American Civil Liberties Union v. Reno, Civil Action No. 96-963

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: SLOVITER, Circuit , and BUCKWALTER and DALZELL
• Citation: 929 F. Supp. 824
• Parties: AMERICAN CIVIL LIBERTIES UNION, et al., v. Janet RENO, Attorney General of the United States. AMERICAN LIBRARY ASSOCIATION, INC., et al., v. UNITED STATES DEP'T OF JUSTICE, et al.
• Docket Number: 96-1458.,Civil Action No. 96-963
• Decision Date: 11 June 1996

929 F. Supp. 824

AMERICAN CIVIL LIBERTIES UNION, et al.,
v.
Janet RENO, Attorney General of the United States.
AMERICAN LIBRARY ASSOCIATION, INC., et al.,
v.
UNITED STATES DEP'T OF JUSTICE, et al.

Civil Action Nos. 96-963, 96-1458.

United States District Court, E.D. Pennsylvania.

June 11, 1996.

929 F. Supp. 825

Christopher A. Hansen, Marjorie Heins, Ann Beeson, Steven R. Shapiro, Catherine Weiss, Laura Abel, American Civil Liberties Union Foundation, New York City; Stefan Presser, ACLU of Pennsylvania, Philadelphia, PA; David L. Sobel, Marc Rotenberg, Electronic Privacy Information Center, Washington, DC; Mike Godwin, Electronic Frontier Foundation, San Francisco, CA; Roger Evans, Planned Parenthood Foundation of America, New York City, for plaintiffs: American Civil Liberties Union, Human Rights Watch, Electronic Privacy Information Center, Electronic Frontier Foundation, Journalism Education Association, Computer Professionals for Social Responsibility, National Writers Union, ClariNet Communications Corp., Institute for Global Communications, Stop Prisoner Rape, Inc., AIDS Education Global Information System, Bibliobytes, Queer Resources Directory, Critical Path AIDS Project, Inc., Wildcat Press, Inc., Declan McCullagh, Brock Meeks, John Troyer, Jonathan Wallace, and Planned Parenthood Federation of America, Inc.

Bruce J. Ennis, Jr., Ann M. Kappler, John B. Morris, Jr., Jenner & Block, Washington, DC, Ronald P. Schiller, Piper & Marbury,

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Philadelphia, PA, for plaintiffs: American Library Association, Inc., America Online, Inc., American Booksellers Association, Inc., American Booksellers Foundation for Free Expression, American Society of Newspaper Editors, Apple Computer, Inc., Association of American Publishers, Inc., Association of Publishers, Editors and Writers, Citizens Internet Empowerment Coalition, Commercial Internet Exchange Association, CompuServe Incorporated, Families Against Internet Censorship, Freedom to Read Foundation, Inc., Health Sciences Libraries Consortium, Hotwired Ventures LLC, Interactive Digital Software Association, Interactive Services Association, Magazine Publishers of America, Microsoft Corporation, The Microsoft Network, LLC, National Press Photographers Association, Netcom On-Line Communications Services, Inc., Newspaper Association of America, Opnet, Inc., Prodigy Services Company, Society of Professional Journalists, and Wired Ventures, Ltd

Anthony J. Coppolino, Jason R. Baron, Patricia M. Russotto, Mary E. Kostel, Craig Blackwell, Theodore C. Hirt, U.S. Department of Justice, Civil Division, Washington, DC; Mark R. Kmetz, U.S. Attorney's Office, Philadelphia, PA (Frank M. Hunger, Asst. Attorney General, U.S. Department of Justice, Civil Division; Michael R. Stiles, U.S. Attorney, Philadelphia, PA; Dennis G. Linder, Lucinda Love, U.S. Department of Justice, Civil Division, on briefs), for defendants Janet Reno and Department of Justice.

James D. Crawford, Carl A. Solano, Jennifer DuFault James, Theresa E. Loscalzo, Joseph T. Lukens, Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for amici curiae Authors Guild, American Society of Journalists and Authors, Ed Carp, Coalition for Positive Sexuality, CONNECTnet, Creative on AOL, Tri Dang Do, Feminists for Free Expression, Margarita La Cabe, Maggie La Noue, LoD Communications, Peter Ludlow, Palmer Museum of Art, Chuck More, Rod Morgan, Pen American Center, Philadelphia Magazine, PSINet, Inc., Eric S. Raymond, Reporters Committee for Freedom of the Press, Don Rittner, The Sexuality Information & Education Council of the United States, Lloyd K. Stires, Peter J. Swanson, Kristi Thomas, Web Communications, and Miryam Ehrlic Williamson.

Cathleen A. Cleaver, Director of Legal Studies, Family Research Council, Washington, DC, Bruce A. Taylor, National Law Center for Children And Families, Fairfax, VA, for amici curiae The National Law Center for Children and Families, Family Research Council, "Enough is Enough" Campaign, National Coalition for the Protection of Children of Children & Families, Morality in Media.

L. Theodore Hoppe, Jr., Black & Associates, P.C., Media, PA, Jay Alan Sekulow, Colby M. May, James M. Henderson, Sr., American Center for Law & Justice, Washington, DC, for amicus curiae the Family Life Project of the American Center for Law and Justice.

Andre L. Dennis, Stradley, Ronon, Stevens & Young, Philadelphia, PA, for amici curiae The Laboratory for Computer Science of the Massachusetts Institute of Technology and Michael L. Dertouzos, Director.

Before SLOVITER, Chief Circuit Judge, and BUCKWALTER and DALZELL, District Judges.

ADJUDICATION ON MOTIONS FOR PRELIMINARY INJUNCTION

I.

INTRODUCTION

Procedural Background

Before us are motions for a preliminary injunction filed by plaintiffs who challenge on constitutional grounds provisions of the Communications Decency Act of 1996 (CDA or "the Act"), which constitutes Title V of the

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Telecommunications Act of 1996, signed into law by the President on February 8, 1996.¹ Telecommunications Act of 1996, Pub.L. No. 104-104, § 502, 110 Stat. 56, 133-35. Plaintiffs include various organizations and individuals who, inter alia, are associated with the computer and/or communications industries, or who publish or post materials on the Internet, or belong to various citizen groups. See ACLU Complaint (¶¶ 7-26), ALA First Amended Complaint (¶¶ 3, 12-33)

The defendants in these actions are Janet Reno, the Attorney General of the United States, and the United States Department of Justice. For convenience, we will refer to these defendants as the Government. Plaintiffs contend that the two challenged provisions of the CDA that are directed to communications over the Internet which might be deemed "indecent" or "patently offensive" for minors, defined as persons under the age of eighteen, infringe upon rights protected by the First Amendment and the Due Process Clause of the Fifth Amendment.

Plaintiffs in Civil Action Number 96-963, in which the lead plaintiff is the American Civil Liberties Union (the ACLU),² filed their action in the United States District Court for the Eastern District of Pennsylvania on the day the Act was signed, and moved for a temporary restraining order to enjoin enforcement of these two provisions of the CDA. On February 15, 1996, following an evidentiary hearing, Judge Ronald L. Buckwalter, to whom the case had been assigned, granted a limited temporary restraining order, finding in a Memorandum that 47 U.S.C. § 223(a)(1)(B) ("the indecency provision" of the CDA) was unconstitutionally vague. On the same day, Chief Judge Dolores K. Sloviter, Chief Judge of the United States Court of Appeals for the Third Circuit, having been requested by the parties and the district court to convene a three-judge court, pursuant to § 561(a) of the CDA, appointed such a court consisting of, in addition to Judge Buckwalter, Judge Stewart Dalzell of the same district, and herself, as the circuit judge required by 28 U.S.C. § 2284.

After a conference with the court, the parties entered into a stipulation, which the court approved on February 26, 1996, wherein the Attorney General agreed that:

she will not initiate any investigations or prosecutions for violations of 47 U.S.C. § 223(d) for conduct occurring after enactment of this provision until the three-judge court hears Plaintiffs' Motion for Preliminary Injunction ... and has decided the motion.

The Attorney General's commitment was qualified to the extent that she retained:

her full authority to investigate or prosecute any violation of § 223(a)(1)(B), as amended, and § 223(d) as to conduct which occurs or occurred during any period of time after enactment of these provisions (including for the period of time to which this stipulation applies) should the Court deny plaintiffs' motion or, if the motion is granted, should these provisions ultimately be upheld.

Stipulation, ¶ 4, in C.A. No. 96-963.

Shortly thereafter, the American Library Association, Inc. (the ALA) and others³ filed

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a similar action at C.A. No. 96-1458. On February 27, 1996, Chief Judge Sloviter, again pursuant to § 561(a) of the CDA and upon request, convened the same three-judge court pursuant to 28 U.S.C. § 2284. The actions were consolidated pursuant to Fed. R.Civ.P. 42(a), "for all matters relating to the disposition of motions for preliminary injunction in these cases, including the hearing on such motions."

The parties were afforded expedited discovery in connection with the motions for preliminary injunction, and they cooperated with Judge Dalzell, who had been assigned the case management aspects of the litigation. While the discovery was proceeding, and with the agreement of the parties, the court began receiving evidence at the consolidated hearings which were conducted on March 21 and 22, and April 1, 12 and 15, 1996. In order to expedite the proceedings, the parties worked closely with Judge Dalzell and arranged to stipulate to many of the underlying facts and to place much of their cases in chief before the court by sworn declarations, so that the hearings were largely devoted to cross-examination of certain of the witnesses whose declarations had been filed. The parties submitted proposed findings of fact and post-hearing memoranda on April 29, and the court heard extensive oral argument on May 10, 1996.⁴

Statutory Provisions at Issue

Plaintiffs focus their challenge on two provisions of section 502 of the CDA which amend 47 U.S.C. §§ 223(a) and 223(d).

Section 223(a)(1)(B) provides in part that any person in interstate or foreign communications who, "by means of a telecommunications device,"⁵ "knowingly ... makes,

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creates, or solicits" and "initiates the transmission" of "any comment, request, suggestion, proposal, image or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years...