Motion to Affirm Filed by the Plaintiffs in Reno v. ACLU I

October 31, 1996

No. 96-511

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In the
Supreme Court of the United States
October Term, 1995

Janet Reno, et al.,
Apellants

v.

American Civil Liberties Union, et al.,
Appellees

On Appeal from the United States District Court for the Eastern District of Pennsylvania

Motion to Affirm


COUNTERSTATEMENT OF QUESTIONS PRESENTED

Should this Court summarily affirm the three-judge court's grant of a preliminary injunction against the criminal provisions of the Communications Decency Act on First Amendment grounds, based upon undisputed factual findings establishing that it is technologically and economically infeasible to comply with the Act's provisions, and that the Act would unconstitutionally and ineffectively ban a wide variety of protected speech in the democratic, noninvasive and global medium of cyberspace?

LIST OF PARTIES

Appellees agree with the List of Parties in the Jurisdictional Statement, with the addition of the parent corporation for plaintiff Institute for Global Communications, which is The Tides Center.

TABLE OF CONTENTS

INTRODUCTION

STATEMENT OF THE CASE

A. The Statutory Framework 

B. The Plaintiffs

C. Factual Findings By The Three-Judge District Court 

  1. The Nature Of The Medium   
  2. The Scope Of The CDA's Criminal Prohibitions   
  3. The Impracticality Of The Statutory Defenses   
  4. The Availability Of Less Restrictive Alternatives That Empower Parents To Make Decisions For Their Own Families

D. The Decision Below

ARGUMENT

I. GIVEN THE THREE-JUDGE COURT'S EXTENSIVE, LARGELY UNDISPUTED FACTUAL FINDINGS REGARDING THE TECHNOLOGY AND ECONOMICS OF CYBERSPACE, THE DECISION BELOW IS PLAINLY CORRECT

II. NONE OF THE GOVERNMENT'S OTHER ARGUMENTS JUSTIFY NOTING PROBABLE JURISDICTION AT THIS STAGE OF THE PROCEEDINGS

CONCLUSION

NOTES

APPENDIX


Pursuant to Rule 18.6 of the Rules of the Supreme Court, appellees American Civil Liberties Union, et al., respectfully move for summary affirmance of the preliminary injunction order entered by the three-judge district court on June 12, 1996.

 INTRODUCTION

The government appeals from a preliminary injunction barring the enforcement of the Communications Decency Act of 1996 (CDA), which is Congress' first attempt to regulate the content of communications in the democratizing, global medium of cyberspace.1 International computer networks like the Internet represent a revolution in human communication that has been compared by some to the development of the printing press. The Internet allows millions of average citizens around the globe to communicate, publish, and exchange information on a vast array of subjects with a worldwide and virtually limitless audience. The Internet thus embodies the values that underlie the First Amendment by nurturing the robust exchange of ideas and equalizing the distribution of information.

The CDA would stifle this promising new medium. The CDA makes it a crime, punishable by up to two years in prison, for anyone to use online computer communications to transmit or "display in a manner available to minors" any material that is "indecent" or "patently offensive." The three-judge district court correctly enjoined these provisions based on detailed factual findings that are not disputed on appeal and that will be described in more detail below.2 ACLU v. Reno, 929 F.Supp. 824 (E.D.Pa. 1996), reproduced as Appendix A of the government's Jurisdictional Statement. Four findings of the lower court, however, are worth particular emphasis.

First, the three-judge court found that the Internet is "the most participatory marketplace of mass speech that . . . the world has yet seen." J.S.App. 141a. The empowering and noninvasive nature of the Internet make it a very different medium than radio or television. Second, use of the Internet is growing exponentially and, in part because of that increased use, the technology that governs the Internet is continuously and rapidly evolving. Third, given the current state of technology, there is no way for the vast majority of Internet users to distinguish between adults and minors in their audience and, even in those parts of the Internet where it might be technologically possible, it is economically infeasible for many speakers, including the plaintiffs in this case. For these speakers, the only way to ensure that minors do not have access to speech that might later be deemed "indecent" by a criminal jury is to eliminate such speech from the Internet entirely. Fourth, less restrictive alternatives already exist that empower parents to make private decisions within the family about what materials their children should see. The CDA, conversely, is uniquely ill-suited to shield children from sexually explicit material on the Internet precisely because it is a global communications medium. The record reveals that at least 40% of the speech now on the Internet originates overseas and the general consensus is that this percentage is growing. That speech can be accessed as easily as speech that originates domestically but, as the lower court found, and the government concedes, that speech is beyond the reach of our domestic criminal law.

Based on these findings, the three-judge court reached the unanimous conclusion that the inevitable effect of the CDA would be to deprive adult Internet users of their right to send and receive constitutionally protected speech that deals with sexual issues. Because that result so clearly violates the First Amendment under this Court's well-established jurisprudence, the decision below can and should be summarily affirmed.

 STATEMENT OF THE CASE

This case involves the government's attempt to regulate a new technology that will serve as the basis for global communication in the twenty-first century. Unfortunately, Congress held no hearings about the nature of the Internet before it enacted the CDA. The sad but predictable result is that Congress drafted a statute that is both ineffective and unconstitutional, as the lower court found after engaging in the detailed factual inquiry that Congress chose not to do.

A. The Statutory Framework

The criminal provisions challenged in this action are embodied in two sections of the CDA. Section 223(a)(1)(B) applies to "telecommunications devices," a term that is nowhere defined in the Act but that the parties have agreed includes a modem.

J.S.App. 6a-7a n.5. Under §223(a)(1)(B), anyone who transmits an "indecent" communication, "knowing that the recipient of the communication is under 18 years of age," now faces felony charges. The term "indecent" is also undefined in the statute.3

Section 223(d)(1) applies to "interactive computer services," a phrase that is defined in the CDA. See 47 U.S.C. §230(e)(2). In contrast to the indecency provision, this section of the statute makes it a crime to "send" or "display in a manner available" to any person under eighteen any communication that, "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."4

Throughout the district court proceedings, the government made very little effort to defend the constitutionality of these criminal provisions, standing alone. Instead, the government's constitutional defense primarily relied on the so-called "safe harbor" provisions set forth in §223(e)(5) of the Act. Section 223(e)(5)(A) creates an affirmative defense for anyone who "has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to [prohibited] communications . . . ." Section 223(e)(5)(B) creates an affirmative defense for anyone who "has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." At trial, much of the evidence concerned the meaning, scope, and practical impact of these so-called defenses.

B. The Plaintiffs

The ACLU plaintiffs represent a wide variety of online users, content providers, and service providers. The subject matter of plaintiffs' speech ranges from human rights, censorship, and pornography, to the discussion of lesbian and gay issues, safer sex, and rape in prison.5 The ALA plaintiffs also include a wide variety of speakers, including the American Library Association, trade groups such as the American Publishers Association, and service providers such as America Online, Microsoft, Compuserve and Prodigy. None of the plaintiffs are pornographers, as that term is commonly understood, but all of them provide

online speech that is sexually oriented or contains vulgar words. J.S.App. 61a, ¶123. Many of the ACLU plaintiffs are individuals or nonprofit organizations with limited budgets; some rely heavily on volunteer labor.6 Many also believe that the information and ideas they convey online about sexual issues are valuable, not harmful, for older minors.7

For example, plaintiff Critical Path AIDS Project, Inc. (Critical Path) maintains a web site that offers a wide variety of information about AIDS and safer sex. Kiyoshi Kuromiya, Director of Critical Path, testified:

Because most cases of AIDS are transmitted through sexual contact, the information must deal with descriptions of risky sexual activity.

In order to ensure that readers understand the materials, it often must be written using street or colloquial language rather than clinical language in order to be understood by most lay persons . . . . In my view, the information that Critical Path provides saves lives of both teenagers and adults and any attempt to censor or restrict the free flow of this life-saving information would be a critical public health mistake.8

Plaintiff Wildcat Press, a publisher of gay and lesbian literature, publishes two electronic magazines on the World Wide Web that are written by and for gay and lesbian youth. Patricia Nell Warren testified that the YouthArts e-zines "provide a creative forum for many youth to discuss their coming out, their experiences with gay life and their sense of their own identity . . . . Many of the contributors openly discuss sex and sexuality, often using slang common to their age group." Decl. of Patricia Nell Warren, at 9, ¶¶21, 23.

Plaintiff Stop Prisoner Rape (SPR), a nonprofit organization dedicated to combating the rape of prisoners and providing assistance to survivors, has a web site that contains a variety of textual and graphical documents concerning prisoner rape, including a number of testimonials and excerpts of letters from survivors of prisoner rape. Decl. of Stephen Donaldson. Plaintiff American Civil Liberties Union has a feature on its web site that allows users to access this Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), including the transcript of George Carlin's "seven dirty words" monologue that was deemed "indecent" for radio broadcast during daytime hours by the FCC.9 Other plaintiffs include Human Rights Watch, an international human rights monitoring organization that uses the Internet to distribute reports and to communicate about human rights issues such as "torture, rape, mutilation, execution, and mass murder;"10 Justice on Campus, which provides an online information clearinghouse on free speech issues on college campuses; and John Troyer, who maintains The Safer Sex Page, a web site with information on safer sex that includes explicit language and pictures, and an online discussion forum in which users can comment on subjects such as condom brands, masturbation, and how to talk about safer sex with a partner.

The government has consistently refused to say that plaintiffs' speech is not covered by the CDA. As the lower court noted, "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." J.S.App. 12a n.9; see also id. at 107a (Dalzell, J.).

C. Factual Findings By The Three-Judge District Court

The preliminary injunction proceedings included five days of testimony, documentary evidence, and detailed stipulations. The decision issued by the three-judge court contained over four hundred separate findings of fact that included information about the nature of communication and content in the cyberspace medium, the ability of users to restrict access to unwanted material, and the impracticality of the statutory defenses. Notably, 334 of the 409 separate fact-findings adopted by the trial court were derived from stipulations the parties filed with the court. J.S.App. 12a-30a, ¶¶1-43; App. ¶¶70-356. Thus, the majority of the facts necessary to the court's holding were not disputed by the government, and are not disputed on appeal. J.S.App. 11a-12a.

1. The Nature Of The Medium

The findings of fact established that the online medium is a "unique and wholly new medium of worldwide human communication." Id. at 46a, ¶81. The Internet is a giant, global communications network that connects innumerable smaller computer networks. Id. at 12a, ¶1. While difficult to estimate due to rapid growth, the Internet is believed to connect over 9,400,000 host computers worldwide and as many as 40 million people. Id. at 13a, ¶3. Indeed, only about 60% of the Internet's host computers are currently located in the United States. Id. Thus, the medium allows "literally tens of millions of people . . . 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." Id. at 13a-14a, ¶4.

The court also found that the evidence "showed significant differences between Internet communications and communications received by radio or television." Id. at 49a, ¶89. Communications on the Internet do not "`invade' an individual's home or appear on one's computer screen unbidden." Id. at ¶88. Rather, the receipt of information on the Internet "requires a series of affirmative steps more deliberate and directed than merely turning a dial." Id. at ¶89. The Internet is also distinct because it is "not exclusively, or even primarily, a means of commercial communication." Id. at 43a, ¶75. In addition, "[t]he 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." Id. at 44a, ¶76.

There are a variety of ways in which users can communicate in cyberspace. See generally id. at 21a-25a, ¶¶22-32. Electronic mail, or e-mail, allows an online user to address and transmit a message to one or more people, "comparable in principle to sending a first class letter." Id. at 21a, ¶23. In addition, there are a wide variety of online discussion forums that allow groups of users to discuss and debate subjects of interest. The three most common methods for online discussion are mail exploders or "listservs," USENET newsgroups, and chat rooms. "Mail exploders," or "listservs," allow online users to subscribe to mailing lists that discuss particular subjects of interest. Subscribers send an e-mail message to the "list," and the "mail exploder" automatically and simultaneously sends the message to all of the other subscribers on the list; subscribers can reply to the message by sending a response to the list. Id. at 22a, ¶24.

The second type of forum for online discussion occurs on "USENET newsgroups . . . [which] are among the most popular and widespread applications of Internet services, and cover all imaginable topics of interest to users." Id. at 23a, ¶25. Unlike mail exploders, online users need not "subscribe" to newsgroups in advance in order to participate. Rather, the newsgroups are huge databases of messages arranged according to subject matter, and online users may access or send a message to any newsgroup at any time. Id. at 22a-23a, ¶25. There are newsgroups on more than 15,000 different subjects; "[c]ollectively, almost 100,000 new messages (or `articles') are posted to newsgroups each day." Id. at 24a, ¶26.

Third, chat rooms, or "Internet Relay Chats," allow "individuals on the Internet [to] . . . engage in an immediate dialog, in `real time,' with other people on the Internet . . . . IRC is analogous to a telephone party line, using a computer and keyboard rather than a telephone." Id. at ¶27. There are thousands of different chat rooms available, "in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects." Id.

Finally, one of the most well-known methods for communicating information online is the "World Wide Web," which allows users to publish documents, or "web pages," that can then be accessed by any other user in the world. See generally id. at 25a-32a, ¶¶33-48. Most web documents contain "links," which are "short sections of text or image which refer to another document." Id. at 27a, ¶36. When selected by the user, the "linked" document is automatically displayed, wherever in the world it is actually stored. Id. "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." Id. at 28a, ¶39. Ease of access, the court found, has been the key to the tremendous success of the Web.

In considering the diversity of communication and material available through the online medium, the district court noted that "[i]t is no exaggeration to conclude that the content on the Internet is as diverse as human thought." Id. at 42a, ¶73.

The diversity of content is possible "because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions." Id. at 44a, ¶76. The Internet is thus a "never-ending worldwide conversation," id. at 146a (Dalzell, J.), in which users "may speak or listen interchangeably." Id. at 46a, ¶79.

2. The Scope Of The CDA's Criminal Prohibitions

In addition to the information described in plaintiffs' declarations, the court found that a wide variety of other communications with sexual content, or containing vulgar words, would be potentially subject to the CDA. Indeed, the government did not dispute this point: although it attempted to paint the CDA's main target as "pornography," it acknowledged that artistic and political material with serious value could be prosecuted. The government's own witnesses testified that the magazine Vanity Fair, with a nude cover photo of the actress Demi Moore, would be potentially indecent in some communities, Schmidt testimony, Tr. Vol. IV, at 138-39, as would a political discussion that included the sentiment "Fuck the CDA," Olsen testimony, Tr. Vol. V, at 53-53. See also J.S.App. 99a (Buckwalter, J.); id. at 119a (Dalzell, J.). The court also found that library card catalogues, artworks such Francesco Clemente's "Labyrinth," material from contemporary films such as Leaving Las Vegas, and reproductions of ancient Indian sculptures, are all within the CDA's broad proscriptions. See J.S.App. 42a-47a, ¶¶74-75, 78, 85; 71a, 76a-77a.

Conversely, while there was no dispute during the preliminary injunction proceedings that some sexually explicit material is available on the Internet, id. at 74a, ¶¶82-84, it is not "the primary type of content on this new medium." Id. at ¶83. While so-called search engines, used to help computer users find information on the web, "can accidentally retrieve material of a sexual nature through an imprecise search," the court found many factors that decreased the likelihood of such an "accident:"

A document's title or a description of the document will usually appear before the document itself . . . 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 Investigations, testified that the "odds are slim" that a user would come across a sexually explicit site by accident.

Id. at ¶88 (emphasis added).

3. The Impracticality Of The Statutory Defenses

After hearing extensive testimony on precisely this issue, the three-judge court found that it is currently impossible for most online speakers to determine who may ultimately read their messages, or to identify and screen out minors from the wide variety of forums over which they may communicate in cyberspace. See generally id. 49a-58a, ¶¶90-116. Thus, the court found that "[o]nce a provider posts content on the Internet, it is available to all other Internet users worldwide." Id. at 47a, ¶85.

Moreover, for the vast areas of cyberspace comprehended by e-mail, mail exploders, newsgroups, and chat rooms, "[t]here is no effective way to determine the identity or the age of a user who is accessing material." Id. at 49a, ¶90. The court found that verification of a credit card number over the Internet "is not now technically possible." Id. at 53a, ¶97. Off-line credit card verification, in addition to "significantly delay[ing] the retrieval of information on the Internet," id. at 54a, ¶101, would impose a significant economic cost on noncommercial entities. For example, Critical Path testified that its web site has been accessed 3,300 times daily. The court concluded that "[i]f 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." Id. at ¶100.

The court acknowledged that the government did offer "very limited evidence" regarding age verification systems on the World Wide Web that are used for accessing "commercial pornography sites"; however, that evidence "was not based on personal knowledge." Id. at 55a, ¶103. Moreover, the court found that the burdens imposed by such systems "make them effectively unavailable to a substantial number of Internet content providers." Id. at 56a, ¶107. In addition, free and anonymous access to speech on the Internet is often critical, so that requiring payment and proof of identity and age will deter substantial numbers of their audience, both adult and minor, from accessing important and even life-saving communications. Id. at 61a, ¶121. In sum, the court found that the "defenses" provided by the CDA under 47 U.S.C. §223(e)(5)(B) -- use of verified credit cards, adult access codes, and the like, to screen out minors -- "are effectively unavailable for non-commercial, not-for-profit entities." Id. at ¶122.

The court also found that there is no currently available technology to implement a possible "good faith" defense under §223(e)(5)(A) of the CDA through self-labeling or "tagging" of possibly "indecent" or "offensive" messages. It thus rejected the government's suggestions that a "consensus among speakers" might soon emerge "to use the same tag to label `indecent' material," and that the industry might develop computer software "that recognizes the tags and takes appropriate action when it notes tagged speech." Id. at 57a-58a, ¶¶113-14. The court found these speculations concerning future technological developments insufficient to sustain a law that criminalizes speech today. Id. at 58a, ¶114.

Furthermore, the court found, the task of determining which material to tag indecent "would be extremely burdensome for organizations that provide large amounts of material." Id. at 57a, ¶110. For example, "[t]he Carnegie Library would be required to hire numerous additional employees to review its online files at an extremely high cost to its limited budget." Id. Similarly, "it would be impossible for . . . Critical Path to review all of its material because it has only one full and one part-time employee." Id. The inevitable result, as the court found, is that given the current state of technology, "[m]any speakers who display arguably indecent content on the Internet" -- including political and artistic discussion, and "information regarding protection from AIDS, birth control, or prison rape" -- would have to "choose between silence and the risk of prosecution" if the CDA were not preliminarily enjoined. Id. at 61a, ¶¶122-123.

4. The Availability Of Less Restrictive Alternatives That Empower Parents To Make Decisions For Their Own Families

Finally, there is undisputed evidence in the trial record about the variety of voluntary measures available to restrict minors' access to online communications that their parents may consider unsuitable for them. Id. at 32a-42a, ¶¶49-73. User-based software that blocks content can be tailored to reflect the parents' values and the age and maturity of the child. As the court found, "[t]he market for this type of software is growing, and there is increasing competition among software providers to provide products." Id. at 35a, ¶54. In addition, "America Online, Microsoft Network, and Prodigy all offer parental control options free of charge to their members." Id. at 41a, ¶69.

D. The Decision Below

Following the court's findings of fact, all three judges agreed that, given the facts about the online medium, plaintiffs had established a likelihood of success on their claim that the challenged CDA provisions violate the First Amendment becausethey are substantially overbroad and insufficiently tailored to satisfy strict scrutiny.11

Chief Judge Sloviter began her opinion by emphasizing that the CDA was not simply a regulatory scheme; instead, "we are dealing with criminal provisions, subjecting violators to

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