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                IN THE UNITED STATES DISTRICT COURT

             FOR THE EASTERN DISTRICT OF PENNSYLVANIA





AMERICAN CIVIL LIBERTIES UNION,    :    CIVIL ACTION

    et al.,                        :

                                   :

               v.                  :

                                   :

JANET RENO, Attorney General of    :

   the United States               :    No. 96-963



_____________________________________________________________



AMERICAN LIBRARY ASSOCIATION,      :    CIVIL ACTION

  INC., et al.,                    :

                                   :

               v.                  :

                                   :

UNITED STATES DEP'T OF JUSTICE,    :

   et al.                          :    No. 96-1458

















Before:   Sloviter, Chief Judge, United States Court of Appeals

          for the Third Circuit; Buckwalter and Dalzell, Judges,

          United States District Court for the Eastern District

          of Pennsylvania





                           June 11, 1996











        ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION





                                I.

                           INTRODUCTION

                       Procedural Background

          Before us are motions for a preliminary injunction

filed by plaintiffs who challenge on constitutional grounds

provisions of the Communications Decency Act of 1996 (CDA or "the

Act"), which constitutes Title V of the Telecommunications Act of

1996, signed into law by the President on February 8, 1996.[1]

Telecommunications Act of 1996, Pub. L. No. 104-104,  502, 110

Stat. 56, 133-35.  Plaintiffs include various organizations and

individuals who, inter alia, are associated with the computer

and/or communications industries, or who publish or post

materials on the Internet, or belong to various citizen groups.

See ACLU Complaint ( 7-26), ALA First Amended Complaint ( 3,

12-33).

          The defendants in these actions are Janet Reno, the

Attorney General of the United States, and the United States

Department of Justice.  For convenience, we will refer to these

defendants as the Government.  Plaintiffs contend that the two

challenged provisions of the CDA that are directed to

communications over the Internet which might be deemed "indecent"

or "patently offensive" for minors, defined as persons under the

age of eighteen, infringe upon rights protected by the First

Amendment and the Due Process Clause of the Fifth Amendment.

          Plaintiffs in Civil Action Number 96-963, in which the

lead plaintiff is the American Civil Liberties Union (the

ACLU),[2] filed their action in the United States District Court

for the Eastern District of Pennsylvania on the day the Act was

signed, and moved for a temporary restraining order to enjoin

enforcement of these two provisions of the CDA.  On February 15,

1996, following an evidentiary hearing, Judge Ronald L.

Buckwalter, to whom the case had been assigned, granted a limited

temporary restraining order, finding in a Memorandum that 47

U.S.C.  223(a)(1)(B) ("the indecency provision" of the CDA) was

unconstitutionally vague.  On the same day, Chief Judge Dolores

K. Sloviter, Chief Judge of the United States Court of Appeals

for the Third Circuit, having been requested by the parties and

the district court to convene a three-judge court, pursuant to 

561(a) of the CDA, appointed such a court consisting of, in

addition to Judge Buckwalter, Judge Stewart Dalzell of the same

district, and herself, as the circuit judge required by 28 U.S.C.

 2284.

          After a conference with the court, the parties entered

into a stipulation, which the court approved on February 26,

1996, wherein the Attorney General agreed that:

          she will not initiate any investigations or

          prosecutions for violations of 47 U.S.C. 

          223(d) for conduct occurring after enactment

          of this provision until the three-judge court

          hears Plaintiffs' Motion for Preliminary

          Injunction . . . and has decided the motion.



The Attorney General's commitment was qualified to the extent

that:

          her full authority to investigate or

          prosecute any violation of  223(a)(1)(B), as

          amended, and  223(d) as to conduct which

          occurs or occurred during any period of time

          after enactment of these provisions

          (including for the period of time to which

          this stipulation applies) should the Court

          deny plaintiffs' motion or, if the motion is

          granted, should these provisions ultimately

          be upheld.



Stipulation,  4, in C.A. No. 96-963.

          Shortly thereafter, the American Library Association,

Inc. (the ALA) and others[3] filed a similar action at C.A. No.

96-1458.  On February 27, 1996, Chief Judge Sloviter, again

pursuant to  561(a) of the CDA and upon request, convened the

same three-judge court pursuant to 28 U.S.C.  2284.  The actions

were consolidated pursuant to Fed. R. Civ. P. 42(a), "for all

matters relating to the disposition of motions for preliminary

injunction in these cases, including the hearing on such

motions."

          The parties were afforded expedited discovery in

connection with the motions for preliminary injunction, and they

cooperated with Judge Dalzell, who had been assigned the case

management aspects of the litigation.  While the discovery was

proceeding, and with the agreement of the parties, the court

began receiving evidence at the consolidated hearings which were

conducted on March 21 and 22, and April 1, 12 and 15, 1996.  In

order to expedite the proceedings, the parties worked closely

with Judge Dalzell and arranged to stipulate to many of the

underlying facts and to place much of their cases in chief before

the court by sworn declarations, so that the hearings were

largely devoted to cross-examination of certain of the witnesses

whose declarations had been filed.  The parties submitted

proposed findings of fact and post-hearing memoranda on April 29,

and the court heard extensive oral argument on May 10, 1996.[4]



                   Statutory Provisions at Issue



          Plaintiffs focus their challenge on two provisions of

section 502 of the CDA which amend 47 U.S.C.  223(a) and

223(d).

          Section 223(a)(1)(B) provides in part that any person

in interstate or foreign communications who, "by means of a

telecommunications device,"[5] "knowingly . . . makes, creates, or

solicits" and "initiates the transmission" of "any comment,

request, suggestion, proposal, image or other communication which

is obscene or indecent, knowing that the recipient of the

communication is under 18 years of age," "shall be criminally

fined or imprisoned." (emphasis added).

          Section 223(d)(1) ("the patently offensive provision"),

makes it a crime to use an "interactive computer service"[6] to

"send" or "display in a manner available" to a person under age

18, "any comment, request, suggestion, proposal, image, or other

communication that, in context, depicts or describes, in terms

patently offensive as measured by contemporary community

standards, sexual or excretory activities or organs, regardless

of whether the user of such service placed the call or initiated

the communication."

          Plaintiffs also challenge on the same grounds the

provisions in  223(a)(2) and  223(d)(2), which make it a crime

for anyone to "knowingly permit[] any telecommunications facility

under [his or her] control to be used for any activity

prohibited" in  223(a)(1)(B) and 223(d)(1).  The challenged

provisions impose a punishment of a fine, up to two years

imprisonment, or both for each offense.

          Plaintiffs make clear that they do not quarrel with the

statute to the extent that it covers obscenity or child

pornography, which were already proscribed before the CDA's

adoption.  See 18 U.S.C.  1464-65 (criminalizing obscene

material); id.  2251-52 (criminalizing child pornography); see

also New York v. Ferber, 458 U.S. 747 (1982); Miller v.

California, 413 U.S. 15 (1973).

          Plaintiffs in the ACLU action also challenge the

provision of the CDA that criminalizes speech over the Internet

that transmits information about abortions or abortifacient drugs

and devices, through its amendment of 18 U.S.C.  1462(c).  That

section now prohibits the sending and receiving of information

over the Internet by any means regarding "where, how, or of whom,

or by what means any [drug, medicine, article, or thing designed,

adapted, or intended for producing abortion] may be obtained or

made".  The Government has stated that it does not contest

plaintiffs' challenge to the enforceability of the provision of

the CDA as it relates to 18 U.S.C.  1462(c).[7]

          As part of its argument that the CDA passes

constitutional muster, the Government cites the CDA's "safe

harbor" defenses in new  223(e) of 47 U.S.C., which provides:

          (e)  Defenses



          In addition to any other defenses available

          by law:



               (1)  No person shall be held to have violated

          subsection (a) or (d) of this section 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.



               (2)  The defenses provided by paragraph (1)

          of this subsection shall not be applicable 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.



               (3)  The defenses provided in paragraph (1)

          of this subsection shall not be applicable to a

          person who provides access or connection to a

          facility, system, or network engaged in the

          violation of this section that is owned or

          controlled by such person.



               (4)  No employer shall be held liable under

          this section for the actions of an employee or

          agent unless the employee's or agent's conduct is

          within the scope of his or her employment or

          agency and the employer (A) having knowledge of

          such conduct, authorizes or ratifies such conduct,

          or (B) recklessly disregards such conduct.



               (5)  It is a defense to a prosecution under

          subsection (a)(1)(B) or (d) of this section, or

          under subsection (a)(2) of this section with

          respect to the use of a facility for an activity

          under subsection (a)(1)(B) that a person --



               (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.



               (6)  The [Federal Communications] Commission

          may describe measures which are reasonable,

          effective, and appropriate to restrict access to

          prohibited communications under subsection (d) of

          this section.  Nothing in this section authorizes

          the Commission to enforce, or is intended to

          provide the Commission with the authority to

          approve, sanction, or permit, the use of such

          measures.  The Commission shall have no

          enforcement authority over the failure to utilize

          such measures. . . .





                                II.

                         FINDINGS OF FACT

          All parties agree that in order to apprehend the legal

questions at issue in these cases, it is necessary to have a

clear understanding of the exponentially growing, worldwide

medium that is the Internet, which presents unique issues

relating to the application of First Amendment jurisprudence and

due process requirements to this new and evolving method of

communication.  For this reason all parties insisted on having

extensive evidentiary hearings before the three-judge court.

The court's Findings of fact are made pursuant to Fed. R. Civ. P.

52(a).  The history and basic technology of this medium are not

in dispute, and the first forty-eight paragraphs of the following

Findings of fact are derived from the like-numbered paragraphs of

a stipulation[8] the parties filed with the court.[9]

                     The Nature of Cyberspace

  The Creation of the Internet and the Development of Cyberspace

          1.   The Internet is not a physical or tangible entity,

but rather a giant network which interconnects innumerable

smaller groups of linked computer networks.  It is thus 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.

          2.  Some networks are "closed" networks, not linked to

other computers or 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 referred to

as the Internet.

          3.  The nature of the Internet is such that it is very

difficult, if not impossible, to determine its size at a given

moment.  It is indisputable, however, that the Internet has

experienced extraordinary growth in recent 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, over

1,000,000 computers were linked.  Today, over 9,400,000 host

computers worldwide, of which approximately 60 percent located

within the United States, are estimated to be linked to the

Internet.  This count does not include the personal computers

people use to access the Internet using modems.  In all,

reasonable estimates are that as many as 40 million people around

the world can and do access the enormously flexible communication

Internet medium.  That figure is expected to grow to 200 million

Internet users by the year 1999.

          4.  Some of the computers and computer networks that

make up the Internet are owned by governmental and public

institutions, some are owned by non-profit organizations, and

some are privately owned.  The resulting whole is a

decentralized, global medium of communications -- or "cyberspace"

-- that links people, institutions, corporations, and governments

around the world.  The Internet is an international system.  This

communications medium allows any of the literally tens of

millions of people with access to the Internet to exchange

information.  These communications can occur almost

instantaneously, and can be directed either to specific

individuals, to a broader group of people interested in a

particular subject, or to the world as a whole.

          5.  The Internet had its origins in 1969 as an

experimental project of the Advanced Research Project Agency

("ARPA"), and was called ARPANET.  This 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 people around the

world, the ARPANET came to be called the "DARPA Internet," and

finally just the "Internet."

          6.  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 system

of linked computers was designed to allow vital research and

communications to continue even if portions of the network were

damaged, say, in a war.

          7.  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 could in turn be

linked to other computers, which themselves would be linked to

other computers.

          8.  A communication sent over this redundant series of

linked computers could travel any of a number 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.

          9.   Messages between computers on the Internet do not

necessarily travel entirely along the same path.  The Internet

uses "packet switching" communication protocols that allow

individual messages to be subdivided into smaller "packets" that

are then sent independently to the destination, and are then

automatically reassembled by the receiving computer.  While all

packets of a given message often travel along the same path to

the destination, if computers along the route become overloaded,

then packets can be re-routed to less loaded computers.

          10.  At the same time that ARPANET was maturing (it

subsequently ceased to exist), similar 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 overlapped) 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 today commonly

known as the Internet.

          11.  No single entity -- academic, corporate,

governmental, or non-profit -- administers the Internet.  It

exists and functions as a result of the fact that hundreds of

thousands of separate operators of computers and computer

networks independently decided to use common data transfer

protocols 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 not be technically feasible for a single

entity to control all of the information conveyed on the

Internet.



                How Individuals Access the Internet

          12.  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, one 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, one

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 people by a wide variety of academic, governmental,

or commercial entities.

          13.  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.  Some 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.

          14.  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 might be

used by, for example, a corporation involved in scientific or

medical research or manufacturing to enable corporate employees

to exchange information and ideas with academic researchers in

their fields.

          15.  Those 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.

          16.  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 now use library services and resources

without ever physically entering the library itself.  Libraries

typically provide such direct or modem access at no cost to the

individual user.

          17.  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.

          18.  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

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, a number of trade or other non-profit

associations offer Internet access as a service to members.

          19.  Another common way for individuals to access the

Internet is through one of the major national commercial "online

services" such as America Online, 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.

          20.  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 users a nominal

fee for access, while many others are free to the individual

users.

          21.  Although commercial access to the Internet is

growing rapidly, many users of the Internet -- such as college

students and staff -- do not individually pay for access (except

to the extent, for example, that the cost of computer services is

a component of college tuition).  These and other Internet users

can access the Internet without paying for such access with a

credit card or other form of payment.



             Methods to Communicate Over the Internet

          22.   Once one has access to the Internet, there are a

wide variety of different methods of communication and

information exchange over the network.  These many 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:

               (1)  one-to-one messaging (such as "e-mail"),



               (2)  one-to-many messaging (such as "listserv"),



               (3)  distributed message databases (such as

                    "USENET newsgroups"),



               (4)  real time communication (such as "Internet

                    Relay Chat"),



               (5)  real time remote computer utilization (such

                    as "telnet"), and



               (6)  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, visual images (i.e.,

pictures), and moving video images.

          23.  One-to-one messaging.  One method of communication

on the Internet is via electronic mail, or "e-mail," comparable

in principle to sending a first class letter.  One can address

and transmit a message to one or more other people.  E-mail on

the Internet is not routed through a central control point, and

can take many and varying paths to the recipients.  Unlike postal

mail, simple e-mail generally is not "sealed" or secure, and can

be accessed or viewed on intermediate computers between the

sender and recipient (unless the message is encrypted).

          24.  One-to-many messaging.  The Internet also contains

automatic mailing list services (such as "listservs"), [also

referred to by witnesses as "mail exploders"] that allow

communications about particular subjects of interest to a group

of people.  For example, people can subscribe to a "listserv"

mailing list on a particular topic of interest to them.  The

subscriber can submit messages on the topic to the listserv that

are forwarded (via e-mail), either automatically or through a

human moderator overseeing the listserv, 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.  Users of "open" listservs typically can add or

remove their names from the mailing list automatically, with no

direct human involvement.  Listservs may also be "closed," i.e.,

only allowing for one's acceptance into the listserv by a human

moderator.

          25.  Distributed message databases.  Similar in

function to listservs -- but quite different in how

communications are transmitted -- are distributed message

databases such as "USENET newsgroups."  User-sponsored newsgroups

are among the most popular and widespread applications of

Internet services, and cover all imaginable topics of interest to

users.  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.  Some USENET newsgroups

are "moderated" but most are open access.  For the moderated

newsgroups,[10] all messages to the newsgroup are forwarded to one

person who can screen them for relevance to the topics under

discussion.  USENET newsgroups are disseminated using ad hoc,

peer to peer connections between approximately 200,000 computers

(called USENET "servers") around the world.  For unmoderated

newsgroups, when an individual user with access to a USENET

server posts a message to a newsgroup, the message is

automatically forwarded to all adjacent USENET servers that

furnish access to the newsgroup, and it is then propagated to the

servers adjacent to those servers, etc.  The messages are

temporarily stored on each receiving server, where they are

available for review and response by individual users.  The

messages are automatically and periodically purged from each

system after a time to make room for new messages.  Responses to

messages, like the original messages, are automatically

distributed to all other computers receiving the newsgroup or

forwarded to a moderator in the case of a moderated newsgroup.

The dissemination of messages to USENET servers around the world

is an automated process that does not require direct human

intervention or review.

          26.  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.  Once

the messages reach the approximately 190,000 receiving computers

or computer networks, they are available to individual users of

those computers or computer networks.  Collectively, almost

100,000 new messages (or "articles") are posted to newsgroups

each day.

          27.  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 people on the Internet.  In its simplest

forms, "talk" allows one-to-one communications and "Internet

Relay Chat" (or IRC) allows two or more to type messages to each

other that almost immediately appear on the others' computer

screens.  IRC is analogous to a telephone party line, using a

computer and keyboard rather than a telephone.  With IRC,

however, at any one time there are thousands of different party

lines available, in which collectively tens of thousands of users

are engaging in conversations on a huge range of subjects.

Moreover, one can create a new party line to discuss a different

topic at any time.  Some IRC conversations are "moderated" or

include "channel operators."

          28.  In addition, commercial online services such as

America Online, CompuServe, the Microsoft Network, and Prodigy

have their own "chat" systems allowing their members to converse.

          29.  Real time remote computer utilization.  Another

method to use information on the Internet is to access and

control remote computers in "real time" using "telnet."  For

example, using telnet, a researcher at a university would be able

to use 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.

          30.  Remote information retrieval.  The final major

category of communication may be the most well known use of the

Internet -- the search for and retrieval of information located

on remote computers.  There are three primary methods to locate

and retrieve information on the Internet.

          31.  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.

          32.  Another approach uses a program and format named

"gopher" to guide an individual's search through the resources

available on a remote computer.



                        The World Wide Web

          33.  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, sound, animation and

moving video.  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, one 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 people to

locate and efficiently view related information even if the

information is stored on numerous computers all around the world.

          34.  Purpose.  The World Wide Web (W3C) was created to

serve as the platform for a global, online store of knowledge,

containing information from a diversity of sources and accessible

to Internet users around the world.  Though information on the

Web is contained in individual computers, the fact that each of

these computers is connected to the Internet through W3C

protocols allows all of the information to become part of a

single body of knowledge.  It is currently the most advanced

information system developed on the Internet, and embraces within

its data model most information in previous networked information

systems such as ftp, gopher, wais, and Usenet.

          35.  History.  W3C was originally developed at CERN,

the European Particle Physics Laboratory, and was initially used

to allow information sharing within internationally dispersed

teams of researchers and engineers.  Originally aimed at the High

Energy Physics community, it has spread to other areas and

attracted much interest in user support, resource recovery, and

many other areas which depend on collaborative and information

sharing.  The Web has extended beyond the scientific and academic

community to include communications by individuals, non-profit

organizations, and businesses.

          36.  Basic Operation.  The World Wide Web is a series

of documents stored in different computers all over the Internet.

Documents contain information stored in a variety of formats,

including text, still images, sounds, and video.  An essential

element of the Web is that any document has an address (rather

like a telephone number).  Most Web documents contain "links."

These are short sections of text or image which refer to another

document.  Typically the linked text is blue or underlined when

displayed, and when selected by the user, the referenced document

is automatically displayed, wherever in the world it actually is

stored.  Links for example are used to lead from overview

documents to more detailed documents, from tables of contents to

particular pages, but also as cross-references, footnotes, and

new forms of information structure.

          37.  Many organizations now have "home pages" on the

Web.  These are documents which provide a set of links designed

to represent the organization, and through links from the home

page, guide the user directly or indirectly to information about

or relevant to that organization.

          38.  As an example of the use of links, if these

Findings were to be put on a World Wide Web site, its home page

might contain links such as those:

*THE NATURE OF CYBERSPACE

*CREATION OF THE INTERNET AND THE DEVELOPMENT OF CYBERSPACE

*HOW PEOPLE ACCESS THE INTERNET

*METHODS TO COMMUNICATE OVER THE INTERNET

          39.  Each of these links takes the user of the site

from the beginning of the Findings to the appropriate section

within this Adjudication.  Links may also take the user from the

original Web site to another Web site on another computer

connected to the Internet.  These links from one computer to

another, from one document to another across the Internet, are

what unify the Web into a single body of knowledge, and what

makes the Web unique.  The Web was designed with a maximum target

time to follow a link of one tenth of a second.

          40.  Publishing.  The World Wide Web exists

fundamentally as a platform through which people and

organizations can communicate through shared information.  When

information is made available, it is said to be "published" on

the Web.  Publishing on the Web simply requires that the

"publisher" has a computer connected to the Internet and that the

computer is running W3C server software.  The computer can be as

simple as a small personal computer costing less than $1500

dollars or as complex as a multi-million dollar mainframe

computer.  Many Web publishers choose instead to lease disk

storage space from someone else who has the necessary computer

facilities, eliminating the need for actually owning any

equipment oneself.

          41.  The Web, as a universe of network accessible

information, contains a variety of documents prepared with quite

varying degrees of care, from the hastily typed idea, to the

professionally executed corporate profile.  The power of the Web

stems from the ability of a link to point to any document,

regardless of its status or physical location.

          42.  Information to be published on the Web must also

be formatted according to the rules of the Web standards.  These

standardized formats assure that all Web users who want to read

the material will be able to view it.  Web standards are

sophisticated and flexible enough that they have grown to meet

the publishing needs of many large corporations, banks, brokerage

houses, newspapers and magazines which now publish "online"

editions of their material, as well as government agencies, and

even courts, which use the Web to disseminate information to the

public.  At the same time, Web publishing is simple enough that

thousands of individual users and small community organizations

are using the Web to publish their own personal "home pages," the

equivalent of individualized newsletters about that person or

organization, which are available to everyone on the Web.

          43.  Web publishers have a choice to make their Web

sites open to the general pool of all Internet users, or close

them, thus making the information accessible only to those with

advance authorization.  Many publishers choose to keep their

sites open to all in order to give their information the widest

potential audience.  In the event that the publishers choose to

maintain restrictions on access, this may be accomplished by

assigning specific user names and passwords as a prerequisite to

access to the site.  Or, in the case of Web sites maintained for

internal use of one organization, access will only be allowed

from other computers within that organization's local network.[11]

          44.  Searching the Web.  A variety of systems have

developed that allow users of the Web to search particular

information among all of the public sites that are part of the

Web.  Services such as Yahoo, Magellan, Altavista, Webcrawler,

and Lycos are all services known as "search engines" which allow

users to search for Web sites that contain certain categories of

information, or to search for key words.  For example, a Web user

looking for the text of Supreme Court opinions would type the

words "Supreme Court" into a search engine, and then be presented

with a list of World Wide Web sites that contain Supreme Court

information.  This list would actually be a series of links to

those sites.  Having searched out a number of sites that might

contain the desired information, the user would then follow

individual links, browsing through the information on each site,

until the desired material is found.  For many content providers

on the Web, the ability to be found by these search engines is

very important.

          45.  Common standards.  The Web links together

disparate information on an ever-growing number of Internet-

linked computers by setting common information storage formats

(HTML) and a common language for the exchange of Web documents

(HTTP).  Although the information itself may be in many different

formats, and stored on computers which are not otherwise

compatible, the basic Web standards provide a basic set of

standards which allow communication and exchange of information.

Despite the fact that many types of computers are used on the

Web, and the fact that many of these machines are otherwise

incompatible, those who "publish" information on the Web are able

to communicate with those who seek to access information with

little difficulty because of these basic technical standards.

          46.  A distributed system with no centralized control.

Running on tens of thousands of individual computers on the

Internet, the Web is what is known as a distributed system.  The

Web was designed so that organizations with computers containing

information can become part of the Web simply by attaching their

computers to the Internet and running appropriate World Wide Web

software.  No single organization controls any membership in the

Web, nor is there any single centralized point from which

individual Web sites or services can be blocked from the Web.

From a user's perspective, it may appear to be a single,

integrated system, but in reality it has no centralized control

point.

          47.  Contrast to closed databases.  The Web's open,

distributed, decentralized nature stands in sharp contrast to

most information systems that have come before it.  Private

information services such as Westlaw, Lexis/Nexis, and Dialog,

have contained large storehouses of knowledge, and can be

accessed from the Internet with the appropriate passwords and

access software.  However, these databases are not linked

together into a single whole, as is the World Wide Web.

          48.  Success of the Web in research, education, and

political activities.  The World Wide Web has become so popular

because of its open, distributed, and easy-to-use nature.  Rather

than requiring those who seek information to purchase new

software or hardware, and to learn a new kind of system for each

new database of information they seek to access, the Web

environment makes it easy for users to jump from one set of

information to another.  By the same token, the open nature of

the Web makes it easy for publishers to reach their intended

audiences without having to know in advance what kind of computer

each potential reader has, and what kind of software they will be

using.



        Restricting Access to Unwanted On-Line Material[12]



PICS

          49.  With the rapid growth of the Internet, the

increasing popularity of the Web, and the existence of material

online that some parents may consider inappropriate for their

children, various entities have begun to build systems intended

to enable parents to control the material which comes into their

homes and may be accessible to their children.  The World Wide

Web Consortium launched the PICS ("Platform for Internet Content

Selection") program in order to develop technical standards that

would support parents' ability to filter and screen material that

their children see on the Web.

          50.  The Consortium intends that PICS will provide the

ability for third parties, as well as individual content

providers, to rate content on the Internet in a variety of ways.

When fully implemented, PICS-compatible World Wide Web browsers,

Usenet News Group readers, and other Internet applications, will

provide parents the ability to choose from a variety of rating

services, or a combination of services.

          51.  PICS working group [PICS-WG] participants include

many of the major online services providers, commercial internet

access providers, hardware and software companies, major internet

content providers, and consumer organizations.  Among active

participants in the PICS effort are:



               Adobe Systems, Inc.

               Apple Computer

               America Online

               AT&T

               Center for Democracy and Technology

               CompuServe

               Delphi Internet Services

               Digital Equipment Corporation

               IBM

               First floor

               First Virtual Holdings Incorporated

               France Telecom

               FTP Software

               Industrial Technology Research Institute of Taiwan

               Information Technology Association of America

               Institut National de Recherche en Informatique et

                    en Automatique (INRIA)

               Interactive Services Association

               MCI

               Microsoft

               MIT/LCS/World Wide Web Consortium

               NCD

               NEC

               Netscape Communications Corporation

               NewView

               O'Reilly and Associates

               Open Market

               Prodigy Services Company

               Progressive Networks

               Providence Systems/Parental Guidance

               Recreational Software Advisory Council

               SafeSurf

               SoftQuad, Inc.

               Songline Studios

               Spyglass

               SurfWatch Software

               Telequip Corp.

               Time Warner Pathfinder

               Viacom Nickelodeon[13]





          52.  Membership in the PICS-WG includes a broad cross-

section of companies from the computer, communications, and

content industries, as well as trade associations and public

interest groups.  PICS technical specifications have been agreed

to, allowing the Internet community to begin to deploy products

and services based on the PICS-standards.

          53.  Until a majority of sites on the Internet have

been rated by a PICS rating service, PICS will initially function

as a "positive" ratings system in which only those sites that

have been rated will be displayed using PICS compatible software.

In other words, PICS will initially function as a site inclusion

list rather than a site exclusion list.  The default

configuration for a PICS compatible Internet application will be

to block access to all sites which have not been rated by a PICS

rating service, while allowing access to sites which have a PICS

rating for appropriate content.[14]



Software

          54.  For over a year, various companies have marketed

stand alone software that is intended to enable parents and other

adults to limit the Internet access of children.  Examples of

such software include:  Cyber Patrol, CYBERsitter, The Internet

Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy

Server, and WebTrack.  The market for this type of software is

growing, and there is increasing competition among software

providers to provide products.



Cyber Patrol

          55.  As more people, particularly children, began to

use the Internet, Microsystems Software, Inc. decided to develop

and market Internet software intended to empower parents to

exercise individual choice over what material their children

could access.  Microsystems' stated intent is to develop a

product which would give parents comfort that their children can

reap the benefits of the Internet while shielding them from

objectionable or otherwise inappropriate materials based on the

parents' own particular tastes and values.  Microsystems'

product, Cyber Patrol, was developed to address this need.

          56.  Cyber Patrol was first introduced in August 1995,

and is currently available in Windows and Macintosh versions.

Cyber Patrol works with both direct Internet Access providers

(ISPs, e.g., Netcom, PSI, UUnet), and Commercial Online Service

Providers (e.g., America Online, Compuserv, Prodigy, Microsoft).

Cyber Patrol is also compatible with all major World Wide Web

browsers on the market (e.g., Netscape, Navigator, Mosaic,

Prodigy's Legacy and Skimmer browsers, America Online, Netcom's

NetCruiser, etc.).  Cyber Patrol was the first parental

empowerment application to be compatible with the PICS standard.

In February of 1996, Microsystems put the first PICS ratings

server on the Internet.

          57.  The CyberNOT list contains approximately 7000

sites in twelve categories.  The software is designed to enable

parents to selectively block access to any or all of the twelve

CyberNOT categories simply by checking boxes in the Cyber Patrol

Headquarters (the Cyber Patrol program manager).  These

categories are:

          Violence/Profanity:  Extreme cruelty, physical or

          emotional acts against any animal or person which are

          primarily intended to hurt or inflict pain.  Obscene

          words, phrases, and profanity defined as text that uses

          George Carlin's seven censored words more often than

          once every fifty messages or pages.



          Partial Nudity:  Full or partial exposure of the human

          anatomy except when exposing genitalia.



          Nudity:  Any exposure of the human genitalia.



          Sexual Acts (graphic or text):  Pictures or text

          exposing anyone or anything involved in explicit sexual

          acts and lewd and lascivious behavior, including

          masturbation, copulation, pedophilia, intimacy and

          involving nude or partially nude people in

          heterosexual, bisexual, lesbian or homosexual

          encounters.  Also includes phone sex ads, dating

          services, adult personals, CD-ROM and videos.



          Gross Depictions (graphic or text):  Pictures or

          descriptive text of anyone or anything which are

          crudely vulgar, deficient in civility or behavior, or

          showing scatological impropriety.  Includes such

          depictions as maiming, bloody figures, indecent

          depiction of bodily functions.



          Racism/Ethnic Impropriety:  Prejudice or discrimination

          against any race or ethnic culture.  Ethnic or racist

          jokes and slurs.  Any text that elevates one race over

          another.



          Satanic/Cult:  Worship of the devil; affinity for evil,

          wickedness.  Sects or groups that potentially coerce

          individuals to grow, and keep, membership.



          Drugs/Drug Culture:  Topics dealing with the use of

          illegal drugs for entertainment.  This would exclude

          current illegal drugs used for medicinal purposes

          (e.g., drugs used to treat victims of AIDS).  Includes

          substances used for other than their primary purpose to

          alter the individual's state of mind such as glue

          sniffing.



          Militant/Extremist:  Extremely aggressive and combative

          behaviors, radicalism, advocacy of extreme political

          measures.  Topics include extreme political groups that

          advocate violence as a means to achieve their goal.



          Gambling:  Of or relating to lotteries, casinos,

          betting, numbers games, on-line sports or financial

          betting including non-monetary dares.



          Questionable/Illegal:  Material or activities of a

          dubious nature which may be illegal in any or all

          jurisdictions, such as illegal business schemes, chain

          letters, software piracy, and copyright infringement.



          Alcohol, Beer & Wine:  Material pertaining to the sale

          or consumption of alcoholic beverages.  Also includes

          sites and information relating to tobacco products.





          58.  Microsystems employs people to search the Internet

for sites containing material in these categories.  Since new

sites are constantly coming online, Microsystems updates the

CyberNOT list on a weekly basis.  Once installed on the home PC,

the copy of Cyber Patrol receives automatic updates to the

CyberNOT list over the Internet every seven days.

          59.  In February of 1996, Microsystems signed a

licensing arrangement with CompuServe, one of the leading

commercial online services with over 4.3 million subscribers.

CompuServe provides Cyber Patrol free of charge to its

subscribers.  Microsystems the same month signed a licensing

arrangement with Prodigy, another leading commercial online

service with over 1.4 million subscribers.  Prodigy will provide

Cyber Patrol free of charge of its subscribers.

          60.  Cyber Patrol is also available directly from

Microsystems for $49.95, which includes a six month subscription

to the CyberNOT blocked sites list (updated automatically once

every seven days).  After six months, parents can receive six

months of additional updates for $19.95, or twelve months for

$29.95.  Cyber Patrol Home Edition, a limited version of Cyber

Patrol, is available free of charge on the Internet.  To obtain

either version, parents download a seven day demonstration

version of the full Cyber Patrol product from the Microsystems

Internet World Wide Web Server.  At the end of the seven day

trial period, users are offered the opportunity to purchase the

complete version of Cyber Patrol or provide Microsystems some

basic demographic information in exchange for unlimited use of

the Home Edition.  The demographic information is used for

marketing and research purposes.  Since January of 1996, over

10,000 demonstration copies of Cyber Patrol have been downloaded

from Microsystems' Web site.

          61.  Cyber Patrol is also available from Retail outlets

as NetBlocker Plus.  NetBlocker Plus sells for $19.95, which

includes five weeks of updates to the CyberNOT list.

          62.  Microsystems also sells Cyber Patrol into a

growing market in schools.  As more classrooms become connected

to the Internet, many teachers want to ensure that their students

can receive the benefit of the Internet without encountering

material they deem educationally inappropriate.

          63.  Microsystems is working with the Recreational

Software Advisory Council (RSAC), a non-profit corporation which

developed rating systems for video games, to implement the RSAC

rating system for the Internet.

          64.  The next release of Cyber Patrol, expected in

second quarter of this year, will give parents the ability to use

any PICS rating service, including the RSAC rating service, in

addition to the Microsystems CyberNOT list.

          65.  In order to speed the implementation of PICS and

encourage the development of PICS-compatible Internet

applications, Microsystems maintains a server on the Internet

which contains its CyberNOT list.  The server provides software

developers with access to a PICS rating service, and allows

software developers to test their products' ability to interpret

standard PICS labels.  Microsystems is also offering its PICS

client test program for Windows free of charge.  The client

program can be used by developers of PICS rating services to test

their services and products.



SurfWatch

          66.  Another software product, SurfWatch, is also

designed to allow parents and other concerned users to filter

unwanted material on the Internet.  SurfWatch is available for

both Apple Macintosh, Microsoft Windows, and Microsoft Windows 95

Operating Systems, and works with direct Internet Access

Providers (e.g., Netcom, PSI, UUnet, AT&T, and more than 1000

other Internet Service Providers).

          67.  The suggested retail price of SurfWatch Software

is $49.95, with a street price of between $20.00 and $25.00.  The

product is also available as part of CompuServe/Spry Inc.'s

Internet in a Box for Kids, which includes access to Spry's Kids

only Internet service and a copy of SurfWatch.  Internet in a Box

for Kids retails for approximately $30.00.  The subscription

service, which updates the SurfWatch blocked site list

automatically with new sites each month, is available for $5.95

per month or $60.00 per year.  The subscription is included as

part of the Internet in a Box for Kids program, and is also

provided as a low-cost option from Internet Service Providers.

          68.  SurfWatch is available at over 12,000 retail

locations, including National stores such as Comp USA, Egghead

Software, Computer City, and several national mail order outlets.

SurfWatch can also be ordered directly from its own site on the

World Wide Web, and through the Internet Shopping Network.

          69.  Plaintiffs America Online (AOL), Microsoft

Network, and Prodigy all offer parental control options free of

charge to their members.  AOL has established an online area

designed specifically for children.  The "Kids Only" parental

control feature allows parents to establish an AOL account for

their children that accesses only the Kids Only channel on

America Online.[15]

          70.  AOL plans to incorporate PICS-compatible

capability into its standard Web browser software, and to make

available to subscribers other PICS-compatible Web browsers, such

as the Netscape software.

          71. Plaintiffs CompuServe and Prodigy give their

subscribers the option of blocking all access to the Internet, or

to particular media within their proprietary online content, such

as bulletin boards and chat rooms.

          72. Although parental control software currently can

screen for certain suggestive words or for known sexually

explicit sites, it cannot now screen for sexually explicit images

unaccompanied by suggestive text unless those who configure the

software are aware of the particular site.

          73. Despite its limitations, currently available user-

based software suggests that a reasonably effective method by

which parents can prevent their children from accessing sexually

explicit and other material which parents may believe is

inappropriate for their children will soon be widely available.



                      Content on the Internet

          74.  The types of content now on the Internet defy easy

classification.  The entire card catalogue of the Carnegie

Library is on-line, together with journals, journal abstracts,

popular magazines, and titles of compact discs.  The director of

the Carnegie Library, Robert Croneberger, testified that on-line

services are the emerging trend in libraries generally.

Plaintiff Hotwired Ventures LLC organizes its Web site into

information regarding travel, news and commentary, arts and

entertainment, politics, and types of drinks.  Plaintiff America

Online, Inc., not only creates chat rooms for a broad variety of

topics, but also allows members to create their own chat rooms to

suit their own tastes.  The ACLU uses an America Online chat room

as an unmoderated forum for people to debate civil liberties

issues.  Plaintiffs' expert, Scott Bradner,[16] estimated that

15,000 newsgroups exist today, and he described his own interest

in a newsgroup devoted solely to Formula 1 racing cars.  America

Online makes 15,000 bulletin boards available to its subscribers,

who post between 200,000 and 250,000 messages each day.  Another

plaintiffs' expert, Harold Rheingold, participates in "virtual

communities" that simulate social interaction.  It is no

exaggeration to conclude that the content on the Internet is as

diverse as human thought.

          75.  The Internet is not exclusively, or even

primarily, a means of commercial communication.  Many commercial

entities maintain Web sites to inform potential consumers about

their goods and services, or to solicit purchases, but many other

Web sites exist solely for the dissemination of non-commercial

information.  The other forms of Internet communication -- e-

mail, bulletin boards, newsgroups, and chat rooms -- frequently

have non-commercial goals.  For the economic and technical

reasons set forth in the following paragraphs, the Internet is an

especially attractive means for not-for-profit entities or public

interest groups to reach their desired audiences.  There are

examples in the parties' stipulation of some of the non-

commercial uses that the Internet serves.  Plaintiff Human Rights

Watch, Inc., offers information on its Internet site regarding

reported human rights abuses around the world.  Plaintiff

National Writers Union provides a forum for writers on issues of

concern to them.  Plaintiff Stop Prisoner Rape, Inc., posts text,

graphics, and statistics regarding the incidence and prevention

of rape in prisons.  Plaintiff Critical Path AIDS Project, Inc.,

offers information on safer sex, the transmission of HIV, and the

treatment of AIDS.

          76.  Such diversity of content on the Internet is

possible because the Internet provides an easy and inexpensive

way for a speaker to reach a large audience, potentially of

millions.  The start-up and operating costs entailed by

communication on the Internet are significantly lower than those

associated with use of other forms of mass communication, such as

television, radio, newspapers, and magazines.  This enables

operation of their own Web sites not only by large companies,

such as Microsoft and Time Warner, but also by small, not-for-

profit groups, such as Stop Prisoner Rape and Critical Path AIDS

Project.  The Government's expert, Dr. Dan R. Olsen,[17] agreed

that creation of a Web site would cost between $1,000 and

$15,000, with monthly operating costs depending on one's goals

and the Web site's traffic.  Commercial online services such as

America Online allow subscribers to create Web pages free of

charge.  Any Internet user can communicate by posting a message

to one of the thousands of newsgroups and bulletin boards or by

engaging in an on-line "chat", and thereby reach an audience

worldwide that shares an interest in a particular topic.

          77.  The ease of communication through the Internet is

facilitated by the use of hypertext markup language (HTML), which

allows for the creation of "hyperlinks" or "links".  HTML enables

a user to jump from one source to other related sources by

clicking on the link.  A link might take the user from Web site

to Web site, or to other files within a particular Web site.

Similarly, by typing a request into a search engine, a user can

retrieve many different sources of content related to the search

that the creators of the engine have collected.

          78.  Because of the technology underlying the Internet,

the statutory term "content provider,"[18] which is equivalent to

the traditional "speaker," may actually be a hybrid of speakers.

Through the use of HTML, for example, Critical Path and Stop

Prisoner Rape link their Web sites to several related databases,

and a user can immediately jump from the home pages of these

organizations to the related databases simply by clicking on a

link.  America Online creates chat rooms for particular

discussions but also allows subscribers to create their own chat

rooms.  Similarly, a newsgroup gathers postings on a particular

topic and distributes them to the newsgroup's subscribers.  Users

of the Carnegie Library can read on-line versions of Vanity Fair

and Playboy, and America Online's subscribers can peruse the New

York Times, Boating, and other periodicals.  Critical Path, Stop

Prisoner Rape, America Online and the Carnegie Library all make

available content of other speakers over whom they have little or

no editorial control.

          79.  Because of the different forms of Internet

communication, a user of the Internet may speak or listen

interchangeably, blurring the distinction between "speakers" and

"listeners" on the Internet.  Chat rooms, e-mail, and newsgroups

are interactive forms of communication, providing the user with

the opportunity both to speak and to listen.

          80.  It follows that unlike traditional media, the

barriers to entry as a speaker on the Internet do not differ

significantly from the barriers to entry as a listener.  Once one

has entered cyberspace, one may engage in the dialogue that

occurs there.  In the argot of the medium, the receiver can and

does become the content provider, and vice-versa.

          81.  The Internet is therefore a unique and wholly new

medium of worldwide human communication.

            Sexually Explicit Material On the Internet

          82.  The parties agree that sexually explicit material

exists on the Internet.  Such material includes text, pictures,

and chat, and includes bulletin boards, newsgroups, and the other

forms of Internet communication, and extends from the modestly

titillating to the hardest-core.

          83.  There is no evidence that sexually-oriented

material is the primary type of content on this new medium.

Purveyors of such material take advantage of the same ease of

access available to all users of the Internet, including

establishment of a Web site.

          84.  Sexually explicit material is created, named, and

posted in the same manner as material that is not sexually

explicit.  It is possible that a search engine can accidentally

retrieve material of a sexual nature through an imprecise search,

as demonstrated at the hearing.  Imprecise searches may also

retrieve irrelevant material that is not of a sexual nature.  The

accidental retrieval of sexually explicit material is one

manifestation of the larger phenomenon of irrelevant search

results.

          85.  Once a provider posts content on the Internet, it

is available to all other Internet users worldwide.  Similarly,

once a user posts a message to a newsgroup or bulletin board,

that message becomes available to all subscribers to that

newsgroup or bulletin board.  For example, when the

UCR/California Museum of Photography posts to its Web site nudes

by Edward Weston and Robert Mapplethorpe to announce that its new

exhibit will travel to Baltimore and New York City, those images

are available not only in Los Angeles, Baltimore, and New York

City, but also in Cincinnati, Mobile, or Beijing -- wherever

Internet users live.  Similarly, the safer sex instructions that

Critical Path posts to its Web site, written in street language

so that the teenage receiver can understand them, are available

not just in Philadelphia, but also in Provo and Prague.  A chat

room organized by the ACLU to discuss the United States Supreme

Court's  decision in FCC v. Pacifica Foundation would transmit

George Carlin's seven dirty words to anyone who enters.  Messages

posted to a newsgroup dedicated to the Oklahoma City bombing

travel to all subscribers to that newsgroup.

          86.  Once a provider posts its content on the Internet,

it cannot prevent that content from entering any community.

Unlike the newspaper, broadcast station, or cable system,

Internet technology necessarily gives a speaker a potential

worldwide audience.  Because the Internet is a network of

networks (as described above in Findings 1 through 4), any

network connected to the Internet has the capacity to send and

receive information to any other network.  Hotwired Ventures, for

example, cannot prevent its materials on mixology from entering

communities that have no interest in that topic.

          87.  Demonstrations at the preliminary injunction

hearings showed that it takes several steps to enter cyberspace.

At the most fundamental level, a user must have access to a

computer with the ability to reach the Internet (typically by way

of a modem).  A user must then direct the computer to connect

with the access provider, enter a password, and enter the

appropriate commands to find particular data.  On the World Wide

Web, a user must normally use a search engine or enter an

appropriate address.  Similarly, accessing newsgroups, bulletin

boards, and chat rooms requires several steps.

          88.  Communications over the Internet do not "invade"

an individual's home or appear on one's computer screen unbidden.

Users seldom encounter content "by accident."   A document's

title or a description of the document will usually appear before

the document itself takes the step needed to view it, and in many

cases the user will receive detailed information about a site's

content before he or she need take the step to access the

document.  Almost all sexually explicit images are preceded by

warnings as to the content.  Even the Government's witness, Agent

Howard Schmidt, Director of the Air Force Office of Special

Investigation, testified that the "odds are slim" that a user

would come across a sexually explicit site by accident.

          89.  Evidence adduced at the hearing showed significant

differences between Internet communications and communications

received by radio or television.  Although content on the

Internet is just a few clicks of a mouse away from the user,  the

receipt of information on the Internet requires a series of

affirmative steps more deliberate and directed than merely

turning a dial.  A child requires some sophistication and some

ability to read to retrieve material and thereby to use the

Internet unattended.



           Obstacles to Age Verification on the Internet



          90.  There is no effective way to determine the

identity or the age of a user who is accessing material through

e-mail, mail exploders, newsgroups or chat rooms.  An e-mail

address provides no authoritative information about the

addressee, who may use an e-mail "alias" or an anonymous

remailer.  There is also no universal or reliable listing of e-

mail addresses and corresponding names or telephone numbers, and

any such listing would be or rapidly become incomplete.  For

these reasons, there is no reliable way in many instances for a

sender to know if the e-mail recipient is an adult or a minor.

The difficulty of e-mail age verification is compounded for mail

exploders such as listservs, which automatically send information

to all e-mail addresses on a sender's list.  Government expert

Dr. Olsen agreed that no current technology could give a speaker

assurance that only adults were listed in a particular mail

exploder's mailing list.

          91.  Because of similar technological difficulties,

individuals posting a message to a newsgroup or engaging in chat

room discussions cannot ensure that all readers are adults, and

Dr. Olsen agreed.  Although some newsgroups are moderated, the

moderator's control is limited to what is posted and the

moderator cannot control who receives the messages.

          92.  The Government offered no evidence that there is a

reliable way to ensure that recipients and participants in such

fora can be screened for age.  The Government presented no

evidence demonstrating the feasibility of its suggestion that

chat rooms, newsgroups and other fora that contain material

deemed indecent could be effectively segregated to "adult" or

"moderated" areas of cyberspace.

          93.  Even if it were technologically feasible to block

minors' access to newsgroups and similar fora, there is no method

by which the creators of newsgroups which contain discussions of

art, politics or any other subject that could potentially elicit

"indecent" contributions could limit the blocking of access by

minors to such "indecent" material and still allow them access to

the remaining content, even if the overwhelming majority of that

content was not indecent.

          94.  Likewise, participants in MUDs (Multi-User

Dungeons) and  MUSEs (Multi-User Simulation Environments) do not

know whether the other participants are adults or minors.

Although MUDs and MUSEs require a password for permanent

participants, they need not give their real name nor verify their

age, and there is no current technology to enable the

administrator of these fantasy worlds to know if the participant

is an adult or a minor.

          95.  Unlike other forms of communication on the

Internet, there is technology by which an operator of a World

Wide Web server may interrogate a user of a Web site.  An HTML

document can include a fill-in-the-blank "form" to request

information from a visitor to a Web site, and this information

can be transmitted back to the Web server and be processed by a

computer program, usually a Common Gateway Interface (cgi)

script.  The Web server could then grant or deny access to the

information sought.  The cgi script is the means by which a Web

site can process a fill-in form and thereby screen visitors by

requesting a credit card number or adult password.

          96.  Content providers who publish on the World Wide

Web via one of the large commercial online services, such as

America Online or CompuServe, could not use an online age

verification system that requires cgi script because the server

software of these online services available to subscribers cannot

process cgi scripts.  There is no method currently available for

Web page publishers who lack access to cgi scripts to screen

recipients online for age.



           The Practicalities of the Proffered Defenses

          Note:  The Government contends the CDA makes available

three potential defenses to all content providers on the

Internet:  credit card verification, adult verification by

password or adult identification number, and "tagging".



                     Credit Card Verification

          97.  Verification[19] of a credit card number over the

Internet is not now technically possible.  Witnesses testified

that neither Visa nor Mastercard considers the Internet to be

sufficiently secure under the current technology to process

transactions in that manner.  Although users can and do purchase

products over the Internet by transmitting their credit card

number, the seller must then process the transaction with Visa or

Mastercard off-line using phone lines in the traditional way.

There was testimony by several witnesses that Visa and Mastercard

are in the process of developing means of credit card

verification over the Internet.

          98.  Verification by credit card, if and when

operational, will remain economically and practically unavailable

for many of the non-commercial plaintiffs in these actions.  The

Government's expert "suspect[ed]" that verification agencies

would decline to process a card unless it accompanied a

commercial transaction.  There was no evidence to the contrary.

          99.  There was evidence that the fee charged by

verification agencies to process a card, whether for a purchase

or not, will preclude use of the credit-card verification defense

by many non-profit, non-commercial Web sites, and there was no

evidence to the contrary.  Plaintiffs' witness Patricia Nell

Warren, an author whose free Web site allows users to purchase

gay and lesbian literature, testified that she must pay $1 per

verification to a verification agency.  Her Web site can absorb

this cost because it arises in connection with the sale of books

available there.

          100. Using credit card possession as a surrogate for

age, and requiring use of a credit card to enter a site, would

impose a significant economic cost on non-commercial entities.

Critical Path, for example, received 3,300 hits daily from

February 4 through March 4, 1996.  If Critical Path must pay a

fee every time a user initially enters its site, then, to provide

free access to its non-commercial site, it would incur a monthly

cost far beyond its modest resources.  The ACLU's Barry

Steinhardt testified that maintenance of a credit card

verification system for all visitors to the ACLU's Web site would

require it to shut down its Web site because the projected cost

would exceed its budget.

          101. Credit card verification would significantly delay

the retrieval of information on the Internet.  Dr. Olsen, the

expert testifying for the Government, agreed that even "a minute

is [an] absolutely unreasonable [delay] . . . [P]eople will not

put up with a minute."  Plaintiffs' expert Donna Hoffman

similarly testified that excessive delay disrupts the "flow" on

the Internet and stifles both "hedonistic" and "goal-directed"

browsing.

          102.  Imposition of a credit card requirement would

completely bar adults who do not have a credit card and lack the

resources to obtain one from accessing any blocked material.  At

this time, credit card verification is effectively unavailable to

a substantial number of Internet content providers as a potential

defense to the CDA.



                  Adult Verification by Password

          103.  The Government offered very limited evidence

regarding the operation of existing age verification systems, and

the evidence offered was not based on personal knowledge.

AdultCheck and Verify, existing systems which appear to be used

for accessing commercial pornographic sites, charge users for

their services.  Dr. Olsen admitted that his knowledge of these

services was derived primarily from reading the advertisements on

their Web pages.  He had not interviewed any employees of these

entities, had not personally used these systems, had no idea how

many people are registered with them, and could not testify to

the reliability of their attempt at age verification.

          104.  At least some, if not almost all, non-commercial

organizations, such as the ACLU, Stop Prisoner Rape or Critical

Path AIDS Project, regard charging listeners to access their

speech as contrary to their goals of making their materials

available to a wide audience free of charge.

          105.  It would not be feasible for many non-commercial

organizations to design their own adult access code screening

systems because the administrative burden of creating and

maintaining a screening system and the ongoing costs involved is

beyond their reach.  There was testimony that the costs would be

prohibitive even for a commercial entity such as HotWired, the

online version of Wired magazine.

          106.  There is evidence suggesting that adult users,

particularly casual Web browsers, would be discouraged from

retrieving information that required use of a credit card or

password.  Andrew Anker testified that HotWired has received many

complaints from its members about HotWired's registration system,

which requires only that a member supply a name, e-mail address

and self-created password.  There is concern by commercial

content providers that age verification requirements would

decrease advertising and revenue because advertisers depend on a

demonstration that the sites are widely available and frequently

visited.

          107.  Even if credit card verification or adult

password verification were implemented, the Government presented

no testimony as to how such systems could ensure that the user of

the password or credit card is in fact over 18.  The burdens

imposed by credit card verification and adult password

verification systems make them effectively unavailable to a

substantial number of Internet content providers.

                The Government's "Tagging" Proposal

          108. The feasibility and effectiveness of "tagging" to

restrict children from accessing "indecent" speech, as proposed

by the Government has not been established.  "Tagging" would

require content providers to label all of their "indecent" or

"patently offensive" material by imbedding a string of

characters, such as "XXX," in either the URL or HTML.  If a user

could install software on his or her computer to recognize the

"XXX" tag, the user could screen out any content with that tag.

Dr. Olsen proposed a "-L18" tag, an idea he developed for this

hearing in response to Mr. Bradner's earlier testimony that

certain tagging would not be feasible.

          109. The parties appear to agree that it is

technologically feasible -- "trivial", in the words of

plaintiffs' expert -- to imbed tags in URLs and HTML, and the

technology of tagging underlies both plaintiffs' PICS proposal

and the Government's "-L18" proposal.

          110. The Government's tagging proposal would require

all content providers that post arguably "indecent" material to

review all of their online content, a task that would be

extremely burdensome for organizations that provide large amounts

of material online which cannot afford to pay a large staff to

review all of that material.  The Carnegie Library would be

required to hire numerous additional employees to review its on-

line files at an extremely high cost to its limited budget.  The

cost and effort would be substantial for the Library and

frequently prohibitive for others.  Witness Kiroshi Kuromiya

testified that it would be impossible for his organization,

Critical Path, to review all of its material because it has only

one full and one part-time employee.

          111.  The task of screening and tagging cannot be done

simply by using software which screens for certain words, as Dr.

Olsen acknowledged, and we find that determinations as to what is

indecent require human judgment.

          112.  In lieu of reviewing each file individually, a

content provider could tag its entire site but this would prevent

minors from accessing much material that is not "indecent" under

the CDA.

          113.  To be effective, a scheme such as the -L18

proposal would require a worldwide consensus among speakers to

use the same tag to label "indecent" material.  There is

currently no such consensus, and no Internet speaker currently

labels its speech with the -L18 code or with any other widely-

recognized label.

          114. Tagging also assumes the existence of software

that recognizes the tags and takes appropriate action when it

notes tagged speech.  Neither commercial Web browsers nor user-

based screening software is currently configured to block a -L18

code.  Until such software exists, all speech on the Internet

will continue to travel to whomever requests it, without

hindrance.  Labelling speech has no effect in itself on the

transmission (or not) of that speech.  Neither plaintiffs nor the

Government suggest that tagging alone would shield minors from

speech or insulate a speaker from criminal liability under the

CDA. It follows that all speech on any topic that is available to

adults will also be available to children using the Internet

(unless it is blocked by screening software running on the

computer the child is using).

          115. There is no way that a speaker can use current

technology to know if a listener is using screening software.

          116. Tags can not currently activate or deactivate

themselves depending on the age or location of the receiver.

Critical Path, which posts on-line safer sex instructions, would

be unable to imbed tags that block its speech only in communities

where it may be regarded as indecent.  Critical Path, for

example, must choose either to tag its site (blocking its speech

in all communities) or not to tag, blocking its speech in none.





           The Problems of Offshore Content and Caching



          117. A large percentage, perhaps 40% or more, of

content on the Internet originates outside the United States.  At

the hearing, a witness demonstrated how an Internet user could

access a Web site of London (which presumably is on a server in

England), and then link to other sites of interest in England.  A

user can sometimes discern from a URL that content is coming from

overseas, since InterNIC allows a content provider to imbed a

country code in a domain name.[20]  Foreign content is otherwise

indistinguishable from domestic content (as long as it is in

English), since foreign speech is created, named, and posted in

the same manner as domestic speech.  There is no requirement that

foreign speech contain a country code in its URL.  It is

undisputed that some foreign speech that travels over the

Internet is sexually explicit.

          118. The use of "caching" makes it difficult to

determine whether the material originated from foreign or

domestic sources.  Because of the high cost of using the trans-

Atlantic and trans-Pacific cables, and because the high demand on

those cables leads to bottleneck delays, content is often

"cached", or temporarily stored, on servers in the United States.

Material from a foreign source in Europe can travel over the

trans-Atlantic cable to the receiver in the United States, and

pass through a domestic caching server which then stores a copy

for subsequent retrieval.  This domestic caching server, rather

than the original foreign server, will send the material from the

cache to the subsequent receivers, without placing a demand on

the trans-oceanic cables.  This shortcut effectively eliminates

most of the distance for both the request and the information

and, hence, most of the delay.  The caching server discards the

stored information according to its configuration (e.g., after a

certain time or as the demand for the information diminishes).

Caching therefore advances core Internet values:  the cheap and

speedy retrieval of information.

          119. Caching is not merely an international phenomenon.

Domestic content providers store popular domestic material on

their caching servers to avoid the delay of successive searches

for the same material and to decrease the demand on their

Internet connection.  America Online can cache the home page of

the New York Times on its servers when a subscriber first

requests it, so that subsequent subscribers who make the same

request will receive the same home page, but from America

Online's caching service rather than from the New York Times's

server.[21]

          120. Put simply, to follow the example in the prior

paragraph, America Online has no control over the content that

the New York Times posts to its Web site, and the New York Times

has no control over America Online's distribution of that content

from a caching server.



                             Anonymity

          121. Anonymity is important to Internet users who seek

to access sensitive information, such as users of the Critical

Path AIDS Project's Web site, the users, particularly gay youth,

of Queer Resources Directory, and users of Stop Prisoner Rape

(SPR).  Many members of SPR's mailing list have asked to remain

anonymous due to the stigma of prisoner rape.



                 Plaintiffs' Choices Under the CDA

          122. Many speakers who display arguably indecent

content on the Internet must choose between silence and the risk

of prosecution.  The CDA's defenses -- credit card verification,

adult access codes, and adult personal identification numbers --

are effectively unavailable for non-commercial, not-for-profit

entities.

          123.  The plaintiffs in this action are businesses,

libraries, non-commercial and not-for-profit organizations, and

educational societies and consortia.  Although some of the

material that plaintiffs post online -- such as information

regarding protection from AIDS, birth control or prison rape --

is sexually explicit and may be considered "indecent" or

"patently offensive" in some communities, none of the plaintiffs

is a commercial purveyor of what is commonly termed

"pornography."

                               III.

                        CONCLUSIONS OF LAW

          Plaintiffs have established a reasonable probability of

eventual success in the litigation by demonstrating that 

223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on

their face to the extent that they reach indecency.  Sections

223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their

face.  Accordingly, plaintiffs have shown irreparable injury, no

party has any interest in the enforcement of an unconstitutional

law, and therefore the public interest will be served by granting

the preliminary injunction.  Elrod v. Burns, 427 U.S. 347, 373-74

(1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied,

493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645,

653 (3d Cir. 1994).  The motions for preliminary injunction will

therefore be granted.

          The views of the members of the Court in support of

these conclusions follow.





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



                                A.

                       Statutory Provisions



          As noted in Part I, Introduction, the plaintiffs'

motion for a preliminary injunction is confined to portions of

two provisions of the Communications Decency Act of 1996, 

223(a) and  223(d), which they contend violate their First

Amendment free speech and Fifth Amendment due process rights.  To

facilitate reference, I set forth those provisions in full.

Section 223(a), the "indecency" provision, subjects to criminal

penalties of imprisonment of no more than two years or a fine or

both anyone who:

          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; . . .



          (2) knowingly permits any telecommunications facility

          under his control to be used for any activity

          prohibited by paragraph (1) with the intent that it be

          used for such activity.



(emphasis added).

          The term "telecommunications device" is specifically

defined not to include "the use of an interactive computer

service," as that is covered by section 223(d)(1).

          Section 223(d), the "patently offensive" provision,

subjects to criminal penalties anyone who:

          (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 use 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.





(emphasis added).

          Two aspects of these provisions stand out.  First, we

are dealing with criminal provisions, subjecting violators to

substantial penalties.  Second, the provisions on indecent and

patently offensive communications are not parallel.

          The government uses the term "indecent" interchangeably

with "patently offensive" and advises that it so construes the

statute in light of the legislative history and the Supreme

Court's analysis of the word "indecent" in FCC v. Pacifica

Foundation, 438 U.S. 726 (1978).  However,  the CDA does not

define "indecent."  Notwithstanding Congress' familiarity with

Pacifica, it enacted  223(a), covering "indecent"

communications, without any language confining "indecent" to

descriptions or depictions of "sexual or excretory activities or

organs," language it included in the reference to "patently

offensive" in  223(d)(1)(B).  Nor does  223(a) contain the

phrase "in context," which the government believes is relevant.

          The failure to define "indecent" in  223(a) is thus

arguably a negative pregnant and subject to "the rule of

construction that an express statutory requirement here,

contrasted with statutory silence there, shows an intent to

confine the requirement to the specified instance."  Field v.

Mans, 116 S.Ct. 437, 442 (1995).  See also Gozlon-Peretz v.

United States, 498 U.S. 395, 404 (1991) ("'[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion'") (quoting Russello v. United

States, 464 U.S. 16, 23 (1983)).

          Plaintiffs note the difference but do not press this as

a basis for distinguishing between the two sections in their

preliminary injunction arguments and therefore I will also use

the words interchangeably for this purpose, leaving open the

issue for consideration at the final judgment stage if it becomes

relevant.

                                B.

                   Preliminary Injunction Standard

          To obtain a preliminary injunction, plaintiffs must

establish that they are likely to prevail on the merits and that

they will suffer irreparable harm if injunctive relief is not

granted.  We also must consider whether the potential harm to the

defendant from issuance of a temporary restraining order

outweighs possible harm to the plaintiffs if such relief is

denied, and whether the granting of injunctive relief is in the

public interest.  See Campbell Soup Co. v. ConAgra, Inc., 977

F.2d 86, 90-91 (3d Cir. 1992); Bradley v. Pittsburgh Bd. of

Educ., 910 F.2d 1172, 1175 (3d Cir. 1990).

          In a case in which the injury alleged is a threat to

First Amendment interests, the finding of irreparable injury is

often tied to the likelihood of success on the merits.  In Elrod

v. Burns, 427 U.S. 347 (1976), the Supreme Court emphasized that

"the loss of First Amendment freedoms, for even minimal periods

of time, unquestionably constitutes irreparable injury."  Id. at

373 (citing New York Times Co. v. United States, 403 U.S. 713

(1971)).

          Subjecting speakers to criminal penalties for speech

that is constitutionally protected in itself raises the spectre

of irreparable harm.  Even if a court were unwilling to draw that

conclusion from the language of the statute itself, plaintiffs

have introduced ample evidence that the challenged provisions, if

not enjoined, will have a chilling effect on their free

expression.  Thus, this is not a case in which we are dealing

with a mere incidental inhibition on speech, see Hohe v. Casey,

868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but

with a regulation that directly penalizes speech.

          Nor could there be any dispute about the public

interest factor which must be taken into account before a court

grants a preliminary injunction.  No long string of citations is

necessary to find that the public interest weighs in favor of

having access to a free flow of constitutionally protected

speech.  See, e.g., Turner Broadcasting System, Inc. v. FCC, 114

S. Ct. 2445, 2458 (1994); Virginia Bd. of Pharmacy v. Virginia

Citizens Consumer Council, 425 U.S. 748, 763-65 (1976).

          Thus, if plaintiffs have shown a likelihood of success

on the merits, they will have shown the irreparable injury needed

to entitle them to a preliminary injunction.



                                C.

                   Applicable Standard of Review

          The CDA is patently a government-imposed content-based

restriction on speech, and the speech at issue, whether

denominated "indecent" or "patently offensive," is entitled to

constitutional protection.  See Sable Communications of

California, Inc. v. FCC, 492 U.S. 115, 126 (1989).  As such, the

regulation is subject to strict scrutiny, and will only be upheld

if it is justified by a compelling government interest and if it

is narrowly tailored to effectuate that interest.  Sable, 492

U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459

(1994).  "[T]he benefit gained [by a content-based restriction]

must outweigh the loss of constitutionally protected rights."

Elrod v. Burns, 427 U.S. at 363.

          The government's position on the applicable standard

has been less than pellucid but, despite some references to a

somewhat lesser burden employed in broadcasting cases, it now

appears to have conceded that it has the burden of proof to show

both a compelling interest and that the statute regulates least

restrictively.  Tr. of Preliminary Injunction Hearing at 121 (May

10, 1996).  In any event, the evidence and our Findings of Fact

based thereon show that Internet communication, while unique, is

more akin to telephone communication, at issue in Sable, than to

broadcasting, at issue in Pacifica, because, as with the

telephone, an Internet user must act affirmatively and

deliberately to retrieve specific information online.  Even if a

broad search will, on occasion, retrieve unwanted materials, the

user virtually always receives some warning of its content,

significantly reducing the element of surprise or "assault"

involved in broadcasting.  Therefore, it is highly unlikely that

a very young child will be randomly "surfing" the Web and come

across "indecent" or "patently offensive" material.

          Judge Dalzell's separate opinion fully explores the

reasons for the differential treatment of radio and television

broadcasting for First Amendment purposes from that accorded

other means of communication.  It follows that to the extent the

Court employed a less than strict scrutiny standard of review in

Pacifica and other broadcasting cases, see, e.g., Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969), there is no reason

to employ a less than strict scrutiny standard of review in this

case.

                                D.

              The Nature of the Government's Interest

          The government asserts that shielding minors from

access to indecent materials is the compelling interest

supporting the CDA.  It cites in support the statements of the

Supreme Court that "[i]t is evident beyond the need for

elaboration that a State's interest in `safeguarding the physical

and psychological well-being of a minor' is `compelling,'"  New

York v. Ferber, 458 U.S. 747, 757 (1982)(quoting Globe Newspaper

Co. v. Superior Court, 457 U.S. 596, 607 (1982)), and "there is a

compelling interest in protecting the physical and psychological

well-being of minors.  This interest extends to shielding minors

from the influence of literature that is not obscene by adult

standards."  Sable, 492 U.S at 126.  It also cites the similar

quotation appearing in Fabulous Assoc., Inc. v. Pennsylvania

Public Utility Comm'n, 896 F.2d 780, 787 (3d Cir. 1990).

          Those statements were made in cases where the potential

harm to children from the material was evident.  Ferber involved

the constitutionality of a statute which prohibited persons from

knowingly promoting sexual performances by children under 16 and

distributing material depicting such performances.  Sable and

Fabulous involved the FCC's ban on "dial-a-porn" (dealing by

definition with pornographic telephone messages).  In contrast to

the material at issue in those cases, at least some of the

material subject to coverage under the "indecent" and "patently

offensive" provisions of the CDA may contain valuable literary,

artistic or educational information of value to older minors as

well as adults.  The Supreme Court has held that "minors are

entitled to a significant measure of First Amendment protection,

and only in relatively narrow and well-defined circumstances may

government bar public dissemination of protected materials to

them."  Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-213

(1975)(citations omitted).

          In Erznoznik, the Court rejected an argument that an

ordinance prohibiting the display of films containing nudity at

drive-in movie theatres served a compelling interest in

protecting minor passersby from the influence of such films.  The

Court held that the prohibition was unduly broad, and explained

that "[s]peech that is neither obscene as to youths nor subject

to some other legitimate proscription cannot be suppressed solely

to protect the young from ideas or images that a legislative body

thinks unsuitable for them."  422 U.S. at 213-14.  As Justice

Scalia noted in Sable, "[t]he more pornographic what is embraced

within the . . .  category of `indecency,' the more reasonable it

becomes to insist upon greater assurance of insulation from

minors."  Sable, 492 U.S. at 132 (Scalia, J., concurring).  It

follows that where non-pornographic, albeit sexually explicit,

material also falls within the sweep of the statute, the interest

will not be as compelling.

          In part, our consideration of the government's showing

of a "compelling interest" trenches upon the vagueness issue,

discussed in detail in Judge Buckwalter's opinion but equally

pertinent to First Amendment analysis.  Material routinely

acceptable according to the standards of New York City, such as

the Broadway play Angels in America which concerns homosexuality

and AIDS portrayed in graphic language, may be far less

acceptable in smaller, less cosmopolitan communities of the

United States.  Yet the play garnered two Tony Awards and a

Pulitzer prize for its author, and some uninhibited parents and

teachers might deem it to be material to be read or assigned to

eleventh and twelfth graders.  If available on the Internet

through some libraries, the text of the play would likely be

accessed in that manner by at least some students, and it would

also arguably fall within the scope of the CDA.

          There has been recent public interest in the female

genital mutilation routinely practiced and officially condoned in

some countries.  News articles have been descriptive, and it is

not stretching to assume that this is a subject that occupies

news groups and chat rooms on the Internet.  We have no assurance

that these discussions, of obvious interest and relevance to

older teenage girls, will not be viewed as patently offensive -

even in context - in some communities.

          Other illustrations abound of non-obscene material

likely to be available on the Internet but subject to the CDA's

criminal provisions.  Photographs appearing in National

Geographic or a travel magazine of the sculptures in India of

couples copulating in numerous positions, a written description

of a brutal prison rape, or Francesco Clemente's painting

"Labirinth," see Def. Exh. 125, all might be considered to

"depict or describe, in terms patently offensive as measured by

contemporary community standards, sexual or excretory activities

or organs."  47 U.S.C.  223(d)(1).  But the government has made

no showing that it has a compelling interest in preventing a

seventeen-year-old minor from accessing such images.

          By contrast, plaintiffs presented testimony that

material that could be considered indecent, such as that offered

by Stop Prisoner Rape or Critical Path AIDS project, may be

critically important for certain older minors.  For example,

there was testimony that one quarter of all new HIV infections in

the United States is estimated to occur in young people between

the ages of 13 and 20, an estimate the government made no effort

to rebut.  The witnesses believed that graphic material that

their organizations post on the Internet could help save lives,

but were concerned about the CDA's effect on their right to do

so.

          The government counters that this court should defer to

legislative conclusions about this matter.  However, where First

Amendment rights are at stake, "[d]eference to a legislative

finding cannot limit judicial inquiry." Sable, 492 U.S. at 129

(quoting Landmark Communications, Inc. v. Virginia, 435 U.S. 829,

843 (1978)).  "[W]hatever deference is due legislative findings

would not foreclose our independent judgment of the facts bearing

on an issue of constitutional law."  Id.

          Moreover, it appears that the legislative "findings"

the government cites concern primarily testimony and statements

by legislators about the prevalence of obscenity, child

pornography, and sexual solicitation of children on the Internet.

Similarly, at the hearings before us the government introduced

exhibits of sexually explicit material through the testimony of

Agent Howard Schmidt, which consisted primarily of the same type

of hard-core pornographic materials (even if not technically

obscene) which concerned Congress and which fill the shelves of

"adult" book and magazine stores.  Plaintiffs emphasize that they

do not challenge the Act's restrictions on speech not protected

by the First Amendment, such as obscenity, child pornography or

harassment of children.  Their suit is based on their assertion,

fully supported by their evidence and our findings, that the CDA

reaches much farther.

          I am far less confident than the government that its

quotations from earlier cases in the Supreme Court signify that

it has shown a compelling interest in regulating the vast range

of online material covered or potentially covered by the CDA.

Nonetheless, I acknowledge that there is certainly a compelling

government interest to shield a substantial number of minors from

some of the online material that motivated Congress to enact the

CDA, and do not rest my decision on the inadequacy of the

government's showing in this regard.



                                E.

                     The Reach of the Statute

          Whatever the strength of the interest the government

has demonstrated in preventing minors from accessing "indecent"

and "patently offensive" material online, if the means it has

chosen sweeps more broadly than necessary and thereby chills the

expression of adults, it has overstepped onto rights protected by

the First Amendment.  Sable, 492 U.S. at 131.

          The plaintiffs argue that the CDA violates the First

Amendment because it effectively bans a substantial category of

protected speech from most parts of the Internet.  The

government responds that the Act does not on its face or in

effect ban indecent material that is constitutionally protected

for adults.  Thus one of the factual issues before us was the

likely effect of the CDA on the free availability of

constitutionally protected material.  A wealth of persuasive

evidence, referred to in detail in the Findings of Fact, proved

that it is either technologically impossible or economically

prohibitive for many of the plaintiffs to comply with the CDA

without seriously impeding their posting of online material which

adults have a constitutional right to access.

          With the possible exception of an e-mail to a known

recipient, most content providers cannot determine the identity

and age of every user accessing their material.  Considering

separately content providers that fall roughly into two

categories, we have found that no technology exists which allows

those posting on the category of newsgroups, mail exploders or

chat rooms to screen for age.  Speakers using those forms of

communication cannot control who receives the communication, and

in most instances are not aware of the identity of the

recipients.  If it is not feasible for speakers who communicate

via these forms of communication to conduct age screening, they

would have to reduce the level of communication to that which is

appropriate for children in order to be protected under the

statute.   This would effect a complete ban even for adults of

some expression, albeit "indecent," to which they are

constitutionally entitled, and thus would be unconstitutional

under the holding in Sable, 492 U.S. at 131.

          Even as to content providers in the other broad

category, such as the World Wide Web, where efforts at age

verification are technically feasible through the use of Common

Gateway Interface (cgi) scripts (which enable creation of a

document that can process information provided by a Web visitor),

the Findings of Fact show that as a practical matter, non-

commercial organizations and even many commercial organizations

using the Web would find it prohibitively expensive and

burdensome to engage in the methods of age verification proposed

by the government, and that even if they could attempt to age

verify, there is little assurance that they could successfully

filter out minors.

          The government attempts to circumvent this problem by

seeking to limit the scope of the statute to those content

providers who are commercial pornographers, and urges that we do

likewise in our obligation to save a congressional enactment from

facial unconstitutionality wherever possible.  But in light of

its plain language and its legislative history, the CDA cannot

reasonably be read as limited to commercial pornographers.  A

court may not impose a narrowing construction on a statute unless

it is "readily susceptible" to such a construction.  Virginia v.

American Booksellers Ass'n, 484 U.S. 383, 397 (1988).  The court

may not "rewrite a . . . law to conform it to constitutional

requirements."  Id.  Although we may prefer an interpretation of

a statute that will preserve the constitutionality of the

statutory scheme, United State v. Clark, 445 U.S. 23, 27 (1980),

we do not have license to rewrite a statute to "create

distinctions where none were intended."  American Tobacco Co. v.

Patterson, 456 U.S. 63, 72 n.6 (1982); see also Consumer Party v.

Davis, 778 F.2d 140, 147 (3d Cir. 1985).  The Court has often

stated that "absent a clearly expressed legislative intention to

the contrary, [statutory] language must ordinarily be regarded as

conclusive."  Escondido Mut. Water Co. v. La Jolla Band of

Mission Indians, 466 U.S. 765, 772 (1984)(quoting North Dakota v.

United States, 460 U.S. 300, 312 (1983)).

          It is clear from the face of the CDA and from its

legislative history that Congress did not intend to limit its

application to commercial purveyors of pornography.  Congress

unquestionably knew how to limit the statute to such entities if

that was its intent, and in fact it did so in provisions relating

to dial-a-porn services.  See 47 U.S.C.  223(b)(2)(A)

(criminalizing making any indecent telephone communication "for

commercial purposes").  It placed no similar limitation in the

CDA.  Moreover, the Conference Report makes clear that Congress

did not intend to limit the application of the statute to content

providers such as those which make available the commercial

material contained in the government's exhibits, and confirms

that Congress intended "content regulation of both commercial and

non-commercial providers."  Conf. Rep. at 191.  See also, 141

Cong. Rec. S8089 (daily ed. June 9, 1995) (Statement of Senator

Exon).

          The scope of the CDA is not confined to material that

has a prurient interest or appeal, one of the hallmarks of

obscenity, because Congress sought to reach farther.  Nor did

Congress include language that would define "patently offensive"

or "indecent" to exclude material of serious value.  It follows

that to narrow the statute in the manner the government urges

would be an impermissible exercise of our limited judicial

function, which is to review the statute as written for its

compliance with constitutional mandates.

          I conclude inexorably from the foregoing that the CDA

reaches speech subject to the full protection of the First

Amendment, at least for adults.[1]  In questions of the witnesses

and in colloquy with the government attorneys, it became evident

that even if "indecent" is read as parallel to "patently

offensive," the terms would cover a broad range of material from

contemporary films, plays and books showing or describing sexual

activities (e.g., Leaving Las Vegas) to controversial

contemporary art and photographs showing sexual organs in

positions that the government conceded would be patently

offensive in some communities (e.g., a Robert Mapplethorpe

photograph depicting a man with an erect penis).

          We have also found that there is no effective way for

many Internet content providers to limit the effective reach of

the CDA to adults because there is no realistic way for many

providers to ascertain the age of those accessing their

materials.  As a consequence, we have found that "[m]any speakers

who display arguably indecent content on the Internet must choose

between silence and the risk of prosecution."  Such a choice,

forced by sections 223(a) and (d) of the CDA, strikes at the

heart of speech of adults as well as minors.



                                F.

                 Whether CDA is Narrowly Tailored

          In the face of such a patent intrusion on a substantial

category of protected speech for adults, there is some irony in

considering whether the statute is narrowly tailored or, as

sometimes put, whether Congress has used the least restrictive

means to achieve a compelling government interest.  See Sable,

492 U.S. at 126.  It would appear that the extent of the

abridgement of the protected speech of adults that it has been

shown the CDA would effect is too intrusive to be outweighed by

the government's asserted interest, whatever its strength, in

protecting minors from access to indecent material.  Nonetheless,

the formulation of the inquiry requires that we consider the

government's assertion that the statute is narrowly drafted, and

I proceed to do so.

          In this case, the government relies on the statutory

defenses for its argument of narrow tailoring.  There are a

number of reasons why I am not persuaded that the statutory

defenses can save the CDA from a conclusion of facial

unconstitutionality.

          First, it is difficult to characterize a criminal

statute that hovers over each content provider, like the

proverbial sword of Damocles, as a narrow tailoring.  Criminal

prosecution, which carries with it the risk of public obloquy as

well as the expense of court preparation and attorneys' fees,

could itself cause incalculable harm.  No provider, whether an

individual, non-profit corporation, or even large publicly held

corporation, is likely to willingly subject itself to prosecution

for a miscalculation of the prevalent community standards or for

an error in judgment as to what is indecent.  A successful

defense to a criminal prosecution would be small solace indeed.

          Credit card and adult verification services are

explicitly referred to as defenses in  223(e)(5)(B) of the CDA.

As is set forth fully in the detailed Findings of Fact, these

defenses are not technologically or economically feasible for

most providers.

          The government then falls back on the affirmative

defense to prosecution provided in  223(e)(5)(A) for a person

who "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 . . . including any method which is feasible under

available technology."  The government emphasizes that

"effective" does not require 100% restriction, and that this

defense is "open-ended" and requires only reasonable efforts

based on current technology.

          But, as the evidence made clear, there is no such

technology at this time.  The government proffered as one option

that would constitute a valid affirmative defense under 

223(e)(5)(A) a "tagging" scheme conceived by Dr. Olsen in

response to this lawsuit whereby a string of characters would be

imbedded in all arguably indecent or patently offensive material.

Our Findings of Fact set forth fully the reasons why we found

that the feasibility and effectiveness of tagging in the manner

proposed by the government has not been established.  All parties

agree that tagging alone does nothing to prevent children from

accessing potentially indecent material, because it depends upon

the cooperation of third parties to block the material on which

the tags are embedded.  Yet these third parties, over which the

content providers have no control, are not subject to the CDA.  I

do not believe a statute is narrowly tailored when it subjects to

potential criminal penalties those who must depend upon third

parties for the effective operation of a statutory defense.

          Most important, the government's "tagging" proposal is

purely hypothetical and offers no currently operative defense to

Internet content providers.  At this time, there is no agreed-

upon "tag" in existence, and no web browsers or user-based

screening systems are now configured to block tagged material.

Nor, significantly, has the government stipulated that a content

provider could avoid liability simply by tagging its material.

          Third, even if the technology catches up, as the

government confidently predicts, there will still be a not

insignificant burden attached to effecting a tagging defense, a

burden one should not have to bear in order to transmit

information protected under the constitution.  For example, to

effect tagging content providers must review all of their

material currently published online, as well as all new material

they post in the future, to determine if it could be considered

"patently offensive" in any community nationwide.  This would be

burdensome for all providers, but for the many not-for-profit

entities which currently post thousands of Web pages, this burden

would be one impossible to sustain.

           Finally, the viability of the defenses is intricately

tied to the clarity of the CDA's scope.  Because, like Judge

Buckwalter, and for many of the reasons he gives, I believe that

"indecent" and "patently offensive" are inherently vague,

particularly in light of the government's inability to identify

the relevant community by whose standards the material will be

judged, I am not persuaded by the government that the statutory

defenses in  223(e) provide effective protection from the

unconstitutional reach of the statute.

          Minors would not be left without any protection from

exposure to patently unsuitable material on the Internet should

the challenged provisions of the CDA be preliminarily enjoined.

Vigorous enforcement of current obscenity and child pornography

laws should suffice to address the problem the government

identified in court and which concerned Congress.  When the CDA

was under consideration by Congress, the Justice Department

itself communicated its view that it was not necessary because it

was prosecuting online obscenity, child pornography and child

solicitation under existing laws, and would continue to do so.[2]

It follows that the CDA is not narrowly tailored, and the

government's attempt to defend it on that ground must fail.

                                G.

                      Preliminary Injunction

          When Congress decided that material unsuitable for

minors was available on the Internet, it could have chosen to

assist and support the development of technology that would

enable parents, schools, and libraries to screen such material

from their end.  It did not do so, and thus did not follow the

example available in the print media where non-obscene but

indecent and patently offensive books and magazines abound.

Those responsible for minors undertake the primary obligation to

prevent their exposure to such material.  Instead, in the CDA

Congress chose to place on the speakers the obligation of

screening the material that would possibly offend some

communities.

          Whether Congress' decision was a wise one is not at

issue here.  It was unquestionably a decision that placed the CDA

in serious conflict with our most cherished protection - the

right to choose the material to which we would have access.

          The government makes what I view as an extraordinary

argument in its brief.  It argues that blocking technology needed

for effective parental control is not yet widespread but that it

"will imminently be in place." Government's Post-hearing

Memorandum at 66.  It then states that if we uphold the CDA, it

"will likely unleash the 'creative genius' of the Internet

community to find a myriad of possible solutions."  I can imagine

few arguments less likely to persuade a court to uphold a

criminal statute than one that depends on future technology to

cabin the reach of the statute within constitutional bounds.

          The government makes yet another argument that troubles

me.  It suggests that the concerns expressed by the plaintiffs

and the questions posed by the court reflect an exaggerated

supposition of how it would apply the law, and that we should, in

effect, trust the Department of Justice to limit the CDA's

application in a reasonable fashion that would avoid prosecution

for placing on the Internet works of serious literary or artistic

merit.  That would require a broad trust indeed from a generation

of judges not far removed from the attacks on James Joyce's

Ulysses as obscene.  See United States v. One Book Entitled

Ulysses, 72 F.2d 705 (2d Cir. 1934); see also Book Named "John

Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of

Mass., 383 U.S. 413 (1966).  Even if we were to place confidence

in the reasonable judgment of the representatives of the

Department of Justice who appeared before us, the Department is

not a monolithic structure, and individual U.S. Attorneys in the

various districts of the country have or appear to exercise some

independence, as reflected by the Department's tolerance of

duplicative challenges in this very case.

          But the bottom line is that the First Amendment should

not be interpreted to require us to entrust the protection it

affords to the judgment of prosecutors.  Prosecutors come and go.

Even federal judges are limited to life tenure.  The First

Amendment remains to give protection to future generations as

well.  I have no hesitancy in concluding that it is likely that

plaintiffs will prevail on the merits of their argument that the

challenged provisions of the CDA are facially invalid under both

the First and Fifth Amendments.







BUCKWALTER, District Judge

                                A.

          I believe that plaintiffs should prevail in this

litigation.

          My conclusion differs in part from my original

memorandum filed in conjunction with the request for a Temporary

Restraining Order.  As part of the expedited review (per  561 of

the CDA), and in contrast to the limited documentation available

to me at the time of the T.R.O. hearing, we have now gathered

voluminous evidence presented by way of sworn declarations, live

testimony, demonstrative evidence, and other exhibits.[1]  Based

upon our findings of fact derived from careful consideration of

that evidence, I now conclude that this statute is overbroad and

does not meet the strict scrutiny standard in Sable

Communications of California, Inc. v. FCC, 492 U.S. 115 (1989).

          More specifically, I now find that current technology

is inadequate to provide a safe harbor to most speakers on the

Internet.  On this issue, I concur in Chief Judge Sloviter's

opinion.  In addition, I continue to believe that the word

"indecent" is unconstitutionally vague, and I find that the terms

"in context" and "patently offensive" also are so vague as to

violate the First and Fifth Amendments.

          It is, of course, correct that statutes that attempt to

regulate the content of speech presumptively violate the First

Amendment.  See e.g. R.A.V. v. City of Saint Paul, 505 U.S. 377,

381 (1992).  That is as it should be.  The prohibition against

Government's regulation of speech cannot be set forth any clearer

than in the language of the First Amendment itself.  I suspect,

however, that it may come as a surprise to many people who have

not followed the evolution of constitutional law that, by

implication at least, the First Amendment provides that Congress

shall make no law abridging the freedom of speech unless that law

advances a compelling governmental interest.[2]  Our cherished

freedom of speech does not cover as broad a spectrum as one may

have gleaned from a simple reading of the Amendment.[3]

          First Amendment jurisprudence has developed into a

study of intertwining standards and applications, perhaps as a

necessary response to our ever-evolving culture and modes of

communication.[4]

          Essentially, my concerns are these:  above all, I

believe that the challenged provisions are so vague as to violate

both the First and Fifth Amendments, and in particular that

Congress' reliance on Pacifica is misplaced.  In addition, I

believe that technology as it currently exists -- and it bears

repeating that we are at the preliminary injunction phase only --

cannot provide a safe harbor for most speakers on the Internet,

thus rendering the statute unconstitutional under a strict

scrutiny analysis.  I refer to Chief Judge Sloviter's more

detailed analysis of this issue.

          While I believe that our findings of fact clearly show

that as yet no defense is technologically feasible, and while I

also have found the present Act to be unconstitutionally vague, I

believe it is too early in the development of this new medium to

conclude that other attempts to regulate protected speech within

the medium will fail a challenge.  That is to say that I

specifically do not find that any and all statutory regulation of

protected speech on the Internet could not survive constitutional

scrutiny.  Prior cases have established that government

regulation to prevent access by minors to speech protected for

adults, even in media considered the vanguard of our First

Amendment protections, like print, may withstand a constitutional

challenge.  See e.g. Ginsberg v. New York, 390 U.S. 629, 635

(1968) ("`Material which is protected for distribution to adults

is not necessarily constitutionally protected from restriction

upon its dissemination to children.'") (quoting Bookcase Inc. v.

Broderick, 18 N.Y.2d 71, 75, 271 N.Y.S.2d 947, 952, 218 N.E.2d

668, 671 (1966), appeal dismissed, sub nom Bookcase, Inc. v.

Leary, 385 U.S. 12 (1966)).  It should be noted that those

restrictions that have been found constitutional were sensitive

to the unique qualities of the medium at which the restriction

was aimed.



                                B.



          This statute, all parties agree, deals with protected

speech, the preservation of which has been extolled by court

after court in case after case as the keystone, the bulwark, the

very heart of our democracy. What is more, the CDA attempts to

regulate protected speech through criminal sanctions, thus

implicating not only the First but also the Fifth Amendment of

our Constitution.  The concept of due process is every bit as

important to our form of government as is free speech.  If free

speech is at the heart of our democracy, then surely due process

is the very lifeblood of our body politic; for without it,

democracy could not survive.  Distilled to its essence, due

process is, of course, nothing more and nothing less than fair

play.  If our citizens cannot rely on fair play in their

relationship with their government, the stature of our government

as a shining example of democracy would be greatly diminished.  I

believe that an exacting or strict scrutiny of a statute which

attempts to criminalize protected speech requires a word by word

look at that statute to be sure that it clearly sets forth as

precisely as possible what constitutes a violation of the

statute.

          The reason for such an examination is obvious.  If the

Government is going to intrude upon the sacred ground of the

First Amendment and tell its citizens that their exercise of

protected speech could land them in jail, the law imposing such a

penalty must clearly define the prohibited speech not only for

the potential offender but also for the potential enforcer.

Kolender, 461 U.S. 352; Hoffman Estates, 455 U.S. 489; Smith v.

Goguen, 415 U.S. 566 (1974); Grayned v. City of Rockford, 408

U.S. 104 (1972); Winters v. New York, 333 U.S. 507 (1948).

          In dealing with issues of vagueness and due process

over the years, the Supreme Court has enunciated many notable

principles.  One concern with vague laws relates to the issue of

notice.  The older cases have used phrases such as "a statute

which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at

its meaning and differ as to its application violates the first

essential of due process of law,"  Connally v. General Const.

Co., 269 U.S. 385, 391 (1926) (citations omitted); "it will not

do to hold an average man to the peril of indictment for the

unwise exercise of his . . . knowledge involving so many factors

of varying effect that neither the person to decide in advance

nor the jury to try him after the fact can safely and certainly

judge the result," Cline v. Frink Dairy Co., 274 U.S. 445, 465

(1927); and "[n]o one may be required at peril of life, liberty

or property to speculate as to the meaning of penal statutes.

All are entitled to be informed as to what the State commands or

forbids," Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

Second, the Court has said that laws must provide precise

standards for those who apply them to prevent arbitrary and

discriminatory enforcement, because "[w]hen the legislature fails

to provide such minimal guidelines, a criminal statute may permit

`a standardless sweep [that] allows policemen, prosecutors, and

juries to pursue their personal predilections.'"  Kolender, 461

U.S. at 358 (citing Goguen, 415 U.S. at 575).  Finally, when

First Amendment concerns have been implicated, a stricter

standard of examination for vagueness is imperative.  "[T]his

court has intimated that stricter standards of permissible

statutory vagueness may be applied to a statute having a

potentially inhibiting effect on speech; a man may the less be

required to act at his peril here, because the free dissemination

of ideas may be the loser."  Smith v. California, 361 U.S. 147,

151 (1959).  See also Hoffman Estates, 455 U.S. at 499

("[P]erhaps the most important factor affecting the clarity that

the Constitution demands of a law is whether it threatens to

inhibit the exercise of constitutionally protected rights.  If,

for example, the law interferes with the right of free speech . .

. , a more stringent vagueness test should apply.") (citations

omitted).

          A case which sums up vagueness as it relates to due

process as succinctly as any other is Grayned v. City of

Rockford.  Here the court said:

               It is a basic principle of due process

               that an enactment is void for vagueness

               if its prohibitions are not clearly

               defined.  Vague laws offend several

               important values.  First, because we

               assume that man is free to steer between

               lawful and unlawful conduct, we insist

               that laws give the person of ordinary

               intelligence a reasonable opportunity to

               know what is prohibited, so that he may

               act accordingly.  Vague laws may trap

               the innocent by not providing fair

               warning.  Second, if arbitrary and

               discriminatory enforcement is to be

               prevented, laws must provide explicit

               standards for those who apply them.  A

               vague law impermissibly delegates basic

               policy matters to policemen, judges, and

               juries for resolution on an ad hoc and

               subjective basis, with the attendant

               dangers of arbitrary and discriminatory

               application.  Third, but related, where

               a vague statute "abut[s] upon sensitive

               areas of basic First Amendment

               freedoms," it "operates to inhibit the

               exercise of [those] freedoms."

               Uncertain meanings inevitably lead

               citizens to "'steer far wider of the

               unlawful zone' . . . than if the

               boundaries of the forbidden areas were

               clearly marked."



Grayned, 408 U.S. at 108-109 (citations omitted).

          At the same time, in considering the vagueness issue,

as the Government correctly points out, "[C]ondemned to the use

of words, we can never expect mathematical certainty from our

language." Grayned, 408 U.S. at 110.  See also Hoffman Estates,

455 U.S. 489; Hynes v. Mayor & Council of Oradell, 425 U.S. 610

(1976); Goguen, 415 U.S. 566.   In addition, it will always be

true that the fertile legal "imagination can conjure hypothetical

cases in which the meaning of [disputed] terms will be in nice

question."  American Communications Assn. v. Douds, 339 U.S. 382,

412 (1950).  Thus, as I considered the vagueness issue I have

kept in mind the observation of Justice Holmes, denying a

challenge to vagueness in Nash v. United States, 229 U.S. 373

(1913).  To Justice Holmes, "the law is full of instances where a

man's fate depends on his estimating rightly, that is, as the

jury subsequently estimates it, some matter of degree.  If his

judgment is wrong, not only may he incur a fine or a short

imprisonment . . ., he may incur the penalty of death."  Nash,

229 U.S. at 377.  Even more recently the court has stated that

"due process does not require `impossible standards' of clarity."

Kolender, 461 U.S. at 361, (quoting United States v. Petrillo,

332 U.S. 1, 7-8 (1947)).  It is with all of these principles in

mind, as they interplay with the unique features of the Internet,

that I have reached my conclusion.

          The fundamental constitutional principle that concerns

me is one of simple fairness, and that is absent in the CDA.  The

Government initially argues that "indecent" in this statute is

the same as "patently offensive."  I do not agree that a facial

reading of this statute supports that conclusion.  The CDA does

not define the term "indecent," and the FCC has not promulgated

regulations defining indecency in the medium of cyberspace.   If

"indecent" and "patently offensive" were intended to have the

same meaning, surely section (a) could have mirrored section

(d)'s language.[5]  Indecent in this statute is an undefined word

which, standing alone, offers no guidelines whatsoever as to its

parameters.  Interestingly, another federal crime gives a

definition to indecent entirely different from that proposed in

the present case.[6]  While not applicable here, this example

shows the indeterminate nature of the word and the need for clear

definition, particularly in a statute which infringes upon

protected speech.  Although the use of different terms in 

223(a) and (d) suggests that Congress intended that the terms

have different meanings, the Conference Report indicates an

intention to treat  223(a) as containing the same language as 

223(d).  Conf. Rep. at 188-89 ("The conferees intend that the

term indecency . . . has the same meaning as established in FCC

v. Pacifica Foundation, 438 U.S. 726 (1978) and [Sable] and "New

section 223(d)(1) codifies the definition of indecency from

[Pacifica] . . . .  The precise contours of the definition of

indecency have varied . . . .  The essence of the phrase --

patently offensive descriptions of sexual and excretory

activities -- has remained constant, however.").  Therefore, I

will acknowledge that the term indecency is "reasonably

susceptible" to the definition offered in the Conference Report

and might therefore adopt such a narrowing construction if it

would thereby preserve the constitutionality of the statute.  See

Virginia v. American Booksellers Association, 484 U.S. 383, 397

(1988);  Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).

          Accepting these terms as synonymous, however, provides

no greater help to a speaker attempting to comply with the CDA.

Contrary to the Government's suggestion, Pacifica does not answer

the question of whether the terms pass constitutional muster in

the present case.  In Pacifica, the Court did not consider a

vagueness challenge to the term "indecent," but considered only

whether the Government had the authority to regulate the

particular broadcast at issue -- George Carlin's Monologue

entitled "Filthy Words."  In finding in the affirmative, the

Court emphasized that its narrow holding applied only to

broadcasting, which is "uniquely accessible to children, even

those too young to read."  438 U.S. at 749.  Thus, while the

Court sanctioned the FCC's time restrictions on a radio program

that repeatedly used vulgar language, the Supreme Court did not

hold that use of the term "indecent" in a statute applied to

other media, particularly a criminal statute, would be on safe

constitutional ground.

          The Supreme Court more recently had occasion to

consider a statute banning "indecent" material in the dial-a-porn

context in Sable, 492 U.S. 115, and found that a complete ban on

such programming violated the First Amendment because it was not

narrowly tailored to serve the purpose of limiting children's

access to commercial pornographic telephone messages.  Once

again, the Court did not consider a challenge to the term

"indecent" on vagueness grounds, and indeed has never directly

ruled on this issue.

          Several other courts have, however, upheld the use of

the term in statutes regulating different media.  For example, in

Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir.

1991), the Ninth Circuit Court of Appeals considered whether the

term "indecent" in the 1989 Amendment to the Communications Act

regulating access to telephone dial-a-porn services and the FCC's

implementing regulations was void for vagueness.  The FCC had

defined "indecent" as "the description or depiction of sexual or

excretory activities or organs in a patently offensive manner as

measured by contemporary community standards for the telephone

medium."  928 F.2d at 874.  Although recognizing that the Supreme

Court had never explicitly ruled on a vagueness challenge to the

term, the court read Sable and Pacifica as having implicitly

accepted the use of this definition of "indecent."  The court

further stated that the FCC's definition of "indecent" was no

less imprecise than was the definition of "obscenity" as

announced in Miller v. California, 413 U.S. 15, 25 (1973), and

thus concluded that "indecent" as pertained to dial-a-porn

regulations must survive a vagueness challenge.  See also Dial

Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991),

(upholding the use of "indecent" in the same amendment to the

Communications Act and FCC regulations.); Action for Children's

Television v. FCC, 932 F.2d 1504, 1508 (D.C.Cir. 1991) (rejecting

vagueness challenge to "indecency" provision in broadcast

television regulations).[7]

          Notably, however, in these telephone and cable

television cases the FCC had defined indecent as patently

offensive by reference to contemporary community standards for

that particular medium.  See, e.g., Pacifica, 438 U.S. at 732

(defining "indecent" by reference to terms "patently offensive as

measured by contemporary community standards for the broadcast

medium"); Dial Information Services, 938 F.2d at 1540 (defining

indecency by reference to contemporary community standards for

the telephone medium).  Here, the provision is not so limited.

In fact, there is no effort to conform the restricting terms to

the medium of cyberspace, as is required under Pacifica and its

progeny.

          The Government attempts to save the "indecency" and

"patently offensive" provisions by claiming that the provisions

would only be used to prosecute pornographic works which, when

considered "in context" as the statute requires, would be

considered "indecent" or "patently offensive" in any community.

The Government thus contends that plaintiffs' fears of

prosecution for publishing material about matters of health, art,

literature or civil liberties are exaggerated and unjustified.

The Government's argument raises two issues:  first is the

question of which "community standards" apply in cyberspace,

under the CDA; and second is the proposition that citizens should

simply rely upon prosecutors to apply the statute

constitutionally.

          Are the contemporary community standards to be applied

those of the vast world of cyberspace, in accordance with the

Act's apparent intent to establish a uniform national standard of

content regulation?  The Government offered no evidence of any

such national standard or nationwide consensus as to what would

be considered "patently offensive".  On the contrary, in

supporting the use of the term "indecent" in the CDA, the

Government suggests that, in part, this term was chosen as a

means of insulating children from material not restricted under

current obscenity laws.  This additional term is necessary, the

Government states, because "whether something rises to the level

of obscene is a legal conclusion that, by definition, may vary

from community to community."  Govt. Brief at 31.  In support of

its argument, the Government points to the Second Circuit's

decision in United States v. Various Articles of Obscene

Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d Cir.

1983), which upheld the district court's conclusion that

"detailed portrayals of genitalia, sexual intercourse, fellatio,

and masturbation" including the film "Deep Throat" and other

pornographic films and magazines, are not obscene in light of the

community standards prevailing in New York City."  What this

argument indicates is that as interpretations of obscenity ebb

and flow throughout various communities, restrictions on indecent

material are meant to cover a greater or lesser quantity of

material not reached by each community's obscenity standard.  It

follows that to do this, what constitutes indecency must be as

open to fluctuation as the obscenity standard and cannot be

rigidly constructed as a single national standard if it is meant

to function as the Government has suggested.  As Justice Scalia

stated, "[t]he more narrow the understanding of what is

`obscene,' . . . the more pornographic what is embraced within

the residual category of `indecency.'"  Sable, 492 U.S. at 132

(Scalia, J. concurring).  This understanding is consistent with

the case law, in which the Supreme Court has explained that the

relevant community is the one where the information is accessed

and where the local jury sits.  See Sable, 492 U.S. at 125;

Hamling v. United States, 418 U.S. 87 (1974); Miller, 413 U.S. at

30 ("[O]ur nation is simply too big and too diverse for this

Court to reasonably expect that such standards [of what is

patently offensive] could be articulated for all 50 states in a

single formulation.").  However, the Conference Report with

regard to the CDA states that the Act is "intended to establish a

uniform national standard of content regulation."  Conf. Rep. at

191.  This conflict inevitably leaves the reader of the CDA

unable to discern the relevant "community standard," and will

undoubtedly cause Internet users to "steer far wider of the

unlawful zone" than if the community standard to be applied were

clearly defined.  The chilling effect on the Internet users'

exercise of free speech is obvious.  See Baggett v. Bullitt, 377

U.S. 360, 372 (1964).  This is precisely the vice of vagueness.

          In addition, the Government's argument that the

challenged provisions will be applied only to "pornographic"

materials, and will not be applied to works with serious value is

without support in the CDA itself.  Unlike in the obscenity

context, indecency has not been defined to exclude works of

serious literary, artistic, political or scientific value, and

therefore the Government's suggestion that it will not be used to

prosecute publishers of such material is without foundation in

the law itself.  The Government's claim that the work must be

considered patently offensive "in context" does nothing to

clarify the provision, for it fails to explain which context is

relevant.  "Context" may refer to, among other things, the nature

of the communication as a whole, the time of day it was conveyed,

the medium used, the identity of the speaker, or whether or not

it is accompanied by appropriate warnings.  See e.g., Pacifica,

438 U.S. at 741 n.16, n.17 (referring to "the context of the

whole book," and to the unique interpretation of the First

Amendment "in the broadcasting context").

          The thrust of the Government's argument is that the

court should trust prosecutors to prosecute only a small segment

of those speakers subject to the CDA's restrictions, and whose

works would reasonably be considered "patently offensive" in

every community.  Such unfettered discretion to prosecutors,

however, is precisely what due process does not allow.  "It will

not do to say that a prosecutor's sense of fairness and the

Constitution would prevent a successful . . . prosecution for

some of the activities seemingly embraced within the sweeping

statutory definitions.  The hazard of being prosecuted . . .

nevertheless remains . . . .  Well-intentioned prosecutors and

judicial safeguards do not neutralize the vice of a vague law."

Baggett, 377 U.S. at 373-74; see also Keyishian v. Board of

Regents, 385 U.S. 589, 599 (1967)("[i]t is no answer" to a vague

law for the Government "to say that the statute would not be

applied in such a case.").  And we cannot overlook the vagaries

of politics.  What may be, figuratively speaking, one

administration's pen may be another's sword.

          The evidence and arguments presented by the Government

illustrate the possibility of arbitrary enforcement of the Act.

For example, one Government expert opined that any of the so-

called "seven dirty words" used in the Carlin monologue would be

subject to the CDA and therefore should be "tagged," as should

paintings of nudes displayed on a museum's web site.  The

Government has suggested in its brief, however, that the Act

should not be so applied.  See Govt. Brief at 37 (suggesting that

"seven dirty words" if used "in the context of serious

discussions" would not be subject to the Act).  Even Government

counsel was unable to define "indecency" with specificity.  The

Justice Department attorney could not respond to numerous

questions from the court regarding whether, for example, artistic

photographs of a nude man with an erect penis, depictions of

Indian statues portraying different methods of copulation, or the

transcript of a scene from a contemporary play about AIDS could

be considered "indecent" under the Act.

          Plaintiffs also argue that section 223(e)(5)(A) of the

CDA, offering a defense for speakers who take "good faith,

reasonable, effective and appropriate actions under the

circumstances to restrict or prevent access by minors to a

communication" covered by the Act, is unconstitutionally vague

because it fails to specify what would constitute an effective

defense to prosecution.  The plain language of the safe harbor

provision indicates an effort to ensure that the statute limits

speech in the least restrictive means possible by taking into

account emerging technologies in allowing for any and all

"reasonable, effective and appropriate" approaches to restricting

minors' access to the proscribed material.  But, the statute

itself does not contain any description of what, other than

credit card verification and adult identification codes -- which

we have established remain unavailable to most content providers

-- will protect a speaker from prosecution.  Significantly,

although the FCC is authorized to specify measures that might

satisfy this defense, the FCC's views will not be definitive but

will only "be admitted as evidence of good faith efforts" that

the defendant has met the requirements of the defense.  47 U.S.C.

 223(e)(6).  Thus, individuals attempting to comply with the

statute presently have no clear indication of what actions will

ensure that they will be insulated from criminal sanctions under

the CDA.



                                C.



          The consequences of posting indecent content are

severe.[8]  I recognize that people must make judgments each and

every day, many times in the most intimate of relationships and

that an error in judgment can have serious consequences.  It is

also true that where those consequences involve penal sanctions,

a criminal law or statute has more often than not carefully

defined the proscribed conduct.  It is not so much that the

accused needs these precise definitions, as it has been said he

or she rarely reads the law in advance.  What is more important

is that the enforcer of statutes must be guided by clear and

precise standards.  In statutes that break into relatively new

areas, such as this one, the need for definition of terms is

greater, because even commonly understood terms may have

different connotations or parameters in this new context.[9]

Words cannot define conduct with mathematical certainty, and

lawyers, like the bright and intelligent ones now before us, will

most certainly continue to devise ways by which to challenge

them.  This rationale, however, can neither support a finding of

constitutionality nor relieve legislators from the very difficult

task of carefully drafting legislation tailored to its goal and

sensitive to the unique characteristics of, in this instance,

cyberspace.







DALZELL, District Judge

A. Introduction

          I begin with first principles:  As a general rule, the

Constitution forbids the Government from silencing speakers

because of their particular message.  R.A.V. v. City of Saint

Paul, 112 S. Ct. 2538, 2542 (1992).  "Our political system and

cultural life rest upon this ideal."  Turner Broadcasting Sys. v.

FCC, 114 S. Ct. 2445, 2458 (1994).  This general rule is subject

only to "narrow and well-understood exceptions".  Id.  A law

that, as here, regulates speech on the basis of its content, is

"presumptively invalid".  R.A.V., 112 S. Ct. at 2542.

          Two of the exceptions to this general rule deal with

obscenity (commonly understood to include so-called hardcore

pornography), Miller v. California, 413 U.S. 15 (1973), and child

pornography, New York v. Ferber, 458 U.S. 747 (1982).  The

Government can and does punish with criminal sanction people who

engage in these forms of speech.  18 U.S.C.  1464-65

(criminalizing obscene material); id.  2251-52 (criminalizing

child pornography).  Indeed, the Government could punish these

forms of speech on the Internet even without the CDA.  E.g.,

United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995)

(affirming obscenity convictions for the operation of a computer

bulletin board).

          The Government could also completely ban obscenity and

child pornography from the Internet.  No Internet speaker has a

right to engage in these forms of speech, and no Internet

listener has a right to receive them.  Child pornography and

obscenity have "no constitutional protection, and the government

may ban [them] outright in certain media, or in all."  Alliance

for Community Media v. FCC, 56 F.3d 105, 112 (D.C. Cir. 1995)

(citing R.A.V., 112 S. Ct. at 2545), cert. granted sub nom.

Denver Area Educ. Telecommunications Consortium, 116 S. Ct. 471

(1996); see also Ferber, 458 U.S. at 756.  As R.A.V. notes, "'the

freedom of speech' referred to by the First Amendment does not

include a freedom to disregard these traditional limitations."

R.A.V., 112 S. Ct. at 2543.

          The cases before us, however, are not about obscenity

or child pornography.  Plaintiffs in these actions claim no right

to engage in these forms of speech in the future, nor does the

Government intimate that plaintiffs have engaged in these forms

of speech in the past.

          This case is about "indecency", as that word has come

to be understood since the Supreme Court's decisions in FCC v.

Pacifica Foundation, 438 U.S. 726 (1976), and Sable

Communications v. FCC, 492 U.S. 115 (1989).  The legal

difficulties in these actions arise because of the special place

that indecency occupies in the Supreme Court's First Amendment

jurisprudence.  While adults have a First Amendment right to

engage in indecent speech, Sable, 492 U.S. at 126; see also

Pacifica, 438 U.S. at 747-48, the Supreme Court has also held

that the Government may, consistent with the Constitution,

regulate indecency on radio and television, and in the "dial-a-

porn" context, as long as the regulation does not operate as a

complete ban.  Thus, any regulation of indecency in these areas

must give adults access to indecent speech, which is their right.

          The Government may only regulate indecent speech for a

compelling reason, and in the least restrictive manner.  Sable,

492 U.S. at 126.  "It is not enough to show that the Government's

ends are compelling; the means must be carefully tailored to

achieve those ends."  Id.  This "most exacting scrutiny", Turner,

114 S. Ct. at 2459, requires the Government to "demonstrate that

the recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and

material way."  United States v. National Treasury Employees

Union, 115 S. Ct. 1003, 1017 (1995) (citing Turner, 114 S. Ct. at

1017).  Thus, although our analysis here must balance ends and

means, the scales tip at the outset in plaintiffs' favor.  This

is so because "[r]egulations which permit the Government to

discriminate on the basis of the content of the message cannot be

tolerated under the First Amendment."  Simon & Schuster, Inc. v.

Members of the New York State Crime Victims Board, 502 U.S. 105,

116 (1991) (citation omitted).

          The Government argues that this case is really about

pornography on the Internet.  Apart from hardcore and child

pornography, however, the word pornography does not have a fixed

legal meaning.  When I use the word pornography in my analysis

below, I refer to for-profit purveyors of sexually explicit,

"adult" material similar to that at issue in Sable.  See 492 U.S.

at 118.  Pornography is normally either obscene or indecent, as

Justice Scalia noted in his concurrence in Sable.  Id. at 132.  I

would avoid using such an imprecise (and overbroad) word, but I

feel compelled to do so here, since Congress undoubtedly had such

material in mind when it passed the CDA.  See S. Rep. No. 230,

104th Cong., 2d Sess. 187-91 (1996), reprinted in 1996

U.S.C.C.A.N. 10, 200-05 [hereinafter Senate Report].  Moreover,

the Government has defended the Act before this court by arguing

that the Act could be constitutionally applied to such material.

          Plaintiffs have, as noted, moved for a preliminary

injunction.  The standards for such relief are well-settled.

Plaintiffs seeking preliminary injunctive relief must show (1)

"[a] reasonable probability of eventual success in the

litigation" and (2) "irreparabl[e] injur[y] pendente lite" if

relief is not granted.  Acierno v. New Castle County, 40 F.2d

645, 653 (3d Cir. 1994).  We must also consider, if appropriate,

(3) "the possibility of harm to other interested persons from the

grant or denial of the injunction", and (4) "the public

interest".  Id.; see also Opticians Ass'n v. Independent

Opticians, 920 F.2d 187, 192 (3d Cir. 1990).

          In a First Amendment challenge, a plaintiff who meets

the first prong of the test for a preliminary injunction will

almost certainly meet the second, since irreparable injury

normally arises out of the deprivation of speech rights, "for

even minimal periods of time".  Elrod v. Burns, 427 U.S. 347,

373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert.

denied, 493 U.S. 848 (1989).  Of course, neither the Government

nor the public generally can claim an interest in the enforcement

of an unconstitutional law.  Thus, I focus my legal analysis

today primarily on whether plaintiffs have shown a likelihood of

success on their claim that the CDA is unconstitutional.  The

issues of irreparable harm to plaintiffs, harm to third parties,

and the public interest all flow from that determination.[1]

          Plaintiffs' challenge here is a "facial" one.  A law

that regulates the content of speech is facially invalid if it

does not pass the "most exacting scrutiny" that we have described

above, or if it would "penalize a substantial amount of speech

that is constitutionally protected".  Forsyth County v.

Nationalist Movement, 112 S. Ct. 2395, 2401 (1992).  This is so

even if some applications would be "constitutionally

unobjectionable".  Id.; see also National Treasury Employees

Union v. United States, 990 F.2d 1271, 1279-80 (D.C. Cir. 1993)

(Randolph, J., concurring), aff'd, 115 S. Ct. 1003 (1995).

Sometimes facial challenges require an inquiry into a party's

"standing" (i.e., whether a party may properly challenge a law as

facially invalid).  See, e.g., Ferber, 458 U.S. at 767-79.  At

other times a facial challenge requires only an inquiry into the

law's reach.  See, e.g., R.A.V., 112 S. Ct. at 2547.[2]  As I

describe it in part C below, I have no question that plaintiffs

here have standing to challenge the validity of the CDA, and,

indeed, the Government has not seriously challenged plaintiffs'

standing to do so.  See, e.g., Virginia v. American Booksellers

Assoc., 484 U.S. 383, 392 (1988).  Thus, the focus is squarely on

the merits of plaintiffs' facial challenge.[3]

          I divide my legal analysis below into three parts.  In

Part B, I examine the traditional definition of indecency and

relate it to the provisions of the CDA at issue in this action.

From this analysis I conclude that  223(a) and  223(d) of the

CDA reach the same kind of speech.  My analysis also convinces me

that plaintiffs are unlikely to succeed in their claim that the

CDA is unconstitutionally vague.  In Part C, I address the

Government's argument that plaintiffs are not the CDA's target,

nor would they likely face prosecution under the Act.  Here, I

conclude that plaintiffs could reasonably fear prosecution under

the Act, even if some of their fears border on the farfetched.

In Part D, I consider the legal implications of the special

attributes of Internet communication, as well as the effect that

the CDA would have on these attributes.  In this Part I conclude

that the disruptive effect of the CDA on Internet communication,

as well as the CDA's broad reach into protected speech, not only

render the Act unconstitutional but also would render

unconstitutional any regulation of protected speech on this new

medium.



B.  Defining Indecency

          Although no court of appeals has ever to my knowledge

upheld a vagueness challenge to the meaning of "indecency",

several recent cases have grappled with the elusive meaning of

that word in the context of cable television and "dial-a-porn".

Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir.

1995), cert. granted, 116 S. Ct. 471 (1996); Dial Information

Serv. Corp. v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert.

denied, 502 U.S. 1072 (1992); Information Providers Coalition for

Defense of the First Amendment v. FCC, 928 F.2d 866 (9th Cir.

1991).

          In Alliance for Community Media, 56 F.3d at 123-25, for

example, the District of Columbia Court of Appeals addressed

prohibitions on indecent programming on certain cable television

channels.  That court noted that the FCC has codified the meaning

of "'indecent' programming" on cable television as "programming

that describes or depicts sexual or excretory activities or

organs in a patently offensive manner as measured by contemporary

community standards for the cable medium."  Id. at 112 (citing

what is now 47 C.F.R.  76.701(g)).

          The FCC took a similar approach to the definition of

"indecency" in the "dial-a-porn" medium.[4]  In Dial Information

Services, 938 F.2d at 1540, the Second Circuit quoted the FCC's

definition of indecent telephone communications in that context:

               [I]n the dial-a-porn context, we

               believe it is appropriate to define

               indecency as the description or

               depiction of sexual or excretory

               activities or organs in a patently

               offensive manner as measured by

               contemporary community standards

               for the telephone medium.

Id. at 1540 (citation omitted); see also Information Providers'

Coalition for Defense of the First Amendment v. FCC, 928 F.2d

866, 876 (9th Cir. 1991).

          These three cases recognize that the FCC did not define

"indecency" for cable and dial-a-porn in a vacuum.  Rather, it

borrowed from the Supreme Court's decision in FCC v. Pacifica

Foundation, 438 U.S. 726 (1978).  In that case (which I describe

in greater detail below), the Supreme Court established the rough

outline from which the FCC fashioned its three-part definition.

For the first two parts of the test, the Supreme Court emphasized

the "importance of context" in examining arguably indecent

material.  Id. at 747 n.25.  "Context" in the Pacifica opinion

includes consideration of both the particular medium from which

the material originates and the particular community that

receives the material.  Id. at 746 (assuming that the Carlin

monologue "would be protected in other contexts"); id. at 748-51

(discussing the attributes of broadcast); see also Information

Providers' Coalition, 928 F.2d at 876 (discussing the

"content/context dichotomy").  Second, the opinion limits its

discussion to "patently offensive sexual and excretory language",

Pacifica, 438 U.S. at 747, and this type of content has remained

the FCC's touchstone.  See, e.g., Alliance for Community Media,

56 F.3d at 112.[5]

          We have quoted from the CDA extensively above and I

will only briefly rehearse that discussion here.  Section 223(a)

of the CDA criminalizes "indecent" speech on the Internet.  This

is the "indecency" provision.  Section 223(d) of the CDA

addresses speech that, "in context, depicts or describes, in

terms patently offensive as measured by contemporary community

standards, sexual or excretory activities or organs".  This is

the "patently offensive" provision.  The foregoing discussion

leads me to conclude that these two provisions describe the same

kind of speech.  That is, the use of "indecent" in  223(a) is

shorthand for the longer description in  223(d).  Conversely,

the longer description in  223(d) is itself the definition of

"indecent" speech.  I believe Congress could have used the word

"indecent" in both  223(a) and  223(d), or it could have used

the "patently offensive" description of  223(d) in  223(a),

without a change in the meaning of the Act.  I do not believe

that Congress intended that this distinction alone would change

the reach of either section of the CDA.[6]

          The CDA's legislative history confirms this conclusion.

There, the conference committee explicitly noted that  223(d)

"codifies the definition of indecency from FCC v. Pacifica

Foundation, 438 U.S. 726 (1978). . . .  The conferees intend that

the term indecency (and the rendition of the definition of that

term in new section 502) has the same meaning as established in

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Sable

Communications of California, Inc. v. FCC, 492 U.S. 115 (1989)."

Senate Report at 188, reprinted in 1996 U.S.C.C.A.N. at 201-02.

The legislative history makes clear that Congress did not intend

to create a distinction in meaning when it used the generic term

"indecency" in  223(a) and the definition of that term in 

223(d).[7]

          There is no doubt that the CDA requires the most

stringent review for vagueness, since it is a criminal statute

that "threatens to inhibit the exercise of constitutionally

protected rights".  Colautti v. Franklin, 439 U.S 379, 391

(1979); see also Kolender v. Lawson, 461 U.S. 352, 358 n.8

(1983); Grayned, 408 U.S. at 108-09.  My analysis here

nevertheless leads ineluctably to the conclusion that the

definition of indecency is not unconstitutionally vague.  The

Miller definition of obscenity has survived such challenges, see,

e.g., Hamling v. United States, 418 U.S. 87, 118-19 (1974); Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 57 (1989), and the

definition of indecency contains a subset of the elements of

obscenity.  If the Miller test "give[s] the person of ordinary

intelligence a reasonable opportunity to know what is prohibited,

so that he may act accordingly", Grayned v. City of Rockford, 408

U.S. 104, 108 (1972), the omission of parts of that test does not

warrant a contrary conclusion.  See Dial Information Services,

938 F.2d at 1541-42.  Similarly, since the definition of

indecency arose from the Supreme Court itself in Pacifica, we may

fairly imply that the Court did not believe its own

interpretation to invite "arbitrary and discriminatory

enforcement" or "abut upon sensitive areas of basic First

Amendment freedoms".  Grayned, 408 U.S. at 108-109 (citations and

alterations omitted).  Sable, while not explicitly addressing the

issue of vagueness, reinforces this conclusion.  See Information

Providers' Coalition, 928 F.2d at 875-76 (citing Sable, 492 U.S.

at 126-27).  It follows, then, that plaintiffs' vagueness

challenge is not likely to succeed on the merits and does not

support preliminary injunctive relief.

          The possible interpretations of the defenses in 

223(e) do not alter this conclusion.  As a matter of statutory

construction,  223(e)(5)(B) could not be clearer.  This section,

which imports the dial-a-porn defenses into the CDA, creates

"specific and objective" methods to avoid liability.  See Roberts

v. United States Jaycees, 468 U.S. 609, 629 (1984).  Section

223(e)(5)(A) is more suspect, since it arguably "fail[s] to

describe with sufficient particularity what a suspect must do in

order to satisfy" it.  Kolender 461 U.S. at 361.[8]  Yet even

though the defenses in both sections are unavailable to many

Internet users, their unavailability does not render the

liability provisions vague.  Rather, their unavailability just

transforms  223(a) and  223(d) into a total ban, in violation

of Butler v. Michigan, 352 U.S. 380, 383 (1957), and Sable, 492

U.S. at 127, 131.  I am sensitive to plaintiffs' arguments that

the statute, as written, does not create safe harbors through

which all Internet users may shield themselves from liability.

Transcript of May 10, 1996, at 37-38.  Here again, however, the

absence of safe harbors relates to the (over)breadth of a

statute, and not its vagueness.  See Sable, 492 U.S. at 127, 131.



C.  Plaintiffs' Likelihood of Prosecution Under the Act

          The Government has consistently argued that the speech

of many of the plaintiffs here is almost certainly not indecent.

They point, for example, to the educational and political content

of plaintiffs' speech, and they also suggest that the occasional

curse word in a card catalogue will probably not result in

prosecution.  See Senate Report at 189, reprinted in 1996

U.S.C.C.A.N. at 203 ("Material with serious redeeming value is

quite obviously intended to edify and educate, not to offend.").

In this section I address that argument.

          I agree with the Government that some of plaintiffs'

claims are somewhat exaggerated, but hyperbolic claims do not in

themselves weigh in the Government's favor.  In recent First

Amendment challenges, the Supreme Court has itself paid close

attention to extreme applications of content-based laws.

          In Simon & Schuster, Inc. v. Members of the New York

State Crimes Victim Board, 502 U.S. 105 (1991), the Court

addressed the constitutionality of a law that required criminals

to turn over to their victims any income derived from books,

movies, or other commercial exploitation of their crimes.  Id. at

504-05.  In its opinion, the Court evaluated the argument of an

amicus curiae that the law's reach could include books such as

The Autobiography of Malcolm X, Civil Disobedience, and

Confessions of Saint Augustine, and authors such as Emma Goldman,

Martin Luther King, Jr., Sir Walter Raleigh, Jesse Jackson, and

Bertrand Russell.  Id. at 121-22.  The Court credited the

argument even while recognizing that it was laced with

"hyperbole":

               The argument that [the] statute . .

               . would prevent publication of all

               of these works is hyperbole -- some

               would have been written without

               compensation -- but the . . . law

               clearly reaches a wide range of

               literature that does not enable a

               criminal to profit from his crime

               while a victim remains

               uncompensated.

Id. at 122.  If a content-based law "can produce such an

outcome", id. at 123 (emphasis added), then Simon & Schuster

allows us to consider those outcomes in our analysis.

          Even more recently, in United States v. National

Treasury Employees Union, 115 S. Ct. 1003 (1995), the Court

addressed the constitutionality of a law that banned federal

employees from accepting honoraria for publications unrelated to

their work.  Id. at 1008.  The Court noted that the law would

reach "literary giants like Nathaniel Hawthorne and Herman

Melville, . . . Walt Whitman, . . . and Bret Harte".  Id. at

1012.  This concern resurfaced later in the opinion, see id. at

1015 ("[W]e cannot ignore the risk that [the ban] might deprive

us of the work of a future Melville or Hawthorne."), even though

a footnote immediately renders this concern at least hyperbolic:

               These authors' familiar masterworks

               would survive the honoraria ban as

               currently administered.  Besides

               exempting all books, the

               [regulations implementing the ban]

               protect fiction and poetry from the

               ban's coverage, although the

               statute's language is not so clear.

               But some great artists deal in fact

               as well as fiction, and some deal

               in both.

Id. n.16 (citations omitted).

          Here, even though it is perhaps unlikely that the

Carnegie Library will ever stand in the dock for putting its card

catalogue online, or that the Government will hale the ACLU into

court for its online quiz of the seven dirty words, we cannot

ignore that the Act could reach these activities.  The definition

of indecency, like the definition of obscenity, is not a rigid

formula.  Rather, it confers a large degree of autonomy to

individual communities to set the bounds of decency for

themselves.  Cf. Sable, 492 U.S. at 125-26.  This is as it should

be, since this flexibility recognizes that ours is a country with

diverse cultural and historical roots.  See, e.g., Hamling, 418

U.S. at 104 ("A juror is entitled to draw on his own knowledge of

the views of the average person in the community or vicinage from

which he comes for making the required determination, just as he

is entitled to draw on his knowledge of the propensities of a

'reasonable' person in other areas of the law.").

          Putting aside hyperbolic application, I also have

little doubt that some communities could well consider

plaintiffs' speech indecent, and these plaintiffs could --

perhaps should -- have a legitimate fear of prosecution.  In

Action for Children's Television v. FCC, 58 F.3d 654 (D.C. Cir.

1995), the District of Columbia Court of Appeals summarized three

broadcasts that the FCC found indecent in the late 1980s:

               The offending morning broadcast . .

               . contained "explicit references to

               masturbation, ejaculation, breast

               size, penis size, sexual

               intercourse, nudity, urination,

               oral-genital contact, erections,

               sodomy, bestiality, menstruation

               and testicles."  The remaining two

               were similarly objectionable.

Id. at 657 (citing In re Infinity Broadcasting Corp., 3 FCC R.

930, 932 (1987)).  In Infinity Broadcasting, one of the

broadcasts that the FCC found indecent was an excerpt of a play

about AIDS, finding that the excerpts "contained the concentrated

and repeated use of vulgar and shocking language to portray

graphic and lewd depictions of excretion, anal intercourse,

ejaculation, masturbation, and oral-genital sex".  3 FCC R. at

934.[9]  To the FCC, even broadcasts with "public value . . .

addressing the serious problems posed by AIDS" can be indecent if

"that material is presented in a manner that is patently

offensive".  Id. (emphasis in original).[10]

          Yet, this is precisely the kind of speech that occurs,

for example, on Critical Path AIDS Project's Web site, which

includes safer sex instructions written in street language for

easy comprehension.  The Web site also describes the risk of HIV

transmission for particular sexual practices.  The FCC's

implication in In the Matter of King Broadcasting Co., 5 FCC R.

2971 (1990), that a "candid discussion[] of sexual topics" on

television was decent in part because it was "not presented in a

pandering, titillating or vulgar manner" would be unavailing to

Critical Path, other plaintiffs, and some amici.  These

organizations want to pander and titillate on their Web sites, at

least to a degree, to attract a teen audience and deliver their

message in an engaging and coherent way.[11]

          In In re letter to Merrell Hansen, 6 FCC R. 3689

(1990), the FCC found indecent a morning discussion between two

announcers regarding Jim Bakker's alleged rape of Jessica Hahn.

Id.  Here, too, the FCC recognized that the broadcast had public

value.  Id. (noting that the broadcast concerned "an incident

that was at the time 'in the news'").  Yet, under the FCC's

interpretation of Pacifica, "the merit of a work is 'simply one

of the many variables' that make up a work's context".  Id.

(citation omitted).

          One of the plaintiffs here, Stop Prisoner Rape, Inc.,

has as its core purpose the issue of prison rape.  The

organization creates chat rooms in which members can discuss

their experiences.  Some amici have also organized Web sites

dedicated to survivors of rape, incest, and other sexual abuse.

These Web sites provide fora for the discussion and contemplation

of shared experiences.  The operators of these sites, and their

participants, could legitimately fear prosecution under the CDA.

          With respect to vulgarity, the Government is in a

similarly weak position.  In Pacifica, the Supreme Court held

that multiple repetition of expletives could be indecent.

Pacifica, 438 U.S. at 750.  Although the FCC did not follow this

rationale with respect to a broadcast of "a bona fide news story"

on National Public Radio, Letter to Mr. Peter Branton, 6 FCC R.

610 (1991), aff'd on other grounds sub nom. Branton v. FCC, 993

F.2d 906, 908 (D.C. Cir. 1993), the ACLU, a plaintiff here, could

take little comfort from that administrative decision.  It would

need to discern, for example, whether a chat room that it

organized to discuss the meaning of the word fuck was more like

the Carlin monologue or more like a National Public Radio

broadcast.[12]  Plaintiffs' expert would have found expletives

indecent in a community consisting only of himself,[13] and his

views undoubtedly -- and reasonably -- reflect the view of many

people.

          In sum, I am less confident than the Government that

societal mores have changed so drastically since Pacifica that an

online equivalent of the Carlin monologue, or the Carlin

monologue itself online, would pass muster under the CDA.  Under

existing precedent, plaintiffs' fear of prosecution under the Act

is legitimate, even though they are not the pornographers

Congress had in mind when it passed the CDA.[14]   Cf. City of

Houston v. Hill, 482 U.S. 451, 459 (1987).  My discussion of the

effect and reach of the CDA, therefore, applies both to

plaintiffs' hyperbolic concerns and to their very real ones.

D.  A Medium-Specific Analysis

          The Internet is a new medium of mass communication.[15]

As such, the Supreme Court's First Amendment jurisprudence

compels us to consider the special qualities of this new medium

in determining whether the CDA is a constitutional exercise of

governmental power.  Relying on these special qualities, which we

have described at length in our Findings of fact above, I

conclude that the CDA is unconstitutional and that the First

Amendment denies Congress the power to regulate protected speech

on the Internet.  This analysis and conclusions are consistent

with Congress's intent to avoid tortuous and piecemeal review of

the CDA by authorizing expedited, direct review in the Supreme

Court "as a matter of right" of interlocutory, and not merely

final, orders upholding facial challenges to the Act.  See 

561(b) of the Telecommunications Act of 1996.[16]



          1.  The Differential Treatment of Mass Communication

Media

          Nearly fifty years ago, Justice Jackson recognized that

"[t]he moving picture screen, the radio, the newspaper, the

handbill, the sound truck and the street corner orator have

differing natures, values, abuses and dangers.  Each . . . is a

law unto itself".  Kovacs v. Cooper, 336 U.S. 77, 97 (1949)

(Jackson, J., concurring).  The Supreme Court has expressed this

sentiment time and again since that date, and differential

treatment of the mass media has become established First

Amendment doctrine.  See, e.g., Turner Broadcasting Sys., Inc. v.

FCC, 114 S. Ct. 2445, 2456 (1994) ("It is true that our cases

have permitted more intrusive regulation of broadcast speakers

than of speakers in other media."); Pacifica, 438 U.S. at 748

("We have long recognized that each medium of expression presents

special First Amendment problems."); City of Los Angeles v.

Preferred Communications, Inc., 476 U.S. 488, 496 (1974)

("Different communications media are treated differently for

First Amendment purposes.") (Blackmun, J., concurring);

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 500-01

(1981) (plurality opinion) ("This Court has often faced the

problem of applying the broad principles of the First Amendment

to unique forums of expression.").  Thus, the Supreme Court has

established different rules for print, Miami Herald Publishing

Co. v. Tornillo, 418 U.S. 241 (1974), broadcast radio and

television, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S.

367 (1969), cable television, Turner, 114 S. Ct. at 2456-57, and

even billboards, Metromedia, 453 U.S. at 501, and drive-in movie

theaters, Erzoznik v. City of Jacksonville, 422 U.S. 205 (1975).

          This medium-specific approach to mass communication

examines the underlying technology of the communication to find

the proper fit between First Amendment values and competing

interests.  In print media, for example, the proper fit generally

forbids governmental regulation of content, however minimal.

Tornillo, 418 U.S. at 258.  In other media (billboards, for

example), the proper fit may allow for some regulation of both

content and of the underlying technology (such as it is) of the

communication.  Metromedia, 453 U.S. at 502.

           Radio and television broadcasting present the most

expansive approach to medium-specific regulation of mass

communication.  As a result of the scarcity of band widths on the

electromagnetic spectrum, the Government holds broad authority

both to parcel out the frequencies and to prohibit others from

speaking on the same frequency:

               As a general matter, there are more

               would-be broadcasters than

               frequencies available in the

               electromagnetic spectrum.  And if

               two broadcasters were to attempt to

               transmit over the same frequency in

               the same locale, they would

               interfere with one another's

               signals, so that neither could be

               heard at all.  The scarcity of

               broadcast frequencies thus required

               the establishment of some

               regulatory mechanism to divide the

               electromagnetic spectrum and assign

               specific frequencies to particular

               broadcasters.

Turner, 114 S. Ct. at 2456 (citing FCC v. League of Women Voters,

468 U.S. 364 (1984)).

          This scarcity also allows the Government to regulate

content even after it assigns a license:

               In addition, the inherent physical

               limitation on the number of

               speakers who may use the broadcast

               medium has been thought to require

               some adjustment in traditional

               First Amendment analysis to permit

               the Government to place limited

               content restraints, and impose

               certain affirmative obligations, on

               broadcast licensees.

Id. at 2457 (citing Red Lion, 395 U.S. at 390-95; National

Broadcasting Co. v. United States, 319 U.S. 190 (1943)).

          The broadcasting cases firmly establish that the

Government may force a licensee to offer content to the public

that the licensee would otherwise not offer, thereby assuring

that radio and television audiences have a diversity of content.

In broadcasting, "[i]t is the right of the public to receive

suitable access to social, political, esthetic, moral, and other

ideas and experiences which is crucial".  Red Lion, 395 U.S. at

390; see also CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A

licensed broadcaster is 'granted the free and exclusive use of a

limited and valuable part of the public domain; when he accepts

that franchise it is burdened by enforceable public

obligations.'") (citation omitted); Columbia Broadcasting Sys.,

Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 110-11 (1973).

These content restrictions include punishing licensees who

broadcast inappropriate but protected speech at an impermissible

time.  Pacifica, 438 U.S. at 750-51.

          In this case, the Government relies on the Pacifica

decision in arguing that the CDA is a constitutional exercise of

governmental power.  Since the CDA regulates indecent speech, and

since Pacifica authorizes governmental regulation of indecent

speech (so the Government's argument goes), it must follow that

the CDA is a valid exercise of governmental power.  That

argument, however, ignores Pacifica's roots as a decision

addressing the proper fit between broadcasting and the First

Amendment.  The argument also assumes that what is good for

broadcasting is good for the Internet.



          2.  The Scope of the Pacifica Decision

          In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the

Supreme Court first decided whether the Government had the power

to regulate indecent speech.  Id. at 729.  In Pacifica, a radio

listener complained about the broadcast of George Carlin's

"Filthy Words" monologue at 2:00 p.m. on a Tuesday afternoon.

Id. at 729-30.  The Carlin monologue was replete with "the words

you couldn't say on the public . . . airwaves . . . , ever", and

the listener had tuned in while driving with his young son in New

York.  Id.  The FCC issued a declaratory order, holding that it

could have subjected the Pacifica Foundation (owner of the radio

station) to an administrative sanction.  Id. at 730.  In its

order the FCC also described the standards that it would use in

the future to regulate indecency in the broadcast medium.  Id. at

731.  The Supreme Court upheld the FCC's decision and confirmed

the power of that agency to regulate indecent speech.  Id. at

750-51.

          The rationale of Pacifica rested on three overlapping

considerations.  First, using as its example the Carlin monologue

before it, the Court weighed the value of indecent speech and

concluded that such speech "lie[s] at the periphery of First

Amendment concerns."  Id. at 743.  Although the Court recognized

that the FCC had threatened to punish Pacifica based on the

content of the Carlin monologue, id. at 742, it found that the

punishment would have been permissible because four-letter words

"offend for the same reasons that obscenity offends."  Id. at 746

(footnote omitted).  The Court then described the place of four-

letter words "in the hierarchy of first amendment values":

               Such utterances are no essential

               part of any exposition of ideas,

               and are of such slight social value

               as a step to truth that any benefit

               that may be derived from them is

               clearly outweighed by the social

               interest in order and morality.

Id. at 746 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572

(1942)).

          Second, the Court recognized that "broadcasting . . .

has received the most limited First Amendment protection."  Id.

at 748.  The Government may regulate broadcast consistent with

the Constitution, even though the same regulation would run afoul

of the First Amendment in the print medium.  Id. (comparing Red

Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) with Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)).  This is

so because broadcasting has a "uniquely pervasive presence in the

lives of all Americans" and "is uniquely accessible to children,

even those too young to read."  Pacifica, 438 U.S. at 748-49.

          Third, the Court found the FCC's sanction -- an

administrative sanction -- to be an appropriate means of

regulating indecent speech.  At the outset of the opinion, the

Court disclaimed that its holding was a "consider[ation of] any

question relating to the possible application of  1464 as a

criminal statute."  Id. at 739 n.13.  Later in the opinion, the

Court "emphasize[d] the narrowness of [its] holding", and

explicitly recognized that it had not held that the Carlin

monologue would justify a criminal prosecution.  Id. at 750.

Instead, the Court allowed the FCC to regulate indecent speech

with administrative penalties under a "nuisance" rationale --

"like a pig in the parlor instead of the barnyard."  Id. at 750

(citation omitted).

          Time has not been kind to the Pacifica decision.  Later

cases have eroded its reach, and the Supreme Court has repeatedly

instructed against overreading the rationale of its holding.

          First, in Bolger v. Young Drug Products Corp., 463 U.S.

60 (1983), the Supreme Court refused to extend Pacifica to a law

unrelated to broadcasting.  In that case, a federal law

prohibited the unsolicited mailing of contraceptive

advertisements.  Id. at 61.  The Government defended the law by

claiming an interest in protecting children from the

advertisements.  The Court rejected this argument as overbroad:

               In [Pacifica], this Court did

               recognize that the Government's

               interest in protecting the young

               justified special treatment of an

               afternoon broadcast heard by adults

               as well as children.  At the same

               time, the majority "emphasize[d]

               the narrowness of our holding",

               explaining that broadcasting is

               "uniquely pervasive" and that it is

               "uniquely accessible to children,

               even those too young to read."  The

               receipt of mail is far less

               intrusive and uncontrollable.  Our

               decisions have recognized that the

               special interest of the Federal

               Government in regulation of the

               broadcast media does not readily

               translate into a justification for

               regulation of other means of

               communication.

Id. at 74 (citations and footnotes omitted) (emphasis in

original) see also id. at 72 ("[T]he 'short, though regular,

journey from mail box to trash can . . . is an acceptable burden,

at least so far as the Constitution is concerned.'") (citation

omitted) (alterations in original).

          Second, in Sable Communications v. FCC, 492 U.S. 115

(1989), the Supreme Court again limited Pacifica.  In that case,

the Court considered the validity of a ban on indecent "dial-a-

porn" communications.  Id. at 117-18.[17]  As in Bolger, the

Government argued that Pacifica justified a complete ban of that

form of speech.  The Supreme Court disagreed, holding instead

that Pacifica's "emphatically narrow" holding arose out of the

"unique attributes of broadcasting".  Id. at 127.  The Court held

that the ban was unconstitutional.  Id. at 131.

          Sable narrowed Pacifica in two ways.  First, the Court

implicitly rejected Pacifica's nuisance rationale for dial-a-

porn, holding instead that the Government could only regulate the

medium "by narrowly drawn regulations designed to serve those

interests without unnecessarily interfering with First Amendment

freedoms".  Id. at 126 (citation omitted).  Under this strict

scrutiny, "[i]t is not enough to show that the Government's ends

are compelling; the means must be carefully tailored to achieve

those ends."  Id.; see also Fabulous Assoc. v. Pennsylvania Pub.

Util. Comm., 896 F.2d 780, 784-85 (3d Cir. 1990).

          Second, the Court concluded that the law, like a law it

had struck down in 1957, "denied adults their free speech rights

by allowing them to read only what was acceptable for children".

Sable, 492 U.S. at 126 (citing Butler v. Michigan, 352 U.S. 380

(1957)).  Thus, any regulation of dial-a-porn would have to give

adults the opportunity to partake of that medium.  Id.  This

conclusion echoes Bolger.  See Bolger, 463 U.S. at 74 ("The level

of discourse reaching a mailbox simply cannot be limited to that

which would be suitable for a sandbox.").[18]

          Finally, in Turner Broadcasting System, Inc. v. FCC,

114 S. Ct. 2445 (1994), the Supreme Court implicitly limited

Pacifica once again when it declined to adopt the broadcast

rationale for the medium of cable television.  The Court

concluded that the rules for broadcast were "inapt" for cable

because of the "fundamental technological differences between

broadcast and cable transmission".  Id. at 2457.

          The legal significance to this case of Turner's refusal

to apply the broadcast rules to cable television cannot be

overstated.  Turner's holding confirms beyond doubt that the

holding in Pacifica arose out of the scarcity rationale unique to

the underlying technology of broadcasting, and not out of the end

product that the viewer watches.  That is, cable television has

no less of a "uniquely pervasive presence" than broadcast

television, nor is cable television more "uniquely accessible to

children" than broadcast.  See Pacifica, 438 U.S. at 748-49.

From the viewer's perspective, cable and broadcast television are

identical:  moving pictures with sound from a box in the home.

Whether one receives a signal through an antenna or through a

dedicated wire, the end result is just television in either case.

In declining to extend broadcast's scarcity rationale for cable,

the Supreme Court also implicitly limited Pacifica, the holding

of which flows directly from that rationale.[19]

          Turner thus confirms that the analysis of a particular

medium of mass communication must focus on the underlying

technology that brings the information to the user.  In

broadcast, courts focus on the limited number of band widths and

the risk of interference with those frequencies.  See, e.g.,

Turner, 114 S. Ct. at 2456-57.  In cable, courts focus on the

number of channels, the different kinds of cable operators, and

the cost to the consumer.  Id. at 2452.

          I draw two conclusions from the foregoing analysis.

First, from the Supreme Court's many decisions regulating

different media differently, I conclude that we cannot simply

assume that the Government has the power to regulate protected

speech over the Internet, devoting our attention solely to the

issue of whether the CDA is a constitutional exercise of that

power.  Rather, we must also decide the validity of the

underlying assumption as well, to wit, whether the Government has

the power to regulate protected speech at all.  That decision

must take into account the underlying technology, and the actual

and potential reach, of that medium.  Second, I conclude that

Pacifica's holding is not persuasive authority here, since

plaintiffs and the Government agree that Internet communication

is an abundant and growing resource.  Nor is Sable persuasive

authority, since the Supreme Court's holding in that case

addressed only one particular type of communication (dial-a-

porn), and reached no conclusions about the proper fit between

the First Amendment and telephone communications generally.

Again, plaintiffs and the Government here agree that the Internet

provides content as broad as the imagination.



          3.  The Effect of the CDA and the Novel Characteristics

of Internet Communication

          Over the course of five days of hearings and many

hundreds of pages of declarations, deposition transcripts, and

exhibits, we have learned about the special attributes of

Internet communication.  Our Findings of fact -- many of them

undisputed -- express our understanding of the Internet.  These

Findings lead to the conclusion that Congress may not regulate

indecency on the Internet at all.

          Four related characteristics of Internet communication

have a transcendent importance to our shared holding that the CDA

is unconstitutional on its face.  We explain these

characteristics in our Findings of fact above, and I only

rehearse them briefly here.  First, the Internet presents very

low barriers to entry.  Second, these barriers to entry are

identical for both speakers and listeners.  Third, as a result of

these low barriers, astoundingly diverse content is available on

the Internet.  Fourth, the Internet provides significant access

to all who wish to speak in the medium, and even creates a

relative parity among speakers.

          To understand how disruptive the CDA is to Internet

communication, it must be remembered that the Internet evolved

free of content-based considerations.  Before the CDA, it only

mattered how, and how quickly, a particular packet of data

travelled from one point on the Internet to another.  In its

earliest incarnation as the ARPANET, the Internet was for many

years a private means of access among the military, defense

contractors, and defense-related researchers.  The developers of

the technology focused on creating a medium designed for the

rapid transmittal of the information through overlapping and

redundant connections, and without direct human involvement.  Out

of these considerations evolved the common transfer protocols,

packet switching, and the other technology in which today's

Internet users flourish.  The content of the data was, before the

CDA, an irrelevant consideration.

          It is fair, then, to conclude that the benefits of the

Internet to private speakers arose out of the serendipitous

development of its underlying technology.  As more networks

joined the "network of networks" that is the Internet, private

speakers have begun to take advantage of the medium.  This should

not be surprising, since participation in the medium requires

only that networks (and the individual users associated with

them) agree to use the common data transfer protocols and other

medium-specific technology.  Participation does not require, and

has never required, approval of a user's or network's content.

          After the CDA, however, the content of a user's speech

will determine the extent of participation in the new medium.  If

a speaker's content is even arguably indecent in some

communities, he must assess, inter alia, the risk of prosecution

and the cost of compliance with the CDA.  Because the creation

and posting of a Web site allows users anywhere in the country to

see that site, many speakers will no doubt censor their speech so

that it is palatable in every community.  Other speakers will

decline to enter the medium at all.  Unlike other media, there is

no technologically feasible way for an Internet speaker to limit

the geographical scope of his speech (even if he wanted to), or

to "implement[] a system for screening the locale of incoming"

requests.  Sable 492 U.S. at 125.

          The CDA will, without doubt, undermine the substantive,

speech-enhancing benefits that have flowed from the Internet.

Barriers to entry to those speakers affected by the Act would

skyrocket, especially for non-commercial and not-for-profit

information providers.  Such costs include those attributable to

age or credit card verification (if possible), tagging (if

tagging is even a defense under the Act[20]), and monitoring or

review of one's content.

          The diversity of the content will necessarily diminish

as a result.  The economic costs associated with compliance with

the Act will drive from the Internet speakers whose content falls

within the zone of possible prosecution.  Many Web sites,

newsgroups, and chat rooms will shut down, since users cannot

discern the age of other participants.  In this respect, the

Internet would ultimately come to mirror broadcasting and print,

with messages tailored to a mainstream society from speakers who

could be sure that their message was likely decent in every

community in the country.

          The CDA will also skew the relative parity among

speakers that currently exists on the Internet.  Commercial

entities who can afford the costs of verification, or who would

charge a user to enter their sites, or whose content has mass

appeal, will remain unaffected by the Act.  Other users, such as

Critical Path or Stop Prisoner Rape, or even the ACLU, whose Web

sites before the CDA were as equally accessible as the most

popular Web sites, will be profoundly affected by the Act.  This

change would result in an Internet that mirrors broadcasting and

print, where economic power has become relatively coterminous

with influence.

          Perversely, commercial pornographers would remain

relatively unaffected by the Act, since we learned that most of

them already use credit card or adult verification anyway.

Commercial pornographers normally provide a few free pictures to

entice a user into proceeding further into the Web site.  To

proceed beyond these teasers, users must provide a credit card

number or adult verification number.  The CDA will force these

businesses to remove the teasers (or cover the most salacious

content with cgi scripts), but the core, commercial product of

these businesses will remain in place.

          The CDA's wholesale disruption on the Internet will

necessarily affect adult participation in the medium.  As some

speakers leave or refuse to enter the medium, and others

bowdlerize their speech or erect the barriers that the Act

envisions, and still others remove bulletin boards, Web sites,

and newsgroups, adults will face a shrinking ability to

participate in the medium.  Since much of the communication on

the Internet is participatory, i.e., is a form of dialogue, a

decrease in the number of speakers, speech fora, and permissible

topics will diminish the worldwide dialogue that is the strength

and signal achievement of the medium.

          It is no answer to say that the defenses and exclusions

of  223(e) mitigate the disruptive forces of the Act.  We have

already found as facts that the defenses either are not available

to plaintiffs here or would impose excessive costs on them.

These defenses are also unavailable to participants in specific

forms of Internet communication.

          I am equally dubious that the exclusions of  223(e)

would provide significant relief from the Act.  The "common

carrier" exclusion of  223(e)(1), for example, would not

insulate America Online from liability for the content it

provides to its subscribers.  It is also a tricky question

whether an America Online chat room devoted to, say, women's

reproductive health, is or is not speech of the service itself,

since America Online, at least to some extent, "creat[es] the

content of the communication" simply by making the room available

and assigning it a topic.  Even if America Online has no

liability under this example, the service might legitimately

choose not to provide fora that led to the prosecution of its

subscribers.  Similarly, it is unclear whether many caching

servers are devoted "solely" to the task of "intermediate

storage".  The "vicarious liability" exclusion of  223(e)(4)

would not, for example, insulate either a college professor or

her employer from liability for posting an indecent online

reading assignment for her freshman sociology class.

          We must of course give appropriate deference to the

legislative judgments of Congress.  See Sable, 492 U.S. at 129;

Turner, 114 S. Ct. at 2472-73 (Blackmun, J., concurring).  After

hearing the parties' testimony and reviewing the exhibits,

declarations, and transcripts, we simply cannot in my view defer

to Congress's judgment that the CDA will have only a minimal

impact on the technology of the Internet, or on adult

participation in the medium.  As in Sable, "[d]eference to a

legislative finding cannot limit judicial inquiry when First

Amendment rights are at stake."  Sable, 492 U.S. at 129 (citation

omitted).  Indeed, the Government has not revealed Congress's

"extensive record" in addressing this issue, Turner, 114 S. Ct.

at 2472 (Blackmun, J., concurring), or otherwise convinced me

that the record here is somehow factually deficient to the record

before Congress when it passed the Act.



          4.  Diversity and Access on the Internet

          Nearly eighty years ago, Justice Holmes, in dissent,

wrote of the ultimate constitutional importance of the "free

trade in ideas":

               [W]hen men have realized that time

               has upset many fighting faiths,

               they may come to believe even more

               than they believe the very

               foundations of their own conduct

               that the ultimate good desired is

               better reached by free trade in

               ideas -- that the best test of

               truth is the power of the thought

               to get itself accepted in the

               competition of the market . . . .

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,

dissenting).

          For nearly as long, critics have attacked this much-

maligned "marketplace" theory of First Amendment jurisprudence as

inconsistent with economic and practical reality.  Most

marketplaces of mass speech, they charge, are dominated by a few

wealthy voices.  Miami Herald Publishing Co. v. Tornillo, 418

U.S. 241, 248-50 (1974).  These voices dominate -- and to an

extent, create -- the national debate.  Id.  Individual citizens'

participation is, for the most part, passive.  Id. at 251.

Because most people lack the money and time to buy a broadcast

station or create a newspaper, they are limited to the role of

listeners, i.e., as watchers of television or subscribers to

newspapers.  Id.

          Economic realities limit the number of speakers even

further.  Newspapers competing with each other and with (free)

broadcast tend toward extinction, as fixed costs drive

competitors either to consolidate or leave the marketplace.  Id.

at 249-50.  As a result, people receive information from

relatively few sources:

               The elimination of competing

               newspapers in most of our large

               cities, and the concentration of

               control of media that results from

               the only newspaper's being owned by

               the same interests which own a

               television station and a radio

               station, are important components

               of this trend toward concentration

               of control of outlets to inform the

               public.

                    The result of these vast

               changes has been to place in a few

               hands the power to inform the

               American people and shape public

               opinion.

Id. at 249.

          The Supreme Court has also recognized that the advent

of cable television has not offered significant relief from this

problem.  Although the number of cable channels is exponentially

greater than broadcast, Turner, 114 S. Ct. at 2452, cable imposes

relatively high entry costs, id. at 2451-52 (noting that the

creation of a cable system requires "[t]he construction of [a]

physical infrastructure").

          Nevertheless, the Supreme Court has resisted

governmental efforts to alleviate these market dysfunctions.  In

Tornillo, the Supreme Court held that market failure simply could

not justify the regulation of print, 418 U.S. at 258, regardless

of the validity of the criticisms of that medium, id. at 251.

Tornillo invalidated a state "right-of-reply" statute, which

required a newspaper critical of a political candidate to give

that candidate equal time to reply to the charges.  Id. at 244.

The Court held that the statute would be invalid even if it

imposed no cost on a newspaper, because of the statute's

intrusion into editorial discretion:

               A newspaper is more than a passive

               receptacle or conduit for news,

               comment, and advertising.  The

               choice of material to go into a

               newspaper, and the decisions made

               as to limitations on the size and

               content of the paper, and treatment

               of public issues and public

               officials -- whether fair or unfair

               -- constitute the exercise of

               editorial control and judgment.

Id. at 258.

          Similarly, in Turner, the Supreme Court rejected the

Government's argument that market dysfunction justified

deferential review of speech regulations for cable television.

Even recognizing that the cable market "suffers certain

structural impediments", Turner, 114 S. Ct. at 2457, the Court

could not accept the Government's conclusion that this

dysfunction justified broadcast-type standards of review, since

"the mere assertion of dysfunction or failure in a speech market,

without more, is not sufficient to shield a speech regulation

from the First Amendment standards applicable to nonbroadcast

media."  Id. at 2458.  "[L]aws that single out the press, or

certain elements thereof, for special treatment 'pose a

particular danger of abuse by the State,' and so are always

subject to at least some degree of heightened First Amendment

scrutiny."  Id. (citation omitted).[21]  The Court then eloquently

reiterated that government-imposed, content-based speech

regulations are generally inconsistent with "[o]ur political

system and cultural life":

               At the heart of the First Amendment

               lies the principle that each person

               should decide for him or herself

               the ideas and beliefs deserving of

               expression, consideration, and

               adherence.  Our political system

               and cultural life rest upon this

               ideal.  Government action that

               stifles speech on account of its

               message, or that requires the

               utterance of a particular message

               favored by the Government,

               contravenes this essential right.

               Laws of this sort pose the inherent

               risk that the Government seeks not

               to advance a legitimate regulatory

               goal, but to suppress unpopular

               ideas or information or manipulate

               the public debate through coercion

               rather than persuasion.  These

               restrictions "rais[e] the specter

               that the Government may effectively

               drive certain ideas or viewpoints

               from the marketplace."



Id. (citation omitted).

          Both Tornillo and Turner recognize, in essence, that

the cure for market dysfunction (government-imposed, content-

based speech restrictions) will almost always be worse than the

disease.  Here, however, I am hard-pressed even to identify the

disease.  It is no exaggeration to conclude that the Internet has

achieved, and continues to achieve, the most participatory

marketplace of mass speech that this country -- and indeed the

world -- has yet seen.  The plaintiffs in these actions correctly

describe the "democratizing" effects of Internet communication:

individual citizens of limited means can speak to a worldwide

audience on issues of concern to them.  Federalists and Anti-

Federalists may debate the structure of their government nightly,

but these debates occur in newsgroups or chat rooms rather than

in pamphlets.  Modern-day Luthers still post their theses, but to

electronic bulletin boards rather than the door of the Wittenberg

Schlosskirche.  More mundane (but from a constitutional

perspective, equally important) dialogue occurs between aspiring

artists, or French cooks, or dog lovers, or fly fishermen.

          Indeed, the Government's asserted "failure" of the

Internet rests on the implicit premise that too much speech

occurs in that medium, and that speech there is too available to

the participants.  This is exactly the benefit of Internet

communication, however.  The Government, therefore, implicitly

asks this court to limit both the amount of speech on the

Internet and the availability of that speech.  This argument is

profoundly repugnant to First Amendment principles.

          My examination of the special characteristics of

Internet communication, and review of the Supreme Court's medium-

specific First Amendment jurisprudence, lead me to conclude that

the Internet deserves the broadest possible protection from

government-imposed, content-based regulation.  If "the First

Amendment erects a virtually insurmountable barrier between

government and the print media", Tornillo, 418 U.S. at 259

(White, J., concurring), even though the print medium fails to

achieve the hoped-for diversity in the marketplace of ideas, then

that "insurmountable barrier" must also exist for a medium that

succeeds in achieving that diversity.  If our Constitution

"prefer[s] 'the power of reason as applied through public

discussion'", id. (citation omitted), "[r]egardless of how

beneficent-sounding the purposes of controlling the press might

be", id., even though "occasionally debate on vital matters will

not be comprehensive and . . . all viewpoints may not be

expressed", id. at 260, a medium that does capture comprehensive

debate and does allow for the expression of all viewpoints should

receive at least the same protection from intrusion.

          Finally, if the goal of our First Amendment

jurisprudence is the "individual dignity and choice" that arises

from "putting the decision as to what views shall be voiced

largely into the hands of each of us", Leathers v. Medlock, 499

U.S. 439, 448-49 (1991) (citing Cohen v. California, 403 U.S. 15,

24 (1971)), then we should be especially vigilant in preventing

content-based regulation of a medium that every minute allows

individual citizens actually to make those decisions.  Any

content-based regulation of the Internet, no matter how benign

the purpose, could burn the global village to roast the pig.  Cf.

Butler, 352 U.S. at 383.



          5.  Protection of Children from Pornography

          I accept without reservation that the Government has a

compelling interest in protecting children from pornography.  The

proposition finds one of its clearest expressions in Mill, who

recognized that his exposition regarding liberty itself "is meant

to apply only to human beings in the maturity of their

faculties":

               We are not speaking of children or

               of young persons below the age

               which the law may fix as that of

               manhood or womanhood.  Those who

               are still in a state to require

               being taken care of by others must

               be protected against their own

               actions as well as against external

               injury.

John Stuart Mill, On Liberty 69 (Gertrude Himmelfarb ed., Penguin

Books 1982) (1859), cited in Harry Kalven Jr., A Worthy Tradition

54 (Jamie Kalven ed. 1988).

          This rationale, however, is as dangerous as it is

compelling.  Laws regulating speech for the protection of

children have no limiting principle, and a well-intentioned law

restricting protected speech on the basis of its content is,

nevertheless, state-sponsored censorship.  Regulations that

"drive certain ideas or viewpoints from the marketplace" for

children's benefit, Simon & Schuster, 502 U.S. at 116, risk

destroying the very "political system and cultural life", Turner,

114 S. Ct. at 2458, that they will inherit when they come of age.

          I therefore have no doubt that a Newspaper Decency Act,

passed because Congress discovered that young girls had read a

front page article in the New York Times on female genital

mutilation in Africa, would be unconstitutional.  Tornillo, 418

U.S. at 258.  Nor would a Novel Decency Act, adopted after

legislators had seen too many pot-boilers in convenience store

book racks, pass constitutional muster.  Butler, 352 U.S. at 383.

There is no question that a Village Green Decency Act, the fruit

of a Senator's overhearing of a ribald conversation between two

adolescent boys on a park bench, would be unconstitutional.

Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S.

37, 45 (1983).  A Postal Decency Act, passed because of

constituent complaints about unsolicited lingerie catalogues,

would also be unconstitutional.  Bolger, 463 U.S. at 73.  In

these forms of communication, regulations on the basis of decency

simply would not survive First Amendment scrutiny.

          The Internet is a far more speech-enhancing medium than

print, the village green, or the mails.  Because it would

necessarily affect the Internet itself, the CDA would necessarily

reduce the speech available for adults on the medium.  This is a

constitutionally intolerable result.

          Some of the dialogue on the Internet surely tests the

limits of conventional discourse.  Speech on the Internet can be

unfiltered, unpolished, and unconventional, even emotionally

charged, sexually explicit, and vulgar -- in a word, "indecent"

in many communities.  But we should expect such speech to occur

in a medium in which citizens from all walks of life have a

voice.  We should also protect the autonomy that such a medium

confers to ordinary people as well as media magnates.

          Moreover, the CDA will almost certainly fail to

accomplish the Government's interest in shielding children from

pornography on the Internet.  Nearly half of Internet

communications originate outside the United States, and some

percentage of that figure represents pornography.  Pornography

from, say, Amsterdam will be no less appealing to a child on the

Internet than pornography from New York City, and residents of

Amsterdam have little incentive to comply with the CDA.[22]

          My analysis does not deprive the Government of all

means of protecting children from the dangers of Internet

communication.  The Government can continue to protect children

from pornography on the Internet through vigorous enforcement of

existing laws criminalizing obscenity and child pornography.  See

United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995).  As

we learned at the hearing, there is also a compelling need for

public education about the benefits and dangers of this new

medium, and the Government can fill that role as well.  In my

view, our action today should only mean that the Government's

permissible supervision of Internet content stops at the

traditional line of unprotected speech.

          Parents, too, have options available to them.  As we

learned at the hearing, parents can install blocking software on

their home computers, or they can subscribe to commercial online

services that provide parental controls.  It is quite clear that

powerful market forces are at work to expand parental options to

deal with these legitimate concerns.  More fundamentally, parents

can supervise their children's use of the Internet or deny their

children the opportunity to participate in the medium until they

reach an appropriate age.  See Fabulous, 896 F.2d at 788-89

(noting that "our society has traditionally placed" these

decisions "on the shoulders of the parent").



E.  Conclusion



          Cutting through the acronyms and argot that littered

the hearing testimony, the Internet may fairly be regarded as a

never-ending worldwide conversation.  The Government may not,

through the CDA, interrupt that conversation.  As the most

participatory form of mass speech yet developed, the Internet

deserves the highest protection from governmental intrusion.

          True it is that many find some of the speech on the

Internet to be offensive, and amid the din of cyberspace many

hear discordant voices that they regard as indecent.  The absence

of governmental regulation of Internet content has unquestionably

produced a kind of chaos, but as one of plaintiffs' experts put

it with such resonance at the hearing:

               What achieved success was the very

               chaos that the Internet is.  The

               strength of the Internet is that

               chaos.[23]



Just as the strength of the Internet is chaos, so the strength of

our liberty depends upon the chaos and cacophony of the

unfettered speech the First Amendment protects.

          For these reasons, I without hesitation hold that the

CDA is unconstitutional on its face.



               IN THE UNITED STATES DISTRICT COURT

             FOR THE EASTERN DISTRICT OF PENNSYLVANIA



AMERICAN CIVIL LIBERTIES UNION,  :   CIVIL ACTION

et al.                           :

                                 :

         v.                      :

                                 :

JANET RENO, Attorney General of  :

the United States                :   NO. 96-963



________________________________________________________________



AMERICAN LIBRARY ASSOC.,        :    CIVIL ACTION

INC., et al.                    :

                                :

        v.                      :

                                :

UNITED STATES DEP'T OF          :

JUSTICE, et al.                 :    NO. 96-1458



                               ORDER

          AND NOW, this 11th day of June, 1996, upon

consideration of plaintiffs' motions for preliminary injunction,

and the memoranda of the parties and amici curiae in support and

opposition thereto, and after hearing, and upon the findings of

fact and conclusions of law set forth in the accompanying

Adjudication, it is hereby ORDERED that:

          1.   The motions are GRANTED;

          2.   Defendant Attorney General Janet Reno, and all

acting under her direction and control, are PRELIMINARILY

ENJOINED from enforcing, prosecuting, investigating or reviewing

any matter premised upon:

               (a)  Sections 223(a)(1)(B) and 223(a)(2) of the

Communications Decency Act of 1996 ("the CDA"), Pub. L. No. 104-

104,  502, 110 Stat. 133, 133-36, to the extent such

enforcement, prosecution, investigation, or review are based upon

allegations other than obscenity or child pornography; and

               (b)  Sections 223(d)(1) and 223(d)(2) of the CDA;

          3.   Pursuant to Fed. R. Civ. P. 65(c), plaintiffs need

not post a bond for this injunction, see Temple Univ. v. White,

941 F.2d 201, 220 (3d Cir. 1991), cert. denied sub nom. Snider v.

Temple Univ., 502 U.S. 1032 (1992); and

          4.   The parties shall advise the Court, in writing, as

to their views regarding the need for further proceedings on the

later of (a) thirty days from the date of this Order, or (b) ten

days after final appellate review of this Order.



                           BY THE COURT:





                          ______________________________

                          Dolores K. Sloviter, C.J.

                          U.S. Court of Appeals

                          For the Third Circuit





                          ______________________________

                          Ronald L. Buckwalter, J.





                          ______________________________

                          Stewart Dalzell, J.









1. The CDA will be codified at 47 U.S.C.  223(a) to (h).  In

the body of this Adjudication, we refer to the provisions of the

CDA as they will ultimately be codified in the United States

Code.

2. The plaintiffs in this action are the American Civil

Liberties Union; Human Rights Watch; Electronic Privacy

Information Center; Electronic Frontier Foundation; Journalism

Education Association; Computer Professionals for Social

Responsibility; National Writers Union; Clarinet Communications

Corp.; Institute for Global Communications; Stop Prisoner Rape;

AIDS Education Global Information System; Bibliobytes; Queer

Resources Directory; Critical Path AIDS Project, Inc.; Wildcat

Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks

dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page;

Jonathan Wallace dba The Ethical Spectacle; and Planned

Parenthood Federation of America, Inc.  We refer to these

plaintiffs collectively as the ACLU.

3. The plaintiffs in the second action, in addition to the ALA,

are:  American Online, Inc.; American Booksellers Association,

Inc.; American Booksellers Foundation for Free Expression;

American Society of Newspaper Editors; Apple Computer, Inc.;

Association of American Publishers, Inc.; Association of

Publishers, Editors and Writers; Citizens Internet Empowerment

Coalition; Commercial Internet Exchange Association; CompuServe

Incorporated; Families Against Internet Censorship; Freedom to

Read Foundation, Inc.; Health Sciences Libraries Consortium;

Hotwired Ventures LLC; Interactive Digital Software Association;

Interactive Services Association; Magazine Publishers of America;

Microsoft Corporation; The Microsoft Network, L.L.C.; National

Press Photographers Association; Netcom On-Line Communication

Services, Inc.; Newspaper Association of America; Opnet, Inc.;

Prodigy Services Company; Society of Professional Journalists;

Wired Ventures, Ltd.  We refer to these plaintiffs collectively

as the ALA.

     The eight counts of the amended complaint in this action

focus on the CDA's amendment to 47 U.S.C.  223, and do not

challenge the CDA's amendment of 18 U.S.C.  1462(c).

4. In addition, we have received briefs of amici curiae

supporting and opposing plaintiffs' contentions.  Arguing in

favor of our granting the motions for preliminary injunction are

Authors Guild, American Society of Journalists and Authors, Ed

Carp, Coalition for Positive Sexuality, CONNECTnet, Creative

Coalition on AOL, Tri Dang Do, Feminists for Free Expression,

Margarita Lacabe, Maggie LaNoue, LoD Communications, Peter

Ludlow, Palmer Museum of Art, Chuck More, Rod Morgan, PEN

American Center, Philadelphia Magazine, PSINet, Inc., Eric S.

Raymond, Reporters Committee for Freedom of the Press, Don

Rittner, The Sexuality Information and Education Council of the

United States, Lloyd K. Stires, Peter J. Swanson, Kirsti Thomas,

Web Communications, and Miryam Ehrlich Williamson.  Opposing the

motion are the Family Life Project of the American Center for Law

and Justice and a group consisting of The National Law Center for

Children and Families, Family Research Council, "Enough Is

Enough!" Campaign, National Coalition for the Protection of

Children and Families, and Morality in Media.

5. The Act does not define "telecommunications device".  By

Order dated February 27, 1996, we asked the parties to address

whether a modem is a "telecommunications device".  Plaintiffs and

the Government answered in the affirmative, and we agree that the

plain meaning of the phrase and the legislative history of the

Act strongly support their conclusion.  "Telecommunications"

under 47 U.S.C.  153(48) means "the transmission, between or

among points specified by the user, of information of the user's

choosing, without change in the form of content of the

information as sent and received."  The plain meaning of "device"

is "something that is formed or formulated by design and

usu[ally] with consideration of possible alternatives,

experiment, and testing."  Webster's Third New International

Dictionary, 618 (1986).  Clearly, the sponsors of the CDA thought

it would reach individual Internet users, many of whom still

connect through modems.  See, e.g., 141 Cong. Rec. S8329-46

(daily ed. June 14, 1995) (statements of Sen. Exon and Sen.

Coats).

     The resolution of the tension between the scope of

"telecommunications device" and the scope of "interactive

computer service" as defined in 47 U.S.C.  230(a)(2), see infra

note 6, must await another day.  It is sufficient for us to

conclude that the exclusion of  223(h)(1)(B) is probably a

narrow one (as the Government has argued), insulating an

interactive computer service from criminal liability under the

CDA but not insulating users who traffic in indecent and patently

offensive materials on the Internet through those services.

6. The statute at  509 amends 47 U.S.C. to add  230(e)(2),

which defines such a service 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."

7. In the Government's Opposition to plaintiffs' motion for a

temporary restraining order in C.A. No. 96-963, it notes "the

Department has a longstanding policy that previous such

provisions are unconstitutional and will not be enforced", and

that both President Clinton and General Reno "have made th[e]

point clear" that no one will be prosecuted under "the abortion-

related provision of newly-amended 18 U.S.C.  1462(c)."

Opposition at 19, n.11 (February 14, 1996).  In view of this

"longstanding policy", the Government contends there is no

realistic fear of prosecution and, so the argument goes, no need

for equitable relief.  Id.  In their post-hearing brief, the ACLU

plaintiffs inform us that in view of the Government's statement,

"they do not seek a preliminary injunction against the

enforcement of  1462(c)."  Post-Trial Brief of ACLU Plaintiffs

at 2 n.2.

8. The court again expresses its appreciation to the parties for

their cooperative attitude in evolving the stipulation.

9. The Government has not by motion challenged the standing of

any plaintiff in either case, and we harbor no doubts of our own

on that point, notwithstanding the Government's suggestion in a

footnote of its post-hearing brief.  See Defendants' Post-Hearing

Memorandum at 37 n.46 ("Plaintiffs' assertions as to the speech

at issue are so off-point as to raise standing concerns.").

Descriptions of these plaintiffs, as well as of the nature and

content of the speech they contend is or may be affected by the

CDA, are set forth in paragraphs 70 through 356 at pages 30

through 103 of the parties' stipulation filed in these actions.

These paragraphs will not be reproduced here, but will be deemed

adopted as Findings of the court.

10. It became clear from the testimony that moderated newsgroups

are the exception and unmoderated newsgroups are the rule.

11. The evidence adduced at the hearings provided detail to this

paragraph of the parties' stipulation.  See Findings 95 to 107.

12. Testimony adduced at the hearing suggests that market forces

exist to limit the availability of material on-line that parents

consider inappropriate for their children.  Although the parties

sharply dispute the efficacy of so-called "parental empowerment"

software, there is a sufficiently wide zone of agreement on what

is available to restrict access to unwanted sites that the

parties were able to enter into twenty-one paragraphs of

stipulated facts on the subject, which form the basis of

paragraphs 49 through 69 of our Findings of fact.  Because of the

rapidity of developments in this field, some of the technological

facts we have found may become partially obsolete by the time of

publication of these Findings.

13. This membership is constantly growing, according to the

testimony of Albert Vezza, Chairman of the World Wide Web

Consortium.  See also Defendants' Ex. D-167.

14. See also Defendants' Ex. D-174 and the testimony of Mr.

Vezza.



15. From this point, our Findings are, unless noted, no longer

based upon the parties' stipulation, but upon the record adduced

at the hearings.

16. Mr. Bradner is a member of the Internet Engineering Task

Force, the group primarily responsible for Internet technical

standards, as well as other Internet-related associations

responsible for, among other things, the prevailing Internet

Protocols.  He is also associated with Harvard University.

17. Dr. Olsen chairs the Computer Science Department at Brigham

Young University in Provo, Utah, and is the recently-appointed

Director of the Human Computer Interaction Institute at Carnegie-

Mellon University in Pittsburgh, Pennsylvania.

18. The term "information content provider" is defined in  509

of the CDA, at the new 47 U.S.C.  230(e)(3), as "any person or

entity that is responsible, in whole or in part, for the creation

or development of information provided through the Internet or

any other interactive computer service."

19. By "verification", we mean the method by which a user types

in his or her credit card number, and the Web site ensures that

the credit card is valid before it allows the user to enter the

site.

20. InterNIC is a naming organization, not a regulator of

content.  InterNIC and two other European organizations maintain

a master list of domain names to ensure that no duplication

occurs.  Creators of Web sites must register their domain name

with InterNIC, and the agency will instruct the creator to choose

another name if the new Web site has the name of an already-

existing site.  InterNIC has no control over content on a site

after registration.

21. This paragraph and the preceding paragraph also illustrate

that a content provider might store its own material or someone

else's on a caching server.  The goal -- saving money and time --

is the same in both cases.

1. It also probably covers speech protected by the First

Amendment for some minors a well, because it fails to limit its

reach to that which is harmful for minors, an issue which it is

not necessary to decide in light of the other conclusions

reached.

2. See 141 Cong. Rec. S8342 (daily ed. June 14, 1995) (letter

from Kent Markus, Acting Assistant Attorney General, U.S.

Department of Justice, to Senator Leahy).

1. If by virtue of the statute's authorization of expedited

review of its constitutionality, "on its face," 47 U.S.C.

561(a), we were strictly limited to looking at the words of the

statute, I would stand by my T.R.O. opinion.  However, in light

of the procedures which are required by 47 U.S.C.  561(a) and 28

U.S.C.  2284, and were followed by this court in establishing an

extensive record in this case, to ignore the evidence presented

would be to ignore what an action for injunctive relief is all

about.



  Section 561 reads as follows:



           561.  EXPEDITED REVIEW.

     (a) THREE-JUDGE DISTRICT COURT HEARING --

Notwithstanding any other provision of law, any civil

action challenging the constitutionality, on its face,

of this title or any amendment made by this title, or

any provision thereof, shall be heard by a district

court of 3 judges convened pursuant to the provisions

of section 2284 of title 28, United States Code.



  Section 2284 states, in relevant part:



      2284.  Three-judge court; when required;

composition; procedure

     (b) In any action required to be heard and

determined by a district court of three judges under

subsection (a) of this section, the composition and

procedure of the court shall be as follows:  . . .

   (3) A single judge may conduct all

proceedings except the trial . . . . He may

grant a temporary restraining order on a

specific finding, based on evidence

submitted, that specified irreparable damages

will result if the order is not granted,

which order, unless previously revoked by the

district judge, shall remain in force only

until the hearing and determination by the

district court of three judges of an

application for a preliminary injunction. . .

.

2. Justice Kennedy argues in his opinion in Simon & Schuster v.

New York Crime Victims Bd., 502 U.S. 105, 120 (1991), that "[t]he

regulated content has the full protection of the First Amendment

and this, I submit, is itself a full and sufficient reason for

holding the statute unconstitutional.  In my view it is both

unnecessary and incorrect to ask whether the state can show that

the statute 'is necessary to serve a compelling state interest

and is narrowly drawn to achieve that end.'"  In the present

case, there is no disagreement that indecent and patently

offensive speech have the full protection of the First Amendment.

3. Not only has speech been divided up and given values -- with

some types of speech given little or no protection (obscenity,

fighting words, possibly commercial speech) -- but also, by court

decisions over the years, it has been decided that the content of

speech can indeed be regulated provided that the regulation will

directly and materially advance a compelling government interest,

and that it is narrowly tailored to accomplish that interest in

the least restrictive manner.  However, any content-based

restriction must survive this most exacting scrutiny.  Sable, 492

U.S. 115; Texas v. Johnson, 491 U.S. 397 (1989).

4. The plaintiffs have made facial challenges to the disputed

provisions of the CDA on grounds of both vagueness and

overbreadth.  The approach taken and language used in evaluating

a statute under each of these doctrines commingles, and

frequently is treated as a single approach.  "We have

traditionally viewed vagueness and overbreadth as logically

related and similar doctrines."  Kolender v. Lawson, 461 U.S.

352, 358 n.8 (1983) (citing Keyishian v. Board of Regents, 385

U.S. 589, 609, (1967); NAACP v. Button, 371 U.S. 415, 433

(1963)).  Even in cases where the court attempts to distinguish

these two doctrines, it acknowledges some interplay between them.

See e.g. Village of Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U.S. 489, 494, and n. 6 (1982).

          In addition, when discussing overbreadth, one cannot

avoid reference to the same language used to describe and apply

the strict scrutiny standard to constitutionally protected

activities.  See e.g. Sable, 492 U.S. at 131; Roberts v. Jaycees,

468 U.S. 609, 623 (1984).  While there are occasional attempts to

argue for clear distinctions among these doctrines, see e.g.

Kolender, 461 U.S. at 369 (White, J., Rehnquist, J. dissenting),

such bright lines simply have not been, and most likely cannot

be, drawn in this area.

5. Comparing a different portion of each of these two provisions

suggests that different terms are not to be read to mean the same

thing.  As written, section (a) pertains to telecommunications

devices, and section (d) to interactive computer services.  While

we have not entirely resolved the tension between these

definitions at this stage, it has been established that these

terms are not synonymous, but are in fact intended to denote

different technologies.  This, together with the rule of

statutory construction set forth in Chief Judge Sloviter's

opinion, seems to suggest on the face of the statute that

indecent and patently offensive also are not to be read as

synonymous.

6. 18 U.S.C. 1461 states, "The term `indecent' as used in this

section includes matter of a character tending to incite arson,

murder or assassination."

7. Although the Supreme Court may rule on the vagueness question

in the context of cable television regulation in Alliance for

Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), currently

pending on certiorari before the Court, we will not defer

adjudication of this issue as the constitutionality of the term

in the cable context may not be determinative of its use in

cyberspace.

8. Each intentional act of posting indecent content for display

shall be considered a separate violation of this subsection and

carries with it a fine, a prison term of up to two years, or

both.  47 U.S.C.  223(a),(d) and Conf. Rep. at 189.

9. As I have noted, the unique nature of the medium cannot be

overemphasized in discussing and determining the vagueness issue.

This is not to suggest that new technology should drive

constitutional law.  To the contrary, I remain of the belief that

our fundamental constitutional principles can accommodate any

technological achievements, even those which, presently seem to

many to be in the nature of a miracle such as the Internet.

1. By Order dated March 13, 1996, we asked the parties to submit

their views on questions regarding allocation of the burdens of

proof in these cases.  Since I believe that the outcome of these

cases is clear regardless of the allocation of proof between the

parties, none of my conclusions in this opinion requires me to

choose between the arguments that the parties have presented to

us.

2. Although I do not believe the statue is unconstitutionally

vague, I agree with Judge Buckwalter that the Government's

promise not to enforce the plain reach of the law cannot salvage

its overbreadth.  Even accepting the Government's argument that

prosecution of non-obscene pornography would be a "legitimate

application" of the CDA, City of Houston v. Hill, 482 U.S. 451,

459 (1987), it is clear that the Act would "make unlawful a

substantial amount of constitutionally protected conduct", id.

As in Hill, the Government's circular reasoning -- that the law

is constitutional because prosecutors would only apply it to

those against whom it could constitutionally be applied -- must

fail.  See id. at 464-67.

3. Plaintiffs have argued that we may consider their challenge

under the standards governing both "facial" and "as-applied"

challenges.  That is, they suggest that we may pass judgment on

the decency of the plaintiffs' speech, even if we are unable to

conclude that the act is facially unconstitutional.  Surely this

procedural confusion arises out of the three opinions of the D.C.

Circuit in National Treasury Employees Union v. United States,

990 F.3d 1271, 1279-80 (D.C. Cir. 1993), aff'd, 115 S. Ct. 1003.

          I doubt that we could undertake an as-applied inquiry,

since we do not know the exact content of plaintiffs' speech.

Indeed, it is impossible to know the exact content of some

plaintiffs' speech, since plaintiffs themselves cannot know that

content.  America Online, for example, cannot know what its

subscribers will spontaneously say in chat rooms or post to

bulletin boards.  In any event, I need not address this issue, in

the light of our disposition today.

4."Dial-a-porn" is a shorthand description of "sexually

oriented prerecorded telephone messages".  Sable, 492 U.S. at

117-18.

5. In turn, Pacifica's definition of indecency has its roots in

the Supreme Court's obscenity jurisprudence.  Indecency includes

some but not all of the elements of obscenity.  See, e.g.,

Alliance for Community Media, 56 F.3d at 113-14 n.4.

6. The reach of the two provisions is not coterminous, however.

As we explain in the introduction to this Adjudication,  223(a)

reaches the making, creation, transmission, and initiation of

indecent speech.  Section 223(d) arguably reaches more broadly to

the "display" of indecent speech.  I conclude here only that both

sections refer to the identical type of proscribed speech.

7. At oral argument, counsel for the Government candidly

recognized that "there's nothing quite like this statute before",

and that the CDA's novelty raised some "legislative craftsmanship

problem[s]".  Transcript of May 10, 1996, at 81-82.  I believe

that my analysis here makes sense in the light of the legislative

history and the jurisprudence on which Congress relied in

enacting the CDA.  See Senate Report at 188, reprinted in 1996

U.S.C.C.A.N. at 201-02.

8. The counterargument is that  223(e)(5)(A), when read

together with  223(e)(6), merely confers jurisdiction on the FCC

to prescribe the "reasonable, effective, and appropriate actions"

that count as defenses.  Congress employed a similar scheme for

dial-a-porn.  See Dial Information Servs., 938 F.2d at 1539

(citing 47 U.S.C.  223(b)(3)); Information Providers' Coalition,

928 F.2d at 871.

9. The play was "critically acclaimed and long-running in Los

Angeles area theaters".  Infinity Broadcasting, 3 FCC R. at 932.

10. Analytically, it makes sense that indecent speech has public

value.  After all, indecent speech is nevertheless protected

speech, see, e.g., Sable, 492 U.S. at 126, and it must therefore

have some public value that underlies the need for protection.

Obscenity, by contrast, has no public value, id. at 124, and thus

has no protection from proscription.

11. Internet technology undercuts the Government's argument that

the "in context" element of  223(a) and 223(d) would insulate

plaintiffs such as Critical Path from liability.  See, e.g.,

Transcript of May 10, 1996, at 89-91.  A user who clicks on a

link in the Critical Path database (see Findings 33, 77-78) might

travel to a highly graphic page in a larger HTML document.  The

social value of that page, in context, might be debatable, but

the use of links effectively excerpts that document by

eliminating content unrelated to the link.

12. Moreover, because of the technology of Internet relay chat,

it would need to make this determination before it organized the

chat room, since it could not pre-screen the discussion among the

participants.  Thus, it would need to predict, in advance, what

the participants were likely to say.  The participants would need

to make a similar determination, unaided (I expect) by First

Amendment lawyers.

13. Testimony of April 12, 1996, at 235-36.

14. In this section I do not imply that the FCC has jurisdiction

to process Internet complaints in the same manner as it does for

broadcast.  The extent of the FCC's jurisdiction under the CDA is

a sticky question not relevant here.  See Senate Report at 190-

91, reprinted in 1996 U.S.C.C.A.N. at 204.  Because the

administrative decisions cited above arose out of citizens'

complaints to the FCC, however, they provide a kind of surrogate

insight into the kinds of speech that citizens have charged as

indecent in the past.

15. See Finding of fact 81.  See also Symposium, Emerging Media:

Technology and the First Amendment, 104 Yale L.J. 1613 (1995).

16. A narrow holding for this new medium also will not eliminate

the chill to plaintiffs, who could well stifle the extent of

their participation in this new medium while awaiting a future

iteration of the CDA.  Such a holding would also lead Congress to

believe that a rewritten CDA (using, for example, a "harmful to

minors" standard, see Senate Report at 189, reprinted in 1996

U.S.C.C.A.N. at 202) would pass constitutional muster.  In my

view, a holding consistent with the novel qualities of this

medium provides Congress with prompt and clear answers to the

questions that the CDA asks.

17. The history of dial-a-porn regulation both before and after

Sable is tortuous, and involves the intervention of all three

branches of government.  I will not rehearse that history here,

deferring instead to the other courts that have recounted it.

See, e.g., Sable, 492 U.S. at 118-23; Dial Information Serv., 938

F.2d at 1537-40; Information Providers Coalition, 928 F.2d at

870-73.

18. Sable is arguably not a decision about mass communication.

Unlike Red Lion, Tornillo, or Turner, the Court in Sable reached

no conclusions about the proper fit between the First Amendment

and governmental regulation of the telephone.  The case also

includes no discussion of the technology of the telephone

generally.  The plaintiff in that case, a purveyor of dial-a-

porn, challenged the statute only with respect to that type of

content.  Sable, 492 U.S. at 117-18.  Thus, the Court's opinion

discussed only the "dial-in services".  Id. at 128.  Since every

telephone call at issue was, by definition, dial-a-porn, every

telephone call was, by definition, either obscene or indecent.

Id. at 132 (Scalia, J., concurring).

          Here, however, plaintiffs represent forty-seven

different speakers (including educational associations and

consortia) who provide content to the Internet on a broad range

of topics.  The limited reach of the Sable holding renders it

inapt to the Internet communications of the plaintiffs in these

actions.

19. I note here, too, that we have found as a fact that

operation of a computer is not as simple as turning on a

television, and that the assaultive nature of television, see

Pacifica, 438 U.S. at 748-49, is quite absent in Internet use.

See Findings 87-89.  The use of warnings and headings, for

example, will normally shield users from immediate entry into a

sexually explicit Web site or newsgroup message.  See Finding 88.

The Government may well be right that sexually explicit content

is just a few clicks of a mouse away from the user, but there is

an immense legal significance to those few clicks.

20. In a May 3, 1996 letter to a three-judge court in the

Southern District of New York, John C. Keeney, Acting Assistant

Attorney General in the Criminal Division of the Department of

Justice, has advised that tagging would be "substantial evidence"

in support of a  223(e)(5)(A) defense:



          Under present technology, non-commercial

          content providers can take steps to list

          their site[s] in URL registries of covered

          sites, register their site[s] with the

          marketplace of browsers and blocking software

          (including listing an IP address), place

          their material in a directory blocked by

          screening software, or take other similarly

          effective affirmative steps to make their

          site[s] known to the world to allow the

          site[s] to be blocked.  Under present

          technology, it is the position of the

          Department of Justice that, absent

          extraordinary circumstances, such efforts

          would constitute substantial evidence that a

          content provider had taken good faith,

          reasonable, effective, and appropriate

          actions under the circumstances to restrict

          or prevent access by minors to the covered

          material.  The same would be true for tagging

          by content providers coupled with evidence

          that the tag would be screened by the

          marketplace of browsers and blocking

          software.



Letter of May 3, 1996 from Acting Assistant Attorney General John

C. Keeney to Hons. Denise L. Cote, Leonard B. Sand, and Jose A.

Cabranes, attached to Defendants' Motion for Leave to File

Supplemental Statement.  On May 8, 1996, the Government moved to

file the Kenney letter in this action, and we granted the motion

as unopposed the next day.

          The letter certainly raises more questions than it

answers.  I wonder, for example, whether it is consistent with

the plain language of the Act simply for content providers to

"make their site[s] known to the world" and thereby "to allow

[them] to be blocked", even though this form of notice alone

would not reduce the availability of indecent content.  Cf.

Senate Report at 178, 1996 U.S.C.C.A.N. at 201 (noting that 

223(d) "applies to content providers who post indecent material

for online display without taking precautions that shield that

material from minors").  It is also an unanswered question

whether the Keeney letter would eliminate any of the CDA's chill,

since the Government acknowledged that the letter would not

prohibit a United States Attorney from taking a contrary position

in a particular prosecution.  See Defendants' May 9, 1996

Response to the May 8, 1996 Order of Court.  The letter also

fails to mention how users who participate in chat rooms,

newsgroups, listservs, and e-mail might take advantage of 

223(e)(5)(A).  Finally, it is undisputed that neither PICS nor

the hypothetical "-L18" tag are available to speakers using the

World Wide Web today, whom the Government has explicitly reserved

its right to prosecute should the CDA ultimately be found

constitutional.  See Stipulation and Order of February 26, 1996,

quoted supra.



21. Turner examined certain "must-carry" provisions under an

intermediate scrutiny, since those laws imposed incidental

burdens on speech but did not directly regulate content.  Turner,

114 S. Ct. at 2469.  The Court remanded the case to the district

court without passing on the constitutionality of the must-carry

provisions.  Id. at 2472.

22. Arguably, a valid CDA would create an incentive for overseas

pornographers not to label their speech. If we upheld the CDA,

foreign pornographers could reap the benefit of unfettered access

to American audiences.  A valid CDA might also encourage American

pornographers to relocate in foreign countries or at least use

anonymous remailers from foreign servers.

23. Testimony of March 22, 1996, at 167.


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