PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF A MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION 

INTRODUCTION 

The plaintiffs in this First Amendment challenge to the "Communications Decency Act of 1996" seek emergency relief to stop the enforcement of provisions of the Act that criminalize their expression of constitutionally protected information and ideas over computer communications systems/1. The Act bans all expression that is "indecent" or "patently offensive" from all online systems that are accessible to minors. Not only does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans "indecent" or "patently offensive" speech entirely, thus impermissibly reducing the adult population to "only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). 

The prohibitions are also unconstitutionally vague and overbroad. The terms "indecency" and "patently offensive" are not further defined. None of the plaintiffs knows how to define the Act's terms or how much of their communications are criminal under the Act. The Act explains neither how to comply, nor which participants in the distribution of online speech may be held liable. Further, there are many alternatives already available for those parents who wish to shield their children from online communications that they deem inappropriate. Finally, the Act interferes with the privacy rights of minors, and impermissibly discriminates against computer communications by imposing censorship that would not be permitted for the print medium/2. 

The plaintiffs are providers and users of online communications with significant educational, political, medical, artistic, literary, and social value that deal with issues such as sexuality, reproduction, human rights, and civil liberties. The censorship provisions that they challenge threaten not only to chill these important communications but to dismantle the free and open nature of a promising new medium that could empower citizens and promote democracy in the next millennium. The exponential growth in computer technology, and international computer networks like the Internet, is transforming the nature of communication. Computer networks have created new communities with new opportunities for people with similar interests to communicate with each other. Computer networks embody the values that underlie the First Amendment by nurturing the robust exchange of ideas. By imposing vague and broad-ranging standards wholly inappropriate for this new medium, the Act would stifle the creativity and breadth of expression occurring in cyberspace. This result cannot be reconciled with the First Amendment. Because plaintiffs and their members and online audiences face the irreparable loss of First Amendment rights, plaintiffs ask the Court to enter preliminary relief enjoining the Act's enforcement. 

STATEMENT OF THE CASE 

A. The Plaintiffs' Online Speech 

Plaintiffs include more than twenty organizations and individuals who use online computer networks to send, display and view information. All of the plaintiffs are both online speakers and online listeners or recipients of information who communicate through electronic mail ("e-mail"), online discussion groups, and online databases that can be accessed by millions of other online users simultaneously. Plaintiffs sue on their own behalf and on behalf of those who access their online communications. Plaintiffs who are membership organizations sue on their own behalf and on behalf of their members who use online communications. 

All of the plaintiffs use online networks to send, display or view information that could be considered to be "indecent" or "patently offensive." Some communicate important health-related information about sex/3. Others communicate important news and educational information about human rights and civil liberties/4. Still others communicate material that contains strong language that many consider unsuitable for minors to read or hear and that the Federal Communications Commission has found "indecent" in the broadcast context/5. Notwithstanding the social value of plaintiffs' speech for both minors and adults, all face possible prosecution under the Act. 

More specifically, plaintiffs include/6: 

* American Civil Liberties Union (ACLU): a national civil rights organization, the ACLU posts online information that includes the language deemed offensive in the Supreme Court's 1978 decision in FCC v. Pacifica , 438 U.S. 726 (1978), and hosts online discussions on civil liberties issues such as arts censorship, obscenity and indecency law, discrimination against gay men and lesbians, and reproductive freedom. The ACLU also sends and receives information about abortion through online networks, the mails, telephone and FAX lines/7. 

* Human Rights Watch (HRW): an international human rights organization, HRW uses computer technology to communicate around the world with members, interested persons, and the public. These discussions, and HRW's published online human rights reports, sometimes contain graphic language about prostitution, rape and torture involving sexual mutilation/8. 

* Electronic Privacy Information Center (EPIC): a research organization advocating for free speech and privacy rights in the online medium, EPIC maintains extensive online resources that include references to censored material. For example, EPIC has posted poems that were written by subscribers of America Online (AOL) and then removed from AOL on the grounds that they were "vulgar or [contained] sexually oriented language."/9 

* Electronic Frontier Foundation (EFF): a national non-partisan organization advocating for civil liberties in the online medium, EFF maintains extensive online resources. EFF's electronic resources, like those of the ACLU and EPIC, include considerable material about censorship including quotations from previously censored material/10. 

* Journalism Education Association (JEA): a national organization of high school journalism teachers, JEA members teach minors how to access information on computer networks and assist minors with online research on many subjects, including censorship, gay and lesbian issues, teenage sexuality, reproduction, abortion, art, literature, and law/11. 

* Computer Professionals for Social Responsibility (CPSR): a national organization of computer professionals, CPSR and its members are involved in every aspect of computer technology. They use the online medium as a primary method of communication and also host a number of online discussion groups that include frank discussions of sex/12. 

* National Writers Union (NWU): a national organization of writers, NWU and its members use computer technology to communicate with each other often in frank terms and some of whom post erotic fiction on the networks/13. 

* ClariNet: publishers of an electronic newspaper, ClariNet distributes news articles that sometimes use frank, strong language, and describe sexual subjects. ClariNet also publishes a humor newsgroup which posts jokes, some of which include vulgar language or sexually explicit material/14. 

* Institute for Global Communications (IGC): a national online service provider, IGC provides Internet web sites, access to the Internet, and other online services primarily to nonprofit organizations, including SIECUS (the Sex Information and Education Council of the United States), the Family Violence Prevention Fund, Stop Prisoner Rape, Human Rights Watch, and Pacifica Radio/15. 

* Stop Prisoner Rape (SPR): an organization dedicated to advocacy to end prison rape, SPR hosts an Internet site that uses frank street terms to discuss the problem of rape in the nation's jails, prisons, and juvenile facilities in order to assist inmates or former inmates in dealing with the consequences of that experience/16. 

* AIDS Education Global Information System (AEGIS) and Critical Path AIDS Project (Critical Path): organizations that offer vital information about AIDS and HIV, AEGIS and Critical Path often necessarily contain discussions of sex because HIV/AIDS is a sexually transmitted disease. In order to ensure that those accessing the information fully understand prevention methods, Critical Path and AEGIS discussions often use street terms for sexual organs and/or acts. Critical Path also provides access services for connection to other online networks/17. 

* Safer Sex Page: an Internet site that provides safe sex education materials, Safer Sex Page often uses frank and explicit language and pictures. Safer Sex Page also hosts an online discussion group that allows individuals to discuss sexual subjects relevant to safer sex(Fn 18). 

* BiblioBytes: a publisher of electronic books for sale over the World Wide Web ("the web"), BiblioBytes offers romance novels, erotica, classics, adventure, and horror /19. 

* Wildcat Press: a publisher that specializes in classic gay and lesbian literature, Wildcat Press advertises its books by publishing excerpts online. Wildcat also sponsors two online youth magazines that publish poetry, fiction, essays, fine art and photography by teenagers, some of which is sexually explicit/20. 

* Queer Resources Directory (QRD): one of the largest online distributors of gay, lesbian, and bisexual resources on the Internet, QRD includes some material about human sexuality that is sexually explicit/21. 

* Justice On Campus (JOC): a student-operated Internet site on free speech, JOC posts and discusses material that has been censored, particularly material censored by schools/22. 

* Cyberwire Dispatch (CWD): an online editorial column about telecommunications issues, CWD often uses vulgar and graphic language to protest censorship. Brock Meeks, publisher and editor of Cyberwire Dispatch, also writes for other print and online magazines/23. 

* The Ethical Spectacle: an online monthly newspaper, The Ethical Spectacle discusses ethical issues including Nazi experimentation and the morality of pornography. In the course of those discussions, works that have in the past been censored or considered pornography are discussed and quoted/24. 

* Planned Parenthood Foundation of America (PPFA): the leading national voluntary health organization in the field of reproductive health care, PPFA sends and receives, through online communications, telephone, FAX, and regular mail, a broad range of information about abortion/25.

B. The Censorship Provisions of the Act 

Plaintiffs principally challenge two sections of the Act. Section 502, amending 47 U.S.C. Section 223(a)(1)(B) (hereinafter Section 223(a)(1)(B) or "the indecency provision"), provides in part that anyone who, "by means of a telecommunications device," "makes, creates, or solicits" and "initiates the transmission" of any material "which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." Section 502, adding 47 U.S.C. Section 223(d)(1) (hereinafter Section 223(d)(1) or "the patently offensive provision"), makes it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18, any material that 

in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs ... 

Plaintiffs also challenge Section 223(a)(2) and Section 223(d)(2), which makes it a crime for anyone to "knowingly permit[] any telecommunications facility under his control to be used for any activity prohibited" in Sections 223(a)(1)(B) and 223(d)(1). 

Finally, plaintiffs challenge 18 U.S.C. Section 1462, as amended by the Act, which prohibits the sending and receiving of information 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." 

C. The Nature of the Online Medium 

To understand the urgency of the issues presented by this case, it is necessary to appreciate the unique nature of the online medium. Online networks represent a revolutionary synthesis of several traditional means of communication and places for communicating and exchanging information -- including the telephone system, the postal service, a television or radio broadcast, a newspaper, a library or book store, a fax machine, a town hall or public park, and a shopping mall. The following section discusses the ways people communicate over online networks, the types of online systems and how they operate, and the distinctions between the online medium and traditional forms of communication. 

1. Types of Online Systems 

Although computer communications systems are various and complex, there are a few basic types and functions that are critical to understanding why censorship of material that is "indecent" or "patently offensive" is unnecessary and unconstitutional on these networks. An estimated 75,000 online systems currently exist, varying widely in size, subject matter, scope and features. These systems are accessed with a computer, phone line, and modem. There is usually a start-up and subscription fee, which varies in price depending on the size and features of the system. Subscribers are provided with a user name and a password that allows them to access the online service. While some users employ their full proper names as their online user names, others have online names that are pseudonyms. These users therefore may send, view, and receive online communications anonymously. 

Most online systems offer a package of services that can include e-mail to transmit private messages to one or a group of users or to an established mailing list on a particular topic; chat groups that allow simultaneous online discussions; ongoing discussion groups; informational databases; and access to the Internet. Text, audio, and video files can all be exchanged on an online system if the user has the right computer hardware and software. Once users obtain online access, they may generally use all of the services without providing further identification or paying an additional fee/26. 

The quintessential online system is the Internet, the largest online network in the world. The Internet is an enormous network that links a large number of smaller networks set up by universities, industry and government. While estimates are unreliable due to its astronomical growth, the Internet is believed to connect at least 59,000 computer networks and 2.2 million computers in 159 countries/27. There are an estimated 20-40 million users of the Internet/28. The Internet grows at a rate of 10-15 percent per month, and a new online network is connected to the Internet every 30 minutes/29. 

Many Internet users are connected to the service through an Internet Service Provider (ISP). ISP's provide connection, software, and tools for using the Internet/30. Larger businesses and institutions often have a direct connection to the Internet. Most universities in the United States are now directly connected to the Internet and provide free accounts on their participating computers to students, faculty, and staff. 

Online users can communicate over the Internet in many different ways. E-mail is the most basic online communication method; users are given a personal e-mail address that allows them to exchange messages or files with anyone else with an Internet e-mail address. Gopher and the World Wide Web ("the web") are two popular ways to create and access permanent information databases, or online sites, established by thousands of organizations and individuals through the Internet. Both gopher and the web allow the user to print or download documents from the Internet/31. The web, the newest Internet tool, provides thousands of sites that contain menus, text, and graphics. Most sites allow users to link instantly to other documents and web sites by clicking on highlighted words in the text of the document being viewed. 

The Internet and other online services also provide access to "online discussion groups," which are set up by particular computer networks connected to the Internet. The host of the discussion group sets up a section on the network that is devoted to the discussion of a particular issue (akin to a public bulletin board), and any other online user with access to the host network can post messages on the topic by sending an e-mail message to the discussion group. Users can also post reponses to particular messages/32. Plaintiffs host online discussion groups on topics such as AIDS education; safer sex practices; and university censorship/33. 

Online users can also communicate using "chat rooms," which are usually dedicated to a particular topic and allow users to engage in simultaneous live interactive discussion (similar to a multi-party phone call). Like online discussion groups, chat rooms are usually hosted by particular networks that are connected to the Internet/34. 

Software is also available that allows any online user to establish an "online mailing list" for a particular topic or purpose. Other online users "subscribe" to online mailing lists by sending messages from their own e-mail addresses. Any subscriber can then send a message that is distributed to all of the other subscribers on the list/35. 

There are a number of methods available for searching for information on the web. These methods, often called "search engines," allow an online user to insert a string of words and simultaneously search the thousands of databases on the web for information on a particular subject/36. While users may tailor their searches to exclude some extraneous information, it is not possible to screen all unrelated information from appearing in the search results. The search results provide users with a citation list of sites on the subject searched, and the user then chooses which of those sites to access/37. 

The summary above provides only a cursory overview of a very complex and promising new communications medium/38. All online systems, though, have two important features in common: 

users must seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage. 

online systems provide users with a multitude of options for controlling and limiting, if desired, the kinds of information they access through the networks. 

2. Who Runs Cyberspace 

Nobody owns cyberspace, and the ability of anyone to control what goes into or through online networks varies widely depending on the nature of the system. Many aspects of online networks and sites run automatically without the active involvement of the host. For example, online system software automatically answers the telephone when a user attempts to log on, verifies passwords, connects the user to the system, allows users to exchange messages, downloads and uploads files when requested by users and disconnects the user when the user logs off the system. 

Large online services like America Online and Prodigy create their own content files and also negotiate with other information providers to post content on their systems. Some of these online services review the content from outside information providers before it is posted/39. However, in contrast to the control and review of information they create themselves or received from third parties, these systems have little prior control over the content of subscribers' e-mail or the speech that takes place in their simultaneous chat rooms. In addition, it is impossible to monitor access to other networks and sites through the host network. For example, Plaintiff ACLU's web site provides a "link" to Plaintiff EFF's web site, but Plaintiff ACLU has no power to monitor EFF's web site communications/40. 

There are other gatekeepers in cyberspace known as moderators. Online mailing lists, online discussion groups and chat rooms on a particular subject are often "moderated." Some moderators are employed by universities or companies that set up the list or newsgroup, but the overwhelming number are people who volunteer to serve as moderator because they are interested in the topic. These moderators review incoming messages before they are posted to a public site or sent to a mailing list to determine whether the message is related to the subject matter or conforms to other standards set up by the discussion group. For example, Plaintiff Safer Sex Web Page hosts an online discussion group about safe sex, but the creator of the web page reviews messages posted by others before he posts them to the public discussion group in order to screen out messages that do not relate to the topic/41. Given the lack of centralized Internet gatekeepers and the huge flow of online information, moderators play a valuable role in focusing online discussion and eliminating superfluous messages. 

3. How Cyberspace Differs From Other Media 

Users of online networks are producers as well as consumers of information. Perhaps the most revolutionary aspect of cyberspace is its ability to turn the passive consumer into a mass producer of information. Online users, through services like e-mail, online discussion groups, or the web, can publish or post information to other users -- or to the entire Internet -- and then use the same services to read or receive information. In fact, online networks make no distinction between information providers and information users, and "most users play both roles from time to time./42" Unlike radio or television networks, in which spectrum scarcity limits the number of potential information producers, an online network can accommodate a virtually unlimited number of both users and producers of information/43. 

Cyberspace is also more decentralized than any other communications medium. It is comprised of thousands of individual computers and computer networks, with thousands of individual speakers, information providers, and information users, and no centralized distribution point. Access to start-up technology, content production, and connectivity are all decentralized in cyberspace. Anyone can purchase the necessary equipment to get online or to create a web site from her home computer. Once a person becomes connected to global networks like the Internet, there are no central gatekeepers who determine where that person can travel in cyberspace. Many commentators have noted that the decentralized nature of cyberspace is what has made the medium flourish/44. It also makes cyberspace fundamentally different from the broadcast medium/45. 

Attempts to control content in cyberspace affect not just a few distributors and producers, but the millions of US citizens and international users who speak daily online/46. The effect of censorship is thus much broader than on radio and television, which have a limited and identifiable number of producers; it is even broader than print because information travels instantaneously across national boundaries. Congress has conducted no study to determine how the Act's censorship provisions would affect the interactive environment, or indeed, whether they would be effective in keeping ostensibly harmful materials from children. 

Cyberspace also differs from print, television or radio because it is "interactive." Other, traditional media are one-way communications systems with no opportunity for input from the user. Online communications, by contrast, allow users to shift fluidly from the position of listener to that of speaker, and from the role of consumer to that of information provider. Moreover, unlike the traditional phone or fax, cyberspace communications can be more than just two-way. There is no limit to the number of people on either side of the sending or receiving end of the communication. 

Also unlike traditional media, cyberspace contains various types of interactive communications. Online users can exchange e-mail to one or a specified group of other users; engage in an ongoing exchange of postings on a particular subject through online discussion groups; talk simultaneously with others in an online chat group; or retrieve documents from web sites. 

Online media thus "offer users tremendous control over the information that they and their children receive. Unlike traditional mass media which 'assaults' viewers with content, interactive media requires users to seek out information from any number of the millions of available [online sites]./47" Viewing messages or files in cyberspace does not happen automatically. Each participant in this form of communication chooses not only whether, when and where to participate, but also whether to send or receive information at any specific time; at what rate writing and reading (sending and receiving) will occur; and what topic this communication will concern. Thus, in contrast to television or radio, it is very difficult to be "assaulted" with images online. There is little risk of accidental exposure to established online files, because an online user sees a subject line or headline describing the content before it is viewed, and actively chooses what she wishes to see or hear in cyberspace. 

Computer communications and online communities also differ from other media in their global reach. The Internet is accessible from a growing number of countries around the world/48. Once information is posted to an international online network like the Internet, it is not possible to allow only residents of a particular country to download that information; the information becomes available to anyone in the world who can access the Internet. Similarly, it is impossible to prevent persons in other countries from posting information to international online networks. There is currently no technological method for determining with specificity the geographic location from which users access or post to online systems. 

Finally, unlike other media, online systems offer both "public" and "private" spaces for communication. E-mail and online mailing lists are private. Web sites, online discussion groups and chat rooms are "public" in the sense that any Internet subscriber can access them, but they are not akin to a town hall or public park because it is impossible to identify the physical characteristics of other online users. This fact is particularly relevant to legislation targeting minors. In public parks and other public spaces in the geographical world, adults can easily determine whether children are present, and may decide to alter their speech and conduct accordingly. On the Internet, as it currently functions, it is impossible to determine whether a child or teenager is participating in a chat room or whether a minor is accessing a public space on the network. Thus, any regulations governing communications to minors inevitably affects communications among adults. 

4. Screening and Filtering Devices Available to Control Content 

As described above, the very nature of the online medium puts control of information and content in the hands of the users. In addition, there are an increasing number of devices that assist users in screening and blocking access to certain kinds of information. Almost all online information has a headline or subject line that tells the online user what will be viewed if the user chooses to access the information. Online users can simply choose not to view or download information if the headline relates to information the user finds objectionable. There are also methods that allow users to block out all incoming messages from a particular person (for example, an harassing e-mailer), or messages related to particular subje