Before: Sloviter, Chief Judge, United States Court of Appeals for the Third Circuit; Buckwalter and Dalzell, Judges, United States District Court for the Eastern District of Pennsylvania

June 11, 1996

ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION

Statutory Provisions at Issue

Section 223(a)(1)(B) provides in part that any person in interstate or foreign communications who, "by means of a telecommunications device. . .knowingly . . . makes, creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age. . .shall be criminally fined or imprisoned."

Section 223(d)(1) ("the patently offensive provision"), makes it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication."

Plaintiffs also challenge on the same grounds the provisions in 223(a)(2) and 223(d)(2), which make it a crime for anyone to "knowingly permit" any telecommunications facility under control to be used for any activity prohibited" in 223(a)(1)(B) and 223(d)(1). The challenged provisions impose a punishment of a fine, up to two years imprisonment, or both for each offense.

Plaintiffs make clear that they do not quarrel with the statute to the extent that it covers obscenity or child pornography, which were already proscribed before the CDA's adoption.

Plaintiffs in the ACLU action also challenge the provision of the CDA that criminalizes speech over the Internet that transmits information about abortions or abortifacient drugs and devices, through its amendment of 18 U.S.C. 1462(c). That section now prohibits the sending and receiving of information over the Internet by any means regarding "where, how, or of whom, or by what means any [drug, medicine, article, or thing designed, adapted, or intended for producing abortion] may be obtained or made." The Government has stated that it does not contest plaintiffs' challenge to the enforcibility of the provision of the CDA as it relates to 18 U.S.C. 1462(c).

The views of the members of the Court in support of these conclusions follow.

SLOVITER, Chief Judge, Court of Appeals for the Third Circuit:

The government asserts that shielding minors from access to indecent materials is the compelling interest supporting the CDA. It cites in support the statements of the Supreme Court that "[i]t is evident beyond the need for elaboration that a State's interest in 'safeguarding the physical and psychological well-being of a minor' is 'compelling,'" New York v. Ferber, 458 U.S. 747, 757 (1982), and "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." Sable, 492 U.S at 126. It also cites the similar quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania Public Utility Comm'n (1990).

Those statements were made in cases where the potential harm to children from the material was evident. Ferber involved the constitutionality of a statute which prohibited persons from knowingly promoting sexual performances by children under 16 and distributing material depicting such performances. Sable and Fabulous involved the FCC's ban on "dial-a-porn" (dealing by definition with pornographic telephone messages). In contrast to the material at issue in those cases, at least some of the material subject to coverage under the "indecent" and "patently offensive" provisions of the CDA may contain valuable literary, artistic or educational information of value to older minors as well as adults. The Supreme Court has held that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them." Erznoznik v. City of Jacksonville (1975).

In part, our consideration of the government's showing of a "compelling interest" trenches upon the vagueness issue, discussed in detail in Judge Buckwalter's opinion but equally pertinent to First Amendment analysis. Material routinely acceptable according to the standards of New York City, such as the Broadway play Angels in America which concerns homosexuality and AIDS portrayed in graphic language, may be far less acceptable in smaller, less cosmopolitan communities of the United States. Yet the play garnered two Tony Awards and a Pulitzer prize for its author, and some uninhibited parents and teachers might deem it to be material to be read or assigned to eleventh and twelfth graders. If available on the Internet through some libraries, the text of the play would likely be accessed in that manner by at least some students, and it would also arguably fall within the scope of the CDA.

By contrast, plaintiffs presented testimony that material that could be considered indecent, such as that offered by Stop Prisoner Rape or Critical Path AIDS project, may be critically important for certain older minors. For example, there was testimony that one quarter of all new HIV infections in the United States is estimated to occur in young people between the ages of 13 and 20, an estimate the government made no effort to rebut. The witnesses believed that graphic material that their organizations post on the Internet could help save lives, but were concerned about the CDA's effect on their right to do so.

The government counters that this court should defer to legislative conclusions about this matter. However, where First Amendment rights are at stake, "[d]eference to a legislative finding cannot limit judicial inquiry." Sable, 492 U.S. at 129. "[W]hatever deference is due legislative findings would not foreclose our independent judgment of the facts bearing on an issue of constitutional law."

It is clear from the face of the CDA and from its legislative history that Congress did not intend to limit its application to commercial purveyors of pornography. Congress unquestionably knew how to limit the statute to such entities if that was its intent, and in fact it did so in provisions relating to dial-a-porn services. . . . The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther.

We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution." Such a choice strikes at the heart of speech of adults as well as minors.

The government makes an extraordinary argument in its brief. It argues that blocking technology needed for effective parental control is not yet widespread but that it "will imminently be in place." It then states that if we uphold the CDA, it "will likely unleash the 'creative genius' of the Internet community to find a myriad of possible solutions." I can imagine few arguments less likely to persuade a court to uphold a criminal statute than one that depends on future technology to cabin the reach of the statute within constitutional bounds.

But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments.