Shea on Behalf of American Reporter v. Reno

• Decision Date: 29 July 1996
• Docket Number: No. 96 Civ. 0976 (DLC).,96 Civ. 0976 (DLC).
• Parties: Joe SHEA, on behalf of The AMERICAN REPORTER, Plaintiff, v. Janet M. RENO, Attorney General of the United States of America, Defendant.
• Court: U.S. District Court — Southern District of New York

930 F. Supp. 916

Joe SHEA, on behalf of The AMERICAN REPORTER, Plaintiff, v. Janet M. RENO, Attorney General of the United States of America, Defendant.

No. 96 Civ. 0976 (DLC).

United States District Court, S.D. New York.

Submitted June 13, 1996.

Decided July 29, 1996.

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Randall J. Boe, James K. Stronski, Jill R. Newman, Fabienne M. Clermont, Wayne H. Matelski, Arent Fox Kintner Plotkin & Kahn, New York City, and Washington, D.C., for plaintiff.

Mary Jo White, United States Attorney, William J. Hoffman, Marla Alhadeff, John McEnany, Assistant United States Attorneys, for defendant.

Cathleen A. Cleaver, Family Research Counsel; Bruce A. Taylor, Janet M. LaRue, National Law Center for Children and Families; Paul J. McGeady, Robert W. Peters, of counsel, for amici curiae National Law Center for Children and Families, Family Research Council, "Enough Is Enough!" Campaign, National Coalition for the Protection of Children & Families, and Morality in Media.

Before: CABRANES, Circuit Judge,^* SAND^** and COTE,^*** District Judges.

Jo&sacutee A. CABRANES, Circuit Judge:

The plaintiff, an editor, publisher, and part-owner of a newspaper distributed exclusively through electronic means, brings this First Amendment challenge to § 223(d) of the Communications Decency Act of 1996 ("CDA") criminalizing the use of interactive computer services to display "patently offensive" sexually explicit material such that it is available to persons under the age of eighteen. The plaintiff seeks a preliminary injunction barring application of the section. The three-judge panel, appointed pursuant to 28 U.S.C. § 2284, held that: (1) the plaintiff has not sustained his burden of demonstrating a likelihood of success on his claim that § 223(d) is unconstitutionally vague, but (2) the plaintiff has demonstrated a likelihood of success on his claim that § 223(d) is unconstitutionally overbroad in that it bans protected indecent communication between adults. On this second point, the court concluded that most content providers' ability to comply with the requirements of the affirmative defenses set out in the statute depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the statute or otherwise mandated. The technological impossibility of independent compliance with the affirmative defenses renders § 223(d) unconstitutional as an overbroad prohibition on constitutionally protected indecent speech between adults.

MEMORANDUM AND ORDER

We address here the constitutionality of a provision of the Communications Decency Act of 1996 ("CDA") with an undeniably worthy goal: to limit the exposure of children to sexually explicit, though not legally obscene, materials available "on line" — that is, capable of being displayed and "accessed" by increasingly common interactive computer services. 47 U.S.C. § 223(d), as added by the CDA on February 8, 1996, criminalizes the use of an interactive computer service to display, in a manner available to persons under eighteen, sexually explicit material that is "patently offensive" by contemporary community standards. Plaintiff Joe Shea, the editor, publisher, and part-owner of a newspaper distributed solely by electronic means, filed this action on February 8, 1996, claiming that § 223(d) is (1) void for vagueness, in that it fails to give ordinary citizens sufficient notice of what conduct will subject them to prosecution or criminal liability; and (2) substantially overbroad, in that it targets a broader category of speech than necessary to achieve the government's goal and constitutes a ban on certain constitutionally protected speech between adults.

As editor of an on-line newspaper, the plaintiff is one of a growing number of citizens who employ an array of widely accessible and constantly evolving media technologies to gather and disseminate information and ideas. In passing the CDA, Congress explicitly recognized that these technologies foster "true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." Pub.L. No. 104-104, § 509(a)(3), 110 Stat. 56, 138 (1996) (to be codified at 47 U.S.C. § 230(a)(3)). The range of tools and forums available for users of interactive computer services is astounding: with access to the web of computer networks known as the Internet, a scholar can contact a distant computer and make use of its capabilities; a researcher can peruse the card catalogs of libraries across the globe; users around the world can debate politics, sports, music, and literature. However trivial some of their uses might seem, emerging media technologies quite simply offer an unprecedented number of individual citizens an opportunity to speak and to be heard — at very little cost — by audiences around the world. In that sense, we are encountering a communications medium unlike any we have ever known.

In an attempt to limit the availability of certain materials in interactive computer services, Congress enacted a statute of unprecedented sweep: the new § 223(d) purports to regulate not only how commercial purveyors of obscene or pornographic materials may advertise and sell their products on line, but also how private individuals who choose to exchange certain constitutionally protected communications with one another can do so. The question presented is whether our Constitution tolerates this level of governmental intrusion into how adults speak to one another.

We conclude, first, that the plaintiff has not sustained his burden of demonstrating a likelihood of success on his claim that § 223(d) is unconstitutionally vague. The definition of material regulated by this section is a familiar one, repeatedly upheld against vagueness challenges in a line of jurisprudence concerning television and radio broadcasting, cable programming, and commercial telephone services. We do, however, conclude that the plaintiff has demonstrated a likelihood of success on his overbreadth claim, that § 223(d) would serve as a ban on constitutionally protected indecent communication between adults. The Government concedes that strict scrutiny is appropriately applied to this claim and that § 223(d) would, on its own, act as an unconstitutional total ban on indecent communication, protected and unprotected alike, but argues that two affirmative defenses set out in § 223(e)(5) serve to shield adults engaging in constitutionally protected indecent communication from criminal liability.

The evidentiary record in this case compels the conclusion that, given the current state of technology, most adult content providers wishing to engage in constitutionally protected indecent speech will be unable to avail themselves of these affirmative defenses. Only a limited subset of on-line content providers, commercial providers on the World Wide Web, can avail themselves of the defense set out in § 223(e)(5)(B), leaving both non-commercial providers of Web content and content providers using all other modes of on-line communication unprotected. The evidence further demonstrates that content providers' ability to comply with the terms of the second defense — the so-called good-faith defense — depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the CDA or otherwise mandated. There is no feasible means, with our current technology, for someone to provide indecent content on line with any certainty that even his best efforts at shielding the material from minors will be "effective," as the language of the good-faith defense requires.

Because neither of the affirmative defenses set out in § 223(e)(5) can, with our current technology, effectively protect adult content providers wishing to engage in constitutionally protected indecent communication, we reach the inescapable conclusion that § 223(d) will serve to chill protected speech. We therefore find that the plaintiff has demonstrated a likelihood of success on the merits of his claim that § 223(d) is unconstitutionally overbroad.

We are mindful of our obligation to construe a federal statute to avoid constitutional problems if it is possible to do so, but we are equally mindful of the limits of the judicial power under our Constitution and we decline the Government's invitation to perform radical surgery on a statute dealing with a difficult problem in a rapidly changing area of technology; in sum, we respectfully decline the invitation to legislate from the bench.

In setting aside the challenged provisions, we do not question the legitimacy of the government's interest in safeguarding children from exposure to certain materials available on line nor suggest that other legislation on another day, carefully tailored to technological realities, may not pass constitutional muster. We also do not consider, nor attempt to delineate, the range of circumstances, if any, in which Congress could now or in the future constitutionally impose content-based restrictions upon communications in the developing medium we explore here.

I. BACKGROUND

Plaintiff Joe Shea is the editor-in-chief, part-owner, and publisher of the American Reporter, a daily newspaper distributed solely by electronic means. On February 8, 1996, following the signing of the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, the American Reporter published an editorial, (Complaint, Ex. 1) criticizing Title V of the Act, known as the Communications Decency Act of 1996 ("CDA"). The editorial contained language arguably falling within the scope of a provision of the CDA criminalizing the transmission or display of certain content in a manner available to minors:

Whoever — (1) in interstate or foreign communications knowingly —

(A) uses an interactive computer service to send to a specific person or persons under

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