United States: "Indecent" And "Patently Offensive" Under The Communications Decency Act Of 1996

In a resounding affirmation of First Amendment rights, six federal judges in three opinions in two separate cases¹ have determined that there is a likelihood that the plaintiffs will prevail on the merits of their claims that portions of the Communications Decency Act of 1996 ("CDA"), Title V of the Telecommunications Act of 1996 ("TCA"),² are unconstitutional, setting the stage for a direct review by the U.S. Supreme Court.

On February 8, 1996, President Clinton signed the TCA into law. On the same day, the American Civil Liberties Association ("ACLU") and others filed an action in the U.S. District Court for the Eastern District of Pennsylvania and moved for a temporary restraining order to enjoin two provisions of the CDA on First and Fifth Amendment grounds. The first provision (codified at 47 U.S.C. 223(a)(1)(B) (the "Indecency provision")) subjects to criminal penalties of imprisonment of no more than two years or a fine or both anyone who

The second provision (codified at 47 U.S.C. §223(d) (the "Patently Offensive provision")) subjects to the same criminal penalties anyone who

On February 15, 1996, following an evidentiary hearing, Judge Ronald L. Buckwalter granted a limited temporary restraining order finding that 47 U.S.C. §223(a)(1)(B)(ii) was unconstitutionally vague "in the use of the undefined term, 'indecent.'" 1996 WL 65464, at *2. On the same day, pursuant to §561(a) of the CDA,⁵ Judge Dolores K. Sloviter, Chief Judge of the Third Circuit, convened a three-judge court that included herself, Judge Buckwalter and Judge Stewart Dalzell, also of the Eastern District of Pennsylvania.

Shortly thereafter, the American Library Association ("ALA") and others filed a similar action in the Eastern District of Pennsylvania and Chief Judge Sloviter convened the same three-judge court. The actions were then consolidated, the parties were afforded expedited discovery and the Court conducted consolidated evidentiary hearings over several days.

The plaintiffs focused their challenge on the Indecency and the Patently Offensive provisions of §502 of the CDA including the provisions codified at 47 U.S.C. §§223(a)(2) and 223(d)(2) that make it a crime for anyone who "knowingly permits any telecommunications facility" under such person's control to be used for any prohibited activity in 47 U.S.C. §§223(a)(1)(B) and 223(d)(1). The plaintiffs contended that these provisions violated their First Amendment free speech and Fifth Amendment due process rights.⁶

As part of its argument that the CDA passes constitutional muster, the Government relied upon the CDA's "safe harbor" defenses in new §223(e) of 47 U.S.C., which provides, among other things, in §§223(e)(1), (e)(5)(A) and (e)(5)(B) that

* * *

As the Court noted in a lengthy opinion issued on June 11, 1996,⁷ "all parties insisted on having extensive evidentiary hearings before the three-judge court" in order to make certain that the record reflected "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." 1996 WL 311865, at *4.

The first 69 paragraphs of the Court's 123 paragraph Findings of Fact were derived from a stipulation of the parties. Those Findings describe in rich detail the creation of the Internet and the development of cyberspace; how individuals access the Internet; methods to communicate over the Internet; the World Wide Web; the available technology to restrict access to unwanted on-line material; content on the Internet including the availability of sexually explicit material; the practicalities of the "safe harbor" defenses; and plaintiffs' choices under the CDA. The Court further noted that

In a decision that was hailed by Bill Gates, Microsoft Corporation's Chairman and CEO, as "a great victory for anyone who cares about freedom of expression or the future of the Internet,"⁸ the Court concluded that the plaintiffs were entitled to a preliminary injunction because they had established a reasonable probability of success 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'" and that §§223(d)(1) and 223(d)(2) of the CDA "are unconstitutional on their face." 1996 WL 311865, at *27. Accordingly, the Court enjoined the Attorney General

The views of the Court in support of these conclusions were expressed in separate opinions by each of the three judges. First, Chief Judge Sloviter found that

Although Judge Sloviter acknowledged that there is a "compelling government interest to shield a substantial number of minors from some of the online material that motivated Congress to enact the CDA," id., at *32, she noted that the plaintiffs had introduced "ample evidence that the challenged provisions, if not enjoined, would have a chilling effect on their free expression" and that "the public interest weighed in favor of having access to a free flow of constitutionally protected speech." Id., at *29. Judge Sloviter further noted that

Significant to Judge Sloviter's opinion was the Court's finding 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." Id. As a result, Judge Sloviter found that content providers would have to reduce the level of communication to that which was appropriate for children in order to be protected from criminal prosecution. Judge Sloviter noted that "[t]his would effect a complete ban even for adults of some expression, albeit 'indecent,' to which they are constitutionally entitled, and thus would be unconstitutional..." Id. Judge Sloviter also noted that non-commercial organizations and even many commercial organizations using the World Wide Web would find it "prohibitively expensive and burdensome to engage in methods of age verification proposed by the government, and even if they could attempt to age verify, there was little assurance that they could successfully filter out minors." Id., at *33.

Judge Sloviter also determined that the Government's reliance on the statutory defenses did not constitute a "narrow tailoring" of the statute because no content provider, "whether an individual, non-profit corporation, or even a large publicly held corporation, is likely to willingly subject itself to prosecution for miscalculation of the prevalent community standards or for an error in judgment as to what is indecent." Id., at *34. Thus, many speakers who display arguably indecent or patently offensive content on the Internet would be compelled "to choose between silence and the risk of prosecution." Id.

Judge Sloviter concluded that the Indecency and Patently Offensive provisions "are inherently vague particularly in light of the government's inability to identify the relevant community by whose standards the material will be judged" and "are facially invalid under both the First and Fifth Amendments." Id., at *36-37.

In his opinion, Judge Buckwalter agreed with Judge Sloviter that current technology was inadequate to provide a "safe harbor" to most speakers on the Internet, that the terms "indecent" and "patently offensive" were so vague as to violate the First and Fifth Amendments, and that "indecent" and "patently offensive" speech have the full protection of the First Amendment. Id., at *37.

Although Judge Dalzell did not believe that "indecent" and "patently offensive" were unconstitutionally vague, he agreed with Judge Buckwalter that "the Government's promise not to enforce the plain reach of the law could not salvage its overbreadth." Id., at *46. Judge Dalzell concluded that "the disruptive effect of the CDA on Internet communication, as well as the CDA's broad reach into protected speech, not only rendered the [CDA] unconstitutional, but also would render unconstitutional any regulation of protected speech on the new medium." Id., at *47.

Judge Dalzell noted that there were four related characteristics of Internet communication that had a "transcendent importance to our shared holding that the CDA is unconstitutional on its face." Id., at *57. Those characteristics are very low barriers to entry; identical entry barriers for both speakers and listeners; the availability of astoundingly diverse content; and significant access to all speakers and relative parity among speakers. Judge Dalzell determined that his "examination of the special characteristics of the Internet communication, and review of the Supreme Court's medium-specific First Amendment jurisprudence," led him "to conclude that the Internet deserves the broadest possible protection from government-imposed content-based regulation." Id., at *62. Judge Dalzell concluded by stating that

Shea v. Reno, pending in the U.S. District Court for the Southern District of New York, was also filed on February 8, 1996. There, the plaintiff¹¹ challenged only §223(d) as unconstitutionally vague and overbroad. On July 29, 1996, a three judge court,¹² based upon many of the same findings made in ACLU/ALA, concluded that §223(d) was not unconstitutionally vague but was unconstitutionally overbroad because it would serve as a ban on constitutionally protected indecent communication between adults.¹³ The Court determined that "there is no persuasive evidence that substantial proportion of Internet content providers can make available material potentially within the scope of the CDA without fear of prosecution and criminal liability." 1996 WL 421439, at *30.

The Court further concluded that current technology provides no feasible means for most content providers to avail themselves of the two affirmative defenses of §223(d) set out in §223(e)(5). As a result, the plaintiff's motion for a preliminary injunction was granted and the Attorney General was again enjoined from initiating any investigation or prosecution under §223(d) to the extent that such investigation or prosecution is based upon the alleged display or transmission of indecent but not obscene material. Id., at *32.

On July 1, 1996, Attorney General Janet Reno and the U.S. Department of Justice filed a Notice of Appeal to the U.S. Supreme Court from the opinion and order entered in ACLU/ALA pursuant to §561(b) of the CDA.¹⁴ Given the extensive findings of fact and the thorough analyses in ACLU/ALA and in Shea, the Government will face an uphill battle before the U.S. Supreme Court.

1.There are actually three cases--ACLU v. Reno, No. Civ. A. 96-963 (E.D. Pa.), American Library Association v. U.S. Dept. of Justice, No. Civ. A. 96-1458 (E.D. Pa.), and Shea v. Reno, No. 96 Civ. 0976(DLC) (S.D.N.Y.). The first two cases were consolidated.

2.Pub. L. No. 104-104, §502, 110 Stat. 56, 133-35 (1996). The CDA will be codified at 47 U.S.C. §223(a) to (h).

3.The Court determined that a modem was a "telecommunications device" under 47 U.S.C. §223(a)(1)(B).

4.Section 509 of the CDA amends 47 U.S.C. to add §230(e)(2), which defines "interactive computer 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..."

5.§561(a) of the CDA provides that "any civil action challenging the constitutionality, on its face" of any provision of the CDA "shall be heard by a district court of 3 judges convened pursuant to" 28 U.S.C. §2284.

6.Plaintiffs did not challenge the CDA to the extent that it covers obscenity or child pornography, which were already proscribed before the CDA. Although the plaintiffs in the ACLU action challenged the provision of the CDA that criminalizes speech over the Internet that transmits information about abortions or abortifacient drugs and devices, through its amendment to 18 U.S.C. §1462(c), they did not seek a preliminary injunction against enforcement of §1462(c) in light of the Government's position that such provisions were unconstitutional and would not be enforced.

7.1996 WL 311865 (E.D. Pa. June 11, 1996) ("ACLU/ALA").

8.Microsoft Magazine, Volume 3, Issue 4, August/September 1996 at 54.

9.An Order on Motion for Clarification was entered on June 28, 1996. That Order established that the defendants were not enjoined from enforcing, prosecuting, investigating or reviewing allegations of violations of §223(a)(2) based upon prohibited activities specified in §223(a)(1)(A), (C), (D) or (E) or based upon prohibited obscenity or child pornography activities specified in §223(a)(2)(B).

10.The Government took the position that the terms "indecent" and "patently offensive" were interchangeable. The plaintiffs did not press this difference in language as a basis for distinguishing between the two sections and the Court agreed to use the words interchangeably for purposes of the preliminary injunction hearing.

11.The plaintiff, Joe Shea, is an editor, publisher and part-owner of The American Reporter, a newspaper distributed exclusively through electronic means.

12.Judge Jose A. Cabranes, Second Circuit, and Judges Leonard B. Sand and Denise Cote, Southern District of New York. The Court's opinion was written by Judge Cabranes.

13.1996 WL 421439 (S.D.N.Y. July 29, 1996) ("Shea").

14.§561(b) of the CDA provides that an order of the three-judge court under §561(a) holding that any provision of the CDA is unconstitutional "shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry" of such order.