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Communications Decency Act Lawsuit








Plaintiffs Barbara Nitke ("Nitke"), the National Coalition for Sexual Freedom, and the National Coalition for Sexual Freedom Foundation (collectively, "NCSF") respectfully submit this memorandum is support of their motion for a preliminary injunction enjoining enforcement of the obscenity prong of the Communications Decency Act, Section 502 of the Telecommunications Act of 1996 (codified at 47 U.S.C. §223(a)(1)(B)) (the CDA), and in opposition to the motion of defendants John Ashcroft ("Ashcroft"), Attorney General of the United States and the United States of America (collectively, the "Government") to dismiss the complaint herein.


Plaintiffs have filed this civil action pursuant to Section 561 of the Telecommunications Act of 1996 (Act of Feb. 8, 1996, Pub. L. No. 104-104, Title V, Subtitle C §561, 110 Stat. 56), and have requested, pursuant to that section, that a three judge district court be empaneled as set out in 28 U.S.C. §2284. On April 1, 2002, by order of the Hon. John M. Walker, Jr., Chief Circuit Judge, plaintiffs' request was granted, and a three-judge court, comprised of the Hon. Robert D. Sack, C.J., the Hon. Richard M. Berman, D.J., and the Hon. Gerard E. Lynch, D.J., was convened to hear and determine this action.


Plaintiffs now move for the issuance of a preliminary injunction enjoining enforcement of the CDA, asserting its facial unconstitutionality, while the Government conversely moves to dismiss on the grounds that the statute is plainly constitutional. An examination of the governing caselaw establishes beyond cavil that the Government's motion must be denied, and the plaintiffs' motion should be granted.


It is well established that the regulation of expressive content in each medium must be assessed for First Amendment purposes by standards tailored to that medium. Despite this long standing position, the Government argues for a mechanistic, cookie-cutter application of obscenity precedents arising in physically-sited media, well situated for a geographic community analysis, to a medium which is equally sited in and accessible from every jurisdiction, whether metropolis or hamlet. Absent the harms which the geographic interpretation of "local community standards" was created to address, the Government nonetheless asserts that the standard should be applied in a manner that concededly will transform the local community standards from a shield into a sword. This result has been characterized by the Supreme Court as creating a content-based restriction of speech of unprecedented breadth.


The Government would have this Court hold, contrary to the concerns expressed by the United States Supreme Court in Reno v. ACLU, 521 U.S. 844, 877-878 (1997), and by a clear majority of the Justices in Ashcroft v. American Civil Liberties Union, 535 U.S. ___ (May 13, 2002), that the placing of expressive materials on the Internet should be treated as a simultaneous physical distribution of those materials to each community within all 50 states with Internet access. Such a holding would transform the Internet from a free-ranging, open forum into a forum in which only speech that is inoffensive under the most prudish standard is safe from fear of prosecution. As much speech considered obscene in some communities would be found non-obscene in others, the Government's approach would allow for prosecution in the most restrictive community of speech which is fully protected throughout the vast majority of the United States and abroad. This result would chill much protected speech, and would destabilize the regime of Miller v. California, 413 U.S. 15 (1973), under which each community was permitted to define for itself the required level of decorum for sexually-themed speech, but not for neighboring or even far-flung communities which may have dramatically different norms.


Accordingly, the complaint is not subject to dismissal, and plaintiffs have demonstrated the traditional requirements for the issuance of preliminary relief : (1) the prospect of irreparable injury inflicted by deprivation, however brief, of First Amendment rights; (2) the required showing of likelihood of success on the merits; and (3) a balance of equities favoring relief.






Plaintiffs Have Asserted And Demonstrated The Requisites For Entry of A Preliminary Injunction


In support of their motion for a preliminary injunction, plaintiffs "must establish irreparable injury, and either (a) a likelihood of success on the merits, or (b) a sufficiently serious question going to the merits, with a balance of hardships tipping in favor of the party requesting a preliminary injunction." Tunick v. Safir, 209 F.3d 67, 70 (2d Cir. 2000). Where, as here, the plaintiffs seek to "stay governmental action taken in the public interest pursuant to a statutory or regulatory scheme," they must show "irreparable harm in the absence of an injunction and a likelihood of success on the merits." Id.; see also, Latino Officers Association v. City of New York, 196 F.3d 458, 462 (2d Cir. 1999) (granting injunction); Bery v. City of New York, 97 F.3d 689, 694 (2d Cir 1996)(granting injunction); Metropolitan Council , Inc. v. Safir, 99 F. Supp.2d 438, 442 (S.D.N.Y. 2000) (citing cases; granting injunction); Amandola v. Town of Babylon, 251 F.3d 339, 342 (2001) (granting injunction and awarding judgment as a matter of law to plaintiffs). In this case, "because violations of First Amendment rights are presumed irreparable, the very nature of plaintiffs' allegations satisfy the requirement that [they] show irreparable injury." Tunick, 209 F.3d at 70 (internal quotations and citations omitted); quoting, Bery, 97 F.3d at 694; citing, Elrod v. Burns, 427 U.S. 347, 373 (1976); Amandola, 251 F.3d at 342. As the Supreme Court made amply clear in Elrod, "[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." This strong recognition of the fragility of speech rights in the face of governmental actions has led the Second Circuit to repeatedly hold that "a rebuttable presumption of irreparable harm arises in First Amendment cases." Id.; citing, Tunick, 209 F.3d at 70; Beal v. Stern, 184 F.3d 117, 123 (2d Cir.1999); Bery v. City of New York, 97 F.3d at 694.


The Court in Amandola acknowledged that in other cases the Courts in this Circuit have required the plaintiffs establish "an actual chilling effect" by competent testimony. Id.; see also, Pugh v. Goord, 184 F. Supp.2d 326, 332, n. 3 (S.D.N.Y. 2002) (Lynch, J.). In the instant case, the accompanying declarations of Barbara Nitke, Arthur C. Danto, Howard Rheingold, Candida Royalle, Robert and Carleen Thomas and Susan Wright present just such testimony of actual and potential chill of speech, as further set forth at Point III, based on their own individual observations and/or experiences. As these declarations establish, the speech of several speakers has actually been impacted by the prospect of prosecution. Ms. Nitke's work, for example, has been well received in some communities, but challenges the standards of others. (Nitke Decl. at ¶¶14-17). In addition to Ms. Nitke, many of the members of NCSF have websites, and have legitimate grounds to fear that the application of the most restrictive community standards to their speech could result in a colorable prosecution of their speech. (Wright Decl. ¶¶at 9-13). Moreover, as established by the testimony of Professor Danto, a sufficient divergence of views as to the proper quantum of value to be accorded artistic works exists such that the absence of clarity, along with the Government's claim to a roving commission, deprives the artist or commentator of a safe harbor in dealing with sexual themes on the Internet.


Because plaintiffs have, under either standard, established irreparable injury, the sole question remaining is whether they have established a clear likelihood of success on the merits. As courts within the Second Circuit have noted, "the issue of irreparable injury merges with the question of success on the merits." Metropolitan Council, Inc., 99 F. Supp. 2d at 443; following, Latino Officers Ass'n, 196 F.3d at 462; Beal, 184 F.3d 117, 123-124 (2d Cir. 1999); see also, Tunick, 209 F.3d at 70. As will be seen in the succeeding sections of this memorandum, plaintiffs have established a clear likelihood of success on the merits of this action, and thus the requested injunction should be granted.




Speech Regulations Evolved in Traditional Media Do Not Perfectly Translate To the Internet


The starting place for evaluation of the CDA under the First Amendment is a recognition of the simple fact, repeatedly recognized by the Supreme Court, that each medium of expression "must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975); Reno v. ACLU, 521 U.S. at 868. Thus, it is not sufficient to flatly state that obscenity is not protected speech under the First Amendment. That truism, established since Roth v. United States, 354 U.S. 476 (1957),1 does not resolve the questions of definition.


The nature of the Internet creates difficulties in applying concepts evolved in more physically limited media; problems which the Supreme Court and other courts, as opposed to the Government, have recognized as impacting upon the application of such content-based regulations as involved herein. Thus, in Reno v. ACLU, 521 U.S. at 851, the Supreme Court acknowledged that the battery of Internet communication devices "constitute a unique medium-known to its users as cyberspace-located in no particular geographic location but available to anyone, anywhere in the world, with access to the Internet." See Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 1236-1237 (11th Cir. 2001), cert. denied, ___ U.S. ___, 152 L.Ed.2d 115 (2002) (declining to apply local zoning ordinance governing adult entertainment establishments to premises where internet content is generated because "the public offering occurs over the Internet in 'virtual space'"); Gucci America, Inc. v. Hall & Assocs., 135 F. Supp.2d 409, 421 (S.D.N.Y. 2001) (Berman, J.) (Noting that "there are crucial differences between a 'brick and mortar outlet' and the online Web that dramatically affect a First Amendment analysis," distinguishing trademark law's application to Internet)(quoting and approving as "no doubt true" observation to the same effect in ACLU v. Reno, 217 F.3d 162, 169-170 (3d Cir. 2000), cert granted sub nom. ACLU v. Ashcroft, vacated other grounds, 535 U.S. ___, No. 00-1293 (May 13, 2002) (internal citation omitted)); Cyberspace Communications, Inc. v. Engler, 55 F. Supp.2d 737-743-744 (E.D.Mich. 1999), aff'd, 238 F.3d 420 (6th Cir. 2000) summ. judg. granted same grounds, 142 F. Supp.2d 827 (E.D.Mich. 2001) (same).


The application of existing constitutional principles to the Internet medium is a functional, not a formal one. Indeed, the evolution of the "borderless world of the Internet raises profound questions concerning the relationship among the several states and the relationship of the federal government to each state." Swedenburg v. Kelly, 2000 WL 1264285 (September 5, 2000) (Berman, J.) (quoting American Libraries Association v. Pataki, 969 F. Supp. 160, 168 (S.D.N.Y. 1997)); PSINET, Inc. v. Chapman, 167 F. Supp.2d 878, 887-891 (W.D. Va. 2001) (applying Commerce Clause analysis to Internet to strike down state statute regulating adult websites). In short, the mere enunciation of settled principle does not automatically resolve the questions of application of these principles to the new medium at hand.


The Government seeks to analogize this new medium of expression to the ban on obscene "dial-a-porn" upheld in Sable Communications v. FCC, 492 U.S. 115 (1989). However, that case involved a facial challenge to the very concept of regulating commercialized obscenity over any interstate medium, in that case, telephone communications. In view of the individualized nature of telephone communications, and the readily identifiable location of callers-in, the Court found it appropriate that commercial providers be held to the standard of the area comprising the market from which they solicited and accepted calls. 492 U.S. at 125-126. Under those circumstances, the statute was held not to create a "national standard" of what is obscene, in violation of the Court's rule in Miller. Id. The Court explicitly ruled that in Sable that the "cases before us do not require us to decide what is obscene or what is indecent, but rather to determine whether Congress is empowered to prohibit transmission of obscene telephonic communications" to the various locales, each of which is equipped with its own local community standards. Plaintiffs herein, unlike those in Sable, do not claim a global immunity from the application of obscenity law to this new medium.


This case, as opposed to the facts in Sable, genuinely poses a problem of definition. In a manner rather reminiscent of its argument in Reno v. ACLU, 521 U.S. 844 (1997), soundly rejected by the Supreme Court in that decision, the Government herein ignores the problem, rotely intoning that just as mailing books or magazines to another state subjects the mailer to the local community standards of the destination, dissemination through the Internet subjects the speaker to any and all communities which can access the speech. (Government memo at 13, quoting Hamling v. United States, 418 U.S. 87, 106 (1974)). Unlike the books and telephone calls at issue in Sable and Hamling, the Internet "is wholly insensitive to geographic distinctions, and Internet protocols were designed to ignore rather than document geographic location." Cyberspace Communications, Inc., 55 F. Supp.2d at 744 (citing Pataki, 969 F. Supp. at 167, 170). See Reno, 521 U.S. at 851.


This contrast and its implications were the basis of the opinions of a clear majority of the Supreme Court in Ashcroft v. ACLU. In that case, the Government's argument, reiterated here, that the rulings in Sable and Hamling apply to the Internet to foreclose a facial challenge to community-standard based regulation, was explicitly rejected by the opinions of a majority of the Supreme Court. Thus, Justice O'Connor opined that "I agree with Justice Kennedy that, given Internet speakers' inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable may be entirely too much to ask, and would potentially suppress an inordinate amount of expression." (Ashcroft v. ACLU, O'Connor, J., slip op. at 2). Justice Kennedy, joined by Justices Souter and Ginsburg, similarly rejected the application of those precedents: "In striking down COPA's predecessor, the Reno Court identified this precise problem, and if the Hamling and Sable Courts did not find the problem fatal, that is because those cases involved quite different media. The national variation in community standards constitutes a particular burden on Internet speech." (Ashcroft v. ACLU, Kennedy, J., slip op. at 7). Justice Breyer similarly distinguished Sable and Hamling, finding that "To read the statute as adopting the community standard of every locality in the United States would provide the most puritan of communities with a heckler's veto affecting the rest of the nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious." (Ashcroft v. ACLU, Breyer, J., slip op. at 2).2 Justice Stevens likewise denied the applicability of Sable and Hamling to the Internet. (Stevens, J. dissenting, slip op. at 5, 6-7). While other factors split the Justices, a clear majority of six Justices rejected the argument, made again by the Government here, that Sable and Hamling control as to the Internet.


Rather, the six Justices who declined to join the opinion of Justice Thomas each opined that, upon an appropriate showing, enforcement of geographic local community standards to speech on the Internet under an obscenity theory would violate the free speech rights of content providers. In Point III, the various factors set forth in establishing the appropriate showing at least according to five of the six justices are discussed in the context of the sweeping prohibitions of the CDA. That showing, and the inherently overbroad and vague sweep of the CDA, plaintiffs submit, warrant the entry of the order which they seek.




The CDA's Reliance On Geographic "Local Community Standards" in Defining Obscenity on the Internet Renders the Statute Overbroad


The CDA, as it presently stands, bans materials which are deemed to be "obscene" from the Internet. Although couched as a provision for the protection of minors, the CDA by its terms has been authoritatively held to burden much adult speech. The CDA is codified at 47 U.S.C. §223, and prohibits the "knowing transmission of any ... communication which is obscene or indecent ... knowing that the recipient under 18 years of age."3 In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court authoritatively found that the section above quoted would burden communications between adults, stating that "Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will view it." 521 U.S. at 876. Thus, the Court concluded, "these limitations must inevitably curtail a significant amount of adult communication on the Internet." 521 U.S. at 877. See also Ashcroft v. ACLU, 535 U.S. at ___, (Thomas, J.) slip op. at 4 ("existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults"); (quoting Reno); see also, PSINET, Inc. v. Chapman, 167 F. Supp.2d at 887-890. This fact remains true whether the section of the statute applied is the indecency prong at issue in Reno, or the obscenity provision at issue here. See e.g., PSINET, (similar state statute invalid as to both obscene and harmful to minors speech).


Thus, the question before this Court is not whether the CDA limits speech directed at adults by adults in the interest of protecting the interests of children; that question has been litigated and resolved. Nor is the question whether obscenity, long deemed speech outside the protective ambit of the First Amendment, has somehow acquired a talismanic immunity based upon the fact that it is disseminated over a new medium. Plaintiffs have not alleged that it does. Rather, the question is whether the application of the CDA's unelaborated use of the word "obscenity" in the absence of a further statutory definition, creates a definition of obscenity that would unconstitutionally "restrict[] substantially more speech than is justified." Ashcroft, 535 U.S. at ___, (Kennedy, J., concurring) at 1 (citing Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)). Plaintiffs submit, with respect, that the statute does just this, and is as a result violative of the First Amendment rights of the plaintiffs.


In Ashcroft, the Supreme Court rendered no one opinion disposing of the principal question raised herein: does the application of local geographic community standards to determine patent offensiveness and prurient appeal in a federal obscenity Internet statute render that statute overbroad? However, in that case, four of the opinions, adhered to by a clear six-member majority, reaffirmed the constitutionally problematic nature of such regulation under the First Amendment, as originally asserted in Reno, 521 U.S. at 877, and stated that an obscenity provision like that in question here was subject to facial challenge.


Justice O'Connor stated that the failure of the plaintiffs in that case left open the prospect that "[i]n future facial challenges to regulation of obscenity on the Internet, litigants may make a more convincing case of substantial overbreadth." (O' Connor, J., concurring, slip op. at 2). She continued: "Where adult speech is concerned, for instance, there may in fact be a greater degree of disagreement about what is patently offensive or appeals to the prurient interest." Id. Thus, the statute at issue, upon the appropriate factual showing of variation, "would potentially suppress an inordinate amount of expression." Id.


Justice Breyer who would apply a narrowing saving construction to COPA, explicitly concluded that quot;[t]o read the statute as adopting the local community standards of every community in the United States would provide the most puritan of communities with a heckler's Internet veto affecting the rest of the Nation." (Breyer, J., concurring, slip op. at 2). Like Justice O'Connor, he concluded that the technical difficulties of controlling the destination of speech via the Internet rendered this problem "particularly serious." Id.


Justice Stevens, dissenting in Ashcroft, stated that, "[i]n the context of the Internet, however, community standards become a sword rather than a shield." (Stevens, J., dissenting, slip op. at 1). He went on to find that, under the approach laid out in the CDA, "the community that wishes to live without certain material not only rids itself, but the entire Internet of the offending speech," in a manner inimical to the First Amendment. Id. at 11.


Along the same lines, Justice Kennedy opined that "[t]he national variation in community standards constitutes a particular burden on Internet speech," (Kennedy, J. concurring, slip op. at 7). Prior to declaring COPA unconstitutional on these grounds, Justice Kennedy, joined by Justices Ginsburg and Souter, sought clarification of factors potentially limiting the scope of the statute: (1) the scope of the definition of community; (2) any statutory specification as to what the "work" to be judges as a whole is; (3) any limitations on venue that could reduce the number of potentially applicable community standards; and (4) evidence as to the factual divergence of local community standards between jurisdictions, to ascertain that indeed speech would be subject to contrary rules under the statute. Upon such a showing, Justice Kennedy opined, "the ultimate conclusion" that this burden on Internet speech is unconstitutional "may prove correct."


Below, plaintiffs first address the absence of a definition of obscenity under the CDA, and the resultant breadth of the statute's application of the "default" definition to the Internet. Then, plaintiffs establish the failure of the drafters to narrow the statute's scope by either limiting the universe of speakers subject to it, or by defining what constitutes a "work" subject to its prohibitions in the context of the Internet. A similar failure to limit the statute's sweep by means of any venue restrictions follows. Finally, plaintiffs discuss the First Amendment consequences of this statute's undisputed holding all speech to the standards of the most puritan community in the Nation, the factor most important to each of the six justices.


1.  The CDA's Obscenity Provision and the Miller Test


As acknowledged by the Government, the CDA does not contain a definition of what transmissions are "obscene." (Government memorandum of law ("Gov. Memo.") at 17). The parties agree that the silence of Congress in delineating the scope of the term obscene leaves as the Court's only guidance in understanding what Congress sought to proscribe the permissive language of the Supreme Court in describing the range of materials that could fall within the unprotected class of speech deemed obscene in Miller v. California, 413 U.S. 15, 24 (1973). As Chief Justice Burger wrote for the majority in Miller, the basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary community standards, would find that 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. (Internal quotation marks and citations omitted); Ashcroft v. ACLU, 535 U.S. at ___, slip op. at 10. As subsequently enunciated, this standard can apply to federally defined obscenity regulation. Hamling, 418 U.S. at 118. Moreover, subsequent decisions have made clear that, in the context of traditional so-called "bricks-and-mortar media," the local community standards applied are geographical in nature. Ashcroft v. ACLU slip op. at 11, n. 7 (Thomas, J. for plurality), citing, Pope v. Illinois, 481 U.S. 497, 500 (1987). Consistent with this, both parties acknowledge and all of the justices in Ashcroft held, both the appeal to prurient interest prong and the patently offensive prong of the definition are "question[s] of fact to be decided by a jury applying contemporary community standards." Id. It is the absence of content and context to define what that community standard is that renders the CDA overbroad as to speech that may be deemed obscene under the most restrictive community standard in the Nation.


2.   The CDA Applies to All Internet Speakers and Speech


The CDA's "open-ended prohibitions," as the Supreme Court has twice noted, "embrace not only commercial speech or commercial entities, but also all nonprofit entities and individuals posting" on the Internet. Ashcroft v. ACLU, 535 U.S. at ___, slip op. at 4 (quotation marks omitted), quoting ACLU v. Reno, 521 U.S. at 877. This observation, made by the Court in the context of the indecency provision, is equally true for the obscenity provision, which is, after all, included in the same sentence. Moreover, the CDA does not limit its coverage to any specific kind of online communication, but applies to all online communications, wholesale or retail.


That the sweep of the CDA does not distinguish between commercial purveyors of pornography and artistic explorers of sexual themes, or even spouses corresponding via e-mail eliminates one of the "crucial" potential narrowing factors, the limitation of targeted speech to commercially purveyed materials, cited by a three of the six justices rejecting the Government's argument herein in Ashcroft v. ACLU. (Kennedy, J., joined by Souter and Ginsburg, J.J., slip op. at 2-3, 10-11).


Likewise, the CDA does not address the thorny question of applying to the Internet the requirement under Miller that the works in question be "judged as a whole." As Justice Kennedy, joined by Justices Ginsburg and Breyer pointed out, the "notion of judging work as a whole is familiar in other media, but more difficult to define on the World Wide Web. It is unclear whether what is to be judged as a whole is a single image on a Web page, a whole Web page, an entire multipage site, or an interlocking set of Web sites." Id. at 3, 11-12. By extrapolation, it is even possible-although not compelling-that the Web must itself be viewed as a "single, integrated system," and thus possibly the work itself. Id. at 11, quoting ACLU v. Reno, 31 F. Supp. 2d at 483, 484.


Because the nature of the work effected is not defined, speakers on the Web can find themselves held accountable based upon either too focused or to expansive a view as to the "work" at issue. A single photograph from a Website, ripped from the context that gives it its artistic value, may be hard-pressed to escape prosecution; a Website itself not obscene may find itself held accountable for the speech of those who link to it. Under the CDA, prosecutors and triers-of-fact are accorded no guidance in determining the correct answer. Thus, the statute imperils the broadest possible category of online speech. Id.


3.  The Venue Factor


Most importantly, the CDA does not address venue in explicit terms. Thus, as Justice Kennedy noted in the context of COPA, "prosecution may be proper in any district in which an offense was begun, continued, or completed." Id. at 12, quoting, 18 U.S.C. §3237(a). Thus, "it seems likely that venue would be proper where the material originates or where it is viewed." Id. (citing 18 U.S.C. §3237(a), 47 U.S.C. § 231(a)(3)). As the overwhelming majority of online speech may be viewed from anywhere in or outside of the Nation that has access to the Internet,4 the Government here is able to forum shop around the United States, or even, potentially, offshore possessions. Because, as Justice Kennedy noted, the choice of venue may be determinative of the choice of standard," the "more venues the Government has to choose from the more speech will be chilled by variation across communities." Id. At 12. Indeed, the Government here asserts just such unlimited venue, requiring speakers to be prepared to defend themselves before the most puritan tribunals to be found. (Gov. Memo. at 22-23). This contention, vitally necessary to sustain the CDA, would transmute local community standards from a means of protecting local diversity of cultural climate into a means of stifling it-turning the purpose of Miller on its head.


4.  Material Obscene in One Jurisdiction May be Protected in Another


It cannot be contested, and has recently been reaffirmed, that "[p]eople in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity." Miller, 413 U.S. at 33; Ashcroft v. ACLU, Kennedy, J., slip op. at 7. It "is neither realistic nor beyond constitutional doubt for the Congress, in effect, to impose the community standards of Maine or Mississippi on Las Vegas and New York." Ashcroft, op cit. As demonstrated below, the actual evidence of such variation that plaintiffs will present establishes that material deemed acceptably non-obscene in some jurisdictions may nonetheless be prosecuted in others.


To the contrary of the Government's assumption that any errors or chilling effect here is negligible, it is well-established that material that is not obscene under each and every one of Miller's three prongs is fully protected speech under the First Amendment, and chilling such speech violates the First Amendment, despite the disapproval by some of the message conveyed therein. Reno, 521 U.S. at 874 (citing Sable, 492 U.S. at 126); United States v. Playboy Entertainment Group 529 U.S. 803, 807 (2000). Indeed, material that is allegedly "obscene" is and has long been recognized, to be "presumptively under the protection of the First Amendment." Roaden v. Kentucky, 413 U.S. 496, 504 (1973); New York v. P.J. Video, Inc., 475 U.S. 868, 871-874 (1986) (noting, id. at 874, that such materials are "presumptively protected"; following Roaden); United States v. Jasorka, 153 F.3d 58, 59-60 (2d Cir. 1998) (noting that in obscenity cases, specially careful examination of proof by magistrate required prior to issuance of a warrant because "of the danger that constitutionally protected materials may be suppressed and because of the subtlety of the inquiry required to distinguish obscenity from protected matters"; following P.J. Video); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (materials allegedly be obscene are "materials presumptively protected by the First Amendment."); see also United States v. Any and All Radio Equipment, 93 F. Supp. 414, 421 (S.D.N.Y. 2000) (following Fort Wayne Books, distinguishing seizure of equipment from seizure of expressive materials alleged to be obscene).


On behalf of the CDA, the Government claims that only speech that is "utterly lacking in any literary, artistic, political or scientific value in any community" stands in peril from this statute (Government Memorandum at 24). This is simply incorrect; as the Government's prior correct encapsulation of Miller establishes, speech which "flunks" the prurience and patently offensive prongs of Miller can only be saved if it has "serious literary, artistic, political, or scientific value." (Gov. Memo. at 17, quoting Miller, 413 U.S. at 24). Indeed, the very next sentence of the Miller opinion makes clear that the Government's representation as to the scope of speech that may fall prey to the CDA is untenable: "We do not adopt as a constitutional standard the utterly without redeeming social value test of Memoirs v. Massachusetts, 383 U.S. at 419." Id. (emphasis in original), citing, Kois v. Wisconsin, 408 U.S. 229, 231 (1972).


The Government's argument that the only speech "that even the most cautious Internet content provider would withhold from publication" would work a "de minimis impact on protected, yet utterly valueless, pornographic speech" (Gov. Memo. at 24) is belied by the very authorities the Government relies upon to establish the proposition. Fort Wayne Books v. Indiana, 489 U.S. at 60 is not to the contrary, but merely upheld the application of state-defined obscenity statutes, which were appropriately limited in scope as required under the First Amendment as establishing predicate acts under the state RICO statute. 489 U.S. 57-58 (holding that the statute in question "is closely tailored to conform to the Miller standard" and the petitioner did not raise "any alleged defect in the underlying obscenity law." Id. Here, by contrast, the appropriate scope of the obscenity law on this new medium is the very issue to be decided. In delineating the scope of protection, it is crucial to note that much speech of literary, artistic, political or scientific value may fall beneath the censor's lash because its seriousness of intent may not measure up to the level deemed by the finder of fact to be sufficiently serious. As the Court reaffirmed in Playboy Entertainment, "the line between speech unconditionally guaranteed and speech which may be legitimately regulated, suppressed or punished is finely drawn," and any "[e]rror in marking that line exacts an extraordinary cost." 529 U.S. at 817.


5.  The Serious Literary, Artistic, Political or Scientific Value Prong Does Not Save the CDA


The Supreme Court has not held, as the Government urges the Court to find, that the application of a "reasonable person" standard to the inquiry of whether material involved is of sufficient value to resist categorization as "obscene" is sufficient to cure the overbreadth of the statute. As the principal Supreme Court decision relied upon by the Government, Pope v. Illinois, 481 U.S. 497, 500-501 (1987), simply reversed a conviction, and remanded for harmless error analysis, an obscenity conviction based upon the application of the local community standards to this third prong of the Miller test, the contention rests wholly upon the citation to lower court, outside of circuit authority. The Supreme Court has twice declined to follow this logic, with ample reason.


A similar claim was made and properly rejected in Reno, where the application of Miller's "patent offensiveness" prong as a test for indecency was argued to sufficiently withstand a vagueness and an overbreadth challenge. As the Supreme Court explained, "Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague. Each of Miller's additional two prongs ... critically limits the uncertain sweep of the obscenity definition." 521 U.S. at 873. Here, of course, two of the three prongs relied upon in the definition are subject to overbreadth and vagueness challenge; the Government asserts, absent support in law and logic, that the one remaining prong uninfected by the taint complained of is sufficient to salvage the statute. Such a contention, for the reasons set forth by the Court in Reno, must fail.


Moreover, a majority of the Court in Ashcroft declined to join Justice Thomas' opinion to that effect, each indicating that an overbroad application of the local community standard prongs of the Miller definition to obscenity regulation of the Internet would establish a First Amendment violation. Ashcroft, 535 U.S. at ___, (O'Connor, J., concurring slip op. at 2 ), (Breyer, J., concurring, slip op. at 2), (Kennedy, J., concurring, slip op. at 5, 7-8, 10); (Stevens, J., dissenting, slip op. at 10). While the Government argued this exact point in Ashcroft (see Government Reply Brief on Petition for Writ of Certiorari in Ashcroft v. ACLU, Exhibit B to the Wirenius Declaration, at 4), that argument failed to command a Court, and should be rejected here.


Factually, as attested to herein by Professor Danto in his declaration, the "existence of serious literary, artistic, or political social value of speech requires evaluation of the content of a speech that calls for subjective value judgments in a manner not entirely predictable by a reasonable speaker." The difficulty of this analysis has led to much controversy as to the presence or lack of such value in the context of various works of art. (Id.) Such conflicts can be seen even in the context of the Supreme Court's review of obscenity convictions. In Jenkins v. Georgia, 418 U.S. 153, 156-157 (1974), a divided panel of the Supreme Court of Georgia had affirmed the finding that the acclaimed film Carnal Knowledge was obscene under Miller, finding not only that the film appealed to the prurient interest and was patently offensive, but also that it lacked the serious literary, artistic, political or scientific value needed to avert an adjudication of obscenity.5


By not employing any of the available potential means of narrowing the universe of speakers impacted by the statute's scope, the CDA entirely fails to ameliorate the extreme breadth of its prohibition. Thus, the sole remaining question of overbreadth analysis here is whether the variety of community standards is such that the application of the local standards in any district where the Government might choose to bring a case would result in the chilling of a substantial body of speech protected in other communities.


6.  The Nature and Variety of Communities


In establishing the required showing to satisfy the concerns of four members of the Supreme Court, the last element required to be established by plaintiffs at trial is the existence of a substantial variance as to standards amongst different communities. Justice Kennedy's opinion especially sought such proof in order to determine the constitutional validity of COPA, because in that case the Government asserted, and the plaintiffs denied, that Congress had established a national standard as to what sexual speech was considered to appeal to the prurient interest of minors and would be patently offensive as to minors. As Justice O'Connor noted, a simple obscenity provision such as that remaining in the CDA, raises a far more problematic question for the Government: does the variation among what is considered prurient and patently offensive for consenting adults to be exposed to create a substantial overbreadth? Plaintiffs, in seeking to establish that they are clearly likely to prevail on the merits have adduced sworn testimony in the form of declarations as follows:


  • Robert and Carleen Thomas, long time residents of the San Francisco Bay area, testify that they disseminated via the Internet material that law enforcement determined was wholly unobjectionable for consenting adults in the areas in which they resided. Under the local community standards of the district the United States chose to prosecute them within, the Western District of Tennessee, these materials were deemed to be patently offensive and prurient in nature;
  • Candida Royalle has almost 20 years' experience as a director and producer, with the hazards of nation-wide distribution amongst community standards, and testifies to the variety of local community standards throughout the nation;
  • Arthur C. Danto, Johnsonian Professor of Philosophy at Columbia, testifies, both in general and in the specific context of the work of Robert Mapplethorpe, considerable regional variation from community to community exists in the standard of what is considered offensive or prurient;
  • Barbara Nitke, plaintiff herein, testifies that her work which has been well-received by sex-positive, artistically oriented communities has been greeted with hostility in more traditionally minded locales, and that, in 2001 when she sought advice as to posting her speech on the Internet, she was cautioned that she could face prosecution under less receptive community standards; and
  • Susan Wright, Policy Director of plaintiff NCSF, testifies that the speech of members of NCSF have been targeted for harassment on the grounds that some local communities deem their speech "offensive" and "prurient."


This testimony establishes the variety as to local community standards, providing the evidence which Justices O'Connor, Kennedy, Souter and Ginsburg sought as an element of a facial challenge. Combined with the broader holding of Justice Stevens, and likely concurrence of Justice Breyer, a majority of the Supreme Court in Ashcroft, would be "clearly likely" to find the CDA and its application of local community standards to the Internet unconstitutional on this showing. Accordingly plaintiffs' motion for a preliminary injunction should be granted.




The CDA's Obscenity Provisions Are Unconstitutionally Vague


Plaintiffs have asserted that the obscenity provisions of the CDA will chill and would actually subject to criminal liability an inordinate amount of constitutionally protected expression. They have pleaded, alternatively, that the obscenity provision of the CDA is unconstitutionally vague. The CDA, as above argued, and as conceded by the Government, does not specify what the applicable "local community standard" is. Indeed, the CDA does not define "obscene" in the context of the Internet, but the plaintiffs and the Government have extrapolated from prior caselaw and the traditional definition of obscenity in the context of federal regulation of obscenity that the statute applies the local geographic community standards of any community from where the material may be accessed. (Gov. Memo. at 18). However, alternate theories of what "community" standards should apply to the Internet have been proposed, and plaintiffs have pointed out no fewer than six equally feasible possible approaches to constructing a community standard. (Complaint &182;32). Two of the Justices of the Supreme Court have suggested in Ashcroft that a nation-wide standard could apply to the Internet, a sort of rough sense of the Nation's views of what is appropriate for adults on the Internet. (Ashcroft, supra, opinions of O'Connor, J. and Breyer, J.). Other courts have suggested, as has expert Howard Rheingold, that specific communities, by membership affiliation or by a computer online provider, or even a specific bulletin board-specific standard might provide a viable approach to community online. United States v. Maxwell, 45 M.J. 406, 426 (1996); Rheingold Declaration.


Plaintiffs simply urge that, in the event the Court deems the CDA to mean something other than the "most restrictive" standard (which the Government has argued, and plaintiffs have alleged) applies, that the failure to explain what such a standard is fails to provide meaningful notice as to what conduct is forbidden by the statute. Where a content based regulation, such as the CDA, is vague, it "raises special First Amendment concerns because of its obvious chilling effect on free speech." Reno v. ACLU, 521 U.S. at 871-872 (striking CDA's indecency provision as vague). Moreover, the fact that the CDA is a criminal statute, bearing the concomitant stigma of conviction, the risk of imprisonment, and the prospect of discriminatory enforcement, poses special First Amendment concerns. Id.; citing Dombrowski v. Pfister, 380 U.S. 479, 494 (1965).


Additionally, as noted above at page 15, the utter lack of specification of what the work that is to be taken as a whole in the context of the Internet is raises problems of definition that a speaker should not be forced to confront for the first time in a criminal trial. Ashcroft, (Kennedy, J., concurring, slip op. at 11); Playboy Entertainment, 529 U.S. at 817.


The Government argues that this vagueness challenge is "foreclosed" by the judgment of the three-judge panel in Shea v. Reno, 930 F. Supp. 916, aff'd mem. 521 U.S. 1117 (1997). The Court in Shea rejected a vagueness claim analogous to the overbreadth challenge herein presented, stating that it "appears to raise questions of overbreadth rather than vagueness." 930 F. Supp. at 938. In view of the factual showing before that panel, and the main holding of the three judge panel, which was to strike the statute on overbreadth grounds, the panel declined to resolve the vagueness/overbreadth challenge. Id. Moreover, the affirmance in Shea upheld the judgment, not the opinion, of the three judge panel. That summary affirmance endorses only the logic employed by the panel necessary to its ultimate conclusion: that the CDA's indecency provision was overbroad. See Mandel v. Bradley, 432 U.S. 173, 176 (1977) (judgment, not dicta, of three judge panel as affirmed summarily by Supreme Court, entitled to deference); 640 Broadway Renaissance Co. v. Cuomo, 740 F. Supp. 1023, 1029 (S.D.N.Y. 1990) (same).


In the instant case, to follow the logic of the Shea panel would be to ignore the reasoning of a majority of the Supreme Court in ACLU v. Reno, which found the CDA vague as well as overbroad, in open rejection of the language from Shea relied upon by the Government. 521 U.S. at 871. Moreover, it would ignore the reasoning of the six justices in Ashcroft as described in Point III. The Government's argument based on the panel's ruling in Shea, which is inconsistent with Reno itself as well as with Ashcroft, sets form against function, and shows just how meritless the Government's argument that the statute is not overly vague is. This Court should follow Reno, not the contrary dictum in Shea, and strike the statute as both vague and overbroad.




For the foregoing reasons, plaintiffs respectfully request that the Court deny the motion to dismiss in toto, grant plaintiffs' cross-motion for preliminary relief, and set an expeditious discovery and trial schedule.


Dated: Carle Place, New York
May 24, 2002


Respectfully submitted,
Attorneys for Plaintiffs
One Old Country Road
Carle Place, N.Y. 11514
(516) 873-9550




1 The concept that obscenity fell within the class of "low-value" speech outside the protections of the First Amendment dates to Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), in which it is expressed as dictum in a case scrutinizing a disorderly conduct conviction under a different class of "low value" speech, so-called "fighting words." Ex Parte Jackson, 96 U.S. 727 (1877) did not involve a general ban of the kind the Government seeks to find within it, but merely denied the facility of the federal mails to materials deemed "lewd" or "obscene." Far from upholding a generalized obscenity prohibition, the Court explicitly declared that Congress was free to not participate in the distribution of materials deemed by it to be immoral, but stated that "[i]f , therefore, matter be excluded from the mail, its transportation in any other way cannot be forbidden by Congress." Id. at 733.


2 Justice Breyer engaged in a "saving construction" of the purported "national community standard" enacted in COPA, a standard even attempted by Congress in the CDA. After the language quoted, he found that application of even similar local community standards of what is harmful to minors to the Internet posed "special difficulties" which "potentially weaken the authority" of Sable and Hamling in which those difficulties did not arise. Id.


3 The complaint, at 7, quotes the section above encapsulated, 223(a). The CDA, at §507, further amended section 223; as summarized by the conference committee report, "a new section 223(d) is added to prohibit the use of a telecommunications device to make or make available an obscene communication." Senate Conference Report No. 104-230 (Feb. 1, 1996) (Schilling Declaration at Exhibit C) at 187; Ashcroft v. ACLU, slip op. at 3. As the Supreme Court has construed the section relied upon in the complaint as discussed above, the plaintiffs have not relied upon this effectively cognate provision as establishing their cause of action. However, should the Court read section (d) to sweep differently than the cited section, the complaint should not be dismissed, but at most amended, although the citation of a wrong theory of recovery or statute does not render a pleading insufficient. Nothrop v. Hoffman of Simsbury, Inc., 134 F.3d 41, 46 (2d Cir. 1997).


4 This statement is based on the fact that e-mail or BBS or list postings are directed to the recipient's e-mail account, which may be accessed by the recipient from a remote location, or through a remailer service, and not merely their home computer. Reno v. ACLU, 521 U.S. at 851-852 (various internet fora), 855-856 (impossibility of identity, address or age verification through e-mail address).


5Because the Supreme Court reversed the factual findings as to prurience and patent offensiveness, it did not explicitly address the third prong; however, the Court's discussion strongly suggests that the film would have been rescued under that test as well. 418 U.S. at 158-159.



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