Annoy.com Lawsuit

William Bennett Turner
Rogers, Joseph, O’Donnell & Quinn
311 California Street, 10th Floor
San Francisco, California 94104
Telephone: (415) 956-2828

Counsel of Record

Michael Traynor
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111-3580
Telephone: (415) 693-2000

Attorneys for Appellant
ApolloMedia Corporation

QUESTION PRESENTED

A provision of the Communications Decency Act, 47 U.S.C. ง 223(a)(1)(A)(ii), makes it a felony to use a telecommunications device to communicate anything that is “obscene, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten, or harass another person.” The question presented is whether the two-judge majority of the district court properly construed this provision as limited to “obscene” material as defined by Miller v. California, 413 U.S. 15 (1973), or whether the provision is facially unconstitutional because it punishes “indecent” speech as in Reno v. ACLU, 117 S. Ct. 2329 (1997).

TABLE OF CONTENTS

Page No.

QUESTION PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT

A. Background
B. The District Court Decision

THE QUESTION IS SUBSTANTIAL

A. The district court’s statutory interpretation does violence to the statutory text and context

1. Statutory text
2. Relationship to other terms of statute
3. Relationship to previously enacted laws
4. The cases said to compel the majority’s interpretation
5. Origin and evolution of the statute
6. Legislative history

B. The statute as written is unconstitutional

CONCLUSION

OPINION BELOW

The opinion of the district court (App., infra, la-43a) is not yet reported.

JURISDICTION

The district court issued an order on September 23, 1998 (App. la-43a), denying appellant’s motion for a preliminary injunction and dismissing the complaint. A notice of appeal to this Court (App. 44a) was filed on October 9, 1998. The Court’s jurisdiction is invoked under 28 U.S.C. ง 1253, which provides:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

Section 561 of the Communications Decency Act, Pub.L. 104-104, 110 Stat. 133 (1996), provides:

Expedited Review

(a) Three-Judge District Court Hearing.- Notwithstanding any other provision of law, any civil action challenging the constitutionality, on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code.

(b) Appellate Review.-Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding this title or an amendment made by this title, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the Constitution of the United States provides, in relevant part: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .”

The Communications Decency Act, 47 U.S.C. ง 223(a)(1)(A)(ii) and 47 U.S.C. ง 223(a)(2), provides in relevant part:

(a) Whoever —

(1) in interstate or foreign communications —

(A) by means of a telecommunications device knowingly —

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;…or

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.

STATEMENT

A. Background

Appellant ApolloMedia Corporation is a multimedia technology company located in San Francisco. App. 4a. Its business is entirely devoted to computer-mediated communications. It designs and constructs sites on the World Wide Web, and it implements Internet systems to deliver and manage information. ApolloMedia uses “telecommunications devices” (computers, modems and telephone lines)^1/ to communicate “content” created by it and its clients and web site visitors. App. 4a-5a.

Appellant’s web sites and some of its clients’ web sites often communicate strong positions on public issues, using expression that may be considered “indecent” by some people in some communities. App. 5a. Its “annoy.com” web site (http://www.annoy.com) enables visitors to construct and send provocative email messages, anonymously, to various public officials and public figures, and transmits ApolloMedia’s own and others’ views on controversial matters. ApolloMedia communicates — and “knowingly permits” its clients and visitors to its sites to communicate — material that might be considered “indecent” in some communities.

Appellant brought this facial challenge to the constitutionality of 47 U.S.C. ง 223(a), filing its complaint and motion for preliminary injunction on January 30, 1997. App. 2a. On January 31, the district court entered an order finding that appellant’s allegations “support standing to bring suit over the challenged provisions of [47] U.S.C. ง 223(a).” The court specifically noted that:

Plaintiff alleges both that it transmits and receives material over the Internet that some may consider indecent, and that plaintiff knowingly permits its members to do the same. Compl.,  7. Transmission and knowingly permitting the transmission of indecent material is expressly proscribed by the statute and is punishable as a criminal offense.

The court, “having determined plaintiff’s complaint satisfies the requirements of ง 561(a) of the Act,” proceeded to convene a three-judge court to determine the merits of whether ง 223(a)(1)(A)’s “indecency” prohibition is consistent with the First Amendment.

The government did not respond that the court had misread the statute as reaching “indecent” speech. Instead, the government requested and obtained extensions of time to answer the Complaint, not stating that it considered ง 223(a)(1)(A) limited to obscenity as defined by Miller v. California, 413 U.S. 15 (1973). On March 28, 1997, appellee Reno served an Answer to the allegations of the Complaint — which deal only with “indecent” speech — never suggesting that the statute is limited to obscenity. The Attorney General then requested that the case be held in abeyance pending this Court’s decision in Reno v. ACLU, 117 S. Ct. 2329 (1997), a case in which, like this one, the plaintiffs challenged prohibitions of “indecent” online speech but not “obscene” speech.

In requesting delay pending the decision in Reno v. ACLU, the government repeatedly insisted, in a Stipulation and Order of April 4, 1997 (paras. 2, 3), on its power to prosecute appellant for violations — explicitly for “indecent” communications — of ง 223. As the district court noted, “the government has never relinquished its right to prosecute” ApolloMedia for “indecent” speech under ง 223(a)(1)(A). App. 10a. Nor did the government indicate “willingness to stipulate that ApolloMedia cannot be prosecuted under ง 223(a)(1)(A) to the extent that ApolloMedia engages in ‘indecent’ communication with an ‘intent to annoy’ the recipient.” App. 10a, n.9.

After this Court decided Reno v. ACLU, the government filed its opposition to ApolloMedia’s motion for a preliminary injunction, contending for the first time that ง 223(a) was limited to “obscene” material.

B. The District Court Decision

Upon appellant ApolloMedia’s evidence that it uses “telecommunications devices” to engage in “indecent” communications with an “intent to annoy,” and the government’s insistence on its right to prosecute appellant for “indecent” communications, the district court found that appellant had standing to seek both declaratory and injunctive relief. App. 8a-14a.

The district court acknowledged that “Indecent speech which is not obscene falls within the protection of the First Amendment.” App. 15a (maj. opin.); 36a (dissenting opin.). Attempting to construe the statute so as to avoid declaring it unconstitutional (id., 15a), the two-judge majority invoked four decisions, saying that Roth v. United States, 354 U.S. 476 (1957); Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962); Hamling v. United States, 418 U.S. 87 (1974); and United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), each limited a “string of words similar to that employed in ง 223(a)(1)(A)” to Miller obscenity. App. 18a, 21a.^2/ Accordingly, the majority held that the meaning of ง 223(a)’s “string” of statutory prohibitions is “settled,” and that, specifically, “indecent” means “obscene” as defined in Miller.

The district court majority said that the Court’s decisions in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989), were distinguishable because they dealt with statutes designed to protect minors and were not, as ง 223(a) is, a “total ban” on “indecent” communications. App. 21a-23a.^3/ Similarly, the majority concluded that “indecent” in ง 223(a)(1)(A) had a different meaning than “indecent” in both ง 223(a)(2) and ง 223(b), referring to the provisions involved in Reno v. ACLU and Sable Communications, because those provisions were intended to protect minors. App. 26a._ The majority also said that ง 223(a)(1)(A), construing it as limited to “obscene” matter, was not redundant of other federal obscenity statutes (18 U.S.C. งง 1462, 1465) because a “telecommunications device” as used in ง 223(a) is different from an “interactive computer service” as used in งง 1462, 1465. App. 31a.

Finally, the majority said that its construction of the statute did not render the “intent to annoy” provision surplusage because this provision made clear Congress’s intent to ban the transmission of “obscene” materials only among “non-consenting adults.” App. 34a. Accordingly, the majority concluded that ง 223(a)(1)(A) made criminal only “obscene” material and, since ApolloMedia did not challenge the prohibition of obscenity, its contention that the statute violates the First Amendment was rejected and its case dismissed. App. 35a.

Judge Illston dissented. App. 35a-43a._ She reasoned that “This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are.” App. 36a. Judge Illston concluded that this case should be governed by Reno v. ACLU, both in its treatment of “indecent” speech as different from “obscene” speech and in its determination that the criminal prohibition of “indecent” speech violates the First Amendment. App. 36a-39a, 42a-43a.

The majority’s decision leaves ApolloMedia and other Internet users subject to prosecution for “indecent” communications anywhere outside the Northern District of California. ApolloMedia’s communications are of course available to recipients in every state. Courts around the nation are free to disagree with the statutory interpretation rendered by two judges in one California district. At stake on this appeal is the right of appellant and all Internet users not to have to live under the uncertain cloud of a statute that on its face makes an “indecent” communication a felony.

THE QUESTION IS SUBSTANTIAL

The district court decided that under ง 223(a), “obscene, lewd, lascivious, filthy, or indecent” communications, with “intent to annoy, abuse, threaten, or harass another person,” were limited to material deemed “obscene” under Miller v. California. In so construing the statute, the district court proceeded as if Congress had enacted the Communications “Obscenity” Act instead of the Communications Decency Act: its radical surgery deprived “indecent” of all significance in this statute.

The majority’s creative exercise in statutory interpretation overrode the statutory text that Congress enacted. The majority also left behind disciplined methods of statutory interpretation, disregarding ง 223(a)’s context and relationship to the same “indecent” term in other provisions of the same statute, as well as its relationship to previously enacted laws. The district court’s construction gave “indecent” in one provision of ง 223 different meaning than the same term has in two other provisions of the same statute. The court below disregarded the Congressional use of “indecent” in this very statute as construed in Reno v. ACLU and Sable Communications v. FCC, and this Court’s construction of “indecent” in FCC v. Pacifica Foundation. The court misread the decisions said to have given “indecent” in other statutes a “settled” meaning of “obscene.” The district court’s construction rendered ง 223(a) redundant of other federal obscenity statutes. Finally, the court ignored the origin and history of ง 223(a) and the legislative history of the Communications Decency Act.

A. The district court’s statutory interpretation does violence to the statutory text and context

1. Statutory text

The key statutory terms, “obscene” and “indecent,” are not synonyms. As legal terms, they have recognized and quite different meanings. As the Court noted with regard to the other provisions of the Communications Decency Act, “As set forth by the statute, the restriction of ‘obscene’ material enjoys a textual manifestation separate from that for ‘indecent’ material . . .” Reno v. ACLU, 117 S. Ct. at 2350.

“Indecent” speech has been recognized as distinct from “obscene” materials at least since the FCC’s “indecency” enforcement action considered in Pacifica Foundation v. FCC, 438 U.S. 726, 732 (1978); see Reno v. ACLU, 117 S. Ct. at 2345-46 (discussing the legal differences between obscene speech and indecent speech). In Denver Area Educational Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996), the Court discussed the regulation of “indecent” speech on cable television, expressly pointing out the differences from Miller obscenity (serious literary or other value and “nonprurient” purpose). 116 S. Ct. at 2389-90.^4/ In National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998), the Court maintained the distinction it has recognized in all recent cases between “indecent” and “obscene” speech, and it noted that Congress continues to make the same distinction. The Court referred to a separate provision of the NEA Act that denied federal funding for “obscenity,” and the Court proceeded to consider the “indecency” provision as having independent significance. 118 S.Ct. at 2176. As all the cases recognize, “prurient appeal” and the lack of literary, political or other value are elements of obscenity. But speech may be deemed indecent if it does not conform to “accepted standards of morality” (Pacifica, 438 U.S. at 740-41), even if does not have prurient appeal and does have serious social value.^5/

Further, the prohibitions in the statutory text of ง 223 are expressed in the disjunctive — “obscene…or indecent.” As in Pacifica Foundation, “the words obscene, indecent or profane are written in the disjunctive, implying that each has a separate meaning.” 438 U.S. at 739-40; see Reno v. ACLU, 117 S. Ct. at 2350-51 (construing “obscene or indecent” in ง 223(a)(1)(B) to give each separate meaning). Just as there was “no textual support” for the government’s argument in ACLU that material with social value would not be deemed indecent (117 S. Ct. at 2349), there is no textual support for the district court’s conclusion that indecent speech is limited to obscene material.

Reading ง 223 as the district court did robs all of the other terms of independent meaning. This violates the rule that the courts must read a statute “with the assumption that Congress intended each of its terms to have meaning” and that “a legislature is presumed to have used no superfluous words.” Bailey v. United States, 116 S. Ct. 501, 506-07 (1995) (emphasis added) (quoting Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58 (1879)).^6/

2. Relationship to other terms of statute

There is more in the provision than the “string” referred to by the district court. Unlike the statutes in the cases relied on below, ง 223(a) does not apply unless the defendant has the “intent to annoy, abuse, threaten, or harass another person.” But if the statute is limited to “obscene” communications, the intent to annoy requirement becomes surplusage: obscene communications can be proscribed regardless of such intent. Rendering such a crucial statutory provision superfluous also violates established rules of statutory construction. E.g., Bailey v. United States, supra, 116 S. Ct. at 506-07.^7/

Section 223’s several provisions treat obscenity and indecency as distinctly different categories of speech. Thus, ง 223(a)(1)(B) proscribes “obscene or indecent” communications to minors. The Court in Reno v. ACLU held that this “indecency” prohibition violated the First Amendment, but severed the “obscenity” prohibition which, as in the instant case, the plaintiffs had not challenged. 117 S. Ct. at 2350-51. As is abundantly clear from the ACLU opinion, the government vigorously argued, and the Court agreed, that “indecent” speech is a much broader and different category speech than “obscenity.”^8/ In ACLU, the government argued that “the CDA’s definition of indecency is almost identical to the definition” in Denver Area Educational Telecommunications Consortium v. FCC, supra, 116 S. Ct. 2374. Brief for the Appellants in No. 96-511, p. 43. It makes no sense to ascribe different meaning to the term “indecent” in ง 223(a)(1)(A) than to the very same term in ง 223(a)(1)(B).

Similarly, ง 223(b) treats “obscene” telephone communications as entirely distinct from “indecent” telephone communications. Subsection (b)(1), regarding obscene communications, carries significantly more severe penal consequences than Subsection (b)(2), regarding merely indecent communications. In addition, the indecency prohibition is subject to safe harbor defenses necessary to its constitutionality. (ง 223(a), by contrast, contains no safe harbor defenses.) This Court held that the previous version of Subsection (b)(2) violated the First Amendment by prohibiting indecent communications (which are constitutionally protected among adults), but the Court upheld the prohibition of obscene communications (which are unprotected). Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). Again, it makes no sense to ascribe different meaning to the term “indecent” in subsection (a)(1)(A) of ง 223 than to the very same term in subsection (b).

Still another provision of the Communications Decency Act maintains the Congressional distinction between obscene speech and indecent speech. Section 223(h)(1)(A) provides that the Act does not impose any new obligations on broadcast licensees or cable operators covered by other “obscenity and indecency” provisions. In other words, it is clear throughout the Act that Congress deliberately treated “indecent” speech as distinct from “obscene” speech.

3. Relationship to previously enacted laws

If ง 223 is limited to obscenity and none of its other terms has any independent meaning, the statute is redundant of other federal laws criminalizing the communication of obscenity by computer, like 18 U.S.C. ง 1465. See United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S. Ct. 74 (1996)(affirming conviction under ง 1465 for communicating obscene material by computer over telephone wires). No statute should be interpreted so as to render it redundant. See, e.g., Freytag v. Commissioner, 501 U.S. 868, 877 (1991).^9/

The district court did not suggest what legislative purpose is served by reading everything but “obscene” out of ง 223(a)(1)(A). Since it would render the provision superfluous, adding nothing to existing federal obscenity laws like 18 U.S.C. ง 1465, the district court’s construction frustrates the manifest Congressional purpose to regulate “indecency” on the Internet through the Communications Decency Act.

4. The cases said to compel the majority’s interpretation

None of the four cases on which the district court relied involved this statute, ง 223, and none of them involved the issue that the majority said is “settled” by the cases. In fact, none of them involved precisely the same “string” of statutory terms as in the law at issue here: the terms were slightly to significantly different from the terms of ง 223.^10/ Roth v. United States, 354 U.S. 476 (1957), which predated Miller by 16 years, involved 18 U.S.C. ง 1465. There was no contention in Roth that any of the various terms had different meanings from obscenity. The only issue in Roth was whether hard core sexual speech, however defined, enjoyed First Amendment protection. Similarly, Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), decided eleven years before Miller, involved 18 U.S.C. ง 1461. There was no issue whether any of the statutory terms had separate meaning; the issue was whether appeal to the prurient interest was “the sole test” of obscenity. 370 U.S. at 486. United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), involved 19 U.S.C. ง 1305(a)’s provision concerning “obscene or immoral” matter; there was no “indecent” term at all. As in the other cases, there was no issue in 12 200-ft. Reels of whether the statutory terms had different meanings. Hamling v. United States, 418 U.S. 87 (1974), did say that the terms of 18 U.S.C. ง 1461 would be treated the same as Miller obscenity, but there was no issue in the case whether any of the various terms had separate meaning.

FCC v. Pacifica Foundation

is flatly inconsistent with the district court’s treatment of these cases as “settling” the meaning of the various statutory terms. When asked in Pacifica to construe 18 U.S.C. ง 1464’s prohibition of “obscene, indecent, or profane” communications as limited to obscenity — precisely as the government asked the district court to do here — this Court held that the “reasons supporting Hamling‘s construction of ง 1461 do not apply” to the communications statute. 438 U.S. at 741. The “string” in ง 1464 cannot meaningfully be distinguished from the “string” in any of the cases relied on by the district court. Nor can “indecent” in ง 223(a)(1)(A) be distinguished from the meaning given the same term in ง 223(a)(1)(B) by Reno v. ACLU, or the meaning of the same term in ง 223(b) by Sable Communications. The four cases were decided before “indecent” was given a meaning distinct from “obscene” by the FCC, approved as a broadcast regulation in Pacifica and then used by Congress as a term of art with independent meaning in the provisions of ง 223 considered in Sable and ACLU v. Reno.

The four cases may still govern the statutes that they interpreted, but they do not, and could not, govern ง 223. Reno v. ACLU and Sable Communications do govern ง 223. Accordingly, “indecent” in ง 223 has not been determined to mean “obscene.”

5. Origin and evolution of the statute

The statutory evolution of ง 223(a) also demonstrates that Congress did not intend to limit it to Miller obscenity. The statute was originally enacted five years before Miller. Nothing in the legislative history shows an intent to limit the provision to obscenity. To the contrary, the House Report repeatedly refers to “obscene, abusive or harassing” telephone calls. H.R. No. 1109, 90th Cong., Feb. 27, 1968, reprinted in 1968 U.S. Code Congressional & Adm. News at 1915 (emphasis added). The only concrete example of speech prohibited by ง 223 is “calling families of men serving in Vietnam and falsely reporting the serviceman’s death, or if death has in fact occurred, gloating over it.” Id. at 1916. Whatever else this may be, it is not Miller obscenity.

It is apparent that Congress meant to proscribe “obscene phone calls” in a colloquial sense, not technical Miller obscenity. That is, the statute dealt with “breather” calls and similar abusive conduct. The government has never before contended that ง 223 was limited to “obscene” speech. The cases in which lower courts upheld the predecessor of ง 223(a) did so because it was read to reach the conduct of making “harassing” telephone calls, not Miller obscenity. See United States v. Lampley, 573 F.2d 783, 786-88 (3d Cir. 1978); cf. Thorne v. Bailey, 846 F.2d 241, 243, 244 (4th Cir.) (construing state statute “practically identical” to ง 223), cert. denied, 488 U.S. 984 (1988); United States v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972). The decision in United States v. Darsey, 431 F.2d 963 (5th Cir. 1970), demonstrates that “obscene” phone calls by an angry estranged husband do not under ง 223 have to meet the requirements for Miller obscenity. These “obscene phone call” cases dealt with “conduct and not protected speech.” Thorne v. Bailey, supra, 846 F.2d at 243, 244 (statute “requires no inquiry into the content of the telephone conversation”); Gormley v. Director, Conn. State Dept. of Probation, 632 F.2d 938, 941 (2d Cir. 1980); United States v. Lampley, 573 F.2d 783 (3d Cir. 1978)(10-12 calls a week to married woman’s home). The conduct of making repeated or “breather” calls was the offense, not the content of any communication.^11/

When the Communications Decency Act broadened ง223 beyond telephones to communications transmitted by computer, it restricted a medium that is significantly less intrusive than the telephone. A ringing telephone intrudes into private space and carries the ability to harass or annoy even if no content is communicated, especially when the calls are repeated or come in the middle of the night. But computer communications are silent and, importantly, they are read only if the recipient chooses to read them. Accordingly, the government interest in protecting individuals from abuse by telephone does not necessarily apply to content communicated by computer.

6. Legislative history

Congress did not enact the Communications “Obscenity” Act; it enacted the Communications Decency Act, and Congress was well aware of the difference. The legislative history does not disclose the slightest indication that ง 223(a)(1)(A) was limited to obscenity. To the contrary, the only references to this provision unequivocally show that this provision was intended to reach far beyond obscenity.

The only congressional report on the Communications Decency Act specifically adopts the broad FCC/ Pacifica/Sable definition of indecency. H.R. Rep. No. 104-458, at 188, reprinted in 1996 U.S. Code Congressional & Administrative News, at 201. The Conference Report expressly states that in the 1996 Act “the term ‘indecency’…has the same meaning as established in” Pacifica and Sable. In Reno v. ACLU, the government told this Court that in the Communications Decency Act, as shown by the Report, “Congress intended to codify the FCC’s definition of indecency that was approved in Pacifica.” Brief of the Appellants in No. 96-511, p. 44. Congress did not intend “indecent” in ง 223 (a)(1)(A) to have a different meaning from the same term in all the other provisions of the Communications Decency Act.

The legislative debate shows the same understanding. On the Senate floor, no Senator even hinted that ง 223(a)(1)(A) was limited to obscenity. After sponsor Exon explained the provisions of the Communications Decency Act (141 Cong. Rec. S8328)(daily ed. June 14, 1995), Senator Leahy pointed out that ง 223(a)(1)(A) made it a felony “not only to send obscene messages” but also to use “indecent or filthy words” that may “annoy” another person. 141 Cong. Rec. S8331.^12/ Senator Feingold then complained at length that “Senator Exon’s bill would likely have a chilling effect on protected speech — speech which may be perceived as indecent, but not obscene.” 141 Cong. Rec. S8334, S8335 (emphasis added). Immediately following Senator Feingold’s observation that “existing criminal statutes” already dealt with “the transmission of obscenity using interactive communications” (S8336),^13/ Senator Exon rose again, saying that he had been “listening with keen interest” to the points made by Senators Leahy and Feingold (S8337) and he wanted to “straighten out some of the concerns.” S8339. But not once did he indicate in any way that Leahy and Feingold were misconstruing the bill. Then Senator Leahy repeated his point about ง 223(a)(1)(A)’s reaching “an email message with an indecent or filthy word” that may “annoy” the recipient (S8340), and noted that existing laws already covered “obscenity transmitted over computer networks.” S8341.

Sponsors Exon and Coats responded again, never disputing these points. S8344, S8345. Then Senator Biden complained that the bill reached “indecent speech [that] — unlike obscenity — is protected first amendment expression.” S8345. Next, Senator Levin objected to ง 223(a)(1)(A)’s prohibiting “a ‘filthy comment’ on the Internet which, in the words of the amendment, is intended to annoy.” S8346. Senator Exon rose again and yielded back his time without disputing these points, whereupon the Senate immediately voted 84-16 to adopt the Exon bill. S8346-47.

The following day, Senator Moynihan complained that the bill was “too broad,” covering “computer transmission of obscenity and indecency,” and would “prohibit an individual from sending an annoying e-mail message.” S8462 (daily ed. June 15, 1995). No senator disagreed with his point.

In short, to the extent it is relevant, the legislative history does not support the district court’s construction of ง 223(a).

B. The statute as written is unconstitutional

There is no conceivable government interest that could justify ง223’s content prohibition of “indecent” speech, especially indecent speech with intent to “annoy” people.^14/ The government cannot even advance the interest in protecting children from exposure to “indecent” material — the interest that it unsuccessfully urged to support the other provisions of the Act held unconstitutional in Reno v. ACLU. The provisions at issue here apply regardless of the age of the recipient, govern communications among adults. and have no safe harbor defenses.

The district court’s conclusion that the statute is limited to speech that is “obscene” under Miller is erroneous. As in Reno v. ACLU, the Court should decline to “dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn because doing so ‘involves a far more serious invasion of the legislative domain.'” 117 S. Ct. at 2351 (quoting United States v. Treasury Employees Union, 513 U.S. 454, 479, n.26 (1995)). The district court’s statutory restructuring presents the same vice condemned by the Court in ACLU: “It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.” 117 S. Ct. at 2351 n.49, quoting United States v. Reese, 92 U.S. 214, 221 (1876). As in ACLU, the Court should not “rewrite” the statute to save it. 117 S. Ct. at 2351.^15/

The government did not attempt in the district court to defend ง 223(a) as written. App. 41a, n.4. That is, it did not contend — nor could it — that “indecent” communications among adults can be made criminal. See Reno v. ACLU; Sable Communications v. FCC. Accordingly, because ง 223(a) does ban “indecent” communications, the Court should reverse the decision below and remand the case for the entry of appropriate equitable relief prohibiting enforcement of the statute except as to obscene material. Reno v. ACLU, 117 S.Ct. at 2350-51. Any other resolution leaves appellant and other Internet speakers subject to prosecution anywhere outside the Northern District of California. The district court’s decision is not of course binding in any other federal district. It stands as merely a divided opinion in one California district. Courts around the nation are free to disagree with the majority’s statutory interpretation.^16/ The Attorney General has not notified Congress (under Pub.L. 96-132, ง 21(a)(2), 93 Stat. 1040, 1049 (1979)) that she will not prosecute anyone for “indecent” communications. Cf. New York State Bar Association v. Reno, 999 F.Supp. 710, 713 (N.D.N.Y. 1998) (Attorney General notified Congress that she would neither enforce statute nor defend its constitutionality; preliminary injunction nonetheless granted); Sanger v. Reno, 966 F.Supp. 151, 157 (E.D.N.Y. 1997). Moreover, she takes the position that “the federal government may not be equitably estopped from enforcing public laws, even though private parties may suffer hardships as a result in particular cases.” 3 Dept. of Justice Manual 4-8.700 (Aspen Law & Bus. 1997).^17/ Nothing prohibits the government from prosecuting Internet users, including appellant, for “indecent” communications made or received in other districts, and appellant’s communications are received in every state. ง 223(a) as written deserves not the creative judicial restructuring given by the majority below but forthright condemnation as unconstitutional.

CONCLUSION

Probable jurisdiction should be noted and the decision below should be reversed and remanded for the entry of appropriate equitable relief.

DATED: December 7, 1998

Respectfully submitted,

ROGERS, JOSEPH, O’DONNELL & QUINN

By __________________________________________

William Bennett Turner
311 California Street, 10th Floor
San Francisco, California 94104
(415) 956-2828

Counsel of Record

Michael Traynor
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111-3580
(415) 693-2000

Attorneys for Appellant
APOLLOMEDIA CORPORATION

FOOTNOTES

1. “Telecommunications devices” include telephones, computer modems and fax machines. See ACLU v. Reno, 929 F. Supp. 824, 828, n. 5 (E.D. Pa. 1996), aff’d, 117 S.Ct. 2329 (1997); see also App. 8a, n. 8.

2. All four decisions were rendered under other statutes long before this Court’s decisions under this statute, ง 223, in Reno v. ACLU and Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989).

3. The court was wrong concerning Sable. That case invalidated ง 223(b)’s “total ban” on “indecent” telephone communications. 492 U.S. at 127.

4. The FCC’s regulatory test for “indecent” material, adopted by Congress in the several indecency provisions of ง 223, basically borrowed one-third of the Miller test for obscenity — the “patently offensive” part. See Reno v. ACLU, 117 S. Ct. at 2345 (“one part of the three-prong Miller test”); Pacifica Foundation v. FCC, 438 U.S. at 732 (indecency is “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs . . .”); Denver Area, 116 S. Ct. at 2381 (same definition but for cable television); Information Providers Coalition v. FCC, 928 F.2d 866, 874 (9th Cir. 1991) (same definition but for the “telephone medium”). The definition omits the two other parts of the obscenity definition: the “prurient appeal” and no social value parts.

5. The distinction between “indecent” and “obscene” speech is important because, as in this case, “indecent” speech may have significant societal value. Justice Kennedy has explained: “In artistic or political settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying ‘otherwise inexpressible emotions’ . . . . Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power.” Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374, 2415-16 (1996), quoting from Cohen v. California, 403 U.S. 15, 26 (1971).

6. It is well established that a “statute must, if possible, be construed in such fashion that every word has some operative effect.” United States v. Nordic Village, 503 U.S. 30, 36 (1992)(emphasis added); Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983). In Brogan v. United States, 118 S.Ct. 805 (1998), the Court held that 18 U.S.C. ง 1001 must be read literally and rejected an exception that had been recognized by several courts of appeals. The Court stated that “Courts may not create their own limits on legislation, no matter how alluring the policy arguments for doing so…” 118 S.Ct. at 811-12. The Court enforced the plain language of the statute despite the Department of Justice Manual calling for an exception, id. at 815 (Ginsburg, J. concurring), “rejecting a well-settled interpretation” by the lower courts, id. at 817 (Stevens, J. dissenting).

7. The district court majority held that its construction did not render the intent to annoy provision surplusage because, it said, the intent of Congress was to ban obscene materials only among “non-consenting” adults. App. 34a. The government can always avoid any such intent requirement by prosecuting computer transmission of obscenity under other federal obscenity statutes, like 18 U.S.C. ง 1465, that have no such intent requirement. See United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S.Ct. 74 (1996).

8. As Chief Judge Sloviter remarked in ACLU v. Reno,

929 F. Supp. 824, 855 (E.D. Pa. 1996).

Plaintiff ApolloMedia Corporation (“ApolloMedia“) seeks to enjoin enforcement of portions of the Communications Decency Act of 1996 (“CDA”) codified at 47 U.S.C. §223(a)(1)(A)(ii) and 47 U.S.C. §223(a)(2) on the grounds that the subject provisions, to the extent that they prohibit “indecent” communications made “with an intent to annoy,” are impermissibly overbroad and vague, and thus violate the First Amendment of the United States Constitution. ApolloMedia does not challenge the provisions to the extent they regulate “obscene” communications. Defendant Janet Reno, Attorney General of the United States, takes the position that the challenged provisions seek to regulate only “obscene” communications. The threshold issue presented to this Court is whether §223(a)(1)(A)(ii) and §223(a)(2) proscribe communications that are “indecent” as opposed to only those that are “obscene.” Because we find the provisions regulate only “obscene” communications, the Court does not decide the issue of whether Congress may, under the circumstances addressed in the subject provisions, regulate “indecent” speech made with the “intent to annoy.”

On January 30, 1997, ApolloMedia filed in the Federal District Court a complaint for declaratory and injunctive relief and a motion for preliminary injunction. Pursuant to 28 U.S.C. §2284¹ and §561 (a) of the CDA², a three-judge court was convened to hear the cause. Thereafter, hearing on the motion for preliminary injunction was stayed during the pendency in the Supreme Court of Reno v. ACLU, 117 S.Ct. 2329 (1997), in which other provisions of the CDA were challenged on constitutional grounds.³ The Supreme Court decided Reno v. ACLU on June 26, 1997, after which this Court set the motion for hearing on October 20, 1997.

At the October 20, 1997 hearing, the parties mutually consented to consolidation of the hearing on the preliminary injunction with the merits. See Fed.R.Civ.P. 65(a)(2) (“Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.”).

A. The Internet

ApolloMedia has requested, without objection by the government, that this Court take judicial notice of the first forty-eight findings of fact by the court in ACLU v. Reno 929 F.Supp. 824, 830-38 (E.D. Pa. 1996), which contain a detailed description of the Internet’s history, means of accessing the Internet, and methods of communication over the Internet.⁴

B. The Plaintiff

ApolloMedia is a Delaware corporation founded in 1994 that has its principal place of business in San Francisco, California. ApolloMedia describes itself as a “multimedia technology company whose business is entirely devoted to computer-mediated communication.” The company provides technology-related consulting services, licenses software programs for the management and delivery of information through telecommunications channels, and develops Internet technologies, including sites on the World Wide Web.

As an additional part of its business activities, ApolloMedia writes, develops and produces multimedia content for corporate, educational, and entertainment purposes using computers, modems, and telephone lines to communicate through the World Wide Web its own content and that of its clients and its website visitors. ApolloMedia maintains a website entitled “annoy.com” through which ApolloMedia and visitors to the website communicate strong views using expression that ApolloMedia asserts may be considered indecent in some communities.⁵

ApolloMedia states that its “online databases contain some material of social or political value that is sexually explicit or uses vulgar language that some persons in some communities, might consider “indecent.'” ApolloMedia also asserts that “its clients and its site visitors wish freely to be able to criticize public officials and public figures by using whatever language or imagery that seems to them appropriate to the occasion and, whenever they wish, to ‘annoy’ such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions.”

C. The Communications Decency Act of 1996

The challenged provisions of the CDA are part of a statute that was originally enacted in 1968, as an amendment to the Communications Act of 1934, to proscribe the use of telephones in the District of Columbia or in interstate or foreign communication to “make any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent.” The purpose of the statute was to make “the use of a telephone (or the granting of such use) for the placing of obscene, abusive or harassing telephone calls . . . across State boundary lines or within the District of Columbia a federal crime . . . .” H.R. Rep. No. 90-1102 at 1915.⁶

The telephone harassment provisions of 47 U.S.C. §223 remained basically unchanged until passage of the CDA in 1996, when the provisions that are the subject of the current motion were promulgated.⁷ By the amendments contained in the CDA, the statute was modified to substitute “telecommunications device”⁸ for “telephone” and to expand its coverage to the “transmission of any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent.” (emphasis added). The CDA also added an intent requirement, providing that a transmission is proscribed by the statute only if made “with intent to annoy, abuse, threaten, or harass another person. . . .”

A. Standing

The government argues that ApolloMedia lacks standing because the scope of the subject provisions does not reach beyond obscene communications and ApolloMedia does not intend to engage in obscene communications.

The doctrine of standing is directed at ensuring that the plaintiff before the court “is a proper party to request an adjudication of a particular issue . . . .” Flast v. Cohen, 392 U.S. 83, 100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). “[A]t an irreducible minimum, [Article III of the Constitution] requires the party who invokes the court’s authority to ‘show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant. . . .'” Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982), (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)). Moreover, it is required “that the injury ‘fairly can be traced to the challenged action’ and ‘is likely to be redressed by a favorable decision.'” Valley Forge, at 472, 102 S.Ct. at 758 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct. 1917, 1924, 1925, 48 L.Ed.2d 450 (1976)). It is insufficient for the plaintiff to allege abstract injury. Rather, the plaintiff must allege that he “has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged statute or official conduct.” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974) (citation and internal quotation marks omitted).

“When contesting the constitutionality of a criminal statute, ‘it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.'” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2309, 60 L.Ed.2d 895 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1216, 39 L.Ed. 2d 505 (1974)) (bracketed text in original). In order to demonstrate an “actual or threatened injury” in the context of a constitutional challenge to a criminal statute, the plaintiff must establish that he has an “intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder. . . .” Babbitt, at 298, 99 S.Ct. at 2309. Once this showing is made, the plaintiff is entitled to bring suit. See id.

ApolloMedia maintains that it seeks to use a “telecommunications device” to engage in “indecent” communications with an “intent to annoy” and that it also seeks to allow visitors to its websites, including annoy.com, to do likewise. During the course of this litigation, while arguing that the challenged provisions apply not to “indecent” communications but solely to obscenity, the government has never relinquished its right to prosecute ApolloMedia for the former under §223(a)(1)(A) and §223(a)(2).⁹

That ApolloMedia‘s interpretation of the scope of the subject provisions ultimately may be found to be incorrect does not deprive it of standing to challenge their constitutionality. See Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (holding plaintiff had standing to challenge the constitutionality of a state statute as applied to conduct in which plaintiff intended to engage, where the state’s highest court had not determined that the intended conduct fell outside the scope of the statute). ApolloMedia has demonstrated that it has standing to pursue the instant action.

B. The Declaratory Judgment Act

ApolloMedia has invoked the Declaratory Judgment Act in the instant action, seeking a declaratory judgment that §223(a)(1)(A) and §223(a)(2) are unconstitutional, facially and as applied. The propriety of declaratory relief is closely related to the issue of standing. The Declaratory Judgment Act, codified at 28 U.S.C. §2201, provides, in pertinent part:

In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C.A. §2201(a) (West 1994).

Under 28 U.S.C. §2001, ApolloMedia must demonstrate an independent basis of federal jurisdiction over the case. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 879, 94 L.Ed. 1194 (1950). There is no question here that this Court possesses an independent basis for federal jurisdiction in the instant action, since ApolloMedia attacks the constitutionality of a federal statute. See 28 U.S.C. §1331.

In addition, ApolloMedia must, pursuant to the language of the statute, demonstrate that an “actual controversy” exists. This statutory requirement codifies the constitutional principle that federal courts may exercise jurisdiction only over actual cases or controversies. See Steffel at 458, 94 S.Ct. at 1215. In ascertaining whether an “actual case or controversy” exists, “[t]he basic inquiry is whether the ‘conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.'” Babbitt, at 298, 99 S.Ct. at 2308 (quoting Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1438, 1487, 89 L.Ed. 2072 (1945)). The adverse legal interests must be of “sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941). See also Eureka Fed. Sav. and Loan v. American Cas. Co. of Reading, 873 F.2d 229, 231 (9th Cir. 1989) (“Thus, declaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.”) (internal quotation omitted).

To establish an actual case or controversy when challenging the constitutionality of a statute, a plaintiff “must demonstrate a realistic danger of sustaining a direct injury as a result of the statute’s operation or enforcement.” Babbitt at 298, 99 S.Ct. at 2308. See also Fordyce, 55 F.3d at 440 (“In cases concerning the constitutionality of a state criminal statute, all that is required for an award of declaratory relief is that the plaintiff show a genuine threat of enforcement of a disputed state criminal statute.”) (internal quotation omitted). As discussed above with respect to standing, ApolloMedia has demonstrated a “realistic danger of sustaining a direct injury” if §223(a)(1)(A) and §223(a)(2) are found to proscribe “indecent” communications made with an intent to “annoy.” Accordingly, a claim for declaratory relief is properly raised by ApolloMedia.

C. Injunctive Relief

As stated, at the time of the hearing on the preliminary injunction, the parties agreed that consideration of the merits of the action should be consolidated with the hearing on the preliminary injunction. In ruling on a request for injunctive relief, the trial court considers the irreparable injury to the moving party and the inadequacy of legal remedy for such injury. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803, 72 L.Ed.2d 91 (1082). With respect to permanent injunctions, however, the party seeking such relief need establish only that he has no adequate legal remedy. “Irreparable injury is required for preliminary injunctions, but once actual success on the merits has been established, ‘a party is entitled to relief as a matter of law irrespective of the amount of irreparable injury which may be shown.'” Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir. 1994) (quoting Western Sys., Inc. v. Ulloa, 958 F.2d 864, 872 (9th Cir. 1992)). “[Irreparable injury] is only one basis for showing the inadequacy of the legal remedy.” Id. (quoting Charles A. Wright & Arthur R. Miller, 11 Federal Practice & Procedure, §2944 at 401 (1973)).

A showing of irreparable injury nevertheless is one way to establish the absence of an adequate legal remedy. See id. Moreover, there exists a strong presumption of irreparable injury in cases involving the infringement of First Amendment rights. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373-74, 96 S.Ct. 2673, 2690, 49 L.Ed.2d 547 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971)). Thus, ApolloMedia would be entitled to a permanent injunction upon a showing that enforcement of the CDA provisions at issue here result in “a loss of First Amendment freedoms.”

D. Analysis

We begin our analysis mindful of the Supreme Court’s admonition that, in assessing challenges to the constitutionality of a statute, courts should “first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 465-66, 109 S.Ct. 2558, 2572, 105 L.Ed.2d 377 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 258, 296, 76 L.Ed. 598 (1932)). See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) (“[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress”).

In opposing ApolloMedia‘s motion for preliminary injunction, the government contends that the statutory provisions in question only proscribe obscene speech. Indecent speech which is not obscene falls within the protection of the First Amendment. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) (“Sexual expression which is indecent but not obscene is protected by the First Amendment.”.). On the other hand, the protection of the First Amendment does not extend to obscene speech. See Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957) (“[O]bscenity is not within the area of constitutionality protected speech.”.).¹⁰

“A court’s objective when interpreting a federal statute is to ascertain the intent of Congress and to give effect to legislative will.” Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir. 1987) (internal quotation omitted). In interpreting a statute, a court starts with its language. See Baily v. United States, 516 U.S. 137, 144, 116 S.Ct. 501, 506, 133 L.Ed.2d 472 (1995). If the language of the statute is unambiguous, the court should look no further in ascertaining its meaning. See United States v. Lewis, 67 F.3d 225, 228 (9th Cir. 1995). If the language of the statute is unclear, however, it is appropriate for the court to look to legislative history to ascertain its purpose. See id.; Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir. 1996).

As stated, in construing a statute, the court must start with its language. Baily, at 144, 116 S.Ct. at 506. It is an established rule of statutory construction, however, that when the Supreme Court’s interpretation of statutory text is “longstanding” and “settled,” “it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [the Court’s] precedents . . . and that it expects its enactments to be interpreted in conformity with them.” North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S.Ct 1927, 1930, 132 L.Ed.2d 27 (1995) (holding that Congress expected the courts to continue their “longstanding” and “settled” practice of borrowing statutes of limitation from analogous state laws in cases where a federal statute fails to specify a statute of limitation) (internal quotation omitted). See also Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979) (construing text of Title IX of Education Amendments Act of 1972 as creating private cause of action where courts had interpreted nearly identical language in Title VI as creating a private cause of action and noting, “[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law. . . “); S&M Inv. Co. v. Tahoe Reg’l Planning Agency, 911 F.2d 324, 326 (9th Cir. 1990) (“If the term at issue has a settled meaning, we must infer that the legislature meant to incorporate the established meaning, unless the statute dictates otherwise”).

Section 223(a)(1)(A) subjects to prosecution those who use telecommunications devices to transmit communications which are “obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten or harass another person. . . .” In arguing that the meaning of this language is settled, the government relies on cases in which the Supreme Court has construed as referring solely to obscenity what the government characterizes as a “string of words” similar to that employed in §223(a)(1)(A). The government argues that the Supreme Court’s longstanding construction of the “strings of words” at issue in those cases applies equally to the “string of words” in §223(a)(1)(A).

In a line of cases beginning with Roth, 354 U.S. at 476, 77 S.Ct. at 1304, the Supreme Court has read words, which are nearly identical to those employed in §223(a)(1)(A), to refer solely to “obscenity.” In Roth, the Supreme Court reviewed a conviction under 18 U.S.C. §1461 which, at the time, imposed criminal penalities for the knowing use of the mails to transport every “obscene, lewd, lascivious or filthy book, pamphlet, picture, paper, letter writing, print or other publication of an indecent character. . . .” Id. at 479 n.1, 77 S.Ct. at 1306 n.1.

The appellant in Roth argued that the statute was impermissibly vague in that it “[did] not provide reasonably ascertainable standards of guilt and therefore violate[d] the constitutional requirements of due process.” Id. at 491, 77 S.Ct. at 1312. The Court ruled that, in spite of the broad and imprecise range of terms used to describe prohibited speech, 18 U.S.C. §1461, if “applied according to the proper standard for judging obscenity, [does] not offend constitutional safeguards against convictions based upon protected material. . . .” Id. at 492, 77 S.Ct. at 1313. The Court found, in effect, that in spite of the range of terms employed in the statute, 18 U.S.C. §1461 only proscribes obscene speech.

The Supreme Court reaffirmed this construction of 18 U.S.C. §1461 in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962).¹² Addressing the meaning of the series of words used in the statute, the Court observed that, “[w]hile in common usage the words have different shades of meaning, the statute since its inception has been aimed at obnoxiously debasing portrayals of sex.”¹³ Id. at 482-83, 82 S.Ct. at 1434-35 (footnote omitted). The Court went on to hold that “the statute reaches only indecent material which, as now expressed in Roth v. United States, taken as a whole appeals to prurient interest.” Id. at 484, 82 S.Ct. at 1435 (citations omitted).

Thereafter, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Supreme Court rejected a vagueness challenge to 18 U.S.C. §1461, ruling that the terms contained in the series of words were “limited to the sort of patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California [sic].” Id. at 114, 94 S.Ct. at 2906 (quotation omitted). Therefore, the proscription in 18 U.S.C. §1461 reached only material that would be deemed obscenity pursuant to the Miller decision.

The government’s argument is further supported by United States v. 12 200-ft. Reels of Super 8MM Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), which involved a seizure of film under 19 U.S.C. §1305(a). The Supreme Court, in strongly worded dicta, stated that if faced with a question as to the vagueness of the words “‘obscene,’ ‘lewd,’ ‘lascivious’, ‘filthy,’ ‘indecent,’ or ‘immoral,’ as used to describe regulated material in 19 U.S.C. §1305(a)¹⁴ and 18 U.S.C. §1462¹⁵ . . . [the Court is] prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific ‘hard core’ sexual conduct given as examples in Miller v. California.” Id. at 130 n.7, 93 S.Ct. at 2670 n.7.

These cases demonstrate that, in the context of print media and film, the Supreme Court has read statutory “strings of words” almost identical to that employed in §223(a)(1)(A) to proscribe only material constituting obscenity within the meaning of Miller. There exist, however, cases decided subsequent to Hamling and relied upon by ApolloMedia, in which the Supreme Court has construed “indecent,” as used in statutes other than 18 U.S.C. §1461, to bear a distinct meaning, in spite of its coupling with “obscene.”

In FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the Supreme Court ruled that under 18 U.S.C. §1464¹⁶ Congress intended to restrict speech which is “indecent” as separate from “obscene.” Pacifica argued that the Court had “construed the term ‘indecent’ in related statutes to mean ‘obscene’ as that term was defined in Miller.” Pacifica, 438 U.S. at 740, 98 S.Ct. at 3035. The Court rejected Pacifica’s argument, holding that each term bore a separate meaning. The Court observed that the terms “are written in the disjunctive, implying that each has a separate meaning.”¹⁷ Id. at 739-40, 98 S.Ct. at 3035. The Court distinguished cases such as Hamling, where it had construed statutory language, including the term “indecent,” to regulate only “obscenity.” See id. at 740, 98 S.Ct. at 3035-36 (“In Hamling [sic] the Court agreed . . . that §1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California [sic] . . . the Court adopted a construction which assured the statute’s constitutionality.”). The Court noted that, while the history of §1461 “revealed a primary concern with the prurient, the [Federal Communications] Commission has long interpreted §1464 as encompassing more than the obscene.” Id. at 741, 98 S.Ct. at 3036. Moreover, “[t]he former statute deals primarily with printed matter enclosed in sealed envelopes and mailed from one individual to another; the latter deals with the content of public broadcasts.” Id.

The Court went on to observe that “[i]t is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.” Id. The Court concluded by stating that because the “First Amendment has a special meaning in the broadcast context . . . the presumption that Congress never intends to exceed constitutional limits, which supports Hamling’s [sic] narrow reading of §1461, does not support a comparable reading of §1464.” Id. at n. 17.

In Sable Communications, 492 U.S. at 115, 109 S.Ct. at 2829, the Supreme Court examined the “dial-a-porn” provisions contained in 47 U.S.C. §223(b), which prohibited any “obscene or indecent” telephone communication “for commercial purposes to any person,” and held the statute unconstitutional to the extent it sought to preclude communications that were indecent as opposed to obscene. Id. at 131, 109 S.Ct. at 2839. In Sable, however, it was uncontested that, in enacting §223(b), Congress intended to distinguish between “obscene” and “indecent.” The issue in Sable was not whether Congress had enacted a total ban on “indecent” communications, but whether such a restriction was justified in order to further a compelling government interest the protection of minors. Id. at 129-31, 109 S.Ct. at 2828-29.

No cases have been cited by the government or ApolloMedia in which a court has considered the meaning of the precise “string of words” found in §223(a)(1)(A). A review of the above-referenced decisions, however, leads the Court to conclude that the subject language was intended to regulate only obscene communications. First, the “string of words” employed in §223(a)(1)(A) more closely resembles in both length and syntax the “string of words” used in 18 U.S.C. §1461, as interpreted In Roth, Manual Enterprises, and Hamling, than the words at issue in Pacifica and Sable. Moreover, that interpretation prevailed at the time that the predecessor statute to §223(a)(1)(A), which employed the same “string of words” as employed in §223(a)(1)(A), was enacted.¹⁸ Finally, as the Pacifica Court noted, the Federal Communications Commission “has long interpreted §1464 as encompassing more than the obscene.” Pacifica, 438 U.S. at 741, 98 S.Ct. at 3036. There is no similar history of governmental regulation with respect to §223(a)(1)(A).

Having concluded that the statutory language resolves the interpretive issue, the Court need look no further. Because both ApolloMedia and the government have addressed at length the statute’s legislative history, however, the Court next turns to the legislative history as an additional tool of analysis. In doing so, the Court recognizes that “only the most extraordinary showing of contrary intentions” will justify an interpretation different from that dictated by the statutory language. See Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984).

When examining a statute’s legislative history for an indication of congressional intent, “a congressional conference report is recognized as the most reliable evidence of congressional intent because it ‘represents the final statement of the terms agreed to by both houses.'” Id. at 836 (quoting Dept. of Health and Welfare v. Block, 784 F.2d 895, 901 (9th Cir. 1986)).

Section 223(a) was promulgated in 1968, subsequent to the Supreme Court’s decisions in Roth and Manual Enterprises. As discussed earlier, the legislation was intended to “make[] the use of a telephone (or the granting of such use) for the placing of obscene, abusive, or harassing telephone calls . . . across State boundary lines or within the District of Columbia a Federal crime . . . “H.R. Rep. No. 90-1109, at 1915. There is no indication in the legislative history that the provision was intended to proscribe “indecent” speech that is not “obscene.”

The conference report for the CDA contains little direct discussion of §223(a)(1)(A), except to note that, “an intent requirement is added to section 223(a)(1)(A) that liability is incurred for ‘obscene, lewd, lascivious, filthy, or indecent’ communications with the intent to ‘annoy, abuse, threaten, or harass another person.'” H.R. Rep. No. 104-458 at 187. The legislative record of the CDA does not state that Congress sought to change the nature of the speech proscribed by the provision.

There follows, however, a detailed discussion of the meaning that Congress attached to the term “indecent” in other provisions of the CDA. In 47 U.S.C. §223(d)(1), which proscribes the transmission of “patently offensive” communications to recipients under eighteen years of age, it is clear that Congress intended to reach “indecent” programming that is not “obscene.” The conference report discussion of this provision states that Congress intended in this provision to “codif[y] the definition of indecency from FCC v. Pacifica Foundation” H.R. Rep. No. 104-458 at 187-88. In another section of the CDA, codified at 47 U.S.C. §223(a)(1)(B), Congress proscribed any communication by means of a telecommunications device that is “obscene or indecent” which is directed at a minor.

In ascertaining congressional intent with respect to the use of specific terms in a statute, the court considers the way the term is used in other provisions of the statute. Presumptively, identical words used in different parts of the same act are intended to have the same meaning. United States Nat’l Bank of Oregon v. Independent Ins. Agents of Am., 508 U.S. 439, 460, 113 S. Ct. 2173, 2185, 124 L.Ed.2d 402 (1993) (quotation omitted). See also S & M Inv. Co., 911 F.2d at 328 (“When the same word or phrase is used in different parts of a statute, we presume that the word or phrase has the same meaning throughout”).

ApolloMedia notes that Congress employed the term “indecent” or words defined to mean the same thing as “indecency” in other parts of the CDA to bear a meaning distinct from “obscenity,” and argues that “it would be absurd” to ascribe a different meaning to the term “indecent” as used in §223(a)(1)(A) from the way the term is used in other parts of the CDA. ApolloMedia concludes that Congress must have intended that the word “indecent” in §223(a)(1)(A) likewise bear a meaning distinct from “obscene.”

While the conference report for the CDA discusses at length Congress’ intent to limit “indecent” communications, it should be noted that these discussions of the meaning of the term “indecent” are limited to those parts of the report which address the perceived need to protect minors from harmful communications. There is no separate discussion of the meaning of “indecency” with respect to §223(a)(1)(A)¹⁹ and there is no indication that Congress intended that the term “indecent” should bear the same meaning in §223(a)(1)(A) as in those provisions of the CDA dealing specifically with communications directed at minors.

It is true that during the CDA floor debates in the Senate, some senators expressed the view that §223(a)(1)(A) would proscribe the transmission of “indecent” speech over the Internet, and that they were not disabused of that perception.²⁰ While conference reports “are entitled to greater weight than less formal indicia of Congressional intent such as floor debates,” International Telephone and Telegraph Co. v. General Tel. & Elec. Corp., 518 F.2d 913, 921 (9th Cir. 1975), it is nevertheless the case that “the Supreme Court, far from approving the exclusion of less formal material, has repeatedly interpreted legislation by referring to statements made in floor debates and hearings.” Id. Therefore, in ascertaining legislative intent, it is appropriate to consider statements made on the floor of the Senate while the CDA was being debated.

The Supreme Court, however, has “often cautioned against the danger, when interpreting a statute, of reliance upon the view of its legislative opponents.” NLRB v. Fruit and Vegetable Packers and Warehousemen Local 760, 377 U.S. 58, 66, 84 S.Ct. 1063, 1068, 12 L.Ed.2d 129 (1964). As that Court has noted, “[i]n their zeal to defeat a bill, [legislative opponents] understandably tend to overstate its reach.” Id. In the case of the present provision, a few senators opined that §223(a)(1)(A) would proscribe merely “indecent” communications made with an intent to annoy. There is no indication, however, that the CDA’s sponsors, or the legislature generally, shared this view, nor does the conference report reflect such an intent on Congress’ part.

In determining Congress’ intent with respect to any given statute, it also may be instructive to consider the history of related legislation. In addition to amending §223(a)(1)(A), the CDA amended 18 U.S.C. §1462 and 18 U.S.C. §1465 to add “interactive computer services”²¹ to the list of entities respectively referenced therein.²²

Both §1462 and §1465 employ a “string of words” nearly identical to the one contained in 18 U.S.C. §1461 at the time that the Supreme Court ruled in Roth that the “string of words” in §1461 proscribed only obscenity. See Roth, 354 U.S. at 492, 77 S.Ct. at 1313 (“obscene, lewd, lascivious or filthy book, pamphlet, picture, letter, writing, print or other publication of an indecent character. . . .”). Moreover, as noted earlier, in 12 200-ft. Reels, 413 U.S. at 130 n.7, 93 S.Ct. 2670 n.7, the Supreme Court stated, albeit in dicta, that it was “prepared to construe” the various terms in §1462, including “indecent,” to regulate the type of material defined as obscene in Miller v. California.

With respect to §1462 and §1465, the conference report for the CDA states that the amendments were intended to “simply clarif[y] that the current obscenity statutes, in fact, do prohibit using a computer to import and receive the importation of, and transmission to sell or distribute, ‘obscene’ material.” H.R. Rep. 104-458 at 193 (emphasis added). The conference report makes clear that the CDA amendments were not intended to extend beyond obscenity the nature of speech proscribed by those two sections. Thus, the CDA’s legislative history indicates that when Congress amended §1462 and §1465, it intended merely to update those provisions to address new technology. The same could be said of Congress’ intent as to §223(a)(1)(A). The conference report for the CDA with respect to §223(a) states that the CDA “updates section 223(a) of the Communications Act by using the term ‘telecommunications device’ as a replacement for or in addition to telephone references in the present law.” H.R. Rep. No. 104-458 at 187 (emphasis added).

ApolloMedia argues, however, that because §1462 and §1465 have been extended to criminalize obscene Internet communications, §223(a)(1)(A), if limited in its scope to proscribing obscene speech, would be redundant with respect to such communications. The overlap, however, is by no means complete. The use of a “telecommunications device,” as the term is used in §223(a)(1)(A) is not the equivalent of the use of an “interactive computer service” under §1462 and §1465. See 47 U.S.C.A. §223(h)(1)(B) (West Supp. 1997) (“For purposes of [§223 . . . [t]he use of the term ‘telecommunications device’ in this section, does not include an interactive computer service.”).

ApolloMedia also argues that the inclusion of an intent requirement in §223(a)(1)(A) (“with intent to annoy, abuse, threaten, or harass another person”) casts doubt on whether Congress intended the scope of §223(a)(1)(A) to be limited to obscenity. It is a “settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect.” United States v. Nordic Village, Inc., 503 U.S. 30, 35-36, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1995); see also Bailey, 516 U.S. at 145, 116 S.Ct. at 506 (stating that courts read statutes “with the assumption that Congress intended each of its terms to have meaning”). ApolloMedia argues that, since it has long been the rule that obscene speech enjoys no constitutional protection, the intent requirement contained in §223(a)(1)(A) serves no purpose if the statute’s scope is limited to obscenity.

The government responds that Congress may have added the intent requirement contained in §223(a)(1)(A) to avoid the possibility that the statute might be read to unconstitutionally preclude voluntary receipt of obscene communications in one’s home. While the Supreme Court has recognized a constitutional right to possess obscenity in one’s own home, Stanley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1969), the Supreme Court has also held that this right does not imply a right to transport obscenity, even to a willing recipient for private use. See United States v. Reidel, 402 U.S. 351, 356, 91 S.Ct. 1410, 1412-13, 28 L.Ed.2d 813 (1971) (holding in the context of a prosecution under 18 U.S.C. §1461 that Stanley did not require the Supreme Court to “fashion or recognize a constitutional right in people . . . to distribute or sell obscene materials”).

Since case law clearly establishes that Congress may proscribe outright the transmission of obscenity over the Internet, it cannot be assumed that Congress included the intent requirement in §223(a)(1)(A) because of a perceived problem with the constitutionality of an outright ban on obscene Internet communication.

The CDA’s legislative history, however, provides a different explanation for the inclusion of the intent requirement. In his section-by-section analysis of the CDA, Senator Exon stated:

Section 223(a) of the Communications Act is amended to modernize its application to new technologies and to codify Court and FCC interpretations that this section applies only to communications between non- -consenting parties. This revision would make Section 223(a) Constitutional [sic] on its face. Section 223(a) would become the key federal telecommunications anti-harassment provision. Cong. Rec. at S. 8091 (June 9, 1995) (emphasis added). This statement of the CDA’s sponsor indicates that the purpose of adding an intent requirement was to recognize and ratify prior decisions holding that Congress intended the scope of the provision to be limited to communications between non- -consenting parties.

For example, in Colahan v. New York Telephone Co., FCC Op. 84-76 (Mar. 7, 1984), the FCC ruled with respect to the predecessor of §223(a)(1)(A) that, “[t]he absence of any reference in the legislative history to obscene phone calls between consenting parties leads us to conclude that such messages simply were not within the ambit of Section 223’s prohibition.” Id. at ¶ 16. See also, United States v. Carlin Communications, Inc., 815 F.2d 1367, 1372 (10th Cir. 1987) (citing Colahan and holding that §223(a) does not proscribe obscene phone calls between consenting parties). It thus would appear that, in including an intent requirement in §223(a)(1)(A), Congress intended no more than to acknowledge prior FCC and court decisions limiting the scope of §223(a)(1)(A). Read in this light, the intent requirement in §223(a)(1)(A) is not surplusage but rather clarifies Congress’ intent that the statute proscribe only obscene communications between non– –consenting adults.

In conclusion, it again bears stating that “federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and that when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid.” Communications Workers of America v. Beck, 487 U.S. 735, 762, 108 S.Ct. 2641, 2657, 101 L.Ed.2d 634 (1988). See also U.S. ex. rel. Madden v. General Dynamics Corp., 4 F.3d 827 (9th Cir. 1993) (“[W]e recognize that we are obliged whenever ‘fairly possible’ to interpret a statute in a manner that renders it constitutionally valid”); Meinhold v. United States Dept. of Defense, 34 F.3d 1469, 1476 (9th Cir. 1994) (“When the constitutional validity of a statute or regulation is called into question, it is a cardinal rule that courts must first determine whether a construction is possible by which the constitutional problem may be avoided”).

In the present case, the government has demonstrated that §223(a)(1)(A) can be construed in such a manner as to render it constitutionally valid. As explained above, in light of prior case law and statutory history, it is “fairly possible” to read §223(a)(1)(A) as applying only to “obscene” communications. So construed, the provision would clearly survive constitutional challenge.

ApolloMedia‘s request for preliminary and permanent injunctive relief and for a declaration that §§223(a)(1)(A)(ii) and (a)(2) violate the First Amendment is hereby DENIED.

IT IS SO ORDERED.

Dated: September 22, 1998.

Maxine M. Chesney
United States District Judge

Michael Daly Hawkins
United States Circuit Judge

FOOTNOTES

¹28 U.S.C. §2284(a) provides:

A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.

28 U.S.C.A. §2284(a) (West 1994).

²561(a) of the CDA states:

(a) Three-Judge District Court Hearing. Notwithstanding any other provision of law, any civil action challenging the constitutionality on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code.

Communications Decency Act of 1996, Pub. L. No. 104-104, §561(a), 110 Stat. 133 (1996).

³Reno v. ACLU involved challenges to the constitutionality of 47 U.S.C. §223(a)(1)(B) and 47 U.S.C. §223(d). §223(a)(1)(B) sought to criminalize the use of a telecommunications device to transmit an “obscene or indecent” communication, knowing that the recipient is under eighteen years of age. §223(d) sought to proscribe the use of an interactive computer service to send to or to display in a manner available to any person under eighteen years of age, any communication which “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities. . . .” Both provisions were held unconstitutional to the extent that they purported to limit “indecent” speech. 117 S.Ct. at 2350.

⁴Apollo Media requested that the Court also take judicial notice of Findings of Fact 49 through 123, which describe, inter alia, restrictions on access to unwanted on-line material, availability of sexually explicit material on the Internet, and obstacles to age verification. The government has objected to this request on relevancy grounds. This Court need not consider these findings of fact to resolve the instant action, and thus declines to take judicial notice thereof.

⁵Annoy.com is organized into four separate sections. The “heckle” section contains articles by authors who take strong, provocative positions on various issues. “Drop-down menus” allow website visitors to construct, from a preselected list of options, anonymous e-mail to public officials or figures named in the articles. Another section, entitled “gibe,” is a “threaded message board” which allows visitors to read previously posted messages and to add messages of their own. ApolloMedia does not censor messages left by visitors in the “gibe” section.

The “censure” section enables visitors to send digital postcards through the Internet. The visitor selects a postcard and enters the e-mail address of the intended recipient, the desired message text, and the visitor’s name and e-mail address. Annoy.com transfers the postcard to an automatically generated “url” (uniform relay locator) on the annoy.com website and automatically generates an e-mail to the intended recipient which informs him or her that a postcard has been created and provides instructions on how to retrieve the postcard. Finally, the “CDA” (Created and Designed to Annoy) section consists of several pages of commentary and visual images.

⁶As originally enacted, Section 223 provided:

Whoever – –

(1) in the District of Columbia or in interstate or foreign communication by means of a telephone – –

(A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent;

(B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at the called number;

(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number;

(D) makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number; or

(2) knowingly permits any telephone under his control to be used for any such purpose prohibited by this section, shall be fined not more than $500 or imprisoned not more than six months or both.

47 U.S.C.A. §223.

⁷47 U.S.C. §223(a) now provides:

Whoever- –

(1) in interstate or foreign communications- –

(A) by means of a telecommunications device knowingly- –

(i) makes, creates, or solicits, and

(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;

(B) by means of a telecommunications device knowingly- –

(i) makes, creates, or solicits, and

(ii) 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 of age, regardless of whether the maker of such communication placed the call or initiated the communication;

(C) makes a telephone call or utilizes a telecommunications device, whether or not conversation or communication ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number or who receives the communications;

(D) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or

(E) makes repeated telephone calls or repeatedly initiates communication with a telecommunications device, during which conversation or communication ensues, solely to harass any person at the called number or who receives the communication;

(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with intent that it be used for such activity, shall be fined under Title 18, or imprisoned not more than two years or both.

47 U.S.C. §223(a) (West Supp. 1997).

⁸Telecommunications device” has been interpreted to apply to modems. See ACLU v. Reno, 929 F.Supp. at 828 n.5.

⁹In the Stipulation and Order of April 4, 1997, the government agreed “not [to] initiate any investigations or prosecutions for the violations by plaintiff of 47 U.S.C. §223(a)(1)(A) for ‘indecent’ computer communications it makes or made ‘with intent to annoy’ until this Court rules on plaintiff’s motion for preliminary injunction.” The government also agreed “not [to] initiate any investigations or prosecutions for violations . . . of 47 U.S.C. §223(a)(2) for knowingly permitting . . . any computer facility under its control to transmit ‘indecent’ computer communications made ‘with intent to annoy'” until this Court rules on plaintiffs motion for preliminary injunction. The government further stated, “[t]his Stipulation and Order shall not affect and shall be without prejudice to either party’s position on the standing issue raised by the defendant.” The government has not indicated a willingness to stipulate that ApolloMedia cannot be prosecuted under §223(a)(1)(A) to the extent that ApolloMedia engages in “indecent” communication with an “intent to annoy” the recipient.

¹⁰The present test for obscenity was set out by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In Miller, the Court framed the test for ascertaining obscenity as “(a) whether ‘the average person applying contemporary community standards’ would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” Id. at 24, 93 S.Ct. at 2615 (internal citations omitted).

¹¹Liability under 47 U.S.C. §223(a)(2), which provides for criminal penalties for those who “knowingly permit[] any telecommunications facility under [their] control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity” is only established by proving a violation of 47 U.S.C. §223(a)(1). Therefore, no separate analysis of 47 U.S.C. §223(a)(2) is required.

¹²At the time Manual Enterprises was decided, 18 U.S.C. §1461 had been amended to proscribe the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.”

¹³The Supreme Court noted that lower courts had found that “the words ‘indecent, filthy or vile’ are limited in their meaning by the preceding words ‘obscene, lewd, lascivious’ and that all have reference to matters of sex.” Manual Enterprises, 370 U.S. at 483 n.5, 82 S.Ct. at 1435 n.5 (citing Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803 (1st Cir. 1960)).

¹⁴19 U.S.C. §1305(a) provides, in relevant part, that “all persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing . . . or other article which is obscene or immoral . . . .”

¹⁵12 200-ft. Reels’ companion case, United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed. 2d 513 (1973) involved a constitutional challenge to a conviction under 18 U.S.C. §1462. At the time, §1462 proscribed, in relevant part, the bringing into the United States, or the knowing use of any express company or other common carrier, for carriage in interstate or foreign commerce of “any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion picture film, paper, letter, writing, print, or other matter of indecent character . . . .”

¹⁶At the time of the suit, 18 U.S.C. §1464 provided: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

¹⁷In Pacifica, the Court defined “indecent” to mean “nonconformance with accepted standards of morality.” Id. at 440, 98 S.Ct. at 3035.

¹⁸Roth was decided in 1957 and Manual Enterprises in 1962. Section 223, the predecessor of §223(A)(1)(A), was enacted in 1968. Pacifica and Sable were not decided until 1978 and 1989, respectively.

¹⁹Likewise, in the floor debates, the statements of the CDA’s sponsor and cosponsor indicate that the legislation was intended to limit “indecent” speech to the extent it is directed at minors. For example, Senator Coates explained the purpose of the CDA as follows: “[The CDA] would clean up the Internet. We ban obscenity. And we require that indecency by walled off so children cannot have access.” 141 Cong. Rec. S 8333.

²⁰In a speech on the floor of the Senate, Senator Leahy stated concern that §223(a)(1)(A) “would make it a felony not only to send obscene messages to another person but apply the same penalty to sending an e-mail message with indecent or filthy words that you hope will annoy another person.” Cong. Rec. at S. 8331. (June 14, 1995). When the bill’s sponsor, Senator Exon, retook the floor, he yielded to another senator without addressing Senator Leahy’s remark. Thereafter, Senator Leahy repeated his concern that §223(a)(1)(A) “would make it a felony not only to send obscene electronic messages to harass another person, but would apply the same penalty to sending an e-mail message with an indecent or filthy word that you hope will annoy another person.” Id. at 8342. Senator Exon again took the floor after Senator Leahy spoke but did not indicate that Senator Leahy had misconstrued the scope of the legislation.

Senator Levin also stated, “[t]he language of the amendment before us is so broad and vague that it would subject an American citizen to criminal liability and possible imprisonment for two years, a $100,000 fine or both for making what is termed to be a “filthy comment” on the Internet which, in the words of the amendment, is intended to annoy.” Id. at 8346. After Senator Levin’s remarks, Senator Exon yielded back his time without indicating that the portion of the CDA to which Senator Levin’s comments were addressed only proscribed obscenity.

The following day, Senator Moynihan stated, “[t]he language of the amendment is too broad, raising serious questions of constitutionally [sic] under the first amendment. For example, the amendment could reasonably be interpreted to prohibit an individual from sending an annoying e-mail message.” Id. at 8462. Again, no other senator stated that Senator Moynihan’s concern was misplaced because the scope of the provision to which Senator Moynihan referred was limited to obscenity.

²¹Interactive computer service” is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.” 47 U.S.C. §230(e)(2) (West Supp. 1997).

²²As amended, 18 U.S.C. §1462 provides, in pertinent part:

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier or interactive computer service (as defined in Section 230(e)(2) of the Communications Act of 1934), for carriage in interstate or foreign commerce – –

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or . . . whoever knowingly takes or receives from such express company or other common carrier or interactive computer service (as defined in Section 230(e)(2) of the Communications Act of 1934) any matter or thing the carriage or importation of which is herein made unlawful – –

…

shall be fined under this title or imprisoned not more than five years, or both, for the first such offense and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.

18 U.S.C.A. §1462 (West 1984 & Supp. 1997).

As amended, 18 U.S.C. §1465 states, in relevant part:

Whoever knowingly transports or travels in, or uses a facility or means of, interstate or foreign commerce or an interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) in or affecting such commerce for the purpose of sale or distribution of any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both.

18 U.S.C.A. §1465 (West Supp. 1997).

ILLSTON, District Judge, dissenting:

I agree with the majority that the sections of the Communications Decency Act (“CDA”) challenged in this case may constitutionally prevent the transmission of obscene communications over the Internet. I disagree, however, with the majority’s conclusion that the actual words of the statute – “obscene, lewd, lascivious, filthy, or indecent” – should be read to mean only “obscene.’ This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are.

I believe that our approach here should be the same as the approach taken by the Supreme Court in Reno v. American Civil Liberties Union; – U.S. -, 117 S.Ct. 2329 (1997). There, the Court construed the section of the CDA immediately following the section challenged in this case, and found that proscriptions of “obscene or indecent” communications meant just that – – proscriptions of communications which were either obscene or indecent. The Supreme Court held that while proscriptions of obscene communications were constitutionally permissible, proscriptions of indecent communications were not, and invoked the severability clause of the statute to sever the words “or indecent” from the statute. I would do the same here.

As the majority acknowledges, “indecent” speech falls within the protection of the First Amendment. See Reno v. ACLU, 117 S.Ct. at 2346 (“[i]n evaluating the free speech rights of adults, we have made it perfectly clear that ‘sexual expression which is indecent but not obscene is protected by the First Amendment.'” (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)). The government can regulate such speech, but only if it acts towards compelling ends with means “carefully tailored to achieve those ends.” Sable, 492 U.S. at 126. “Obscene” speech, on the other hand, may be “wholly prohibited.” FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978).

The statutory provision at issue here makes it a crime to transmit an “obscene, lewd, lascivious, filthy, or indecent” communication over the Internet “with intent to annoy.” In Reno v. ACLU, 117 S.Ct. at 2329, the Court addressed the constitutionality of two provisions of the CDA, one of which – – 47 U.S.C. §223(a)(1)(B) – – immediately follows the subparagraph challenged by ApolloMedia here. Section 223(a)(1)(B) stated:

Whoever . . . in interstate or foreign communications . . . by means of a telecommunications device knowingly (i) makes, creates or solicits, and (ii) 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 of age, regardless of whether the maker of such communication placed the call or initiated the communication . . . shall be fined under Title 18, or imprisoned not more than two years, or both.

(emphasis added).

The second provision challenged in the Reno case was §223(d), which provided:

Whoever . . . in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age . . . any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs . . . shall be fined under Title 18, or imprisoned not more than two years, or both.

(emphasis added).

The Supreme Court held that the CDA’s use of the terms “indecent” in §223(a)(1)(B) and “patently offensive” in §223(d)¹ violated the First Amendment because the terms were overbroad: “[the terms] lack[] the precision that the First Amendment requires when a statute regulates the content of speech.” Reno v. ACLU, 117 S.Ct. at 2346. It explained that the imprecision of the terms was “of special concern” because of a resulting, “obvious chilling effect on free speech,” id. at 2344, enhanced by the fact that the CDA is a criminal statute, see id. at 2344-45, and the expansive nature of communication over the Internet, see id. at 2347.

Of particular importance to the present case is the Supreme Court’s analysis of the CDA’s use of the term “indecent” in §223(a)(1)(B). While recognizing that in certain contexts “the governmental interest in protecting children from harmful materials” allows for restrictions on speech that is described only as “indecent,” id. at 2346, the Supreme Court found that the CDA provisions at issue were far too broad to comply with the First Amendment, indeed, “wholly unprecedented.” Id. at 2347.

After deciding that §223(a)(1)(B)’s inclusion of the term “indecent” violated the First Amendment, the Court invoked the severability clause of the Telecommunications Act of 1996,² of which the CDA is a part, to excise the language “or indecent” from §223(a)(1)(B). See id. at 2350. The Court concluded “[a]s set forth by [§223(a)(1)(B)], the restriction of ‘obscene’ material [which can be ‘banned totally’] enjoys a textual manifestation separate from that for ‘indecent’ material, which we have held unconstitutional.” See id.

In light of the Reno v. ACLU decision, a statute criminalizing “indecent” speech over the Internet, without careful tailoring toward protecting children from harmful materials or other compelling interest, cannot survive a First Amendment challenge.

Section 223(a)(1)(A) is not such a statute, according to the majority. Guided by the important principle that courts should avoid constitutional difficulties with statutes if a statutory construction that eliminates such difficulties is “fairly possible,” the majority avoids Reno v. ACLU‘s effect by interpreting §223(a)(1)(A)’s “string of words” – – “obscene, lewd lascivious, filthy, or indecent” – – to prohibit “obscene” communication only. The majority finds support for this interpretation in four early obscenity cases: Roth v. United States, 354 U.S. 476 (1957); Manual Enterprises Inc. v. Day, 370 U.S. 478 (1962); United States v. 12 200-ft. Reels of Super 8MM Film, 413 U.S. 123 (1973); Hamling v. United States, 418 U.S. 87 (1974).

To determine whether §223(a)(1)(A) can be fairly read to prohibit obscene speech only, one must begin with the language of the statute. See Bailey v. United States, 516 U.S. 137, 144 (1995). Section 223(a)(1)(A) reads:

Whoever . . . in interstate or foreign communications . . . by means of a telecommunications device knowingly (i) makes, creates or solicits, and (ii) initiates the transmission of any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten, or harass another person . . . shall be fined under Title 18 or imprisoned not more than two years or both.

(emphasis added).³ By its terms, then, §223(a)(1)(A) makes either “obscene . . . or indecent” communication a crime. Such a literal reading of the statute – – that the word “indecent” has a meaning separate from that of “obscene” – – is bolstered by the assumption that, particularly when statutory terms describe an element of a criminal offense, “Congress intended each of [the statute’s] terms to have meaning.” Bailey, 116 S.Ct. at 506-07.

To avoid the conclusion that §223(a)(1)(A) prohibits “indecent” Internet communication “with intent to annoy,” and is therefore unconstitutional pursuant to Reno v. ACLU,⁴ the majority looks to Roth. Manual Enterprises, 12 200-ft. Reels and Hamling for the proposition that a string of descriptive words including both “obscene” and “indecent” is to be interpreted to mean “obscene” only. These cases offer little support, however. First, the cases were decided before the Supreme Court’s First Amendment taxonomy – – in particular the legal significance attached to the terms “obscene” and “indecent” – – was in place. Only one of these cases – – Hamilton – – post-dated the emergence in Miller v. California, 413 U.S. 15 (1973) of a discrete legal test for “obscenity.” And none of these cases was decided after the term “indecent” received specific treatment under the First Amendment. See, e.g., Sable, 492 U.S. at 126 (“Sexual expression which is indecent but not obscene is protected by the First Amendment . . . .”); Pacifica, 438 U.S. at 740 n.14 (defining “indecent” to mean “not conforming to generally accepted standards of morality”). Second, as the Supreme Court recently suggested in Reno v. ACLU First Amendment holdings are tied closely to the nature of the medium being regulated. See 117 S.Ct. at 2343; Pacifica, 438 U.S. at 740. Roth, Manual Enterprises, and Hamling dealt with statutes governing the mail, and 12 200-ft. Reels concerned an import statute.

Additionally, as the majority notes, the Supreme Court in Pacifica, and Reno v. ACLU refused to “read out” Congress’ inclusion of the term “indecent” in regulations of speech. In Pacifica, for example, the argument that the term “indecent” in a statute prohibiting “obscene, indecent, or profane” speech should be interpreted to mean “obscene” was explicitly rejected. See Pacifica, 438 U.S. at 739-740. The Supreme Court relied on the fact that there, as here, the statute’s words were “written in the disjunctive, implying that each has a separate meaning.” Id. at 740.

These later “strings of words” cases by themselves undermine the claim that there is a “longstanding” and “settled” Supreme Court approach to statutes prohibiting both “obscene” and “indirect” speech. In any event, however, I believe that Reno v. ACLU represents the Supreme Court’s direction that in this statute, separate words used in the disjunctive are to be separately considered.

Finally, I note that although the Supreme Court declined to decide whether the provisions of the CDA which it examined in Reno v. ACLU would have violated the Fifth Amendment, the interpretation urged by the government and adopted by the majority in this case might make §223(a)(1)(A) unconstitutionally vague in violation of the Fifth Amendment. This is because an Internet user “of common intelligence (will) necessarily guess at [the] meaning and differ as to [the] application,” see Connally v. General Constr. Co., 269 U.S. 385, 391 (1926), of a statute that says it prohibits “indecent” communication and “lewd,” “lascivious,” and “filthy” communication, but actually does not. It is also problematic to allow the language “obscene, lewd, lascvious, filthy, or indecent” to stand in §223(a)(1)(A) when, in the following subparagraph, the Supreme Court has explicitly excised the word “indecent” for being overbroad in violation of the First Amendment.

The present debate over the language of the CDA seems academic until one considers the application of this criminal statute to the Internet, a communication medium being used daily by tens of millions of people in dozens of countries around the world. It is unrealistic to expect these users to know that the words of this statute do not mean what they say, and that the government has promised not to enforce the statute in accordance with its terms. I would therefore find that the challenged section of the statute as written is unconstitutional; but that, as with the sections of the statute considered in Reno v. ACLU, the terms other than “obscene” in §223(a)(1)(A) can be severed from it, “leaving the rest of [the section] standing.” 117 S.Ct. at 2350.

Dated September 22, 1998.

Susan Illston
United States District Judge

FOOTNOTES

¹The Court treated the CDA’s use of the terms “indecent” and “patently offensive” in these sections as synonymous. Reno v. ACLU, 117 S.Ct. at 2345.

²47 U.S.C. §608 reads: “If any provision of this chapter or the application thereof to any person or circumstance is held invalid, the remainder of the chapter and the application of such provision to other persons or circumstances shall not be affected thereby.”

³Section 223(a)(1)(A) differs from §223(a)(1)(B), the provision addressed in Reno v. ACLU, in three ways, First, it adds the adjectives “lewd,” “lascivious,” and “filthy.” Second, the “knowledge” element is replaced with an “intent to annoy, abuse, threaten, or harass another person” requirement. Third, §223(a)(1)(A) contains no requirement that the accused know “that the recipient of the communication is under 18 years of age.”

⁴The government’s opposition to plaintiff’s motion was based entirely on its contention that §223(a)(1)(A) prohibits “obscene” speech only. No argument was made that a “compelling interest” allows the prohibition of indecent speech, or lewd, lascivious, or filthy speech.

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O’Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff
APOLLOMEDIA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Page No.

The government’s entire Opposition to the motion is that Congress enacted a statute that does not mean what it says. The government does not even attempt to defend the constitutionality of 47 U.S.C. § 223(a)(1)(A) as written. Instead, it now contends that the statutory prohibitions of communications that are “obscene, lewd, lascivious, filthy, or indecent,” expressed disjunctively, criminalize only communications that are “obscene” as defined by Miller v. California, 413 U.S. 15 (1973). In other words, says the government, the statute does not prohibit “indecent” communications at all, whether or not they are made “with intent to annoy” another person.

But this is not the Communications “Obscenity” Act; it is the Communications Decency Act. The government’s position is a last-minute tactic designed to avoid a determination that the statute violates the First Amendment. As will be seen, the government’s position is inconsistent with everything it did in this litigation up until the moment when it had to defend the statute as written. It also is inconsistent with FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Reno v. ACLU, 117 S. Ct. 2329 (1997). It is inconsistent with the position the government has maintained for decades regarding prohibition of “indecent” speech. It is inconsistent with the legislative history of the Communications Decency Act. The government’s new “construction” of § 223 would make it entirely redundant of existing federal obscenity statutes. It also would render the “intent to annoy” provision surplussage. Finally, it would give “indecent” different meaning in one subsection than the very same term has in different subsections of the very same statute, including the subsections struck down in Reno v. ACLU.

Plaintiff fears that defendant’s construction of the statute is incorrect. Defendant does not offer to submit to a judgment with full preclusive effect. She does not even contend that the government would be estopped from changing its position. Nor does she contend that federal prosecutors throughout the country are barred by defendant’s filing a brief in this case from prosecuting plaintiff or any other Internet speaker for “indecent” communications “with intent to annoy.” The facial prohibition of “indecent” speech should not be allowed to stand without judicial condemnation. Plaintiff is entitled to a preliminary injunction or, at a minimum, to a declaratory judgment declaring that § 223 cannot constitutionally be invoked to prosecute “indecent” communications.

Plaintiff served and filed its complaint and motion for preliminary injunction on January 30, 1997. On January 31, the Court entered an order finding that plaintiff’s allegations “support standing to bring suit over the challenged provisions of [47] U.S.C. § 223(a).” The Court specifically noted that:

The Court, “having determined plaintiff’s complaint satisfies the requirements of § 561(a) of the Act,” proceeded to convene a three-judge court to determine the merits of whether § 223(a)(1)(A)’s “indecency” prohibition is consistent with the First Amendment. Id. at p. 3.

The government did not protest that the Court had misread the statute as reaching “”indecent” speech. Instead, the government requested and obtained extensions of time to respond, never hinting that it considered § 223(a)(1)(A) as limited to Miller obscenity. On March 28, 1997, defendant served an Answer to all of the allegations of the Complaint — which deal only with “indecent” speech — never suggesting that the statute is limited to obscenity. Defendant requested that the case be held in abeyance pending the decision in Reno v. ACLU, a case in which, like this one, the plaintiffs elected not to challenge the prohibition of obscenity. On June 20, the government served voluminous interrogatories and document requests (attached as Exhibits 1 and 2 to defendant’s Opposition to the instant motion). This discovery, subjecting plaintiff to considerable nuisance and expense, was totally unnecessary if § 223 is limited to obscenity.

When plaintiff’s counsel inquired about exposure to criminal prosecution by responding to the government’s discovery, defendant responded with a letter dated July 17, taking the position that any Fifth Amendment privilege had been waived by submitting the Fein declaration filed with the Complaint — a declaration in which Mr. Fein discussed plaintiff’s desire to communicate “indecent, annoying” messages. (Defendant’s letter is attached as Exhibit A to the accompanying declaration of William Bennett Turner.) Defendant’s letter did not mention that, under the government’s new construction of the statute, Mr. Fein could not in fact be prosecuted.

Indeed, the government repeatedly insisted, in the Stipulation and Order of April 4, 1997 (paras. 2, 3), on its power to prosecute plaintiff for violations — explicitly for “indecent” communications — of the very § 223 that it now claims plaintiff cannot be prosecuted under.

Just days before filing its response to plaintiff’s motion, the government was negotiating an agreement that one of its two experts (hired at taxpayer expense to help defend this action) could visit the annoy.com web site for the purpose of sending a digital postcard, copies of which had already been provided in discovery. Turner decl., para. 3. No expert and no discovery was required, of course, if the statute prohibited only obscenity, a prohibition not challenged in this case.

Defendant has failed to respond to plaintiff’s proposal that she stipulate to a declaratory judgment providing that plaintiff cannot be prosecuted for “indecent” communications. Turner decl., para. 4 and Exh. B.

In short, it is apparent that the government’s “construction” of § 223 was purely a last-minute change of litigation tactics, a recognition that the constitutionality of the statute could not be defended as written. This attempt to manipulate the outcome cannot be allowed to deprive plaintiff of declaratory and injunctive relief.

The relevant facts concerning plaintiff’s communications are set forth in plaintiff’s Memorandum in Support of Motion for Preliminary Injunction, at pp. 2-3, based on the declaration of Clinton Fein. They also are established by plaintiff’s responses to defendant’s Interrogatories and defendant’s Request for Production of Documents, which are Exhibits 1 and 2 to defendant’s Opposition to the motion. Additional facts concerning the nature and operations of the Internet are contained in the findings of fact in Reno v. ACLU; plaintiff requested that the Court take judicial notice of them.^/ Finally, to round out the factual picture, plaintiff submits herewith a supplemental declaration of Clinton Fein and a declaration of William Bennett Turner.

The government does not contend, nor could it, that plaintiff lacks standing to challenge § 223(a)(1)(A) as written. That is, the government does not assert that plaintiff could not be prosecuted if the statute covers “indecent” material. Rather, defendant’s “standing” argument depends entirely on its “construction” of the statute as covering only Miller obscenity, an argument addressed in point II, infra.

The Court already has found that plaintiff has standing in this case because “it transmits and receives material over the Internet that some may consider indecent, and … knowingly permits its members to do the same….Transmission and knowingly permitting the transmission of indecent material is expressly proscribed by the statute and is punishable as a criminal offense.” Order of January 31, 1997, at p. 2.^/ Plaintiff unquestionably has standing to challenge the constitutional validity of § 223(a)(1)(A)’s prohibition of “indecent” communications.

Plaintiff anticipated that the government might ask the Court to come up with a narrowing interpretation of the statute that would save it from unconstitutionality. See Plaintiff’s Memorandum in Support of Mot. for Prelim. Inj., at pp. 9-13. Defendant, however, expressly disavows any need for a saving construction. See Defendant’s Opposition to Mot. for Prelim. Inj. (“Def.Opp.”) at p. 15, n.16. Instead, defendant argues that § 223’s prohibitions have always been limited to obscenity within the definition of Miller. For the reasons stated in plaintiff’s previous Memorandum and below, the government cannot so easily avoid a judicial determination of the unconstitutionality of criminalizing “indecent” communications “with intent to annoy” others.

The heart of the government’s argument is its assertion that the meaning of the “string” of statutory prohibitions is “settled,” and that, specifically, “indecent” means nothing more or different than “obscene” as defined in Miller. There are several reasons for not accepting this assertion.

The statutory terms, specifically “obscene” and “indecent,” are not synonyms. As legal terms, they have recognized and quite different meanings. For example, “prurient appeal” is an element of obscenity, but indecency merely refers to “nonconformance with accepted standards of morality.” Pacifica Foundation v. FCC, 438 U.S. 726, 740-41 (1978); see Reno v. ACLU, supra, 117 S. Ct. at 2345-46 (discussing legal differences between obscene speech and indecent speech); Denver Area Educational Telecommunications Consortium v. FCC, 116 S. Ct. 2374, 2389-90 (1996) (same). Further, the prohibitions are expressed in the disjunctive — “obscene…or indecent.” As in Pacifica Foundation, “the words obscene, indecent or profane are written in the disjunctive, implying that each has a separate meaning.” 438 U.S. at 739-40. See Reno v. ACLU, 117 S. Ct. at 2350-51 (construing “obscene or indecent” in § 223(a)(1)(B) to give each separate meaning).

To read § 223 as the government now proposes would rob each of the terms other than “obscene” of all independent meaning. This violates the rule that the courts must read a statute “with the assumption that Congress intended each of its terms to have meaning” and that “a legislature is presumed to have used no superfluous words.” Bailey v. United States, 116 S. Ct. 501, 506-07 (1995) (emphasis added) (quoting Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58 (1879)). This statement of the rule is taken verbatim from the brief recently filed by defendant Reno in another case in this District by lawyers in the very same office of the Justice Department.^/ It is apparent that the government is speaking with a forked tongue, urging different courts to read statutes differently to suit the outcomes desired by the government.

Moreover, if § 223 is limited to obscenity and none of its other terms has any independent meaning, the statute is redundant of other federal laws criminalizing the communication of obscenity by computer, like 18 U.S.C. § 1465. See United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S. Ct. 74 (1996)(affirming conviction under § 1465 for communicating obscene material by computer over telephone wires). No statute should be interpreted so as to render it redundant. In Finley v. NEA, 100 F.3d 671 (9th Cir. 1996), for example, the Ninth Circuit rejected the government’s attempt — remarkably similar to the attempt in this case — to interpret a “decency” statute as merely proscribing “obscene” art, pointing out that “the proposed construction would render redundant a separate prohibition against funding projects determined to be obscene.” 100 F.3d at 678.

The government does not suggest what legislative purpose would be served by reading everything but “obscene” out of § 223(a)(1)(A). Since it would render the provision superfluous, adding nothing whatever to existing federal obscenity laws like 18 U.S.C. § 1465, adopting the government’s “construction” would frustrate the manifest Congressional intent to restrict “indecency” on the Internet through the Communications Decency Act.

None of the four cases on which the government relies for its entire contention involved this statute, § 223, and none of them involved the issue that the government claims is “settled” by the cases. In fact, none of them involved precisely the same “string” of statutory terms as in § 223: the terms were slightly to significantly different from the terms of § 223. Roth v. United States, 354 U.S. 476 (1957), which predated Miller by 16 years, involved 18 U.S.C. § 1465. There was no contention in Roth that any of the various terms had different meanings from obscenity. The only issue in Roth was whether obscene speech, however defined, enjoyed First Amendment protection. Similarly, Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), decided eleven years before Miller, involved 18 U.S.C. § 1461. There was no issue whether any of the statutory terms had separate meaning; the issue was whether appeal to the prurient interest was “the sole test of obscenity.” 370 U.S. at 486. United States v. 12,200-Ft. Reels of Film, 413 U.S. 123 (1973), involved 19 U.S.C. § 1305(a)’s provision concerning “obscene or immoral” matter; there was no “indecent” term at all. As in the other cases, there was no issue in 12,000-Ft. Reels of whether the statutory terms had different meanings.

Finally, as plaintiff acknowledged in its initial Memorandum (at pp. 9-10), Hamling v. United States, 418 U.S. 87 (1974), did say that the terms of 18 U.S.C. § 1461 would be treated the same as Miller obscenity, but there was no issue in the case whether any of the various terms had separate meaning.

The government cannot disguise the fact that Pacifica Foundation v. FCC is completely inconsistent with its theory of this case. When asked in Pacifica to construe 18 U.S.C. § 1464’s prohibition of “obscene, indecent, or profane” communications as limited to obscenity — precisely as the government demands that the Court do here — the Supreme Court held that the “reasons supporting Hamling‘s construction of § 1461 do not apply” to the communications statute. 438 U.S. at 741. The “string” in § 1464 cannot meaningfully be distinguished from the “string” in any of the cases relied on by the government.^/ Nor can “indecent” in § 223(a)(1)(A) be distinguished from the meaning given the same term in § 223(a)(1)(B) by Reno v. ACLU. Accordingly, “indecent” in § 223 has not been determined to mean “obscene.”^/

Defendant’s four cases may still govern the statutes that they interpreted, but they do not, and could not, govern § 223. See Pacifica, Reno, supra. Section 223 treats obscenity and indecency as distinctly different categories of speech. Thus, § 223(a)(1)(B) proscribes “obscene or indecent” communications to minors. The Supreme Court in Reno v. ACLU held that the “indecency” prohibition violated the First Amendment, but severed the “obscenity” prohibition which, as in the instant case, the plaintiffs had not challenged. 117 S. Ct. at 2350-51. As is abundantly clear from the ACLU opinion, the government vigorously argued, and the Court agreed, that “indecent” speech is a much broader and different category speech than “obscenity.” In ACLU, the government argued that “the CDA’s definition of indecency is almost identical to the definition” in Denver Area Educational Telecommunications Consortium v. FCC, supra, 116 S. Ct. 2374. Brief for the Appellants, p. 43 (Exh. D to Turner decl.). It would be absurd to ascribe different meaning to the term “indecent” in § 223(a)(1)(A) than to the very same term in § 223(a)(1)(B).

Similarly, § 223(b) treats “obscene” telephone communications as entirely distinct from “indecent” telephone communications. Subsection (b)(1), regarding obscene communications, carries significantly more severe penal consequences than Subsection (b)(2), regarding merely indecent communications; in addition, the indecency prohibition is subject to safe harbor defenses necessary to its constitutionality. The Supreme Court held that the previous version of Subsection (b)(2) violated the First Amendment by prohibiting indecent communications (which are constitutionally protected among adults), but the Court upheld the prohibition of obscene communications (which are unprotected). Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). Again, it would be absurd to ascribe different meaning to the term “indecent” in Subsection (a)(1)(A) of § 223 than to the very same term in Subsection (b).^/

Further, there is more in Subsection (a)(1)(A) itself than the “string” referred to by the government. Unlike the statutes in the cases relied on by the government, § 223(a) does not apply unless the defendant has the “intent to annoy, abuse, threaten, or harass another person.” But if the statute were limited to “obscene” communications, as the government now proposes, the intent to annoy requirement would be entirely surplussage: obscene communications can be proscribed regardless of such intent. Rendering such a crucial statutory provision unnecessary again violates established canons of statutory construction. E.g., Bailey v. United States, 116 S. Ct. 501, 506-07 (1995), and the other cases cited by the government in Exhibit C to the Turner decl. and note 3, supra.

Finally, the government’s “construction” ignores the rest of the provisions of § 223(a)(1)(A). The statute does not criminalize a “work” that appeals to the “prurient interest” and lacks literary value, as in the Miller definition. Instead, it applies to a “comment,” a “proposal” a “suggestion,” or other “communication.” It is difficult to see how a comment, a proposal or a suggestion could ever constitute an “obscene” work (like a book or a videotape) under Miller.

Congress did not pass the Communications “Obscenity” Act; it passed the Communications Decency Act, and Congress was well aware of the difference. Defendant asserts that the legislative history is “ambiguous.” Def.Opp. at 18. It is not. Neither in the debate nor in the only Congressional report is there the slightest indication that § 223(a)(1)(A) was limited to obscenity. The only references to this provision unequivocally show that this provision was intended to reach far beyond obscenity.

On the Senate floor, no Senator even hinted that § 223(a)(1)(A) was limited to obscenity. After sponsor Exon explained the provisions of the Communications Decency Act (141 Cong. Rec. S8328)(daily ed. June 14, 1995), Senator Leahy pointed out that § 223(a)(1)(A) made it a felony “not only to send obscene messages” but also to use “indecent or filthy words” that may “annoy” another person. 141 Cong. Rec. S8331.^/ Senator Feingold then complained at length that “Senator Exon’s bill would likely have a chilling effect on protected speech — speech which may be perceived as indecent, but not obscene.” 141 Cong. Rec. S8334, S8335 (emphasis added). Immediately following Senator Feingold’s observation that “existing criminal statutes” already dealt with “the transmission of obscenity using interactive communications” (S8336),^/ Senator Exon rose again, saying that he had been “listening with keen interest” to the points made by Senators Leahy and Feingold (S8337) and he wanted to “straighten out some of the concerns.” S8339. But not once did he indicate in any way that Leahy and Feingold were misconstruing the bill. Then Senator Leahy repeated his point about § 223(a)(1)(A)’s reaching “an email message with an indecent or filthy word” that may “annoy” the recipient (S8340), and noted that existing laws already covered “obscenity transmitted over computer networks.” S8341.

Sponsors Exon and Coats responded again, never disputing these points. S8344, S8345. Then Senator Biden complained that the bill reached “indecent speech [that] — unlike obscenity — is protected first amendment expression.” S8345. Next, Senator Levin objected to § 223(a)(1)(A)’s prohibiting “a ‘filthy comment’ on the Internet which, in the words of the amendment, is intended to annoy.” S8346. Senator Exon rose again and yielded back his time without disputing these points, whereupon the Senate immediately voted 84-16 to adopt the Exon bill. S8346-47.

The following day, Senator Moynihan complained that the bill was “too broad,” covering “computer transmission of obscenity and indecency,” and would “prohibit an individual from sending an annoying e-mail message.” S8462 (daily ed. June 15, 1995). No senator disagreed with his point.

The only congressional report on the Communications Decency Act specifically adopts the broad FCC/ Pacifica/Sable definition of indecency. H.R. Cong. Rep. No. 104-458, at 188. See plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 11-12. The government acknowledges that the FCC “had long interpreted section 1464 to extend to communications that are not obscene under Miller.” Def.Opp. p. 14. In Reno v. ACLU, the government told the Supreme Court that in the Communications Decency Act, as shown by the Report, “Congress intended to codify the FCC’s definition of indecency that was approved in Pacifica.” Brief of the Appellants, p. 44 (Exh. D to Turner decl.)(emphasis added). Congress did not intend “indecent” in § 223 (a)(1)(A) to have a different meaning from the same term in all the other provisions of the Communications Decency Act.

Nor does the evolution of the predecessor of § 223(a) demonstrate that Congress intended to limit it to Miller obscenity. Indeed, the statutory history demonstrates that there was no such intent. First, § 223 was originally enacted five years before Miller and six years before Hamling held that a similar (but not identical) “string” of terms would be deemed Miller obscenity. Second, nothing in legislative history shows an intent to limit the provision to obscenity. To the contrary, the House Report repeatedly refers to “obscene, abusive or harassing” telephone calls. H.R. No. 1109 (attached as Exh. F to Turner decl.)(emphasis added). The only concrete example of speech prohibited by § 223 is “calling families of men serving in Vietnam and falsely reporting the serviceman’s death, or if death has in fact occurred, gloating over it.” Id. at p. 1916. Whatever else this is, it is not Miller obscenity.

Third, the Department of Justice opposed the statute because, among other things, the term “annoy” “might well be unconstitutionally vague.” Letter from Ramsey Clark, Deputy Attorney General, May 11, 1966, cited at Def.Opp. 15, n.15 and attached as Exh. G to Turner decl. The Department opposition said that there would “probably” be no problem with the terms “obscene,” “lewd,” “lascivious,” “filthy” or “indecent,” because Roth concluded that “they” are not unconstitutionally vague. Id. There was no suggestion that the terms meant the same thing, viz., “obscene” only.

Fourth, the cases that upheld the predecessor of § 223(a) did so because it was read to reach the conduct of making “harassing” calls, not Miller obscenity. See United States v. Lampley, 573 F.2d 783, 786-88 (3d Cir. 1978); cf. Thorne v. Bailey, 846 F.2d 241, 243, 244 (4th Cir.) (construing state statute “practically identical” to § 223), cert. denied, 488 U.S. 984 (1988); United States v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972). The decision in United States v. Darsey, 431 F.2d 964 (5th Cir. 1970), demonstrates that “obscene” phone calls by an angry estranged husband do not under § 223 have to meet the requirements for Miller obscenity. It does not appear that the government has ever heretofore contended that § 223 was limited to unprotected “obscene” speech.

Finally, the government notes that the predecessor was moved to subsection (a) to “make room” for the dial-a-porn provisions added as subsection (b) in 1983. Def.Opp. at p. 3. Those provisions, of course, prohibited “obscene or indecent” telephone communications. The government does not explain how Congress could have intended “indecent” in subsection (b) to mean something far broader and different than “indecent” in subsection (a).

In short, defendant’s contention that § 223 is limited to speech that is “obscene” under Miller is not persuasive. As in Reno v. ACLU, the Court should decline to “dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn…” 117 S. Ct. at 2351 (quoting United States v. Treasury Employees Union, 513 U.S. 454, 479, n.26 (1995)). Adopting the government’s “construction” to avoid declaring § 223 unconstitutional would present the same vice condemned by the Court in ACLU: “It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.” 117 S. Ct. at 2351 n.49, quoting United States v. Reese, 92 U.S. 214, 221 (1876). As in ACLU, the Court should not “rewrite” the statute to save it. Id.; accord, Finley v. NEA, supra, 100 F.3d at 678.^/

The government says in a footnote that if its new-found construction of the CDA is not adopted by the Court, it “reserves the right” to argue — at some unspecified future time and place — that § 223 is constitutional as written. Def.Opp. at 11, n.11. The Stipulation and Order of July 15, 1997, however, required defendant to file her “complete” response to plaintiff’s motion by August 22. Accordingly, the government’s opposition to the preliminary injunction must stand or fall on the record before the Court. If the government wishes to contend that the statute is constitutional and should not permanently be enjoined at the conclusion of this litigation, it may do so after the preliminary injunction is in place.

Inconsistently with its position that the statute reaches only obscenity, the government argues that a preliminary injunction against prosecuting plaintiff for merely “indecent” communications would impair the “public interest.” Def.Opp. at 22. If the statute covers only obscenity, however, then granting an injunction against prosecuting plaintiff for “indecency” does not impair any public interest.

Defendant inexplicably asserts that a preliminary injunction would prevent enforcement of a statute “designed to protect the public from harassment.” Id. (Emphasis added.) The government cannot have it both ways — either the statute was designed only to protect against obscenity, in which case harassment or annoyance is irrelevant, or it was designed to cover everything comprehended by its plain language.

If further authority were required for the proposition that irreparable injury is presumed from a First Amendment violation, there is plenty of it. Among only 1997 cases, see Conant v. McCaffrey, 172 F.R.D. 681, 697 (N.D. Cal. 1997) (granting preliminary injunction); Nakatomi Investments, Inc. v. City of Schenectady, 949 F. Supp. 988, 991 (N.D.N.Y. 1997)(“per se irreparable injury”); ACLU v. Miller, ___ F. Supp. ___ (N.D. Ga. 1997) (copy attached to Turner decl. as Exh. H); cf. American Library Ass’n v. Pataki, 969 F. Supp. 160, 167-68 (S.D.N.Y. 1997)(granting preliminary injunction on Commerce Clause grounds).^/

Finally, both First Amendment values and the public interest would be disserved if the Court allowed § 223 to stand on the books untouched by judicial condemnation. It is unclear whether, by filing a brief in a federal district court, the government would be estopped from later changing its position. The government’s position in this case contravenes the statute. On that ground alone, a court would lack authority to estop the government regardless of the equities. Office of Personnel Management v. Richmond, 496 U.S. 414, 432 (1990) (“we cannot accept the suggestion . . . that the terms of a statute should be ignored based on the facts of individual cases”); cf. Heckler v. Community Health Services, 467 U.S. 51, 60 (1984) (discussing estoppel against government). Indeed, in Richmond, the government urged that “the courts are without jurisdiction to compel the Government to act contrary to a statute, no matter what the context or circumstances.” 496 U.S. at 423. See Brief for the Petitioner at 12-13, Richmond (no. 88-1943). Moreover the Department of Justice Manual states that “The general rule is that the federal government may not be equitably estopped from enforcing public laws, even though private parties may suffer hardships as a result in particular cases.” 3 DOJ Manual § 4-8.700 (Aspen Law & Bus. 1997).^/

In ACLU v. Reno, the government stated that even a submission by the Assistant Attorney General to a three-judge court interpreting the CDA “would not prohibit a United States Attorney from taking a contrary position in a particular prosecution.” 929 F. Supp. at 878 n.20. Defendant does not assert that an obscure brief filed in one district court would be binding on United States Attorneys throughout the nation, barring all of them from prosecuting plaintiff or any other Internet speaker for communicating anything “indecent” with “intent to annoy.”

Further, anyone reading the statute would have no clue that it did not mean what it says on its face.^/ Section 223 would chill and discourage a wide range of speech that enjoys constitutional protection. At a minimum, therefore, the Court should grant a declaratory judgment formally determining that § 223’s prohibition of “indecent” speech cannot constitutionally be enforced.^/

CONCLUSION

A principled position by the government would be to submit to a judgment with preclusive effect, ruling out any prosecution for “indecent” speech, with or without the “intent to annoy.” Instead, defendant attempts a desperate distortion of the statute to avoid a ruling of unconstitutionality. For the reasons stated in plaintiff’s previous memorandum, plaintiff’s Supplemental Memorandum on the effect of Reno v. ACLU, and above, the Court should squarely address the issue, grant the motion for a preliminary injunction, and, at the very least, grant a declaratory judgment to the effect that § 223 cannot constitutionally be invoked to prosecute “indecent” communications.

DATED: October 14, 1997 Respectfully submitted,

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O’Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff
APOLLOMEDIA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CLINTON DEAN FEIN declares as follows:

1. I am the President and co-founder of ApolloMedia Corporation, the plaintiff in this action. I make this declaration in support of our motion for a preliminary injunction enjoining the enforcement of 47 U.S.C. §§223(a)(1)(A)(ii) and (a)(2), as amended by the Communications Decency Act of 1996.

2. ApolloMedia is a Delaware corporation formed in 1994. Its principal place of business is in San Francisco, California. ApolloMedia is a multimedia technology company whose business is entirely devoted to computer-mediated communications. We provide consulting services, design, develop, construct and implement Internet and database technologies, including sites on the World Wide Web. Additionally, we license customized network solutions for the management and delivery of information using telecommunications. We also write, develop and produce multimedia “content” for corporate, educational and entertainment purposes. We use computers, modems and telephone lines to communicate our own content as well as content published by our clients and web site visitors.

3. Our web sites and some of our clients’ web sites often communicate strong positions using expression that may be considered "indecent" by some people in some communities. Specifically, our web site entitled “annoy.com” (http://www.annoy.com), among other things, contains a “heckle” section that enables visitors to construct and send email messages, anonymously, to various public officials and public figures, as well as other sections that transmit views on controversial matters. Our online databases contain material of social or political value, some of which is sexually explicit or uses vulgar language. We communicate, and “knowingly permit” our clients and visitors to our sites to communicate, material that may be considered “indecent” in some communities.

4. ApolloMedia, its clients and its site visitors wish freely to be able to criticize public officials and public figures by using whatever language or imagery seems to them appropriate to the occasion and, whenever they wish, to “annoy” such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions. For example, some of us wish to criticize President Clinton, Speaker Newt Gingrich, Senators Dianne Feinstein, James Exon and Jesse Helms, former Congressman Robert Dornan, Ralph Reed of the Christian Coalition, California Governor Pete Wilson, Justices of the Supreme Court, and others, using language that they may consider “indecent, with the intent to annoy” them, because of their role in proposing, enacting and approving the Communications Decency Act or because of their role or position in other public measures or debates with which we vigorously disagree.

5. Our “annoy.com” web site presents visitors with a choice of several topical issues in which they might be interested. A visitor to the site is immediately presented with a collage of animated graphics that flash a combination of words and images that may be considered “indecent” by some people in some communities. The issues currently on the site include masturbation, censorship, health care, marriage, the environment and gays in the military, with new ones added on a weekly basis. A visitor selects an issue of interest and then “clicks” on a button to see an article on the issue chosen. ApolloMedia commissions articles from freelance authors, who are encouraged to take strong, provocative positions. Each article mentions various public officials or public figures who are involved in the particular issue. A visitor, by selecting from a “drop down menu” offering several options, can compose an anonymous email message to persons named in the article. Each article includes about four persons to whom messages may be sent. Some of the options contain material that may be considered “indecent” in some communities. When the message is completed, the visitor sends it to the person selected with a mouse click. Visitors to this section are not required to register or provide any identifying information. Recipients, of course, may choose whether to read any message sent to them, just as with any other email.

6. The “annoy.com” site also includes a “gibe” section, which is a threaded message board. This means that a visitor can read all previous messages and add his or her own. Visitors may leave messages concerning particular issues and add other issues of concern to them. In their messages, visitors can create hypertext links to other documents or web sites. While a visitor may read any messages, in order to post messages in the “gibe” section, visitors must register with their email addresses and may create a “user name” for anonymity but no other identifying information is required. We do not censor the messages, or the linked materials, which may take issue with other messages in strong (even “indecent”) terms.

7. The “annoy.com” web site also includes a “censure” section, which allows visitors to send a digital postcard via the Internet. A visitor selects a card from numerous options, enters in the email address of the recipient, the text of the message, and his or her own name and email address. Once the visitor submits the information, an automatic email is generated and sent to the recipient informing him or her of a pending postcard at an automatically generated url (uniform relay locator) on the “annoy.com” web site. The recipient can then actively undertake to receive the card by entering the url on a web browser, which will transmit the postcard that has been sent.

8. Another section, “CDA” (Created and Designed to Annoy), updates visitors to the site if there is new content, and itself contains content that some people in some communities may consider “indecent” or “annoying.” For instance, the “Weekly Irrit8" page contains quotes by public officials or public persons that may be construed as “annoying,” including a commentary, sometimes accompanied by graphics, that may be considered “indecent” or “annoying” by some people in some communities. These are updated on a weekly basis. “Media Muck,” another weekly component of this section, criticizes and mocks media coverage of national events and people ranging from print to broadcast, the Internet and web sites in a manner that some people in some communities might consider “indecent” or “annoying.” Another component of this section, “Most Annoying Ad Campaign,” is a monthly parody of the most annoying national advertising campaign. These parodies also may be considered “indecent” or “annoying” by some people in some communities.

9. Attached are true copies of representative pages from the "annoy.com" site. Exhibit A is the home page, the first page a visitor sees. Exhibit B shows the images and words that flash quickly on the opening page. Exhibit C includes a sample article and a sample completed email message reflecting the choices of the visitor to the site. Exhibit D are other sample email messages reflecting the choices of the visitor. Exhibit E includes another sample article and completed email message. Exhibit F are other sample email messages. Exhibit G is a third sample article and completed email message. Exhibit H are other sample email messages. Exhibit I is the “censure” page with sample “postcards.” Exhibit J is the “gibe” page described in paragraph 6 above. Exhibit K is a page devoted to the CDA and to this case. Exhibit L is the “Weekly Irrit8" page described in paragraph 8 above. Exhibit M is the “Most Annoying Ad Campaign” parody also described in paragraph 8.

10. We also maintain a web site called "xq.com" (http://www.xq.com), which we make available to clients for their use. For example, we currently have a site there for "Greg and Matt’s Wedding Web Site,” a web site created for a gay couple who had a wedding ceremony. The site includes photographs of them and allows visitors to leave messages for them. The messages can include hypertext links to other documents and sites. Some of the messages or links may include material considered "indecent" by some people in some communities, and I am aware that the very concept of gay marriage is considered "indecent" to some people in some communities. "Xq.com" also has other sites, some used by non-profit organizations including the Service Members Legal Defense Network (assisting military service members investigated concerning homosexuality and sexual harassment), and the Hawaii Equal Rights Marriage Project (attempting to secure the right to marriage for gay and lesbian couples).

11. I do not understand what "indecent" means in §223(a)(1)(A)(ii). In my experience, it can mean very different things to different people in different localities, and I am unclear when we may violate the law with any of the content that we or our clients or visitors communicate online. Even if "indecent" means "patently offensive" and has to do with sexual or excretory activities, I still am unclear when we may step over the invisible line and become criminals. I also am unclear whether or when any of the content on our sites or the communications from our clients or visitors may be considered "annoying" to others, including the recipients of the messages composed on "annoy.com." Even if I were clear on whether the precise content currently available on our web sites is or is not “indecent” or “annoying,” new material is continuously being added, both by us and by our clients and visitors, so it is impossible to be clear when we may be deemed to violate the law. Several prospective advertisers have asked about legal risks in being associated with our “annoy.com” site, and I have been unable to give them any firm assurances. The only practical insurance against prosecution (which would be ruinously expensive for us even if we ultimately were acquitted) is to stay away completely from sexual subjects (including subjects of great interest to sexual minorities and society in general).

12. Finally, on a personal note, it is important for me to state for the record that I was born and raised in South Africa during Apartheid. My desire to be a journalist was thwarted by the repressive censorship, as I lived in a country where one could be imprisoned for quoting Nelson Mandela (who at the time was in prison for revolutionary activities). I underwent the often difficult process of immigration, becoming an American citizen in 1994, partly because of the First Amendment’s promise of free speech. With the enactment of the Communications Decency Act, that affects me daily in my professional life, I feel defrauded. I would have freer speech now in South Africa than I do under the CDA. Upon being naturalized as an American, I took an oath to protect the principles of the Constitution from enemies foreign and domestic. A strong motivation for my wanting to bring this lawsuit is to fulfill that promise and have America live up to its promise of freedom.

I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California, on January 30, 1997.

__________________________________________

CLINTON DEAN FEIN

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O’Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff
APOLLOMEDIA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

CLINTON DEAN FEIN declares as follows:

1. I am the President and co-founder of ApolloMedia Corporation, the plaintiff in this action. I make this supplemental declaration to respond to various contentions made by defendant in opposing our motion for a preliminary injunction, including statements made in the declaration of government witness Howard Schmidt.

2. I have devoted almost my entire professional life to computer-mediated communications. I personally have designed and implemented Internet and database technologies, including numerous sites on the World Wide Web. I am completely familiar with the development and use of the technology used in computer-mediated communications and with the Internet. If called as a witness in this action, I could competently testify to all the matters stated in this and my earlier declaration.

3. The Internet is a giant network that interconnects innumerable smaller groups of linked computer networks, for the purpose of exchanging files and messages (and to share databases and equipment such as printers). The Internet has experienced extraordinary growth in recent years, and now includes over 9,400,000 host computers worldwide, of which approximately 60 percent are located within the United States. This does not include the personal computers that people use to access the Internet using modems. In all, as many as 40 million people around the world can and do access the Internet.

4. Some of the computers and computer networks that make up the Internet are owned by governmental and public institutions, some are owned by non-profit organizations and some are privately owned. The result is a decentralized, global medium of communications — or "cyberspace" — that links people, institutions, corporations and governments around the world. This communications medium allows any of the tens of millions of people with access to the Internet 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 an open-ended audience.

5. Messages between computers on the Internet do not necessarily travel entirely along the same path. The Internet uses "packet switching" communication protocols that allow individual messages to be subdivided into smaller "packets" that are then sent independently to the destination, and are then automatically reassembled by the receiving computer.

6. No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions because hundreds of thousands of separate operators of computers and computer networks independently use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point or communications channel for the Internet.

7. Individuals have a wide variety of avenues to access the Internet. In terms of physical access, there are two common methods to establish an actual link to the Internet. First, a person can use a computer or computer terminal that is directly (and usually permanently) connected to a computer network that is itself directly or indirectly connected to the Internet. Second, a person can use a "personal computer" with a "modem" to connect over a telephone line to a larger computer or computer network that is itself directly or indirectly connected to the Internet. Both direct and modem connections are made available to people by a wide variety of academic, governmental or commercial entities.

8. Individuals can access the Internet through commercial and non-commercial "Internet service providers" that typically offer modem telephone access to a computer or computer network linked to the Internet. Many such providers are commercial entities offering Internet access for a monthly or hourly fee. Some Internet service providers, however, are non-profit organizations that offer free or very low cost access to the Internet.

9. Another common way for individuals to access the Internet is through one of the major international commercial "online services" such as America Online, CompuServe, the Microsoft Network or Prodigy. These online services offer nationwide computer networks (so that subscribers can dial-in to a local telephone number), and the services provide extensive and organized content within their own proprietary computer networks. In addition to allowing access to the content available within each online service, the services also allow subscribers to link to the much larger resources of the Internet. Full access to an online service (including access to the Internet) can be obtained for monthly or hourly fees. The major commercial online services have almost twelve million individual subscribers across the United States.

10. Although commercial access to the Internet is growing rapidly, many users of the Internet — such as college students and staff and corporate employees — do not individually pay for access. These and other Internet users can access the Internet without paying for such access with a credit card or other form of payment.

11. Once a person has access to the Internet, there are several different methods of communication and information exchange over the network. These methods of communication and information retrieval are constantly evolving. The most common methods of communications on the Internet (as well as within the major online services) can be roughly grouped into six categories:

(a) one-to-one messaging (such as "e-mail"),

(b) one-to-many messaging (such as "listserv"),

(c) distributed message databases (such as "USENET newsgroups"),

(d) real time communication (such as "Internet Relay Chat"),

(e) real time remote computer utilization (such as "telnet"), and

(f) remote information retrieval (such as "ftp," "gopher," and the "World Wide Web").

Most of these methods of communication can be used to transmit text, data, computer programs, sound, visual images (i.e., pictures), and moving video images.

12. One-to-one messaging. One method of communication on the Internet is via electronic mail, or "e-mail," analogous to sending a first class letter. A person can address and transmit a message to one or more other people. E-mail on the Internet is not routed through a central control point, and can take many and varying paths to the recipients. ApolloMedia’s "heckle" section on annoy.com enables visitors to send e-mail to designated public officials and public figures, as described in my earlier declaration. ApolloMedia’s "censure" section on annoy.com enables visitors to use digital postcards as a means of one-to-one communication. This section allows visitors to send text, graphics or other forms of media, in addition to basic text. The visitor sends the card to a designated recipient who is then notified via email that a card is waiting for his or her viewing at annoy.com’s web site.

13. One-to-many messaging. The Internet also contains automatic mailing list services (such as "listservs" or "mail exploders") that allow communications about particular subjects of interest to a group of people. For example, people can subscribe to a "listserv" mailing list on a particular topic of interest to them. The subscriber can submit messages on the topic to the listserv that are forwarded (via e-mail) to anyone who has subscribed to the mailing list. A recipient of such a message can reply to the message and have the reply also distributed to everyone on the mailing list. This service provides the capability to keep abreast of developments or events in a particular subject area. Most listserv-type mailing lists automatically forward all incoming messages to all mailing list subscribers. There are thousands of such mailing list services on the Internet, collectively with hundreds of thousands of subscribers.

14. Distributed message databases. Similar in function to listservs — but quite different in how communications are transmitted — are distributed message databases such as "USENET newsgroups." User-sponsored newsgroups are among the most popular and widespread applications of Internet services, and cover all imaginable topics of interest to users. Like listservs, newsgroups are open discussions and exchanges on particular topics. Users, however, need not subscribe to the discussion mailing list in advance, but can instead access the database at any time. ApolloMedia’s "gibe" section on annoy.com is similar to a newsgroup, but uses a different messaging database.

15. Real time communication. In addition to transmitting messages that can be later read or accessed, individuals on the Internet can engage in an immediate dialogue, in "real time", with other people on the Internet. In its simplest forms, "talk" allows one-to-one communications and "Internet Relay Chat" (or IRC) allows two or more to type messages to each other that almost immediately appear on the others’ computer screens. IRC is analogous to a telephone party line, using a computer and keyboard rather than a telephone. With IRC, however, at any one time there are thousands of different party lines available, in which collectively tens of thousands of users are engaging in conversations on a huge range of subjects.

16. Real time remote computer utilization. Another method to use information on the Internet is to access and control remote computers in "real time" using "telnet." For example, using telnet, a researcher at a university would be able to use the computing power of a supercomputer located at a different university. A student can use telnet to connect to a remote library to access the library’s online card catalog program.

17. Remote information retrieval. The final major category of communication may be the most well known use of the Internet — the search for and retrieval of information located on remote computers. There are three primary methods to locate and retrieve information on the Internet. A simple method uses "ftp" (or file transfer protocol) to list the names of computer files available on a remote computer, and to transfer one or more of those files to an individual’s local computer. Another approach uses a program and format named "gopher" to guide an individual’s search through the resources available on a remote computer.

18. A third approach, and probably the most well-known on the Internet, is the "World Wide Web." The Web utilizes a "hypertext" formatting language called hypertext markup language (HTML), and programs that "browse" the Web can display HTML documents containing text, images, sound, animation and moving video. Any HTML document can include links to other types of information or resources, so that while viewing an HTML document that, for example, describes resources available on the Internet, one can "click" using a computer mouse on the description of the resource and be immediately connected to the resource itself. Such "hyperlinks" allow information to be accessed and organized in very flexible ways, and allow people to locate and efficiently view related information even if the information is stored on numerous computers all around the world.

19. The World Wide Web is a series of documents stored in different computers all over the Internet. Documents contain information stored in a variety of formats, including text, still images, sounds, and video. An essential element of the Web is that any document has an address (like a telephone number). Most Web documents contain "links." These are short sections of text or image which refer to another document. Typically the linked text is blue or underlined when displayed and, when selected by the user, the referenced document is automatically displayed, wherever in the world it actually is stored. Similarly, graphics typically denote a link by causing the mouse cursor to change shape or display the referenced link at the bottom of the browser window. Links are used to lead from overview documents to more detailed documents, from tables of contents to particular pages, and also as cross-references, footnotes and new forms of information structure.

20. Many organizations now have "home pages" on the Web. These are documents that provide a set of links designed to represent the organization, and through links from the home page, guide the user directly or indirectly to information about or relevant to that organization.

21. Links may also take the user from the original web site to another web site on another computer connected to the Internet. 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.

22. The World Wide Web exists fundamentally as a platform through which people and organizations can communicate through shared information. When information is made available, it is said to be "published" on the Web. Publishing on the Web simply requires that the "publisher" has a computer connected to the Internet and that the computer is running server software. The computer can be as simple as a small personal computer costing less than $1,500.

23. Information to be published on the Web must also be formatted according to the rules of the Web standards. These standardized formats assure that all Web users who want to read the material will be able to view it. Web standards are sophisticated and flexible enough that they have grown to meet the publishing needs of many large corporations, banks, brokerage houses, newspapers and magazines which now publish "online" editions of their material, as well as government agencies, and even courts, which use the Web to disseminate information to the public. At the same time, Web publishing is simple enough that thousands of individual users, small companies and community organizations can do it.

24. Web publishers have a choice to make their web sites open to the general pool of all Internet users, or close them, thus making the information accessible only to those with advance authorization. Many publishers, like ApolloMedia, choose to keep their sites open to all in order to give their information the widest potential audience. If publishers choose to restrict access, this may be accomplished by assigning specific user names and passwords as a prerequisite to access to the site. However, maintaining a list of users and passwords can be a time-consuming and therefore prohibitively expensive task; for a busy site, this may actually involve more time, skills and processing than the creation and distribution of the content itself.

25. A variety of systems have developed that allow users of the Web to search particular information among all of the public sites that are part of the Web. Services such as Yahoo, HotBot, Altavista, Webcrawler, and Lycos are known as "search engines." They allow users to search for Web sites that contain certain categories of information, or to search for key words. For example, a Web user looking for the text of Supreme Court opinions would type the words "Supreme Court" into a search engine, and then be presented with a list of World Wide Web sites that contain Supreme Court information. This list would actually be a series of links to those sites. Having searched out a number of sites that might contain the desired information, the user would then follow individual links, browsing through the information on each site, until the desired material is found. For many content providers on the Web, the ability to be found by these search engines is very important.

26. The Web links together disparate information on an ever-growing number of Internet-linked computers by setting common information storage formats (HTML) and a common language for the exchange of Web documents (HTTP). Although the information itself may be in many different formats, and stored on computers which are not otherwise compatible, the basic Web standards allow communication and exchange of information. Despite the fact that many types of computers are used on the Web, and the fact that many of these machines are otherwise incompatible, those who "publish" information on the Web are able to communicate with those who seek to access information with little difficulty because of these basic technical standards.

27. Running on tens of thousands of individual computers on the Internet, the Web is a "distributed system." No single organization controls membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web. From a user’s perspective, it may appear to be a single, integrated system, but in reality it has no centralized control point.

28. The World Wide Web has become popular because of its open, distributed and easy-to-use nature. Rather than requiring those who seek information to purchase new software or hardware, and to learn a new kind of system for each new database of information they seek to access, the Web environment makes it easy for users to jump from one set of information to another. By the same token, the open nature of the Web makes it easy for publishers to reach their intended audiences without having to know in advance what kind of computer each potential reader has or what kind of software will be used.

29. Various companies market software that is intended to enable users to limit the Internet access of children and others. Examples of such software include Cyber Patrol, The Internet Filter, Net Nanny, Parental Guidance, SurfWatch, Netscape Proxy Server and WebTrack. The software is designed to enable parents, employers or others selectively to block access to any or all of various sites or categories. Categories may include violence, profanity, nudity, sexual acts (graphic or text), racism, etc. The software is inexpensive and, indeed, free on most major online services like America Online.

30. If a recipient of email from annoy.com (through our "censure" section) does not wish to receive an email "postcard" from annoy.com, the user simply can choose not to click on the "link" in the email to activate the web page that displays her or his postcard. Further, if the recipient wishes to avoid even being notified by email that someone left a "postcard" for them at annoy.com, some mail server systems have the capability for administrators to refuse any messages from certain domains — a feature being provided largely to prevent "spamming" by unwanted advertisers. ("Spamming" may be considered the mass emailing of unsolicited commercial information advertising goods or services.) The "censure" postcard system on annoy.com was also designed to allow for restricted email addresses. If the annoy.com administrator receives an email requesting that no further "postcards" be sent to her/his email address, the annoy.com administrator is able to place that person’s email address in a "restricted emails" database. The script, developed by ApolloMedia, that sends the postcards first checks this list of email addresses before allowing the email notification of the postcard to be sent.

31. The Internet is not exclusively, or even primarily, a means of commercial communication. Many commercial entities maintain web sites to inform potential consumers about their goods and services, or to solicit purchases, but many other web sites, like annoy. com, disseminate non-commercial information. The other forms of Internet communication — e-mail, bulletin boards, newsgroups, and chat rooms — frequently have non-commercial goals. The Internet is an especially attractive means for not-for-profit entities or public interest groups, like several ApolloMedia clients, to reach their desired audiences.

32. The diversity of content on the Internet is possible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. The start-up and operating costs are significantly lower than those associated with forms of mass communication such as television, radio, newspapers and magazines. This enables web sites to be operated not only by large companies, such as Microsoft and Time Warner, but also by small companies like ours, not-for-profit groups and individuals.

33. Because of the different forms of Internet communication, a user of the Internet may speak or listen interchangeably, blurring the distinction between "speakers" and "listeners" on the Internet. Chat rooms, e-mail, and newsgroups are interactive forms of communication, providing the user with the opportunity both to speak and to listen. On annoy.com, for example, a visitor may read an article and then become a speaker, communicating his or her views to others interested in the same subject or to public figures.

34. Unlike traditional media, the barriers to entry as a speaker on the Internet do not differ significantly from the barriers to entry as a listener. Once a person has entered cyberspace, he or she may actively engage in the dialogue that occurs there, or simply access it without actively interacting with it.

35. Once content is posted on the Internet, that content can enter any community worldwide. Unlike the newspaper, broadcast station, or cable system, Internet technology necessarily gives a speaker a potential worldwide audience. Because the Internet is a network of networks, any network connected to the Internet has the capacity to send and receive information to any other network.

36. It takes several steps to participate in cyberspace. A user must of course have access to a computer with the ability to reach the Internet (typically by way of a modem). A user must then direct the computer to connect with the access provider, enter a password, and enter the appropriate commands to find particular data. On the World Wide Web, a user must normally use a search engine or enter an appropriate address. Similarly, accessing newsgroups, bulletin boards, and chat rooms requires several steps.

37. Communications over the Internet do not "invade" an individual’s home or appear on one’s computer screen unbidden. Users seldom encounter content "by accident." A document’s title or a description of the document will usually appear before the document itself takes the step needed to view it, 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. Unlike broadcast media today, where one must view the actual content of the television channel or radio station as it is being broadcast, with web-related content, the user generally has some idea of the content at the prospective site and must actively choose to click to retrieve the document.

38. Email messages sent by annoy.com visitors through both the "heckle" and the "censure" sections carry a subject line, allowing the recipient to see both the source and the subject before choosing to read it.

39. Similarly, postcards sent through the annoy.com "censure" section inform the recipient first that a postcard addressed to the recipient is available at a designated URL. The recipient then affirmatively chooses to go to the URL in order to see the postcard.

40. There is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups or chat rooms. An e-mail address provides no authoritative information about the addressee, who may use an e-mail "alias" or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way for a sender to know if the e-mail recipient is an adult or a minor.

41. Similarly, individuals posting a message to a newsgroup like the annoy.com "gibe" section, or engaging in chat room discussions, cannot be sure that all readers are adults.

42. Unlike other forms of communication on the Internet, there is technology by which an operator of a World Wide Web server may make inquiries of a user of a web site. An HTML document can include a fill-in-the-blank "form" to request information from a visitor to a web site, and this information can be transmitted back to the web server and be processed by a computer program, usually a Common Gateway Interface (cgi) script. The web server could then grant or deny access to the information sought. The cgi script is the means by which a web site can process a fill-in form and thereby screen visitors. This may be useful if the site charges users for information on the site or sells products through the site.

43. Verification by credit card is economically and practically unavailable for ApolloMedia. The fee charged by verification agencies to process a card precludes our use of credit-card verification. We receive a large number of "hits" every day on the annoy.com site. If we had to pay a fee every time a user initially enters our site, then, to continue to provide free access to our site, we would incur costs that very quickly would bankrupt the company. Furthermore, requiring credit card charges would be a significant impediment to publishing data on the web, as many users would simply refrain from "joining" the web site. Many users of the Internet browse several, if not hundreds, of web sites in an average week. If they were required to pay for each web site they visited, they would simply choose not to visit very many sites, thereby limiting successful web page publishing to large companies that can afford the cost of creating "meta-sites" (a one-stop-has-all content site). Finally, requiring credit cards for access would prevent communication with persons who are economically disadvantaged and do not have credit cards.

44. Further, the "Gibe" section of annoy.com contains many messages that contain political discourse and debate. There is a certain sense of protocol by most Internet users that would prevent them from participating in these debates if they felt they must be "paid for." (One does not have to pay to write a letter to the editor in a newspaper voicing a position; whey then should one have to pay to do so on a web site?) Verification requirements would decrease advertising and revenue, which already is minimal, because advertisers depend on a demonstration that the sites are widely available and frequently visited.

45. The feasibility and effectiveness of "tagging" to restrict access to "indecent" speech has not been established. "Tagging" would require content providers to label all of their "indecent" or "patently offensive" material by embedding a string of characters, such as "XXX," in either the URL or HTML. If a user could install software on his or her computer to recognize the "XXX" tag, the user could screen out any content with that tag.

46. Tagging would require all content providers like ApolloMedia who post arguably "indecent" material to review all of their online content, a task that would be impossibly burdensome for a small company like ours that provides large amounts of material online. We cannot afford to pay a staff to review all of that material; the cost and effort would be prohibitive. Even if we had unlimited resources, we have no way of knowing with certainty what might be considered "indecent" or even "obscene" in whatever community accesses our content. The task of screening and tagging cannot be done simply by using software that screens for certain words, as determinations as to what is "indecent" require human judgment as to both words and images.

47. Tagging also assumes the existence of software that recognizes the tags and takes appropriate action when it notes tagged speech. Neither commercial web browsers nor user-based screening software is currently configured to block any particular codes. Until such software exists, all speech on the Internet will continue to travel to whomever requests it, without hindrance. Labeling speech has no effect in itself on the transmission of that speech. There is no way that a speaker can use current technology to know if a listener is using screening software.

48. Tags cannot currently activate or deactivate themselves depending on the identity or location of the receiver. We would be unable to embed tags that block speech only in communities where it may be regarded as "indecent."

49. Anonymity is important to many Internet users who seek to access controversial information like that on annoy.com. The Gibe section on annoy.com requires the user to "register" with the site in order to obtain a "screen name" of the user’s choice. Once the user has completed the registration form, he or she is sent an email with an assigned password (that may later be changed). The user may then return to the Gibe section and post messages, choosing to remain anonymous and identified only by the anonymous screen name, or to sign the message with an email address. Registration is required because it generally lends more "authenticity" to the message board when one becomes acquainted with the online personality associated with a particular screen name. This method of posting messages to the Gibe section of annoy.com provides an avenue for political and social discourse without a user fearing reprisal for expressing valid, yet "unpopular" opinions. The ability to remain anonymous is very similar to requesting "Name Withheld by Request" on a letter to the editor, or "Sign Me, Discouraged In Seattle" in a letter to "Dear Abby." Undoubtedly many of the letters that newspaper editors and "Dear Abby" receive would never have been sent if the writers had been forced to identify themselves.

50. I have read the declaration of defendant’s witness Howard Schmidt. I have no serious disagreement with most of what he has to say, except insofar as it is inconsistent with the information I have set forth above, in my first declaration in support of the motion for a preliminary injunction and in our answers to interrogatories and responses to defendant’s document requests (Exhibits 1 and 2 to defendant’s opposition to our motion). However, I would like specifically to point out the following with regard to the Schmidt declaration.

a. In paragraph 15, Schmidt suggests that an e-mail recipient may not be able to avoid seeing a "harassing" or "annoying" message because the software automatically will display each first item of mail. This is not true with email software that does not automatically display each first item, and users can delete incoming items if they wish, without seeing anything other than the sender and subject line. It is not true of our digital postcards at all, with any email software, because the recipient must affirmatively access the URL to be able to see the postcard.

b. With regard to paragraphs 16 and 17, all email sent through annoy.com carries the "annoy.com" identification, and there is no way for a sender to "fake" or "forge" the source of the email, although the identity of the individual sender would remain anonymous. Our program strips only the individual sender’s identity. Each email includes "annoy.com" as the sender.

c. There is no basis for Schmidt’s assertion in paragraph 21 that using a filter is beyond the capability of "the majority of email users." It is not actually difficult but may be beyond the capability of some users. It is no more difficult to disable email than it is to use filters like Surfwatch.

d. While there are "similarities" between telephone and email technology and usage (paragraph 24), there are extremely important differences, some of which are described above in this declaration. In general, recipient of email must elect to read the message after being informed of the sender and subject, and there is no significant risk that, unlike with the telephone, the recipient will be disturbed by ringing in the middle of the night, by calls with no message or "heavy breathing" and so on. While Schmidt refers (paragraph 27) to email voice messages, this cannot be done on annoy.com and is not available to most email users.

I declare under penalty of perjury that the foregoing is true and correct. Executed at San Francisco, California, on September 11, 1997.

_______________________________________

CLINTON DEAN FEIN

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O’Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff
APOLLOMEDIA CORPORATION

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

On June 26, 1997, the Supreme Court held unconstitutional on their face the provisions of the Communications Decency Act (CDA) that criminalize the use of computers to make "indecent" or "patently offensive" communications to minors. Reno v. ACLU, 521 U.S. ___, 97 C.D.O.S. 4998. The Court determined that the undefined, uncertain and overbroad "indecent" and "patently offensive" terms are unconstitutional, that the CDA is an impermissible content-based regulation of speech, that it "unquestionably silences some speakers whose messages would be entitled to constitutional protection," and that neither the governmental interest in protecting children nor the statutory "safe-harbor" defenses can justify the statute. 97 C.D.O.S. at 5002-03, 5004-05. The Court resoundingly affirmed the preliminary injunction against the CDA provisions. It did so at the behest of a variety of plaintiffs, none of whom had been threatened with prosecution but all of whom, as Internet speakers, necessarily were subject to the CDA’s "obvious chilling effect on free speech." Id. at 5003.

Plaintiff ApolloMedia Corporation submits this supplemental brief^/ to demonstrate that the Supreme Court’s decision applies a fortiori to the CDA provisions in this case, and that this Court should likewise grant a preliminary injunction against the provisions that make it a felony to send an "indecent" communication over the Internet with the intent to "annoy" someone.

1. The Court in ACLU rejected the government’s argument that restricting "indecent" or "patently offensive" speech on the Internet was justified by the interest in protecting children from sexually explicit materials, and the Court held that the defenses designed to protect communications among adults did not save the statute. The CDA provisions in the instant case are even less defensible than those involved in ACLU. First, Section 223(a)(1)(A)(ii) has nothing to do with children — there is no government interest in protecting children at stake in this case. Second, there are no safe harbor defenses applicable to Section 223(a)(1)(A)(ii); unlike the Reno provisions that attempted to preserve sexually explicit communications for adults, the provision here is a complete ban on "indecent" communications "with intent to annoy" another person.

2. Reno v. ACLU rejected the government’s argument that the CDA should be construed so as to avoid a finding of unconstitutionality, refusing to "rewrite" the statute in order to save it. 97 C.D.O.S. at 5005. There is no basis for construing Section 223(a)(1)(A)(ii) to limit it to "obscene" communications or otherwise to confine its unconstitutional reach. See Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 9-13. The Court in ACLU expressly pointed out that the CDA distinguishes "obscene" speech, the prohibition of which was not challenged there or in the instant case,^/ from "indecent" speech: "As set forth by the statute, the restriction of ‘obscene’ material enjoys a textual manifestation separate from that for ‘indecent’ material, which we have held unconstitutional." 97 C.D.O.S. at 5005. In ACLU, as here, "The open-ended character of the CDA provides no guidance whatever for limiting its coverage." Id.

3. The Supreme Court did not find it necessary to reach the issue of whether the prohibition of "indecent" material was impermissibly vague for a criminal statute. But it was highly critical of the statute’s vagueness: "Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment." Id. at 5002. The Court pointed out that the term "indecent" was undefined and there was uncertainty about the kinds of speech covered. As in the CDA provision in the instant case, "’Indecent’ does not benefit from any textual embellishment at all." 97 C.D.O.S. at 5002 n.35.^/ "The vagueness of the CDA is a matter of special concern" because of the chilling effect on free speech and the serious impact of a criminal statute. "The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images." Id. at 5003. "As a practical matter, this increased deterrent effect, coupled with the ‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns" than civil restrictions. Id.

4. The CDA provisions in the instant case are more infirm for vagueness than those in Reno because they are compounded by the "annoy" provision. See Plaintiff’s Memorandum in Support of Motion for Preliminary Injunction at 16-17. The Court in Reno v. ACLU cited favorably its statement in Carey v. Population Services Int’l, 431 U.S. 678, 701 (1977), that "where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." 97 C.D.O.S. at 5003. The Court also relied on Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992), where it held that speech cannot be burdened or banned "simply because it might offend a hostile mob." The instant criminal ban on merely "annoying" speech is invalid.

5. The Court rejected the government’s argument that the CDA "is no more vague than the obscenity standard" of Miller v. California, 413 U.S. 15, 24 (1973). 97 C.D.O.S. at 5003. The Court found the government’s argument "incorrect as a matter of fact" since the Miller standard "contains a critical requirement that is omitted from the CDA: that the proscribed material be ‘specifically defined by the applicable state law.’" Id. The Court found that the government’s "reasoning" was also "flawed" because, as plaintiff has urged in this case (Memo. in Support of Prelim. Inj. at 17-24), all three prongs of the Miller test are required in order to avoid impermissible vagueness.

6. One of the reasons the Court found the CDA unconstitutionally overbroad was that "The general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value." 97 C.D.O.S. at 5002. In the instant case, large amounts of the speech on annoy.com may be considered "indecent" or "patently offensive" by some (principally by those who are subjectively "annoyed" by being criticized or caricatured), but it is speech with serious political, educational and social value.

7. If the government were to concoct some plausible interest other than shielding children from indecent material, Reno v. ACLU makes it plain that the CDA still would be unconstitutional. In ACLU, the government came up with a different, non-child-protective interest, that of fostering the growth of the Internet by ensuring that indecent content did not drive potential users away. The Court rejected the argument both because there was no factual basis for it (just as there is none here) and because:

97 C.D.O.S. at 5005.

Accordingly, Reno v. ACLU makes it crystal clear that the CDA provisions at issue in the instant case are unconstitutional and that a preliminary injunction enjoining their enforcement should be issued.

DATED: July 22, 1997 Respectfully submitted,