To: Plaintiffs in ACLU v. Reno
FROM: Ann Beeson; Chris Hansen; Margie Heins; Stefan Presser; Jonathan Weissglass; Rossiya Fajardo; Emily Whitfield
DATE: June 26, 1996
We hope you are all still basking in the glow of success from our stunning victory in ACLU v. Reno ! And we hope you have had the chance to read the opinion. It is a moving affirmation of the importance of free speech rights in any medium.
We want to express our warmest thanks for all your help in the case. One of the most rewarding aspects of working on the case has been getting to know all of you — your work is truly inspirational. Without such compelling plaintiffs, we could never have built such a strong case against online censorship. Your voices drove home the draconian effect the CDA would have had on the democratizing medium of cyberspace. Again and again, the judges’ opinions evoke concern with the particular problems you would have faced had the CDA been upheld. Throughout each opinion, each judge emphasized the particular impact on non-profit organizations and non commercial speakers. They understood that under the CDA you would have been forced “to choose between silence and the risk of prosecution.”
The following memorandum explains the current status of our case, and provides a summary of the most significant aspects of the decision. As always, please feel free to call or e-mail with any questions. (The full decision, and many other case-related documents, are available from our web site at http://archive.aclu.org.)
Status and Future Proceedings:
The Order of the Court preliminarily enjoins the Government from “enforcing, prosecuting, investigating or reviewing any matter premised upon” the “indecency” or “patently offensive” provisions of the CDA. As plaintiffs in this action, you are therefore currently protected from prosecution under the CDA anywhere. In addition, we believe the injunction protects all online users (not just the plaintiffs in the consolidated cases).
The government has twenty days from the date of the decision to file a notice of appeal in the case, which makes the deadline July 2nd. They have not yet announced whether they will appeal.
As you know, there is another case, Shea v. Reno , pending before a three-judge court in the Southern District of New York. Proceedings in that case have concluded and that court could issue an opinion at any time. (Of course, we hope the New York judges will find the CDA as blatantly unconstitutional as did the Philadelphia judges.) There is a slim possibility that the government could decline to appeal our case, and choose instead to appeal the Shea case. However, the New York case already includes portions of our evidentiary record, and there is a possibility that the New York court will rule that the government is bound by the findings of fact issued by the Philadelphia court in our case. This means that regardless of which case is actually appealed, the record that goes to the Supreme Court will contain at least some of our factual record. (Of course, we would prefer that the Supreme Court have our entire factual record, especially because, unlike the Shea record, our record includes much detailed information about the impact of the CDA on non-profit speakers.) We emphasize that it is unlikely, for political reasons, that the government will choose to appeal only the Shea case. It is more likely that the government will appeal both cases (in which case they would be consolidated at the Supreme Court), or will appeal neither case.
If the government declines to appeal our case, we will ask the Philadelphia court to convert our preliminary injunction into a permanent injunction. While normally that would require a full-scale trial (as opposed to the hearing on the preliminary injunction that was already held), we hope to persuade the court that there is no need for any further proceedings. The government would likely oppose our motion and argue that it has the right to put on further evidence. If the court decides to go forward with a trial, we will again need your help in presenting testimony and evidence. (The evidence would probably focus on whether screening and age verification technology had progressed since the preliminary injunction hearing, and the impact of the CDA on online speakers in light of any new technology.) If the court decides to issue a permanent injunction (with or without a trial), the government will have another chance to appeal. If the government does not appeal, or if they appeal and the Supreme Court affirms the decision, the CDA will be permanently “dead.”
Of course, Congress could always come back with a “Son of CDA.” We will continue to lobby vigorously against any new content-based Internet regulation, and we encourage all of you to remain active in opposing such legislation.
The Findings of Fact:
The importance of the court’s findings of fact cannot be overemphasized. Although the judges wrote three separate opinions, the facts were adopted jointly by all three judges. The extensive findings of fact mean that the Supreme Court would have an incredible wealth of factual information to consider if it hears the case on appeal from the preliminary injunction. (The Supreme Court must normally defer to a lower court’s findings of fact, and review only issues of law.) In addition, as the first thorough review by a federal court of the online medium, the findings of facts will likely become a necessary reference for all future cases involving cyberspace.
Although not included in the text of the opinion, the court adopted as fact literally hundreds of paragraphs describing each of the plaintiffs and the nature and content of their speech potentially affected by the CDA (so the hard work you all put into your affidavits and declarations paid off!). All of these facts will become part of the record on appeal. Some of the most crucial findings included in the text of the opinion were:
- The CDA’s defenses are effectively unavailable for non-commercial, not-for-profit entities.
- The cost of compliance with the CDA to plaintiffs like Wildcat Press and Critical Path AIDS Project would be prohibitive.
- Most plaintiffs, including Stop Prisoner Rape and the ACLU, consider free access to their materials (and access by older minors) to be crucial.
- Many listeners would be discouraged from access to certain sites if they had to present a credit card.
- Reviewing all online content to determine whether to tag it “indecent” would be “extremely burdensome” to organizations that provide large amounts of online information at very low cost.
- Simply tagging an entire site “indecent” would prevent minors from accessing much material that is not indecent.
- Anonymity is important to persons who wish to gain access to sensitive information on sites such as Queer Resources Directory, Critical Path AIDS Project, and Stop Prisoner Rape.
Similarities and Differences in the Three Opinions:
We are still in the process of analyzing all the nuances of the decision. As you know, the judges issued three separate opinions. (We’re not sure why the judges wrote separate opinions, but we suspect it is because they enjoyed the case so much that they were unwilling to let only one judge have all the fun!) Normally, when a panel of judges decides a case, they issue one “opinion of the court” (individual judges may then write separate opinions agreeing or disagreeing with certain holdings of the court). The ACLU v. Reno decision is unusual in that, apart from the joint findings of fact, the judges wrote entirely separate opinions. Thus, there is no “opinion of the court,” and to determine the “opinion of the court” one must parse all three opinions (which we’ve tried to do for you below). The fact that the judges wrote separate opinions will not be significant on appeal, because the Supreme Court will apply its own rationale to decide the legal issues in the case.
While there is much similarity in the opinions, there are important differences. All three judges unequivocally held that both the “indecency” and “patent offensiveness” provisions of the CDA are unconstitutional on their face. All three judges agreed that the CDA failed the “strict scrutiny” test, that is, the CDA was not narrowly tailored to achieve a compelling government interest. All three judges also agreed that both provisions are unconstitutionally overbroad.
Judge Sloviter raised the issue of whether the “indecency” and “patent offensiveness” provisions were synonymous, implying that she believed they were not, but declining to rule on the issue at this stage. Judge Buckwalter held explicitly that they were not synonymous, and while “indecency” provided even less guidance, both provisions were equally unconstitutional. Judge Dalzell held that the terms were synonymous, but agreed that both provisions were unconstitutional.
Judge Sloviter and Judge Buckwalter also held that the CDA is unconstitutionally vague. Judge Dalzell, however, thought that the CDA was not unconstitutionally vague.
Judge Dalzell held the view that any content-based regulation of the Internet would violate the First Amendment because of the unique nature of the medium. Judge Buckwalter, however, believes “it is too early in the development of this new medium to conclude that other attempts to regulate” the Internet would fail a constitutional challenge, noting that a “harmful to minors” standard for the print medium had survived constitutional challenge. Judge Sloviter did not consider the issue.
Summary of Issues and Highlights from the Opinion:
Plaintiffs Have Standing to Challenge the CDA.
The government had hinted in its briefs that it believed that plaintiffs’ fears of prosecution were so weak as to raise questions about whether they had standing to challenge the CDA. Judge Dalzell was the only judge to address this issue explicitly. He found plaintiffs’ fears legitimate, and wrote that there was no question that plaintiffs had standing. He noted, for example, that the FCC had found that a broadcast dealing with AIDS was indecent because it was presented “in a manner that is patently offensive.” Judge Dalzell noted that in our case, many plaintiffs ” 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.” Judge Dalzell also said that, given the history the Carlin “seven dirty words” case, plaintiffs legitimately feared that using vulgar words might subject them to prosecution under the CDA.
The Government’s Asserted “Compelling Interest” in the CDA is Questionable.
To pass constitutional muster, laws that burden speech must use the least restrictive means to accomplish a compelling government interest. The government argued that shielding minors from access to pornography was its “compelling interest” in the CDA. Judge Sloviter explicitly questioned this rationale, although she declined to base her decision on the government’s failure to prove a compelling interest. She distinguished cases finding a “compelling interest” in laws regulating dial-a-porn and child pornography, noting that in those cases “the potential harm to children from the material was evident.” She found that much of the material covered by the CDA contained value for older minors, and noted that the government had failed to prove a “compelling interest” in preventing minors from accessing that valuable information. This aspect of the opinion, while not an explicit holding, contrasts with other cases that had glossed over the requirement that the government prove a “compelling interest” in content-based regulations.
The CDA is Not Narrowly Tailored.
Judge Sloviter was also the only judge to address the “narrow tailoring” requirement explicitly. She wrote, “[I]t is difficult to characterize a criminal statute that hovers over each content provider, like the proverbial sword of Damocles, as a narrow tailoring. . . . 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.”
The CDA Cannot Be Rewritten to Make It Constitutional.
To get around the narrow tailoring requirement, the government had asked the Court to construe the statute narrowly so that it applied only to commercial pornographers. The judges were unpersuaded by this argument because the plain language of the statute, and its legislative history, showed that Congress knew the statute would cover non-commercial as well as commercial content providers. In addition, the CDA clearly covered more than pornography because “indecency” encompasses works of serious value and material that lacks prurient appeal.
The CDA Would Not Keep Online Pornography From Children.
Judge Dalzell emphasized that the CDA would not even be effective at keeping online pornography away from minors. He noted that a large amount of such material originates overseas, and that even in the United States commercial pornographers would remain relatively unaffected by the Act because most of them already require credit cards for access.
There Are Other Options Available To Advance the Government’s Goal.
The judges reminded the government that it could continue to protect children from pornography through vigorous enforcement of existing obscenity and child pornography laws. In addition, Judge Sloviter wrote that “Congress . . . 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.” Dalzell added that “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.”
The Court reiterated that the primary responsibility for determining children’s level of access to the Internet remains where it should be — with parents. Judge Dalzell wrote, “[P]arents 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.”
The CDA is Unconstitutionally Overbroad.
Because the judges found as a factual matter that there was no effective way to screen for age on the Internet, the Court held that both provisions of the CDA are overbroad, that is, the provisions prevent adults as well as minors from obtaining access to “indecent” material. Judge Sloviter wrote, “A wealth of persuasive evidence . . . 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.”
The “Indecency” and “Patently Offensive” Standards are Vague.
Judge Sloviter and Judge Buckwalter held that the CDA is unconstitutionally vague, that is, that the provisions lack the clarity required to inform persons as to what speech is criminal, and give too much discretion to prosecutors to decide what the law means. This is a violation of the Fifth Amendment Due Process Clause and is also a violation of the First Amendment because of the tendency of vague laws to chill protected speech. Judge Sloviter was wholly unpersuaded by the government’s response to our vagueness claim: “The government . . . 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 require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce’s Ulysses as obscene.” As Judge Buckwalter explained, “Such unfettered discretion to prosecutors . . . is precisely what due process does not allow.”
Judge Buckwalter’s opinion contains a very thorough review of the law of vagueness. He summarized, “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.” He noted that criminal laws applied to new media like the Internet need particularly clear standards “because even commonly understood terms may have different connotations or parameters in this new context.”
Judge Dalzell declined to join the other two judges in holding that the CDA was unconstitutionally vague. He followed the holdings of some appellate courts that had previously concluded that the “indecency” standard was not vague when applied to media like the telephone and cable television. The cases that Judge Dalzell cited made our vagueness argument a difficult one, and it is a victory for free speech that two of the three judges were persuaded by our arguments despite those cases.
The Defenses Do Not Save the CDA.
The judges were unconvinced by the government’s argument that the CDA’s defenses provided an effective way for online users to avoid prosecution. Judge Buckwalter found the defenses, like the criminal prohibition, to be unconstitutionally vague: “[I]ndividuals 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.”
Judge Sloviter was unpersuaded by the government’s proposed tagging defense. She wrote, “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.” Even if tagging technology became available, said Judge Sloviter, requiring speakers to tag their speech would be “a burden one should not have to bear in order to transmit information protected under the Constitution.”
The Government Cannot Depend on “Future” Technology to Save the CDA.
The Court was particularly disturbed by the government’s “extraordinary argument” that technology would eventually produce ways to comply with the CDA. Judge Sloviter wrote, “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 CDA Fails to Define the Relevant Community Standard.
The judges recognized that one of the fatal flaws of the CDA was its potential to allow the most conservative community in the United States to set the standard for “indecency” all over the nation. Judge Dalzell wrote, “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.” While Congress’ Conference Report indicated a desire to set a national standard for “indecency,” the government argued that local community standards would apply. Judge Buckwalter recognized that this conflict would leave “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.”
The CDA Covers Speech That Has Value to Minors.
The Court recognized that the CDA would have prevented minors from gaining access to valuable materials. Judge Sloviter was the true champion of the free speech rights of minors. She found that “at least some of the material subject to coverage under the . . . CDA may contain valuable literary, artistic or educational information of value to older minors.” She wrote that the government had no interest “in preventing a seventeen-year-old minor from accessing” images like the play “Angels in America,” articles on female genital mutilation, National Geographic pictures, or famous sexually explicit paintings. In addition, she believed that plaintiffs like Critical Path AIDS Project and Stop Prisoner Rape presented convincing testimony that their material was “critically important for certain older minors.”
Judge Dalzell noted that laws based on a desire to protect children are as dangerous as they are compelling. Recognizing the importance of instilling democratic values in children, he wrote that “regulations that ‘drive certain ideas or viewpoints from the marketplace’ for children’s benefit, risk destroying the very ‘political system and cultural life,’ that they will inherit when they come of age.”
While the judges ultimately did not rest their decision on the CDA’s unconstitutional application to minors, their strong statements affirming the rights of minors to receive information are a victory for our plaintiffs who see minors as a crucial part of their audience and for the teenage witnesses who submitted such compelling affidavits for the case.
The Online Medium Is Different Than Other Media.
Perhaps the most satisfying aspect of the opinion was the Court’s repeated affirmation of the “unique” nature of the Internet as a communications medium. All three judges based their legal conclusions in part on the unique features of the Internet. Factors supporting lesser First Amendment protection for other media like broadcast are simply not present in cyberspace. Judge Sloviter wrote that “Internet communication, while unique, is more akin to telephone communication . . . than to broadcasting . . . because . . . 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.” Judge Dalzell agreed, writing that “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.” Judge Buckwalter wrote that the unique nature of the medium was also crucial to his holding that the CDA is unconstitutionally vague.
While all three judges recognized the distinct nature of the Internet, Judge Dalzell went one giant step further. The special characteristics of the Internet led him to conclude that the First Amendment denies Congress the power to regulate protected speech on the Internet. He wrote, “[T]he 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.” Any content-based regulation of the Internet, no matter how benign the purpose, “could burn the global village to roast the pig.” Judge Dalzell’s language should make Congress hesitate before attempting to pass a “son of CDA.”
The CDA Would Devastate the Online Medium.
Judge Dalzell noted that four features of Internet communication were crucial to the judges’ shared holding that the CDA is unconstitutional on its face: “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 of 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.” Given these characteristics, Judge Dalzell wrote that “[i]t 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.”
Judge Dalzell then went on to paint a realistic picture of the effect the CDA would have on the “substantive, speech-enhancing benefits that have flowed from the Internet.” He found that barriers to entry would “skyrocket, especially for non-commercial and not-for-profit information providers.” The diversity of content would necessarily diminish as a result, and “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.” Finally, the CDA would “skew the relative parity among speakers that currently exists on the Int
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