AOL File Library: 9,300 to 9,399/9300.zip/AOLDLs/Legal Documents/AOL Joins Online Indecency Suit/ACLU.txt

Text File | 2014-12-11 | 114KB | 2,426 lines

[Editor's Note: A coalition of online service providers -- including America Online, CompuServe and Prodigy -- as well as non-profit organizations, and professional associations filed a suit February 26, 1996 to block enforcement of the indecent material
provisions of the Telecommunications Act of 1996. The suit  will be combined with an earlier suit by the ACLU and other plaintiffs.]

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA



AMERICAN LIBRARY ASSOCIATION, INC.,
50 East Huron Street, Chicago, IL
60611, on behalf of its members and
their patrons,

AMERICA ONLINE, INC., 8619 Westwood
Center Drive, Vienna, VA 22182, on
behalf of itself and its subscribers,

AMERICAN BOOKSELLERS ASSOCIATION,
INC., 828 South Broadway, Tarrytown,
NY 10591, on behalf of its members,

AMERICAN BOOKSELLERS FOUNDATION FOR
FREE EXPRESSION, 828 South Broadway,
Tarrytown, NY 10591, on behalf of its
members,

AMERICAN SOCIETY OF NEWSPAPER EDITORS,
Post Office Box 4090, Reston, VA
22090, on behalf of its members,

APPLE COMPUTER, INC., One Infinite
Loop, Cupertino, CA 95014, on behalf
of itself and its subscribers,

ASSOCIATION OF AMERICAN PUBLISHERS,
INC., 1718 Connecticut Avenue, N.W.,
Washington, D.C. 20009, on behalf of
its members,

ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS, 1736 Franklin Street, 8th
Floor, Oakland, CA 94612, on behalf of
its members,

CITIZENS INTERNET EMPOWERMENT
COALITION, 1634 Eye Street, Suite
1100, Washington, D.C. 20006, on
behalf of its members,

COMMERCIAL INTERNET EXCHANGE
ASSOCIATION, 1039 Sterling Road, Suite
201, Herndon, VA 22070, on behalf of
its members,

COMPUSERVE INCORPORATED, 5000
Arlington Centre Blvd., Columbus, OH
43220, on behalf of itself and its
subscribers,

FAMILIES AGAINST INTERNET CENSORSHIP,
2135 Wickes Road, Colorado Springs, CO
80919, on behalf of its members,

FREEDOM TO READ FOUNDATION, INC., 50
East Huron Street, Chicago, IL 60611,
on behalf of its members,

HOTWIRED VENTURES LLC, 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,

INTERACTIVE SERVICES ASSOCIATION, 8403
Colesville Road, Silver Spring, MD
20910, on behalf of its members,

MICROSOFT CORPORATION, One Microsoft
Way, Redmond, WA 98052, on behalf of
itself,

MICROSOFT NETWORK, One Microsoft Way,
Redmond, WA 98052, on behalf of itself
and its subscribers,

NETCOM ON-LINE COMMUNICATIONS SERVICE,
INC., 3031 Tisch Way, San Jose, CA
95128, on behalf of itself and its
subscribers,

NEWSPAPER ASSOCIATION OF AMERICA, 1160
Sunrise Valley Drive, Reston, VA
22091, on behalf of its members,

OPNET, INC., 901 Glenbrook Avenue,
Bryn Mawr, PA 19010, on behalf of
itself and its subscribers,

PRODIGY SERVICES COMPANY, a New York
General Partnership, 445 Hamilton
Avenue, White Plains, NY 10601, on
behalf of itself and its subscribers,

SOCIETY OF PROFESSIONAL JOURNALISTS,
Post Office Box 77, Greencastle, IN
46135, on behalf of its members,

WIRED VENTURES, LTD., 520 Third
Street, San Francisco, CA 94107, on
behalf of itself and its readers,

                    Plaintiffs,

          v.

UNITED STATES DEPARTMENT OF JUSTICE,
10th and Constitution Avenue, NW,
Washington, D.C. 20530; and

JANET RENO, Attorney General of the
United States, United States
Department of Justice, 10th &
Constitution Ave., NW, Washington,
D.C. 20530,

                    Defendants.


COMPLAINT FOR
DECLARATORY AND
INJUNCTIVE RELIEF


  PRELIMINARY STATEMENT

 1. During much of this century the mass media,
particularly radio and television, have been characterized
by a limited number of speakers transmitting programming
and information to essentially passive audiences. The
communications medium of the twenty-first century -- the
Internet and "cyberspace" generally -- is changing that,
and will allow hundreds of millions of individuals to
engage in interactive communication, on a national and
global scale never before possible. The public square of
the past -- with pamphleteering, soap boxes, and vigorous
debate -- is being replaced by the Internet, which enables
average citizens to participate in national discourse,
publish a newspaper, distribute an electronic pamphlet to
the world, and generally communicate to and with a broader
audience than ever before possible. It also enables average
citizens to gain access to a vast and literally world- wide
range of information, while simultaneously protecting their
privacy, because in this new medium individuals receive
only the communications they affirmatively request.

2. In enacting the Communications Decency Act of 1996 (to
be codified at 47 U.S.C. Section 223) (the "Act"), Congress
acknowledged that the Internet represents "an extraordinary
advance in the availability of educational and
informational resources to our citizens," and acknowledged
that interactive computer services "offer users a great
degree of control over the information that they receive."
Congress therefore declared "[i]t is the policy of the
United States . . . to promote the continued development of
the Internet and other interactive computer services; [and]
to preserve the vibrant and competitive free market that
presently exists for the Internet and other interactive
computer services, unfettered by Federal or State
regulation." Act Section 509 (to be codified at 47 U.S.C.
Section 230). Unfortunately, as we will show, provisions of
the Act that were intended only to protect minors from
communications deemed inappropriate for them will have the
effect, perhaps unintended, of depriving adults of
communications that are appropriate, and indisputably
constitutionally protected, for them. Because of the way
the Internet works, the Act's prohibition of communications
that may be deemed "indecent" or "patently offensive" for
minors will effectively ban those same communications
between adults, reducing the adult population in cyberspace
to only what is appropriate for minors. The banned speech
includes valuable works of literature and art, information
about health and medical issues, and examples of popular
culture. It also includes robust human discourse about
politics, current events, and personal matters that may at
times include harsh, provocative, or even vulgar language,
all of which is constitutionally protected for adults.

 3. Plaintiffs represent a broad range of individuals and
entities from the computer and communications industries
and the general public who are harmed by the Act.
Plaintiffs include publishers and creators of content on
the Internet; "online services," "Internet service
providers," libraries, and others who provide access or
connection to the Internet; and speakers, listeners, and
users on the Internet. The Act's effective ban of a broad
category of communication that is constitutionally
protected for adults directly harms the First Amendment
rights of plaintiffs, and of the tens of millions of adult
speakers and listeners who are "online" and linked through
this new communications medium. Plaintiffs also include
parents, who seek to protect the rights of parents to
decide what is appropriate for their children to receive
through interactive computer communications.

 4. The speech at issue in this case does not include
obscenity, child pornography, harassing speech, speech
intended to entice or lure minors into inappropriate
activity, or other speech that lacks First Amendment
protection even for adults. This complaint does not
challenge governmental regulation of those categories of
non-protected speech, and the relief sought herein will not
affect the government's ability to prosecute the
communication of those categories of speech, all of which
are already prohibited by existing law.

 5. The most sweeping provision of the Act, Section 502(2)
(to be codified at 47 U.S.C. Section 223(d)), prohibits the
"display" of material deemed "patently offensive" "in a
manner available to a person under 18 years of age"
(emphasis added). That provision is subject to certain
defenses, which the sponsor of the Act and Congress
apparently believed would enable speakers to restrict
access by minors while simultaneously permitting access by
adults. But those defenses, which were merely lifted from
the "dial-a-porn" laws, simply do not work in the quite
different medium of cyberspace. Because of the manner in
which information is stored, transmitted, and received on
the Internet, this provision has the (perhaps unintended)
result of banning speech between adults that is suitable
and constitutionally protected for adults.

 6. The Act is also unconstitutional because there are
alternative ways of protecting minors from material
inappropriate for them that would not abridge the First
Amendment rights of adults, and would be more effective in
protecting minors than the mechanism Congress imposed. The
speaker-based blocking required by the Act will not protect
minors from access to words and images posted on the
Internet abroad by foreign speakers, who are not
effectively subject to prosecution under the Act, or even
by domestic speakers who intentionally or inadvertently
violate the Act. But user-based blocking technology enables
parents and other users to block or screen whatever words
or images they deem inappropriate, regardless of where
posted, at little or no cost. For these reasons, every
application of the Act unnecessarily and unconstitutionally
abridges the First Amendment rights of adults, and does so
even though there are less drastic alternatives that would
be more protective of minors.

 JURISDICTION AND VENUE

 7. This case arises under the Constitution and laws of the
United States and presents a federal question within this
Court's jurisdiction under Article III of the Constitution
and 28 U.S.C. Section 1331.

 8. This Court has authority to grant declaratory relief
pursuant to the Declaratory Judgment Act, 28 U.S.C. Section
2201.

 9. Under Section 561 of the Telecommunications Act of 1996
("Telecommunications Act"), of which the Communications
Decency Act is a part, this action is required to be heard
by a three- judge court convened pursuant to 28 U.S.C.
Section 2284.

 10. Venue is proper in this Court under 28 U.S.C. Section
1391(e).

 PARTIES

 11. The named plaintiffs are briefly identified below.
Their interests and involvement with the Internet and
interactive computer communications are described more
fully in paragraphs 122-137.

 12. Plaintiff AMERICAN LIBRARY ASSOCIATION, INC. ("ALA"),
founded in 1876, is a non-profit, educational organization
committed to the preservation of the American library as a
resource indispensable to the intellectual, cultural, and
educational welfare of the Nation. The ALA's direct
membership includes over 3,000 libraries, over 55,000
librarians, and other individuals. Plaintiff FREEDOM TO
READ FOUNDATION ("FTRF") is a non-profit membership
organization established in 1969 by the ALA to promote and
defend First Amendment rights; to foster libraries as
institutions fulfilling the promise of the First Amendment
for every citizen; to support the rights of libraries to
include in their collections and make available to the
public any work they may legally acquire; and to set legal
precedent for the freedom to read on behalf of all
citizens.

 13. Plaintiffs AMERICA ONLINE, INC. ("AOL"), COMPUSERVE
INCORPORATED ("COMPUSERVE"), MICROSOFT NETWORK ("MSN"), and
PRODIGY SERVICES COMPANY ("PRODIGY") are the four leading
commercial online services in the United States, each
providing online services (including access to and content
on the Internet) to millions of customers worldwide.

 14. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION, INC.
("ABA"), organized in 1900, is the leading association of
general interest bookstores in the United States. ABA has
over 5500 members, including 4300 bookstores, which do
business in over 7000 locations across the country.
AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION
("ABFFE") was organized in 1990. The purpose of the ABFFE
is to inform and educate booksellers, other members of the
book industry, and the public about the dangers of
censorship and to promote and protect the free expression
of ideas, particularly freedom in the choice of reading
materials.

 15. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS
("ASNE") is a nonprofit professional organization of more
than 850 individuals who hold positions as directing
editors of daily newspapers throughout the United States.
For over 50 years, ASNE has worked to provide an effective
and unfettered press in the service of the American people
by exercising and defending the First Amendment rights of
the press to gather and publish news.

 16. Plaintiff APPLE COMPUTER, INC., is a global and
innovative leader in developing personal computers,
personal computer software, and server hardware and
software for the Internet. The company offers a wide range
of products and services for business and personal computer
and data communication. Apple's current and announced
products include hardware and software for accessing the
Internet, hardware and software for implementing and
maintaining Internet servers and other services such as
operating system and database storage and retrieval, and
content software particularly for education, business and
home computing, and communication. In addition, Apple
maintains eWorld which provides online services including
access to the Internet.

 17. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS, INC.
("AAP") is the major national association in the United
States of publishers of general books, textbooks, and
educational materials. Its approximately 200 members
include most of the major commercial book publishers in the
U.S. and many smaller or non-profit publishers, including
university presses and scholarly associations. AAP's
members publish most of the general, educational, and
religious books produced in the United States, and are
particularly active in all facets of the electronic medium,
including publishing a wide range of electronic products
and services.

 18. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS is an unincorporated association of publishers,
editors and individual writers who publish their materials
both in print and online. Brought together by a common
interest in protecting the right to free expression, its
members write, edit and publish works on a wide range of
subjects, including politics, techno- logy, finance,
education, human sexuality and the arts. As producers and
consumers of online content, its members will be directly
subject to or affected by the Act.

 19. Plaintiff COMMERCIAL INTERNET EXCHANGE ASSOCIATION
("CIX") is the nation's largest trade association of
commercial Internet service providers ("ISPs") and access
providers. CIX members provide carriage for approximately
75% of the world's Internet traffic, constituting millions
upon millions of electronic messages each day. In addition
to serving as passive carriers, many CIX members also
provide Internet content, and assist customers in
presenting content on the Internet through "World Wide
Web," "gopher," and other Internet sites.

 20. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP
("FAIC") is a voluntary, non-profit organization of parents
across the country. FAIC was founded on the belief that
parents are the people best suited to decide what their
children should and should not see. To be a member of FAIC,
one must (1) oppose censorship, (2) have an electronic mail
address, and (3) have at least one child living at home.

 21. Plaintiff HOTWIRED VENTURES LLC, a California limited
liability company, is the creator of HotWired, a
cyberstation on the World Wide Web offering interactive
information about culture, lifestyle, and technology to
over 300,000 subscribers.

 22. Plaintiff INTERACTIVE SERVICES ASSOCIATION, formed in
1981, is the leading association devoted exclusively to
promoting and developing consumer interactive services
worldwide. ISA's several hundred members span the entire
interactive industry, and include numerous commercial
online services and other Internet content and service
providers.

 23. Plaintiff MICROSOFT CORPORATION is a worldwide leader
in software for personal computers. The company offers a
wide range of products and services for business and
personal use. Microsoft's current and announced products
include software for accessing the Internet, software for
implementing and maintaining Internet servers and other
services such as operating system and database storage and
retrieval, and content software including compilations of
musical, artistic, literary, encyclopedic, technical,
statistical, and general business and specialized news
information.

 24. Plaintiff NETCOM ON-LINE COMMUNICATIONS SERVICE, INC.,
is an Internet service provider. The Company's core
business is providing dial-up accounts for individuals and
high- speed dedicated connections for businesses. NETCOM
operates its own digital network and provides e-mail,
NetNews, and web services for its customers. Many of
NETCOM's customers connect to the Internet using the
Netcruiser access software that NETCOM developed and
produced.

 25. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA is a
nonprofit organization representing the interests of more
than 1,500 newspapers that account for approximately 85
percent of the daily newspaper circulation in the United
States. Approximately 175 member newspapers in North
America currently make their editions available on the
Internet.

 26. Plaintiff OPNET, INC., is an Internet access provider
located in Bryn Mawr, Pennsylvania. OpNet provides access
to the Internet to individuals and businesses throughout
the Philadelphia area. OpNet also provides World Wide Web
site maintenance, file storage, and server support to
organizations which seek to put information on the World
Wide Web.

 27. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS is a
voluntary, non-profit organization of nearly 14,000
members. The Society is the largest and oldest organization
of journalists in the United States, representing every
branch and rank of print and broadcast journalism, and for
more than 80 years has been dedicated to perpetuating a
free press. Many of the members of the Society write news
stories, articles, and columns made available over the
Internet and other interactive computer networks.

 28. Plaintiff WIRED VENTURES, LTD., a California limited
partnership, publishes Wired, a monthly magazine that
addresses the cultural implications of the digital
revolution, focusing on the impact of new technologies on
our society. In addition to being distributed in printed
format, the editorial content of Wired magazine is
available on the Internet through HotWired (a cyberstation
on the World Wide Web) and elsewhere.

 29. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION
("CIEC") is an unincorporated coalition of parents,
individuals, private companies, and non-profit
organizations, sharing the common goals of promoting the
continued development of the Internet as a forum for the
free exchange of valuable information and ideas, and
promoting the ability of parents to supervise and assist
their children in the appropriate use of the resources of
this global communications medium, free from improper
governmental censorship. Coordinated by the Center for
Democracy and Technology, the American Library Association,
and America Online, CIEC's members include providers of
both Internet content and access services, as well as
public interest organizations. As users of the Internet, as
providers of Internet content and services, and as
organizations that include parents and other individuals
who themselves use the Internet, CIEC's members are
directly subject to or affected by the Act. Among CIEC's
current members -- in addition to the named plaintiffs --
are AMERICAN ASSOCIATION OF STATE COLLEGES AND
UNIVERSITIES, AMERICANS FOR TAX REFORM, ASSOCIATION OF
AMERICAN UNIVERSITIES, ASSOCIATION OF AMERICAN UNIVERSITY
PRESSES, ASSOCIATION OF NATIONAL ADVERTISERS, ASSOCIATION
OF RESEARCH LIBRARIES, CENTER FOR DEMOCRACY AND TECHNOLOGY,
COALITION FOR NETWORKED INFORMATION, MEDIA ACCESS PROJECT,
MEDIA INSTITUTE, MICROSYSTEMS, INC., NATIONAL ASSOCIATION
OF STATE UNIVERSITIES & LAND-GRANT COLLEGES, PEOPLE FOR THE
AMERICAN WAY, RECORDING INDUSTRY ASSOCIATION OF AMERICA,
SPECIAL LIBRARIES ASSOCIATION, SURFWATCH, INC., and THE
UNIVERSITY OF CALIFORNIA SANTA BARBARA LIBRARY.

 30. Defendant UNITED STATES DEPARTMENT OF JUSTICE is a
federal executive agency, authorized to conduct federal
criminal investigations and prosecutions on behalf of the
United States Government throughout the United States.
Defendant JANET RENO is the Attorney General of the United
States. She is the chief executive officer of defendant
UNITED STATES DEPARTMENT OF JUSTICE and is authorized to
conduct federal criminal investigations and prosecutions
throughout the United States. Defendants have
responsibility for enforcing the Act, including initiating
criminal prosecutions.

 FACTS

 Creation of the Internet and the Development of Cyberspace

 31. The Internet is not a physical or tangible entity. It
is a giant network which interconnects innumerable smaller
groups of linked computer networks: a network of networks.
This is best understood if one considers what a linked
group of computers -- referred to here as a "network" --
is, and what it does. Small networks are now ubiquitous
(and are often called "local area networks"). For example,
in many United States Courthouses, computers are linked to
each other for the purpose of exchanging files and messages
(and to share equipment such as printers). These are
networks. In the language of the Act, these networks would
each be termed an "interactive computer service."

 32. Some networks are "closed" networks, not linked to
other computers or networks (although the Act still
directly applies to such closed local area networks). Many
networks, however, are connected to other networks, which
are in turn connected to other networks in a manner which
permits each computer in any network to communicate with
computers on any other network in the system. This global
web of linked networks and computers is the Internet.

 33. This amalgam of computers and computer networks --
some owned by governmental and public institutions, some
owned by non-profit organizations, and some privately owned
-- lacks any central control or supervision. The resulting
whole is a decentralized, unrestricted global medium of
communications -- or "cyberspace" -- that links
individuals, institutions, corporations, and governments
around the world. This communications medium allows any of
the literally tens of millions of people with access to the
Internet to exchange ideas, research, software, poetry,
images, literature, sound, or simple electronic mail with
others on the Internet. These communications can occur
virtually instantaneously, and can be directed either to
specific individuals, to a broader group of individuals
interested in a particular subject, or to the world as a
whole.

 34. The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project
Agency ("ARPA"). First called ARPANET, the network linked
computers and computer networks owned by the military,
defense contractors, and university laboratories conducting
defense-related research. The network later allowed
researchers across the country to access directly and to
use extremely powerful supercomputers located at a few key
universities and laboratories. As it evolved far beyond its
research origins in the United States to encompass
universities, corporations, and individuals around the
world, the ARPANET came to be called the "DARPA Internet,"
and finally just the "Internet."

 35. From its inception, the network was designed to be a
decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human
involvement or control, and with the automatic ability to
re-route communications if one or more individual links
were damaged or otherwise unavailable. Among other goals,
this redundant, self- healing system of linked computers
was designed to allow vital research and communications to
continue even if portions of the network were damaged.

 36. To achieve this resilient nationwide (and ultimately
global) communications medium, the ARPANET encouraged the
creation of multiple links to and from each computer (or
computer network) on the network. Thus, a computer located
in Washington, D.C., might be linked (usually using
dedicated telephone lines) to other computers in
neighboring states or on the Eastern seaboard. Each of
those computers would in turn be linked to numerous other
computers, which themselves would be linked to other
computers.

 37. A communication sent over this redundant series of
linked computers could travel any of dozens of routes to
its destination. Thus, a message sent from a computer in
Washington, D.C., to a computer in Palo Alto, California,
might first be sent to a computer in Philadelphia, and then
be forwarded to a computer in Pittsburgh, and then to
Chicago, Denver, and Salt Lake City, before finally
reaching Palo Alto. If the message could not travel along
that path (because of military attack, simple technical
malfunction, or other reason), the message would
automatically (without human intervention or even
knowledge) be re-routed, perhaps, from Washington, D.C. to
Richmond, and then to Atlanta, New Orleans, Dallas,
Albuquerque, Los Angeles, and finally to Palo Alto. This
type of transmission, and re-routing, would likely occur in
a matter of seconds.

 38. At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar decentralized
networks developed to link universities, research
facilities, businesses, and individuals around the world.
These other formal or loose networks included BITNET,
CSNET, FIDONET, and USENET. Eventually, each of these
networks (many of which were overlapping) were themselves
linked together, allowing users of any computers linked to
any one of the networks to transmit communications to users
of computers on other networks. It is this series of linked
networks (themselves linking computers and computer
networks) that is commonly known today as the Internet.

 39. No entity -- academic, corporate, governmental, or
non-profit -- controls, governs, or runs the Internet. It
exists and functions solely as a result of the fact that
hundreds of thousands of separate operators of computers
and computer networks independently decided to use a common
data transfer protocol to exchange communications and
information with other computers (which in turn exchange
communications and information with still other computers).
There is no centralized storage location, control point, or
communications channel for the Internet, and it would be
impossible for any single entity to regulate the
information conveyed on the Internet.

 40. The nature of the Internet is such that it is
impossible to determine its size. However, it is
indisputable that the Internet has experienced
extraordinary growth in the past few years. In 1981, fewer
than 300 computers were linked to the Internet, and by
1989, the number stood at fewer than 90,000 computers. By
1993, however, over 1,000,000 computers were linked. Today,
it is estimated that over 9,400,000 host computers
worldwide are linked to the Internet, and this count does
not include the tens of millions of personal computers used
by individuals to access the Internet using modems (as
detailed below). In all, reasonable estimates are that over
40 million individuals around the world can and do access
the enormously flexible communication medium of the
Internet. That figure is expected to grow to 200 million
Internet users by the year 1999.

 How Individuals Access the Internet

 41. Individuals have a wide variety of avenues to access
cyberspace in general, and the Internet in particular. In
terms of physical access, there are two common methods to
establish an actual link to the Internet. First, an
individual can use a computer or computer terminal that is
directly (and usually permanently) connected to a computer
network that is itself directly or indirectly connected to
the Internet. Second, an individual can use a "personal
computer" with a "modem" to connect over a telephone line
to a larger computer or computer network that is itself
directly or indirectly connected to the Internet. As
detailed below, both direct and modem connections are made
available to individuals by a wide variety of academic,
governmental, or commercial entities.

 42. Students, faculty, researchers, and others affiliated
with the vast majority of colleges and universities in the
United States can access the Internet through their
educational institutions. Such access is often via direct
connection using computers located in campus libraries,
offices, or computer centers, or may be through telephone
access using a modem from a student's or professor's campus
or off-campus location. Internet access is considered to be
so important to the modern educational process that many
colleges and universities install "ports" or outlets for
direct network connections in each dormitory room or
provide access via computers located in common areas in
dormitories. Such access enables students and professors to
use information and content provided by the college or
university itself, and to use the vast amount of research
resources and other information available on the Internet
worldwide.

 43. Similarly, Internet resources and access are
sufficiently important to many corporations and other
employers that those employers link their office computer
networks to the Internet and provide employees with direct
or modem access to the office network (and thus to the
Internet). Such access is especially important, for
example, to any corporation involved in scientific or
medical research or manufacturing to enable corporate
employees to exchange information and ideas with academic
researchers in their fields.

 44. Individuals who lack access to the Internet through
their schools or employers still have a variety of ways
they can access the Internet. Many communities across the
country have established "free-nets" or community networks
to provide their citizens with a local link to the Internet
(and to provide local-oriented content and discussion
groups). The first such community network, the Cleveland
Free-Net Community Computer System, was established in
1986, and free-nets now exist in scores of communities as
diverse as Richmond, Virginia, Tallahassee, Florida,
Seattle, Washington, and San Diego, California. Individuals
typically can access free-nets at little or no cost via
modem connection or by using computers available in
community buildings. Free-nets are often operated by a
local library, educational institution, or non-profit
community group.

 45. Individuals can also access the Internet through many
local libraries. Libraries often offer patrons use of
computers that are linked to the Internet. In addition,
some libraries offer telephone modem access to the
libraries' computers, which are themselves connected to the
Internet. Increasingly, patrons are using library services
and resources without ever physically entering the library
itself. Such direct or modem access is typically provided
by libraries at no cost to the individual user.

 46. Individuals can also access the Internet by
patronizing an increasing number of storefront "computer
coffee shops," where customers -- while they drink their
coffee -- can use computers provided by the shop to access
the Internet. Such Internet access is typically provided by
the shop for a small hourly fee.

 47. Individuals can also access the Internet through
commercial and non-commercial "Internet service providers"
that typically offer modem telephone access to a computer
or computer network linked to the Internet. Many such
providers -- including the members of plaintiff Commercial
Internet Exchange Association -- are commercial entities
offering Internet access for a modest monthly or hourly
fee. Some Internet service providers, however, are
non-profit organizations that offer free or very low cost
access to the Internet. For example, the International
Internet Association offers free modem access to the
Internet upon request. Also, an increasing number of trade
or other non-profit associations offer Internet access as
a service to members.

 48. Another simple and common way that individuals can
access the Internet is through one of the major national
commercial "online services" such as America Online,
Apple's eWorld, CompuServe, the Microsoft Network, or
Prodigy. These online services offer nationwide computer
networks (so that subscribers can dial-in to a local
telephone number), and the services provide extensive and
well organized content within their own proprietary
computer networks. In addition to allowing access to the
extensive content available within each online service, the
services also allow subscribers to link to the much larger
resources of the Internet. Full access to the online
service (including access to the Internet) can be obtained
for modest monthly or hourly fees. The major commercial
online services have almost twelve million individual
subscribers across the United States.

 49. In addition to using the national commercial online
services, individuals can also access the Internet using
some (but not all) of the thousands of local dial-in
computer services, often called "bulletin board systems" or
"BBSs." With an investment of as little as $2,000.00 and
the cost of a telephone line, individuals, non-profit
organizations, advocacy groups, and businesses can offer
their own dial-in computer "bulletin board" service where
friends, members, subscribers, or customers can exchange
ideas and information. BBSs range from single computers
with only one telephone line into the computer (allowing
only one user at a time), to single computers with many
telephone lines into the computer (allowing multiple
simultaneous users), to multiple linked computers each
servicing multiple dial-in telephone lines (allowing
multiple simultaneous users). Some (but not all) of these
BBS systems offer direct or indirect links to the Internet.
Some BBS systems charge individuals a nominal fee for
access, while many others are free to the individual users.


 50. Although commercial access to the Internet is growing
rapidly, many individual users of the Internet -- such as
college students and staff -- do not individually pay for
access (except to the extent, for example, the cost of
computer services is a component of college tuition). These
and other Internet users can access the Internet without
any requirement that they provide a credit card or other
form of payment.

 51. In part because the Internet is an unregulated
"network of networks" with literally millions of access
points and tens of millions of users, individual Internet
users often do not have their own "username" or
identification code that would indicate to others on the
Internet the identity of the user. Many users access the
Internet anonymously or through a method that would not
allow for clear identification by a remote content
provider.

 Methods to Communicate over the Internet

 52. Once an individual has access to the Internet, there
are a wide variety of different methods of communication
and information exchange over the network. These numerous
methods of communication and information retrieval are
constantly evolving and are therefore difficult to
categorize concisely. The most common methods of
communications on the Internet (as well as within the major
online services) can be roughly grouped into six
categories: one-to-one messaging (such as "e-mail"),
one-to-many messaging (such as "listserv"), distributed
message databases (such as "USENET newsgroups"), real time
communication (such as "Internet Relay Chat"), real time
remote computer utilization (such as "telnet"), and remote
information retrieval (such as "ftp," "gopher," and the
"World Wide Web"). Most of these methods of communication
can be used to transmit text, data, computer programs,
sound, or visual images.

 53. One-to-one messaging. The simplest method of
communication on the Internet is via electronic mail, or
"e- mail," the modern equivalent to a first class letter.
An individual can address and transmit a message to one or
more specific other individuals. E-mail on the Internet is
not routed through any central control point, and can take
numerous and varying paths to the recipients. Unlike postal
mail, simple e- mail is not "sealed" or secure, and can be
accessed or viewed on intermediate computers between the
sender and recipient (unless the message is encrypted).

 54. One-to-many messaging. The Internet also contains
automatic mailing list services (such as "listserv") that
allow simple and efficient communications about particular
subjects of interest. For example, individuals can
subscribe to a "listserv" mailing list on a particular
topic of interest to them. The individual can submit
messages on the topic to the listserv that are
automatically forwarded (via e-mail) to anyone who has
subscribed to the mailing list. A recipient of such a
message can reply to the message and have the reply also
distributed to everyone on the mailing list. This service
provides the capability to keep abreast of developments or
events in a particular subject area. Most listserv-type
mailing lists automatically forward all incoming messages
to all mailing list subscribers. There are thousands of
such mailing list services on the Internet, collectively
with hundreds of thousands of subscribers.

 55. Distributed message databases. Similar in function to
listservs -- but quite different in how communications are
transmitted -- are distributed message databases such as
"USENET newsgroups." Like listservs, newsgroups are open
discussions and exchanges on particular topics. Users,
however, need not subscribe to the discussion mailing list
in advance, but can instead access the database at any
time. An individual user can post a message to a newsgroup,
and the message is then automatically forwarded to all
other computers that furnish access to the newsgroups (but
not to any individual users). The messages are temporarily
stored on each receiving computer, where they are available
for review and response. The messages are automatically and
periodically purged from each system to make room for new
messages. Responses to messages -- like the original
messages -- are automatically distributed to all other
computers receiving the newsgroup. There are newsgroups on
more than fifteen thousand different subjects. In 1994,
approximately 70,000 messages were posted to newsgroups
each day, and those messages were distributed to the
approximately 190,000 computers or computer networks that
participate in the USENET newsgroup system. Messages posted
to newsgroups are not stored on or channelled through any
central computer or location.

 56. Real time communication. In addition to transmitting
messages that can be later read or accessed, individuals on
the Internet can engage in an immediate dialog -- in "real
time" -- with other individuals on the Internet. In its
simplest forms, "talk" allows one-to-one communications and
"Internet Relay Chat" allows two or more individuals to
type messages to each other that almost immediately appear
on the other individuals' computer screens. In addition,
commercial online services such as America Online,
CompuServe, eWorld, the Microsoft Network, and Prodigy have
their own "chat" systems allowing their members to
converse.

 57. Real time remote computer utilization. Another method
to utilize information on the Internet is to access and
control remote computers using "telnet." For example, using
telnet, a researcher at a university would be able to
utilize the computing power of a supercomputer located at
a different university. A student can use telnet to connect
to a remote library to access the library's online card
catalog program. Or, individuals can link via telnet to a
computer to interact directly and communicate with other
users linked to the same computer. Accessing a computer via
telnet occurs in "real time," and content and communication
accessed via telnet is often created only at the time of
the communication.

 58. Remote information retrieval. The final major category
of communication may be the most important and well known
use of the Internet -- the search for and retrieval of
information located on remote computers. There are numerous
methods to locate and retrieve information on the Internet.
A simple method uses "ftp" (or file transfer protocol) to
list the names of computer files available on a remote
computer, and to transfer one or more of those files to an
individual's local computer. Another approach uses a
program and format named "gopher" to guide an individual's
search through the resources available on a remote
computer. A third approach, and fast becoming the most well
known on the Internet, is the "World Wide Web." The Web
utilizes a "hypertext" formatting language called hypertext
markup language (HTML), and programs that "browse" the Web
can display HTML documents containing text, images, and
sound. Any HTML document can include links to other types
of information or resources, so that while viewing an HTML
document that, for example, describes resources available
on the Internet, an individual can "click" using a computer
mouse on the description of the resource and be immediately
connected to the resource itself. Such "hyperlinks" allow
information to be accessed and organized in very flexible
ways, and allow individuals to locate and efficiently view
related information even if the information is stored on
numerous computers all around the world.

 59. With the exception of point-to-point mail, no
information flows through cyberspace to a particular
individual unless the individual requests the information.
Listservs, newsgroups, chat lines, telnet, ftp, gopher and
the World Wide Web all require an affirmative request by
the Internet user prior to the user receiving information
over the Internet. Further- more, when a user makes such an
affirmative request it is usually clear what type of
content will be delivered. Thus, unlike radio or
television, there is no significant risk that a user will
be "assaulted" with unsolicited and undesired content.

 60. The vast majority of transmissions of content from
specific sites on the Internet are in response to
electronic requests the user could not have anticipated
more than a few seconds or moments before making the
request. Because information is located on millions of
computers around the world, with no central organization or
control, a user cannot possibly know which computers might
have useful information until starting a search. Instead,
the user could access any of dozens of different search
databases, obtain a list of sites that might be of
interest, and then immediately link to one or more of the
sites. Indeed, the very theory of "hyperlinks" and the
hypertext markup language (HTML) (the foundation of the
World Wide Web) is that the user can jump from site to site
to site without ever needing to know where physically in
the world the next site is located. Thus, there is no way
for a user to pre-register with every computer that might
contain useful content on a particular topic. Moreover,
when an individual is researching a topic on the Internet,
he or she might access dozens of newsgroups, telnet
computers, and ftp, gopher, and Web sites around the world
in a matter of minutes. If a researcher was required to
request access from content providers prior to actually
viewing the information (and prove to the provider that the
researcher was not a minor), the Internet would be
transformed from a dynamic and instantaneous content
searching tool into a cumbersome, multi-step, much slower,
and much less useful research tool. The vibrancy and
immediacy that sparked the Internet's recent extraordinary
expansion and development would be lost.

 61. The inability to predict where on the Internet a user
would want to access information is not limited to
research, and applies equally to any attempt by a user to
access information on the Internet when the individual does
not know in advance the precise location of that
information. There are millions of computers on the
Internet that contain content, and it would be practically
and economically impossible for the tens of millions of
Internet users to pre-register with each of those millions
of content sites, and equally impossible for those millions
of content sites to maintain and instantaneously update
lists of registered users.

 62. For both the speaker and the listener, communications
on the Internet bear virtually no similarity to
communications on television and radio. With radio and
television, the number of speakers is limited by the
available spectrum, the ability to speak is limited by the
high cost of speaking, and listeners are merely passive
recipients of the communications. With the Internet, the
number of speakers is boundless, anyone can speak for
pennies a day (or for free at his or her public library),
and listeners can respond and engage the speaker in an
interactive and on-going dialogue. Furthermore, unlike
television and radio, on the Internet viewers and listeners
generally receive only the communications they
affirmatively request, and are not a passive or "captive"
audience. Moreover, unlike with television and radio, on
the Internet a speaker can reach the entire world (at no
additional cost) yet at the same time can direct his or her
speech to individuals who share an interest in a particular
subject. In the twenty-first century, the Internet -- if
allowed to flourish unhindered by government censorship --
can revive the now-little- used public square and convert
it into a global medium of communication and discourse.

 Content on the Internet

 63. The diversity of content on the Internet is as broad
as the Internet itself. Content can be found on millions of
computers worldwide, and ranges from academic research to
art to humor to literature to medical information to music
to news to virtually anything else. Moreover, at any one
time, the Internet serves as the communication medium for
literally tens of thousands of global conversations,
political debates, and social dialogues. For example, on
the Internet, one can view the full text of the Bible, all
of the works of Shakespeare, and numerous other classic
works of literature. One can browse through paintings from
museums around the world, or view in close-up detail the
ceiling of the Sistine Chapel, or see the latest
photographs transmitted by the Jupiter space probe. One can
even hear pieces of music or view clips of movies and
videos over the Internet.

 64. There is a significant amount of content on the
Internet that could be considered "indecent" for minors in
some communities in the United States, but which most
people would consider to be extremely valuable and
appropriate for adults, and which, in any event, is
constitutionally protected for adults. Such content
includes, for example, great works of art and literature
(containing depictions and descriptions of nudes and sexual
conduct), examples of modern popular culture (containing
popular music, lyrics, movie images, or literature with
sexual content), medical information (containing depictions
and descriptions relating to child birth, sexually
transmitted diseases, and sexually related medical
conditions), and historical and scientific information
(containing, for example, accounts of historic criminal
trials or other historical, sociological, and
anthropological works). Such content, and other content
typically provided by non-commercial providers, is
effectively banned by the Act.

 65. The fear that some communities in the United States
would conclude that this type of valuable material is
"indecent" for minors is well founded. Communities across
the country have banned or sought to ban classic works of
literature, such as Of Mice and Men by John Steinbeck, As
I Lay Dying by William Faulkner, The Adventures of
Huckleberry Finn by Mark Twain, The Adventures of Tom
Sawyer by Mark Twain, Catcher in the Rye by J.D. Salinger,
and I Know Why The Caged Bird Sings by Maya Angelou, as
"indecent" for minors. Even the American Heritage
Dictionary and parts of the Bible have been attacked as
being "indecent" for minors. All of these works (some of
which are available in whole or in part on the Internet),
and works with similar content, are effectively banned by
the Act.

 66. In addition to the above type of content that is
banned by the Act, a tremendous amount of common human
discourse is banned by the Act. In the course of
conversations, discussions and debates, many citizens use
language and imagery that in some communities would be
viewed as "indecent" for minors. Vigorous and heated debate
often occurs with harsh or vulgar words. Many people, and
many speakers on the Internet, use in common discourse
words that describe "sexual or excretory activities or
organs" in terms that might be deemed to be "patently
offensive" for minors. The use of vulgar words in a dialog
with friends -- which would be perfectly legal over the
telephone or in a letter or on a basketball court -- would
be illegal under the Act if sent over the Internet.

 67. There are many examples on the Internet of valuable
content that can be displayed only subject to the threat of
criminal liability and prosecution.

 68. For example, a content provider would reasonably fear
prosecution under the Act for the unrestricted display of
written descriptions of sexual intercourse.

 69. There are available on the Internet important works of
literature that include descriptions of sexual intercourse.


 70. Similarly, a content provider would reasonably fear
prosecution under the Act for the unrestricted display of
images of nude men and/or women.

 71. There are available on the Internet numerous important
works of art -- paintings, drawings and photographs by
great masters and modern artists alike -- that depict nude
men and/or women. An example of such a work of art is
Manet's Olympia.

 72. Similarly, content providers would reasonably fear
prosecution under the Act for engaging in a vigorous online
debate in which there is repeated use of the "seven dirty
words" at issue in the decision in Federal Communications
Commission v. Pacifica Foundation, 438 U.S. 726 (1978).

 73. There are on the Internet -- on a daily basis --
vigorous political, social, and other dialogues and debates
that include unrestricted use of one or more of the "seven
dirty words."

 74. Similarly, a content provider would reasonably fear
prosecution under the Act for the display on a World Wide
Web "home page" of vulgar statements of the type at issue
in Cohen v. California, 403 U.S. 15 (1971).

 75. The Supreme Court has specifically held that the use
of the vulgar statement in Cohen is protected expression,
even when displayed in public areas when children are
present.

 76. Similarly, a content provider would reasonably fear
prosecution under the Act for the display of a parody that
makes explicit assertions about the "sexual or excretory
activities or organs" of a well known public figure, as was
at issue in Hustler Magazine v. Falwell, 485 U.S. 46
(1988).

 77. The Supreme Court specifically held in Falwell that a
parody that made explicit assertions about the "sexual or
excretory activities or organs" of a well known public
figure is protected expression.

 78. Similarly, a content provider would reasonably fear
prosecution under the Act for the unrestricted display of
detailed information concerning birth control and the
transmission of sexually transmitted diseases.

 79. The Supreme Court specifically held in Bolger v.
Youngs Drug Products Corp., 463 U.S. 60 (1983), that such
communications are protected expression and can be mailed,
unsolicited, into homes.

 80. There is a tremendous amount of valuable content on
the Internet that is constitutionally protected for adults,
but is nevertheless subject to prosecution under the Act.

 The Statutory Language At Issue

 81. Signed into law on February 8, 1996, the
Communications Decency Act criminalizes the display and
distribution of constitutionally protected expressive
material.

 82. The Act contains two primary criminal provisions.
Violation of either provision is a felony, punishable by as
much as two years in prison and substantial fines.

 83. Section 502(2) of the Act, to be codified at 47 U.S.C.
Section 223(d), broadly prohibits knowingly using any
"interactive computer service" to send to a specific person
or persons under 18 years of age, or to "display," "in a
manner available to" a person under 18, certain "patently
offensive" communications. Section 502(2) provides, in
pertinent part: (d) Whoever--

 (1) in interstate or foreign communications knowingly--

(A) uses an interactive computer service to send to a
specific person or persons under 18 years of age, or

(B) uses any interactive computer service to display in a
manner available to a person under 18 years of age,

 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; or

 (2) knowingly permits any telecommunications facility
under such person's control to be used for an activity
prohibited by paragraph (1) with the intent that it be used
for such activity,

shall be fined under title 18, United States Code, or
imprisoned not more than two years, or both.

Act Section 502(2).

 84. "Interactive computer service" is defined as "any
information service, system, or access software provider
that provides or enables computer access by multiple users
to a computer server, including specifically a service or
system that provides access to the Internet and such
systems operated or services offered by libraries or
educational institutions." Act Section 502(2) (to be
codified at 47 U.S.C. Section 223(h)(2)) referring to Act
Section 509 (to be codified at 47 U.S.C. Section
230(e)(2)).

 85. The terms "patently offensive," "contemporary
community standards," and "display" are nowhere defined in
the Act.

 86. Another section of the Act, Section 502(1), to be
codified at 47 U.S.C. Section 223(a)(1)(B), prohibits and
criminalizes the use of a "telecommunications device"
knowingly to make or create and "initiate[] the
transmission of, any comment, request, suggestion,
proposal, image, or other communication which is . . .
indecent, knowing that the recipient of the communication
is under 18 years of age." Another provision of the same
section makes it a crime to "knowingly permit[] any
telecommunications facility under [a person's] control to
be used for any activity prohibited by paragraph (1) with
the intent that it be used for such activity." Act Section
502(1) (to be codified at 47 U.S.C. Section 223(a)(2)).

 87. "Telecommunications device" is defined to exclude an
"interactive computer service." Act Section 502(2) (to be
codified at 47 U.S.C. Section 223(h)(1)(B)).

 88. The term "indecent" is not defined.

 89. The Act establishes several defenses a defendant may
assert in a criminal prosecution under the Act. First, no
person shall be held to have violated subsection (a) or (d)
solely for providing access or connection to or from a
facility, system, or network not under that person's
control, including transmission, downloading, intermediate
storage, access software, or other related capabilities
that are incidental to providing such access or connection
that does not include the creation of the content of the
communication.

Act Section 502(2) (to be codified at 47 U.S.C. Section
223(e)(1)).

 90. The phrase "not under that person's control" is
nowhere defined in the Act.

 91. This defense is not available "to a person who is a
conspirator with an entity actively involved in the
creation or knowing distribution of communications that
violate this section, or who knowingly advertises the
availability of such communications." Id. (to be codified
at 47 U.S.C. Section 223(e)(2)). Nor is this defense
available to "a person who provides access or connection to
a facility, system, or network engaged in the violation .
codified at 47 U.S.C. Section 223(e)(3)). The level or
nature of control is not defined.

 92. In addition, the Act provides a defense to a criminal
prosecution under (a)(1)(B) or (d), or under (a)(2) for use
of a facility for an activity under (a)(1)(B), if the
defendant (A) has taken, in 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

(B) has restricted access to such communication by
requiring use of a verified credit card, debit account,
adult access code, or adult personal identification number.

Id. (to be codified at 47 U.S.C. Section 223(e)(5)).
Congress did not provide any details as to what might be
considered a "good faith, reasonable, effective, and
appropriate action[]." Congress did allow the Federal
Communications Commission ("FCC") to promulgate nonbinding
guidelines as to what might be an "appropriate action," but
it now appears that even those guidelines will not be
issued until sometime in 1997 at the earliest, and
compliance with the guidelines will not insulate speakers
from prosecution or conviction under the Act.

 93. Congress made no findings in connection with enacting
Section 502 of the Act. Congress made no findings as to its
purpose or interest in criminalizing online communication
of "indecent" or "patently offensive" materials to, or that
would be available to, persons under age 18. In considering
the Act, Congress made no inquiry into or findings
regarding the extent to which such materials were available
to persons under 18. Congress made no inquiry into or
findings whether the means Congress chose to address
whatever interest it had would substantially further that
interest. Congress made no inquiry into or findings whether
any less restrictive means would substantially further its
interest.

 94. In another section of the Act, however, Congress did
make the following relevant findings: (1) The rapidly
developing array of Internet and other interactive computer
services available to individual Americans represent an
extraordinary advance in the availability of educational
and informational resources to our citizens.

 (2) These services offer users a great degree of control
over the information that they receive, as well as the
potential for even greater control in the future as
technology develops.

 (3) The Internet and other interactive computer services
offer a forum for a true diversity of political discourse,
unique opportunities for cultural development, and myriad
avenues for intellectual activity.

 (4) The Internet and other interactive computer services
have flourished, to the benefit of all Americans, with a
minimum of government regulation.

 (5) Increasingly Americans are relying on interactive
media for a variety of political, educational, cultural,
and entertainment services.

Act Section 509 (to be codified at 47 U.S.C. Section
230(a)) (emphasis added).

 The Impact of the Act on the Internet

 95. Because of the realities of the Internet, the Act
effects a total ban on certain constitutionally protected
speech to adults. The Act reduces discourse on major
portions of the Internet to that which is appropriate for
a young child.

 96. Virtually all of the tens of millions of users of the
Internet -- except those who at all times stand mute in the
discourse that occurs on the Internet -- are content
providers who are subject to the terms of the Act. An
individual is a content provider subject to the Act if he
sends a single e-mail, or participates in a listserv
discussion, or contributes to a USENET newsgroup, or
responds to a survey on the World Wide Web, or establishes
a personal "home page" on the Web, or converses with a
friend through a real time service, or simply places a file
in a publicly available area of a computer or network.

 97. In other words, virtually any use of the Internet
makes someone a content provider subject to the criminal
penalties of the Act. Commercial content providers -- who
typically require a credit card for users' payment -- may
be able to use the credit card defense allowed by the Act.
But for non- commercial content providers, who are
responsible for a major part of communications on the
Internet, there is no practical way the speaker can control
who can access the message. Thus, for the vast majority of
speech on the Internet, it is impossible for the speaker to
prevent the speech from being "display[ed] in a manner
available" to a person under 18. Act Section 502(2).

 98. Because of this impossibility, Section 502(2) of the
Act effectively requires that almost all discourse on the
Internet be at a level suitable for young children. This
provision has the effect of a flat ban on an entire
category of constitutionally protected speech between
adults.

 99. As used by millions of people daily, the primary
methods to access information on the Internet do not permit
individual or non-commercial content providers to control
who on the Internet can access their content. From the
perspective of the content provider, information that is
publicly available on the Internet is available to all
users of the Internet, even users who might be minors.

 100. None of the major methods of accessing information --
including electronic mail, listservs, newsgroups, chat
lines, telnet, ftp, gopher, and the World Wide Web -- has
the ability to track the millions of individuals who access
the Internet and screen out those who are under eighteen
years of age. Although password-required access to content
is possible (and is used in some circumstances), a
password-access system would effectively remove from public
access an enormous volume of valuable content on the
Internet, and would reduce the information available to
adults on the Internet to only content deemed suitable for
minors.

 101. The vast majority of content providers on the
Internet are individuals who post messages to newsgroups
and listservs, and who create content on the World Wide
Web. Those individual content providers could not possibly
create and maintain a database of specific Internet users
who request access to the content and who prove they are 18
or older. Nor could individuals or other non-commercial
content providers practically administer or economically
afford an instantaneous credit card verification system.
Such a requirement would effectively preclude any
communications by those content providers that could be
deemed "indecent" or "patently offensive" for minors.

 102. Even larger organizations that provide content on the
Internet cannot practically or economically track the
millions of Internet users to determine whether those users
are minors or adults.

 103. Moreover, even if pre-registration by content users
were practically or economically possible, the value of the
content would be dramatically diminished because so few
content users would anticipate the need to pre-register for
a particular site. A huge percentage of Internet traffic is
by users engaged in spontaneous and unpredictable research
or searches for content, and a pre-registration requirement
would effectively end this type of search.

 104. As described above, the World Wide Web is a
spontaneous and serendipitous communications medium, in
which a user can jump from site to site to site depending
on what content looks most useful or interesting, without
any pre-registration or advance request. Requiring
pre-registration for all sites that might contain content
arguably covered by the Act (if such pre- registration were
practically possible) would drastically reduce the
usefulness of the World Wide Web.

 105. For other methods of providing content on the
Internet, it is flatly impossible for a content provider to
control who can access the content. With USENET newsgroups,
for example, once a content provider posts a message to a
newsgroup, that message is automatically distributed to
over 190,000 computers around the world, and the individual
content provider has no ability whatsoever to control who
is permitted to access the content on those 190,000
computers. Under the Act, all content posted to USENET
newsgroups must be reduced to a level appropriate for young
children. Similarly, Internet mailing list services such as
"listserv" also do not allow the speaker to control who
receives the communication, and thus speech via a mailing
list service would also be reduced to the level appropriate
for young children.

Ineffectiveness of the Act and Effectiveness of Alternative
Means

 106. The overwhelming majority of content on the Internet
is non-sexual in nature, and is not even arguably
"indecent" or "patently offensive," even for minors.
However, a significant amount of the content on the
Internet could arguably be deemed "indecent" or "patently
offensive" for minors in some communities, and the Act bans
or burdens all of that content.

 107. Although imposing extreme burdens on the Internet,
the Act will in fact have very little impact on the
availability to persons under 18 of "indecent" or "patently
offensive" images or communications on the Internet. At
least in part because Congress held no hearings on the Act,
did not collect information about how the Internet works,
and only haphazardly reviewed the content on the Internet,
the Act does not accomplish or even significantly further
the ostensible goal of limiting access by persons under 18
to "indecent" or "patently offensive" images. There are at
least two reasons why implementation of the Act will be
highly ineffective as a limitation on such access.

 108. First, a high percentage of sexual content on the
Internet originates outside of the United States, and it is
not possible to prevent that content from being "available"
in the United States. To the extent the Act imposes any
burdens on domestic commercial providers of such
communications, those providers will have the option of
moving their operations overseas.

 109. Second, the existence of "anonymous remailers" means
that any content -- indecent or otherwise -- can be placed
onto the Internet anonymously, and the government would be
unable to identify the content provider. Anonymous remailer
systems -- which often are located overseas -- will
automatically receive a communication and forward it to a
destination after having removed all trace of the origin of
the communication.

 110. At bottom, therefore, the Act does little to limit
the ability of commercial or non-commercial entities to
provide "indecent" or "patently offensive" images on the
Internet.

 111. A critical difference between the Act's attempt to
regulate indecency on the Internet and prior governmental
attempts to regulate indecency (over radio, television, and
telephone sex lines, for example) is that there are tens of
millions of speakers on the Internet, with no bottleneck
through which all of the speech must pass.

 112. There are alternative means that are far more
effective in limiting a minor's access to "indecent" or
"patently offensive" communications. The only place where
it is practically possible to screen out commercial
indecency, non- commercial indecency, domestic indecency,
overseas indecency, intentional indecency, inadvertent
indecency, and anonymous indecency is in the computer that
is attempting to receive the speech.

 113. The government's legitimate interest in aiding
parental control over the Internet material their children
access may be served by several means that are both less
restrictive and more effective than a blanket ban on
"indecent" or "patently offensive" communications. Parents
have control over their children's access to communications
through interactive computer services. For example, parents
can deny their child access to the computer; parents can
supervise their child's use of interactive computer
services; parents can decline to subscribe to interactive
computer services until their child is older; parents can
take advantage of the free screening and blocking options
available at no extra charge from commercial online
services; and parents can obtain software (some of it free,
and most of it for a very modest cost) for their home
computers to screen material they find objectionable.

 114. Commercial online services such as America Online,
CompuServe, the Microsoft Network, and Prodigy offer
technologies that allow parents to block their children's
access to certain online forums and areas where children
might be exposed to inappropriate content. These online
services, for example, include a feature that allows
parents to prevent their children from accessing
interactive discussion forums (chat rooms). They also offer
parents the ability to block access to all or portions of
the Internet, including the World Wide Web and USENET
newsgroups, based on keywords, subject matter, or specific
newsgroups. These tools can be configured to block access
to groups based on any keyword.

 115. In addition, a variety of software providers have
developed applications to use in conjunction with
commercial online services, over and above the parental
control features provided by commercial services, while
others are designed specifically for direct access.
SurfWatch, for example, allows parents to block their
child's access to USENET newsgroups, World Wide Web,
gopher, and ftp sites with sexually explicit content. When
activated with a private password held only by a parent,
SurfWatch completely prevents any user from accessing these
areas. The service automatically updates the list of
blocked sites, without any intervention required from the
user. NET NANNY, another example, contains a dictionary in
which the parent can enter the names of sites that contain
sexually explicit or other material. Parents may also enter
phrases which if transmitted or received will automatically
disconnect the network. Among other things, the program
also keeps a log of all activity that occurs on the
computer, allowing parents to monitor their children's use
of the computer.

 116. Products such as the Netscape Proxy Server and
WEBTrack provide schools and businesses the ability to
block specific sites from access by all users on the
network, and to track and monitor use of the Internet.

 117. Because the Internet is a global network with
millions of users, speaker-based content restrictions
cannot effectively control the availability of materials
inappropriate for children. The only effective way to
protect children from inappropriate material on the
Internet is to encourage the continued development and
deployment of user-based tools that empower parents to
control their children's online activities based on the
parents' views of what is appropriate for their children.
The products described here, and others like them, provide
parents these tools, and can do so without the need for
criminalizing or banning the distribution to adults of
constitutionally protected communications.

 Speech of the Plaintiffs and the Impact of the Act

 118. The plaintiffs (and the plaintiffs' members,
subscribers, patrons, and customers) interact with and use
the Internet, and cyberspace generally, in a wide variety
of ways, and they are burdened by the Act in an equally
wide variety of ways. Plaintiffs include content providers
on the Internet, access providers to the Internet, and
users of the content on the Internet. The Act burdens
plaintiffs in all of these capacities.

 119. Plaintiffs who are content providers (or whose
members or customers are content providers) are expressly
subject to the Act. Under the Act, anyone who speaks on the
Internet is a content provider. These plaintiffs do not
understand what standard for indecency should be used under
the Act, how the standard applies to the plaintiffs'
speech, or how numerous other provisions of the Act are to
be understood and applied. These plaintiffs provide content
that would likely or possibly be found to be indecent as to
a young child in some communities. Accordingly, they are
subject to prosecution under the Act. These plaintiffs will
either self-censor their speech or will continue to speak
under the threat of prosecution.

 120. Plaintiffs who are, or whose members are, access
providers (including "Internet service providers" or
"ISPs") are expressly subject to the Act. As access
providers these plaintiffs enable their customers and users
to use plaintiffs' facilities to link to the Internet.
Although the Act provides defenses for access providers,
access providers reasonably fear that these defenses will
not be construed and applied as broadly as Congress
intended, and they therefore fear they may be directly
subject to prosecution under the Act. These plaintiffs will
continue to provide access under the threat of prosecution.


 121. All plaintiffs (and their members and customers) are
users of the Internet. These plaintiffs and other users
have a right to engage in ordinary human discourse free
from the threat of prosecution created by the Act. In
particular, these plaintiffs and other users have a right
to receive content that is criminalized under the Act.

 122. Plaintiffs AMERICAN LIBRARY ASSOCIATION ("ALA") and
FREEDOM TO READ FOUNDATION ("FTRF") sue on behalf of
themselves, their members, who are libraries and librarians
across the country, and their members' patrons. These
libraries recognize that the Internet offers their patrons
a unique opportunity to access information, and many
libraries provide their patrons with facilities the patrons
can use to access the Internet. Many libraries also have
their own World Wide Web sites on the Internet. Thus, in
addition to providing patrons with access to the Internet,
where they can access information posted by third parties,
libraries post their own material on the Internet. Many
libraries post their card catalogues, post information
about current events, sponsor chat groups, post textual
information or art on the library Web site, or post
licensed online versions of reference and other materials
from their library collections. Patrons could, for example,
access the Web site of a library anywhere in the country to
peruse its card catalogue, review an encyclopedia
reference, or check a definition in the dictionary. These
libraries and librarians are injured by the Act. Because of
fear of prosecution, they will be chilled from posting
materials on the Internet that might be deemed "patently
offensive" or "indecent" for minors by some communities.
Given the global and unrestricted nature of the Internet,
the lack of precision in the definition of "indecency," and
the past attempts by some persons to ban literature and
reference items from library collections, many of ALA's and
FTRF's members may choose not to post a substantial amount
of expressive material at all -- material that many adults
might consider useful for themselves or their own children
-- rather than risk prosecution for posting material that
someone in some other part of the nation might deem
"indecent" or "patently offensive" for minors. As a result
of the Act, the library patrons ALA and FTRF members serve
will be limited in the constitutionally protected
information that would otherwise be available to them on
the Internet. These plaintiffs (and their members) sue in
their capacity as content providers, access providers, and
users of the Internet, and on behalf of their patrons who
are content providers and users of interactive computer
services.

 123. Plaintiffs AOL, COMPUSERVE, MSN, and PRODIGY sue on
their own behalf and on behalf of their subscribers. As
online service providers, these plaintiffs are content
providers and access providers, and their customers are
content providers and users of the Internet. These
plaintiffs create content and make it available both to
their customers and to the entire world of Internet users.
They also allow their customers to create content on the
Internet (including the creation of personal Web pages). As
speakers, these plaintiffs and their customers are chilled
by the Act in what they can say on the Internet and on
their own online services. As access providers, these
plaintiffs fear they may be at risk of prosecution under
the Act for what others say. And as users, these plaintiffs
and their customers are limited by the Act to the ability
to access only content that is suitable for a young child.

 124. Plaintiff MICROSOFT CORPORATION ("Microsoft") sues on
its own behalf as a content provider, access software
provider, and user of the Internet. Microsoft provides
content on the Internet through MSN, on its own Web sites,
and through postings, messages, and other contributions to
the Internet. Microsoft's diverse content includes
compilations of musical, artistic, literary and
encyclopedic information, news and current events, and
other content. Some of this content might be considered
"indecent" or "patently offensive" in some community in the
nation, exposing Microsoft to the risk of prosecution under
the Act. As an access software provider, Microsoft sells or
plans to sell software for accessing and exploring the
Internet, for establishing and maintaining Internet servers
and related services, and for creating Web sites and other
Internet content. As users, Microsoft and its employees are
chilled in what they can say and the frankness of their
discussion in communications posted to or transmitted over
the Internet, and are exposed to a risk of prosecution
under the Act. Microsoft believes that the defenses
provided in Section 502(2) of the Act are provided only to
access providers, not to content providers and/or users,
and that as to access providers, including access software
providers, they are inadequate, incomplete, and expose
Microsoft to potential prosecution under the Act. In
addition, the chilling effect of the Act on other content
providers and users of the Internet will damage Microsoft
by reducing the market for access software, services
software, and content- creation software.

 125. Plaintiff APPLE COMPUTER, INC. ("Apple") sues on its
own behalf as a content provider, access software provider
and user of the Internet. Apple provides content on the
Internet through eWorld, on its own Web sites, and through
postings, messages and other contributions to the Internet.
Because of the vagueness of the Act, Apple is uncertain
whether some of this content might be considered "indecent"
or "patently offensive" in some community in the nation,
exposing Apple to the risk of prosecution under the Act. As
users, Apple and its employees are chilled in what they can
say and the frankness of their discussion in communications
posted to or transmitted over the Internet, and are exposed
to a risk of prosecution under the Act. In addition, the
chilling effect of the Act on other content providers and
users of the Internet will damage Apple by reducing the
market for Internet software.

 126. Plaintiff COMMERCIAL INTERNET EXCHANGE ASSOCIATION
("CIX") sues on behalf of its member Internet service
providers ("ISPs") and the customers of their members. CIX
members typically serve as passive carriers who offer
access or transmission, and related incidental
capabilities, for the Internet transmissions of others; as
such they are clearly covered by the defense of Section
223(e)(1). However, because of ambiguity in this defense,
CIX members who operate news servers that carry USENET
content are uncertain whether they may be held liable for
the content of others that resides temporarily on members'
USENET news servers, and is accessed by users from such
servers. In addition, many CIX members also assist content
providers in establishing and operating Web sites. In this
capacity CIX members will often be at risk of prosecution
under the Act for what others say. Due to fear of
prosecution, CIX members are chilled from assisting
providers of valuable content that may be deemed indecent.
Furthermore, CIX members have a strong interest in the
continued growth of the Internet as a means of
communication, and in their subscribers' rights to free
expression over the Internet. The Act undermines both
interests.

 127. Plaintiff NETCOM ON-LINE COMMUNICATION SERVICES, INC.
("NETCOM") sues on its own behalf and on behalf of its
subscribers. As a provider of Internet access and services,
NETCOM is both a content provider and an access provider.
NETCOM's individual subscribers create content on the
Internet, such as through the posting of personal web
pages, and make that content available both to their own
customers and to the entire world of Internet users. As
speakers, NETCOM and its subscribers are chilled in what
they can say on the Internet and on their own Internet
sites. As an access provider, NETCOM cannot control what
others say, yet faces the risk of prosecution under the Act
for the speech of others made available through its
systems. As users of the Internet, NETCOM and its
subscribers are limited by the Act to accessing and
producing only content that is suitable for a young child.

 128. Plaintiff OPNET, INC. ("OpNet") sues on its own
behalf and on behalf of its subscribers. As a provider of
Internet access and services to subscribers, OpNet faces
uncertainty as to the applicability of the Act's defenses.
OpNet also fears that it will be construed to have
liability for content posted by third parties through its
systems.

 129. Plaintiff INTERACTIVE SERVICES ASSOCIATION ("ISA")
sues on behalf of its members, who include the major
commercial online services, and other content providers,
access providers, and users of the Internet. As with the
online services, ISA's members risk prosecution for
engaging in, or serving as a conduit for, constitutionally
protected speech that might be deemed indecent.
Accordingly, the Act will chill ISA members from exercising
their First Amendment rights.

 130. Plaintiff ASSOCIATION OF AMERICAN PUBLISHERS ("AAP")
sues on behalf of its members, who are content providers
on, and users of, the Internet. Although rooted in print
publishing, AAP's members are very actively involved in the
Internet. AAP's members create electronic products to
accompany and supplement their printed books and journals;
create custom educational material on the Internet,
publishing on and to demand; communicate with authors and
others, receiving manuscripts, and editing, typesetting,
and designing books electronically; transmit finished
product to licensed end-user customers; communicate with
bookstores and other wholesale and retail accounts; and
promote authors and titles online. Many of AAP's members
have Web sites and provide content to the world on the
Internet. Some of the content provided by AAP's members
might be considered "indecent" or "patently offensive" for
minors in some communities (as most of the efforts to ban
books in communities have been directed at books published
by AAP's members).

 131. Plaintiff AMERICAN SOCIETY OF NEWSPAPER EDITORS
("ASNE") sues on behalf of its members, who are editors of
daily newspapers throughout the United States that, in
addition to publications in print form, are now or soon
will be published in electronic formats available to the
public on the Internet or through online service providers.
Historically, the First Amendment guarantee of "freedom of
the press" has protected newspapers from government-imposed
content restrictions which, like those in the Act, prohibit
and punish the dissemination of materials considered
"indecent" or "patently offensive" with respect to
non-adult readers. By its terms, however, the Act can be
applied to the press in the same manner that it can be
applied to any other person. ASNE members, who make the
editorial decisions regarding what content will be
published in the daily editions of their newspapers, are
concerned that the Act will require them to censor the
online version of their print editions according to these
vague and overbroad statutory standards, thereby
restricting the content of the "electronic" edition of the
daily newspaper in ways that the First Amendment does not
tolerate with respect to the traditional hard-copy print
edition. For this reason, ASNE believes the Act imposes an
unprecedented but very real threat of unconstitutional
press censorship which could throttle the Internet's
potential to greatly enhance the diversity, availability,
timeliness, quality, and utility of daily newspapers by
creating a powerful disincentive for publication through
the use of interactive media technologies.

 132. Plaintiff NEWSPAPER ASSOCIATION OF AMERICA ("NAA")
files this lawsuit on behalf of its members, a majority of
which are daily newspapers in the United States. Approxi-
mately 175 daily newspapers in North America are currently
available on the Internet, via commercial online services
or through local bulletin board services. As content
providers, newspapers have utilized the Internet to provide
electronic versions of their printed product. In fact, many
newspapers provide archives of their print product online.
As access providers, newspapers have established electronic
forums for local communities to communicate and to conduct
business. While the content in newspapers is considered
neither indecent nor patently offensive when published on
newsprint, it now may be when published electronically. The
dual standard imposed by the Act will force newspapers to
edit out content from publications offered on the Internet
-- content that is constitutionally protected and not
subject to challenge in printed form. In many cases,
newspaper publishers will be forced to edit content
contained in the archived electronic version of the
newspaper already placed on the Internet long before the
Act went into effect. Thus, the Act will seriously infringe
upon the rights of NAA members to publish constitutionally
protected news and information.

 133. Plaintiff ASSOCIATION OF PUBLISHERS, EDITORS AND
WRITERS ("APEW") sues on behalf of its members, who write
and publish in print and online. Members of APEW include
the San Francisco Guardian, the largest and oldest
independently owned alternative newsweekly in the United
States; the Internet Press Guild, an unincorporated
association of writers, authors and journalists who publish
their works online; the California First Amendment
Coalition, a nonprofit, public interest corporation whose
membership comprises approximately 700 individuals and
organizations, including most of California's daily
newspapers, many weekly and student newspapers,
broadcasters, law firms and others; and individual writers
and editors including Jim Warren, a columnist and advocate
for open government, and owner and editor of the listserv
GovAccess; Professor David Farber of the University of
Pennsylvania; John Quarterman, a columnist and Secretary of
Matrix Information and Directory Services, Inc.; T. Bruce
Tober, a freelance writer who researches and writes about
the Internet for a variety of print and online
publications; Stephanie Stefanac, Editor of MacWorld
Online, a monthly trade publication for users of the
Macintosh computer manufactured by Apple Computer Co.; and
Rogier van Bakel, a Contributing Editor to Wired Magazine.
The members of APEW face criminal prosecutions under the
Act for the online publication of works which some
communities might find "indecent" or "patently offensive."
The vagueness of the Act leaves APEW members uncertain
whether the publication of their works over the Internet
would be a crime.

 134. Plaintiff SOCIETY OF PROFESSIONAL JOURNALISTS sues on
its own behalf and on behalf of its members. The Society's
membership produces a tremendous volume of content made
available over the Internet: news stories, special interest
articles, columns, and opinion pieces, among many others.
Each year brings a dramatic increase in the importance of
electronic media as a venue for distributing the news and
opinion pieces produced by professional journalists. The
members of the Society fear that their right and ability,
traditionally protected by the First Amendment, to engage
in an unfettered marketplace of ideas and expression will
be severely compromised by the Communications Decency Act.
In addition, the Society operates a listserve called
"SPJ-L," a forum among more than 1,000 Internet users (both
Society members and non-members) from roughly 25 countries
to discuss and debate primarily journalism-related issues.
Though, or perhaps because, it typically addresses topics
of the utmost seriousness and importance for journalists,
the language used in messages posted on SPJ-L can be
offensive, harsh, and vulgar. The Society does not edit
these messages for content. By continuing to provide this
forum for discussion and debate, the Society risks
prosecution under the Act. Its members, whose writings and
other speech would be protected by the First Amendment in
the context of other media, will be chilled by the Act from
engaging in constitutionally protected speech over the
Internet.

 135. Plaintiff HOTWIRED VENTURES LLC ("HotWired Ventures")
sues on its own behalf and on behalf of its subscribers.
HotWired Ventures operates an online magazine named
Hotwired. Some of HotWired's editorial content might be
considered "indecent" or "patently offensive" for minors in
some communities. HotWired features articles containing
facts about and opinions on popular culture. These articles
sometimes contain vulgar language and references to, inter
alia, sexual acts and sexual organs. One area of HotWired's
editorial focus is cyberspace-related issues, including
governmental attempts to censor and regulate the Internet.
These articles sometimes employ vulgar language in
expressing opinions about this topic, and may contain
references to, and discussions of, examples of material
that might be deemed "patently offensive" or "indecent"
under the Act. In addition, HotWired operates a regular
section called Piazza, an interactive discussion area where
members can communicate with each other both through
asynchronous postings called "threads" and in real time
"chat rooms," sharing opinions and engaging in outspoken
discourse which can involve vulgar language and may involve
sexually explicit subject matter. Plaintiff WIRED VENTURES,
LTD. ("Wired Ventures") sues on its own behalf and on
behalf of its subscribers. Wired Ventures publishes Wired
Magazine, a print publication. Like HotWired, Wired
publishes articles and short fiction that sometimes contain
vulgar language and references to sexual acts or sexual
organs. Many articles published in Wired are also published
online by HotWired. Thus, some articles that are perfectly
legal for minors or adults in print form are nevertheless
banned from the Internet. The Act creates the anomalous
situation that a publication that is a leading commentator
on issues and events online may not under the Act be able
to publish online articles about the Internet that can be
published in print. HotWired Ventures and Wired Ventures
believe that the Act would severely infringe their right to
publish constitutionally protected material and their
readers' right to choose to read such material.

 136. Plaintiff AMERICAN BOOKSELLERS ASSOCIATION ("ABA")
sues on behalf of its member bookstores (as content
providers and users) and their patrons (as users of the
Internet). Although ABA's members are not "adult
bookstores," many of ABA's members sell materials that deal
frankly with the subject of human sexuality. Some member
bookstores have their own Web pages that discuss the
content of books the stores sell. Most member bookstores
use the Internet and electronic communications to obtain
information and excerpts of books from publishers. ABA
members' right to learn about, acquire, and distribute
constitutionally protected materials, and their patrons'
right to purchase such constitutionally protected
materials, will be seriously infringed by the Act.

 137. Plaintiff FAMILIES AGAINST INTERNET CENSORSHIP
("FAIC") is a national organization of parents dedicated to
the proposition that they, not the government, should
decide what their children should be able see or receive.
FAIC sues on behalf of its members. As parents, FAIC's
members are deprived of the opportunity to raise their
children as they see fit. As users of the Internet, the Act
violates FAIC's members' rights to receive material
suitable for adults.

 138. Plaintiff CITIZENS INTERNET EMPOWERMENT COALITION
("CIEC") sues on behalf of its members as content
providers, access providers, and users of the Internet. In
particular, CIEC and its members are injured because the
Act deprives parents of the ability to determine the
content their children, including older teenagers, should
have access to on the Internet.

 139. Notwithstanding the defenses set forth in the Act,
and the fact that Congress expressly directed courts to
construe those defenses broadly, plaintiffs reasonably fear
prosecution under 47 U.S.C. Section 223(d)(1)(B), as
enacted by Section 502(2), for knowingly permitting their
services or computers to be used to display indecent
material in a manner available to persons under age 18, or
to transmit such material to specific persons under age 18.
Unless and until the defendants or the Courts make clear
that these defenses must be broadly construed, there is
nothing to prevent an aggressive prosecutor, in a
particularly intolerant community, from bringing a
prosecution and urging that the defenses be construed more
narrowly than plaintiffs believe Congress intended.

 140. For these reasons, plaintiffs reasonably fear that
the defense in 47 U.S.C. Section 223(e)(1) may not protect
online service providers from criminal conviction for
indecent expression by third parties when that expression
is located on the providers' computers (such as when an
individual computer user posts a vulgar message to an
online discussion). Plaintiffs reasonably fear that the
defense may apply only to the extent an online service acts
as a mere conduit to enable its subscribers to gain access
to another network.

 141. The speech at issue in this case is fully protected
by the First Amendment. "Indecent" speech or "patently
offensive" communications, while considered by some to be
offensive or sexually suggestive, are not obscene. Such
speech can have serious literary, artistic, political or
other merit, and thus has considerable value to adults and
to society as a whole.

 142. The Internet, and cyberspace generally, carries a
significant amount of communications, images and text that
might be deemed inappropriate, "indecent" or "patently
offensive" for younger children (for example, in elementary
school), but which would not, under the same community
standards, be deemed inappropriate, "indecent" or "patently
offensive" for older minors (for example, in high school or
early college). The Act makes no distinction between these
age groups, and would criminalize a university professor's
distribution -- using the university's interactive computer
service -- of "indecent" but classic works of literature to
a 17-year-old freshman.

 143. Dissemination of many of the same communications
whose dissemination via interactive computer services is
made criminal by the Act would not be unlawful if
disseminated by traditional print media (e.g., newspaper or
magazine) or by using the United States mail. Thus, many of
the very same communications the Act makes it unlawful to
make available to minors through interactive computer
services can lawfully be made available through other
media, and are, in fact, so available.

 144. Any government regulation of "indecent" or "patently
offensive" speech may withstand constitutional scrutiny
only if it both serves a "compelling interest" and is "the
least restrictive means" to advance that interest, and only
if the benefit gained from the Act outweighs the loss of
constitutionally protected rights.

 145. The government has no legitimate, much less
"compelling," interest in preventing adults from sending or
receiving "indecent" or "patently offensive" speech. The
government has no legitimate, much less "compelling,"
interest in preventing older children from sending or
receiving speech that would only be deemed "indecent" or
"patently offensive" if communicated to younger children.


 146. One legitimate interest the government does have --
and the only interest articulated in the Act (Section 509,
to be codified at 47 U.S.C. Section 230) -- is to assist
parents in supervising their children's access to
expressive materials. The Act does not, however, further
that interest. Indeed, the Act interferes with that
interest because parents who decide their children, whether
7 or 17, should have access to some materials that some
community might deem "indecent" or "patently offensive" for
those children are prevented from exercising their parental
judgment by the Act's blanket prohibition on all access by
all persons under 18 to all such materials.

 147. Even if the government had a legitimate interest,
more broadly, in preventing interactive computer service
access by all persons under 18 to communications that some
community might deem "indecent" or "patently offensive" to
them, the Act would not materially further that interest.
Among other things, communications of foreign origin are
freely accessible on the Internet, and the United States
government has no means to prosecute foreign
content-providers for violation of the Act, or to deter
such postings. Furthermore, existing statutes and other
provisions in the Act already prohibit the use of computers
to disseminate obscenity, child pornography, harassing
speech, enticing or luring minors into inappropriate
activities, and other speech that is not protected even for
adults.

 148. Even if the Act could be viewed as substantially
furthering a compelling governmental interest in protecting
minors from "indecent" or "patently offensive"
communications, it is not the least restrictive means of
achieving that interest. The screening and blocking tools
described above achieve that interest far more effectively
than does the Act itself, and with no adverse impact on the
constitutional rights of adults. Efforts by government to
spur the further development of such tools would further
the claimed governmental interest more directly and
materially than does the Act.

 149. Even if the Act could be viewed as the least
restrictive means to further a compelling governmental
interest in protecting minors from "indecent" or "patently
offensive" communications, any benefit gained from the Act
would be far outweighed by the loss of constitutionally
protected rights of adults, because only some applications
of the Act will in fact protect minors, but every
application of the Act will punish or deter speech that is
constitutionally protected for adults.

 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. Section 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. Section 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 SectionSection 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. Section
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 Section 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." Section 223(e)(1).

 171. For similar reasons, plaintiffs cannot with
reasonable certainty rely on the access provider defense,
Section 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, Section
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 Section 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.
SectionSection 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
[phone]

  ____________________________

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
[phone]

 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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