TNA-GOLD 1/TNA-GOLD - Volume 1.iso/24hours/text_of_.txt

Text File | 1996-03-11 | 12KB | 257 lines

[Prev|Next| Index] Text of CDA decision Fri, Feb 16, 1996 1:47:00 PM

Text of CDA Decision

---------------------------------------------------------------------------
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs

v.

JANET RENO, Defendant

CIVIL ACTION NO. 96-963

MEMORANDUM

BUCKWALTER, J. February 15, 1996

I. BACKGROUND

Plaintiffs are providers and users of on-line communications. The
affidavits filed in support of plaintiffs' request for a temporary
restraining order (TRO) support the statement in plaintiffs' brief (page 2)
that these communications deal with issues involving sexuality,
reproduction, human rights, social responsibility, environmental concerns,
labor, conflict resolution, as well as other issues, all of which have
significant educational, political, medical, artistic, literary and social
value.

On February 8, 1996, President Clinton signed into law the
Telecommunications Act of 1996. Title V of the Act includes the provisions
of the Communications Decency Act of 1996 (CDA), codified at 47 U.S.C.
Section 223 (a) to (h).

Pertinent to the matter now before this court, Section 223 (a) (1) (B)
provides:

(a) Whoever -- (1) in interstate or foreign communications --

(B) by means of a telecommunications device knowingly --

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion,
proposal, image, or other communication which is obscene or indecent,
knowing that the recipient of the communication is under 18 years of age,
regardless of whether the maker of such communication placed the call or
initiated the communication;

Section 223 (d) provides:

(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 communications 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.

In seeking a TRO with regard to the above provisions/1, plaintiffs claim
that they will be irreparably harmed because their rights under the First
Amendment will be infringed. They fear prosecution under the CDA because as
a result of the vagueness of the crimes created by the Act, they do not
even know what speech or other actions might subject them to prosecution.
Thus, even attempts to self- censor could prove fruitless. There is also
the concern by those plaintiffs who rely on on-line providers and other
carriers that these providers will likely ban communications that they
consider potentially "indecent" or "patently offensive" in order to avoid
criminal prosecution themselves, thereby depriving plaintiffs of the
ability to communicate about important issues.

The defendant counters by stating that there must be a realistic danger of
sustaining a direct injury as a result of the statute's enactment or
enforcement, apparently suggesting that plaintiffs' fears of prosecution
are imaginary or speculative. There is no evidence on the present record to
suggest defendant's position is correct in the latter regard.

Moreover, the defendant's brief quotes a portion of a Third Circuit case
for the proposition that "the assertion of First Amendment rights does not
automatically require a finding of irreparable injury." What the defendant
failed to cite from that case was the sentence immediately preceding the
above quote which was, "It is well established that the loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Hohe v. Casey, 868 F.2d 69, at 72, 73 (3d
Cir. 1989). The Hohe case goes on to explain that plaintiff must show "a
chilling effect on free expression." That has been shown in this case by
affidavits previously referred to.

What likelihood is there that plaintiffs will prevail on the merits? In
Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d Section
2948.3, it is suggested that this concept of probability of success on the
merits must be considered and balanced with the comparative injuries of the
parties.

As the Second Circuit put it, when

the balance of hardship tips decidedly toward plaintiff. .. .it will
ordinarily be enough that the plaintiff has raised questions going to the
merits so serious, substantial, difficult and doubtful, as to make them a
fair ground for litigation and thus for more deliberative investigation.
Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953).

I believe plaintiffs have, at least with regard to 47 U.S.C. Section 223
(a) (1) (B) (ii) and (a) (2) raised serious, substantial, difficult and
doubtful questions which are fair grounds for this litigation.

In explaining my reason for this conclusion, I will not go through a
piecemeal analysis of the cases, all of which have been set forth in both
plaintiffs' and defendant's briefs, except, perhaps, in passing while
discussing the respective arguments of the parties.

First of all, I have no quarrel with the argument that Congress has a
compelling interest in protecting the physical and psychological well-being
of minors. Moreover, at least from the evidence before me, plaintiffs have
not convinced me that Congress has failed to narrowly tailor the CDA.

Where do I feel that the plaintiffs have raised serious, substantial,
difficult and doubtful questions is in their argument that the CDA is
unconstitutionally vague in the use of the undefined term, "indecent."
Section 223 (a) (1) (B) (ii).

This strikes me as being serious because the undefined word "indecent",
standing alone, would leave reasonable people perplexed in evaluating what
is or is not prohibited by the statute.

It is a substantial question because this word alone is the basis for a
criminal felony prosecution.

It is a difficult question, I think, because any laws affecting freedoms
such as the ones here in question have spawned opinions which arguably
support both sides.

Finally, it is a doubtful question because it is simply is not clear,
contrary to what the government suggests, that the word "indecent" has ever
been defined by the Supreme Court. See Alliance for Community Media v.
F.C.C., 56 F.3d 105 (D.C. Cir. 1995) p. 130, footnote 2:

We note that the Supreme Court has never actually passed on the FCC's broad
definition of "indecency". See Action for Children's Television v. FCC, 852
F.2d. 1332, 1339-39 (D.C. Cir. 1988) (acknowledging that in FCC v. Pacifica
Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the
Supreme Court never specifically addressed whether the FCC's generic
definition of indecency was unconstitutionally vague, but arguing that
because the Court "implicitly" approved the definition by relying on it,
lower courts are barred from addressing the vagueness issue on the merits.

Parenthetically, I had reached the same conclusion as Judge Wald, author of
the above footnote, before reading Alliance for Community Media. That, of
course, does not mean that we are correct but it did reinforce my belief
that the question of vagueness is a difficult and doubtful one.

In connection with the vagueness argument, the government correctly states
that plaintiffs face a most difficult challenge. That challenge has been
stated as one in which "the challenger must establish that no set of
circumstances exists under which the Act would be valid." Rust v. Sullivan,
500 U.S. 173, 183 (1990) (quoting United States v. Salerno, 481 U.S. 739,
745 (1987).

It is hard to imagine a set of circumstances where an act proscribing
certain conduct could be rendered valid if the description of that conduct,
the violation of which is a felony, is vague.

Defendant seems to argue that an indecent communication means the same as a
communication that in context, depicts or describes "in terms patently
offensive as measured by contemporary community standards, sexual or
excretory activities or organs. . . ."

While I do not believe the patently offensive provision of Section 223 (d)
(1), quoted above, is unconstitutionally vague, I do not see how that
applies to the undefined use of the word "indecent" in Section 223 (a) (1)
(B) (ii). Depending on who is making the judgement, indecent could include
a whole range of conduct not encompassed by "patently offensive."

The remaining considerations relative to a TRO request weigh in favor of
plaintiffs. I have not overlooked or ignored the outstanding argument made
by the government in part 1 of its brief. I particularly have pondered the
oft cited quote: When a court is asked to invalidate a "statutory provision
that has been approved by both Houses of the Congress and signed by the
President, particularly an Act of Congress that confronts a deeply vexing
national problem, it should only do so for the most compelling
constitutional reasons." Mistretts v. United States, 488 U.S. 361, 384
(1989), p. 17 of defendant's brief.

It is, of course, impossible to define conduct with mathematical certainty,
but on the other hand, it seems to me that due process, particularly in the
arena of criminal statutes, requires more than one vague, undefined word,
"indecent."

It is a most compelling constitutional reason to require of a law that it
reasonably informs a person of what conduct is prohibited particularly when
the violation of the law may result in fines, imprisonment, or both.

An order follows.

n1/ Plaintiffs have also sought relief as to 18 U.S.C. Section 1462, but at
this early stage of the litigation, it seems clear that no irreparable harm
will befall plaintiffs. (See Gov't Ex. 13).

========================================================================

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs

v.

JANET RENO, Defendant

CIVIL ACTION NO. 96-963

ORDER

This case is before the court on plaintiffs' motion for a temporary
restraining order against enforcement of both 47 U.S.C. Section 223 (a) (1)
(B) (as amended by the Telecommunications Act of 1996, Section 502), and 47
U.S.C. Section 223 (d). The court having considered plaintiffs' submissions
in support of their motion, and defendants' submission in opposition
thereto,

IT IS HEREBY ORDERED THAT plaintiffs' motion for a temporary restraining
order is GRANTED, in part, as follows:

The defendant, her agents, and her servants are hereby ENJOINED from
enforcing against plaintiffs the provisions of 47 U.S.C. Section 223 (a)
(1) (B) (ii), insofar as they extend to "indecent", but not "obscene". The
plaintiffs' motion is in all others respects, DENIED.

Unless previously ordered by this court, pursuant to 28 U.S.C. Section 223
Section 2284 (b) (3), this order shall remain in force only until the
hearing and determination by the district court of three judges of the
application for a preliminary injunction.

SO ORDERED this 15th day of February, 1996

BY THE COURT:

__________________________ RONALD L. BUCKWALTER, J.

cc: Counsel of record via FAX by chambers 2/15/96.
---------------------------------------------------------------------------
24 hours of Democracy Web site | Random Access | www.gulker.com | Help/Info
---------------------------------------------------------------------------
Keywords: "San Mateo County", "California", email: [e-mail]