and reallege paragraphs 1-149.
159. Any blocking system to be imposed by the content provider/speaker would require advance identification of those seeking access to a particular Web site, chat room, discussion group, or other online forum that might potentially contain communications that could be deemed "indecent" or "patently offensive" to persons under 18. See 47 U.S.C. § 223(e)(5)(B). A requirement of advance identification would make it impossible for users to engage in constitutionally protected anonymous speech on matters of public and private importance. For many users, such anonymity is critical to their participation in the speech.
160. For such users, the Act will require them to choose between anonymity and losing access to such communications. As a result, in many cases, their First Amendment rights to read and view constitutionally protected text and images will be infringed.
161. Section 502(2) accordingly violates the First Amendment.

COUNT 6 162. Plaintiffs repeat and reallege paragraphs 1-149.
163. Plaintiffs are unable to determine with reasonable certainty which constitutionally protected expression Congress sought to proscribe in § § 223(a)(1)(B) and (d). In particular, the terms "indecent" and "patently offensive as measured by contemporary community standards" are entirely subjective; as a matter of law depend on the context in which the communications arise; are undefined and undefinable in the cyberspace context; have entirely different meanings depending upon the age of the recipient even though the Act treats all minors of all ages the same; and give no indication as to which community governs the inquiry. In these, and other ways, the Act does not put reasonable persons on notice of what communications are prohibited. As a consequence, plaintiffs, their members, and subscribers, patrons, and customers are forced to guess at which speech on interactive computer services may give rise to criminal prosecution.
164. The vagueness of the terms "indecent" and "patently offensive as measured by contemporary community standards," and of other provisions of the Act, and the draconian penalties for a wrong guess, will force plaintiffs, their members, and their subscribers, patrons, and customers, and substantial numbers of other providers of content to the Internet, to self-censor far more speech than would in fact be prohibited in order to comply with their understanding of the Act's requirements, or to avoid potential criminal prosecution, and will thus chill constitutionally protected expression.
165. The vagueness of the terms "indecent" and "patently offensive as measured by contemporary community standards," and of other provisions of the Act, invites arbitrary enforcement.
166. The Act is, accordingly, so vague as to violate the First and Fifth Amendments.

COUNT 7 167. Plaintiffs repeat and reallege paragraphs 1-149.
168. Plaintiffs reasonably fear that the defenses under the Act will not be construed as broadly as Congress intended, and will therefore subject their dissemination or facilitation of constitutionally protected speech to criminal prosecution and conviction in several significant contexts.
169. The "good faith defense," which is the only defense even arguably available to non-commercial content- providers, gives insufficient guidance to content-providers as to whether their dissemination of constitutionally protected speech is prohibited. Plaintiff content-providers have no means of ascertaining whether a jury will determine that they have taken "reasonable, effective, and appropriate actions under the circumstances" to restrict minors' access to material that is "indecent" or "patently offensive as measured by contemporary community standards." Act 502(2), to be codified at 47 U.S.C. § 223(e)(5)(A).
170. Similarly, service providers who host Web sites or other online sites, without controlling content, but on whose facilities others' communications reside, reasonably fear an aggressive prosecutor will argue, contrary to plaintiffs' understanding of Congressional intent, that such actions will constitute a "display" of such communications under § 223(d)(1)(B), and that such services are not protected by the "access provider" defense, even though the service providers' role clearly "does not include the creation of the content of the communication." § 223(e)(1).
171. For similar reasons, plaintiffs cannot with reasonable certainty rely on the access provider defense, § 223(e)(1), to exempt access providers' operation of USENET news servers that automatically store content posted by users, which remains on their servers for a number of days and is available to subscribers.
172. For similar reasons, plaintiffs cannot with reasonable certainty determine whether the defense, § 223(e)(1), applies to ISPs who assist content providers in establishing or operating Web pages or other online sites, and who, although having no control of content, might be deemed to be a "conspirator" under § 223(e)(2) if they knowingly arrange for access to valuable, constitutionally protected material that may be deemed "indecent."
173. As a consequence, plaintiffs, their members, and their subscribers, patrons, and customers, are forced to guess at whether their activities may give rise to criminal prosecution.
174. The uncertainty of how prosecutors or the courts will construe the defenses, the fact that they are only defenses, which must be raised and proved after a defendant has already been subjected to the humiliation, stigma, and expense of a criminal prosecution, and the draconian penalties for a wrong guess, will force plaintiffs, their members, and their subscribers, patrons, and customers, and a substantial number of other providers of content to the Internet, to self-censor speech protected by the First Amendment in order to comply with their understanding of the Act's requirements, or to avoid potential criminal prosecution, and will thus chill constitutionally protected expression.
175. The vagueness of these provisions invites arbitrary enforcement.
176. Sections 502(1) and (2), accordingly, are so vague as to violate the First and Fifth Amendments.

COUNT 8 177. Plaintiffs repeat and reallege paragraphs 1-149.
178. Sections 502(1) and (2) of the Act violate the First Amendment rights of plaintiffs, their members, and their subscribers, patrons, and customers, insofar as they single out for special bans or burdens speakers engaged in one class of constitutionally protected speech by one specific medium, and do not similarly ban or burden speakers engaged in other classes of speech, or in the same speech via other mediums, without sufficient justification.

WHEREFORE, plaintiffs respectfully pray that this Court:
A. Declare that Sections 502(1) and (2) of the Communications Decency Act of 1996, 47 U.S.C. § § 223(a)(1)(B), 223(a)(2), and 223(d), are unconstitutional;
B. Preliminarily and permanently enjoin defendants from enforcing those provisions.
C. Award plaintiffs such costs and fees as are allowed by law; and
D. Grant plaintiffs such other and further relief as the Court deems just and proper.

Respectfully submitted,

Bruce J. Ennis, Jr.
Donald B. Verrilli, Jr.
Ann M. Kappler
John B. Morris, Jr.
JENNER & BLOCK
601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6000

Ronald P. Schiller
(Atty ID 41357)
David L. Weinreb
(Atty ID 75557)
PIPER & MARBURY, L.L.P.
3400 Two Logan Square
18th & Arch Streets
Philadelphia, PA 19103
(215) 656-3365

COUNSEL FOR ALL PLAINTIFFS

Ellen M. Kirsh
William W. Burrington
America Online, Inc.
COUNSEL FOR AMERICA ONLINE, INC.

Richard M. Schmidt, Jr.
Allan R. Adler
Cohn & Marks
COUNSEL FOR AMERICAN SOCIETY
OF NEWSPAPER EDITORS

Bruce Rich
Weil, Gotschal & Manges
COUNSEL FOR ASSOCIATION OF
AMERICAN PUBLISHERS, INC.

James Wheaton
First Amendment Project
COUNSEL FOR ASSOCIATION OF
PUBLISHERS, EDITORS AND WRITERS

Jerry Berman
Center for Democracy and Technology

Elliot M. Mincberg
Jill Lesser
People for the American Way
COUNSEL FOR CITIZENS INTERNET
EMPOWERMENT COALITION

Ronald Plesser
Jim Halpert
Piper & Marbury
COUNSEL FOR COMMERCIAL
INTERNET EXCHANGE ASSOCIATION

Steve Heaton
Compuserve Incorporated
COUNSEL FOR COMPUSERVE
INCORPORATED

Thomas W. Burt
Microsoft Corporation
COUNSEL FOR MICROSOFT
CORPORATION AND MICROSOFT
NETWORK

Melissa A. Burke
Pillsbury, Madison & Sutro
COUNSEL FOR NETCOM ONLINE
COMMUNICATIONS SERVICE, INC.

Rene Milam
Newspaper Association of
America
COUNSEL FOR NEWSPAPER
ASSOCIATION OF AMERICA

Marc Jacobson
Prodigy Services Company

Robert J. Butler
Clifford M. Sloan
Wiley, Rein & Fielding
COUNSEL FOR PRODIGY SERVICES
COMPANY

Bruce W. Sanford
Henry S. Hoberman
Robert D. Lystad
Baker & Hostetler
COUNSEL FOR SOCIETY OF
PROFESSIONAL JOURNALISTS

Michael Traynor
John W. Crittenden
Kathryn M. Wheble
Cooley, Godward, Castro,
Huddleson & Tatum
COUNSEL FOR HOTWIRED VENTURES
LLC AND WIRED VENTURES, LTD.

Dated: February 26, 1996

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