[Blue Ribbon] [2736] TAYLOR/AFA/EIE AMICUS BRIEF IN SHEA V. RENO NYC CASE Declan McCullagh Subject: Taylor/AFA/EiE amicus brief in Shea v. Reno NYC case From: Declan McCullagh Date: Sat, 8 Jun 1996 11:26:30 -0700 (PDT) Message-id: [The following document came from a Microsoft Word file supplied by Bruce Taylor. Translation to text done by Declan McCullagh, declan@well.com. Any errors in formatting are his.] In the United States District Court for the Southern District of New York ________________________ Joe Shea, on behalf of ) The American Reporter, ) Plaintiff ) =09v. =09 ) Civil Action No. 96 Civ. 0976 (DLC) =09 ) Janet Reno, Attorney General=09 ) of the United States of America, ) Defendant ) _________________________ MOTION FOR LEAVE TO FILE the attached BRIEF AMICUS CURIAE and APPENDIX of the National Law Center for Children and Families, Family Research Council, "Enough is Enough!" Campaign, National Coalition for the Protection of Children & Families, and Morality in Media, as AMICI CURIAE IN SUPPORT OF DEFENDANTS __________________________ =09Amici Curiae, the National Law Center for Children and Families, the Family Research Council, et al., by and through their co-counsel for this matter, hereby move this Honorable Court for an order permitting them to file a Brief Amicus Curiae in support of the Defendant, the Honorable Janet M. Reno, Attorney General of the United States. =09Consent of the Parties: Counsel for both parties before this Court, Mr. Randall J. Boe, attorney for Plaintiff, and A.U.S.A. William J. Hoffman, attorney for Defendant, have each granted consent to these amici for the filing of this Brief.n =09A similar amicus brief was filed in ACLU v. Reno/ALA v. DOJ, E.D. Pa., see attached Order of April 30, 1996. =09Co-counsel Bruce Taylor and Cathy Cleaver further request that this motion also serve, if necessary, as a motion for their admission, pro hac vice, for the purpose of filing the instant motion for leave and the amicus brief. Bruce A. Taylor has the following admissions to practice: Supreme Courts of New York, Ohio, & Arizona; U.S. Supreme Court; U.S. Courts of Appeals (2nd, 5th, 6th, 9th, D.C.); U.S. District Courts (N.D. Ohio, D. Ariz.). Cathleen A. Cleaver has the following admissions to practice: Supreme Court of Virginia; District of Columbia; U.S. Supreme Court; U.S. Court of Appeals (4th Cir.); U.S. District Court (D.C.). =09These amici played a central role in the development and passage of the Communications Decency Act of 1996 (the =B3CDA=B2), having provided extensive advice to several Senators and Members of the House of Representatives and engaging in a continual dialogue with Congressional staff, industry representatives, special interest groups and advocates on both sides, media reporters, the academic community, and the general public.*{1}=20 =09Co-counsel Bruce Taylor and Cathy Cleaver also served in the unique role of having been invited by the Honorable Senators James Exon and Dan Coats, the primary sponsors of the CDA, to provide legal advice and counsel to those and other Senators, their staffs, to Representatives and staff assistants in the House, and to the members of the joint Committee of Conference from which the final CDA emerged. See, for example, Senator Exons submission in the Congressional Record-Senate of NLCs Memorandum of Opinion in Support of the Communications Decency Amendment as Adopted by the U.S. Senate on June 14, 1995 and letter to Reps. Cox & Wyden of July 10, 1995, at 141 Cong. Rec. S9770-75 (daily ed. July 12, 1995) (copy in Appendix 3). =09Joining in this amicus curiae brief are five non-profit, citizen advocate, pro- family organizations which promote public decency, family values, and the welfare of children. None of the amici is a subsidiary or affiliate of a publicly-owned corporation, none has any relationship to any party to either action or to any other amicus organization, and none of the amici has any financial interest in the outcome of this matter. The instant amici are all separate, public interest, educational organizations under IRS Code 501(c)(3), to wit: =09The National Law Center for Children and Families (NLC) is a law enforcement support organization which provides training, advice, legal research and briefs, and direct trial and appellate assistance to federal, state, and local prosecutors and police agencies throughout the United States and in several foreign countries. The NLC focuses on legal and law enforcement issues related to Obscenity, Child Pornography and other forms of child sexual exploitation and abuse, the broadcasting and other mass communication of Indecent material, and the display and dissemination to minors of materials which are Harmful To Minors. The President and Chief Counsel of NLC is Bruce A. Taylor, who is co-counsel herein. Prior to this position, this attorney was a Senior Trial Attorney in the Child Exploitation and Obscenity Section of the Criminal Division of the United States Department of Justice (1989-94), Assistant Attorney General of the State of Arizona (1989), General Counsel for Citizens for Decency through Law, Inc. (1979-89), Associate with Bertsch, Fludine, Millican & OMalley, L.P.A., of Cleveland, Ohio (1978-79), and Assistant Director of Law (1977-78) and Assistant Police Prosecutor (1975-77) for the City of Cleveland. =09This attorney has experience in prosecuting and assisting in the prosecution of hundreds of obscenity, child exploitation and abuse, harmful to minors, and indecency cases since 1973, including several arguments and briefs before the U.S. Supreme Court and various U.S. Courts of Appeals, state Supreme Courts, and other state and federal trial and appellate courts. =09The Family Research Council (FRC) is a national research and educational organization concerned with family protection and decency issues. FRC works in the public policy arena to preserve and protect the rights of the family, consequently giving it significant knowledge concerning the harmful effects of child, obscene, and indecent pornography on the family and violent criminals. The President of FRC is Mr. Gary L. Bauer, former Under Secretary of the U.S. Department of Education and former Assistant to the President and Director of the White House Office of Policy Development. FRCs Legal Studies Director is Cathleen Anne Cleaver, who is co-counsel herein. =09The Enough is Enough! Campaign ("EIE") is an educational organization with a mission to involve women in a national effort to decrease the amount of sexual violence within and against Americas families. The Campaign is an educational program which seeks to help citizens protect themselves and their communities from the harmful effects of illegal pornography and is therefore in a unique position to understand this issue. Its President is Mdm. Dee Jepsen, former Special Assistant to the President for Public Liaison. EIE played a major role in advising various Senators and House Members on the Communications Decency Act and was a central figure in the national education and media awareness concerning the CDA. =09The National Coalition for the Protection of Children & Families (formerly known as N-CAP or the National Coalition Against Pornography) is a national public education and citizen advocate organization which works to increase public awareness of the harm caused to the American family by obscene, indecent, and other pornographic and harmful materials. The Coalition is active at local and national levels, both in this country and in countries around the world, in its attempt to educate the public on the harms which illegal, violent, and degrading pornography inflicts upon children and families. Its President is the Reverend Dr. Jerry Kirk. The Coalition is also an affiliate of the Religious Alliance Against Pornography (RAAP), which is an international organization of church and religious leaders to educate people about the destructive influence of pornography and its offense to public morality, private virtue, and religious principles. The co-chairmen of RAAP are His Eminence Joseph Cardinal Bernardin and the Reverend Dr. Kirk. =09Morality in Media, Inc. (MiM) is a New York not-for-profit, interfaith, charitable corporation, organized in 1968 for the purpose of combating the distribution of obscene material in the United States and upholding decency standards in the mass Media. MiM operates the National Obscenity Law Center as a clearinghouse of legal briefs, books, and reference materials for law enforcement. It has filed briefs as amicus curiae before the United States Supreme Court in various indecency cases including FCC v. Pacifica Foundation, 438 U.S. 726 (1978); Sable Communications v. FCC, 492 US 115 (1989) Action for Children's Television v. FCC, 932 F. 2d 1504 (D.C. Cir. 1991) cert. denied 60 L.W. 3598 (1992) and in Denver Area Educational Communications Consortium et al. v. FCC (No. 95-124 and 95-227) now pending before the United States Supreme Court. =09Morality In Media has a special interest in this case because its General Counsel, Mr. Paul J. McGeady, was involved in the development of language for the Communications Decency Act and is familiar with the rationale surrounding the adoption of certain phraseology used therein. MiM believes that it will bring to the Court's attention arguments for sustaining the legislation not raised by the parties, especially in its references to the applicability of the "nuisance speech" concept. The separate arguments of Morality in Media are incorporated as Part II of the Brief. =09In light of each amicus perspective on pornography, its harmful effects on children and families, and the law applicable to this issue, a brief representing certain of their legal views on indecency and good faith compliance issues involved in this case should be a substantial help to the Court in its obligations to interpret and authoritatively construe 47 U.S.C. 223 (a) and (d) so as to be constitutionally valid and enforceable as intended by Congress. =09Therefore, these amici hereby move this Court for leave to file their BRIEF AMICUS CURIAE in support of the Government of the United States of America and the Act of Congress known as the Communications Decency Act of 1996. =09Respectfully submitted, =09Bruce A. Taylor Cathleen A. Cleaver Co-Counsel for Amici Curiae Of Counsel: Paul J. McGeady Robert J. Peters PARTIES AMICUS CURIAE National Law Center for Children and Families Bruce A. Taylor, Chief Counsel Janet M. LaRue, Senior Counsel 4103 Chain Bridge Road, #410 Fairfax, VA 22030-4105 (703) 691-4626, (714) 435-9090 Family Research Council Cathleen A. Cleaver, Legal Studies Director 700 13th Street, N.W. #500 Washington, D.C. 20005 (202) 393-2100 Enough is Enough! Campaign Mrs. Dee Jepsen, President 4103 Chain Bridge Road, Suite 420 Fairfax, VA 22030 (703) 278-8343 National Coalition for the Protection of Children and Families Dr. Jerry R. Kirk, President 800 Compton Road, Suite 9244 Cincinnati, OH 45231 (513) 521-6227 Morality in Media Paul J. McGeady, General Counsel 475 Riverside Drive, #239 New York, NY 10115 (212) 870-3222 In the United States District Court for the Southern District of New York Civil Action No. 96 Civ. 0976 (DLC) Joe Shea, on behalf of the American Reporter, =09=09=09=09=09Plaintiff v. =09Janet Reno, Attorney General of the United States, =09=09=09=09=09=09=09=09Defendant BRIEF AMICUS CURIAE OF The National Law Center For Children And Families, Family Research Council, Enough Is Enough! Campaign, National Coalition For The Protection Of Children & Families, and Morality In Media, AS AMICI CURIAE IN SUPPORT OF DEFENDANT, Janet Reno, Attorney General Cathleen A. Cleaver Bruce A. Taylor, Chief Counsel Director of Legal Studies Janet M. LaRue, Senior Counsel Family Research Council National Law Center 700 Thirteenth Street, N.W. for Children and Families Suite 500 4103 Chain Bridge Road, #410 Washington, D.C. 20005 Fairfax, VA 22030-4105 (202) 393-2100, Fax: 202-393-2134 (703) 691-4626, Fax: 703-691-4669 Co-Counsel for Amici Curiae Paul J. McGeady Robert W. Peters Morality in Media 475 Riverside Drive, Suite 239 New York, NY 10115 (212) 870-3222, Fax: 212-870-2765 Of Counsel TABLE OF CONTENTS PAGE I. INTRODUCTION1 =09=09A. Overview and Summary of Argument1 B. =09=09Judicial Notice of Legislative Facts5 II. THIS COURT IS OBLIGED TO INTERPRET THE CDA NARROWLY, =09SO AS TO SAVE IT, AND, IF NECESSARY, LEND IT AN AUTHORITATIVE CONSTRUCTION, SO AS TO MAKE IT CONSTITUTIONALLY ENFORCEABLE.7 III. THE CDA IS CONSTITUTIONAL10 A. THE TEST FOR VAGUENESS IS NOT =09MERE UNCERTAINTY BUT SUFFICIENTLY DEFINITE WARNING OF =09CRIMINALITY.10 B. UNCONSTITUTIONAL OVERBREADTH MUST BE =09BOTH REAL AND SUBSTANTIAL AND IS CURED BY CONSTRUCTION.12 C. AUTHORITATIVE CONSTITUTIONAL CONSTRUCTION IS PARTICULARLY APPROPRIATE FOR FIRST AMENDMENT =09RELATED LAWS SUCH AS THE COMMUNICATIONS DECENCY ACT.13 D. THE CDA IS SUBJECT TO PROPER NARROWING AND =09CAN BE INTERPRETED AS FULLY CONSTITUTIONAL, AS HAS BEEN =09DONE WITH EXISTING OBSCENITY AND SEXUAL EXPRESSION RELATED =09LAWS.17 E. CONGRESS ANTICIPATED THE LEGITIMATE =09PROTECTION OF THE RIGHTS OF ADULTS TO ENGAGE IN PROTECTED, =09BUT INDECENT SPEECH, BUT REQUIRED IT TO BE CHANNELED SO =09THAT CHILDREN ARE ALSO PROTECTED.28 III. THE CDA IS FACIALLY VALID AND IS A LEAST =09RESTRICTIVE MEANS OF PROTECTING MINOR CHILDREN FROM INDECENT =09PORNOGRAPHY ON THE INTERNET31 A. THE GOVERNMENT INTEREST UPON WHICH THE =09CDA IS BASED IS LEGITIMATE AND COMPELLING33 B. THE GOVERNMENT MAY REGULATE TO FURTHER ITS COMPELLING INTEREST.34 C. THE SUBJECT OF THE REGULATION IS THE SPEECH, =09NOT THE CONSUMER OF THE SPEECH38 IV. "INDECENCY" IS A VALID STANDARD FOR THE INTERNET =09AND OTHER INTERACTIVE COMPUTER SERVICES44 A. THE INDECENCY STANDARD IS APPROPRIATE =09FOR A PUBLIC FORUM, SUCH AS THE PUBLIC AREAS OF THE INTERNET45 B. INDECENCY IS NOT AND CANNOT BE =09VAGUE OR OVERBROAD47 V. COMPLIANCE WITH THE CDA IS POSSIBLE =09AND NOT UNREASONABLE54 VI. THE CDA IS A REASONABLE TIME, PLACE, AND =09MANNER REGULATION64 VII. SOME ADDITIONAL COSTS INCURRED FOR COMPLIANCE =09WITH A LAW DO NOT AFFECT ITS CONSTITUTIONALITY68 VIII.THE CDA IS NOT UNDER INCLUSIVE BECAUSE IT =09PROVIDES FOR PROSECUTION FOR IMPORTING FOREIGN COMPUTER =09PORNOGRAPHY AND OF DISTRIBUTORS WHO EXPLOIT U.S. CHILDREN71 PART II by Morality in Media I. INDECENT COMMUNICATIONS WHICH, BY MEANS OF COMPUTER, INTRUDE INTO THE PRIVACY OF THE HOME AND ARE READILY ACCESSIBLE TO CHILDREN, ARE A FORM OF 'NUISANCE SPEECH' WHICH CONGRESS CAN PROHIBIT OR REGULATE73 II. APPLYING INDECENCY STANDARD TO THE INTERNET =09WILL NOT REDUCE ADULTS TO VIEWING ONLY WHAT IS FIT FOR =09CHILDREN77 III. THE 'INDECENCY' STANDARD IS NEITHER =09VAGUE NOR OVERBROAD82 CONCLUSION88 CERTIFICATE OF SERVICE89 APPENDIX INDEX APPENDIX 1: The CDA, Communications Decency Act of 1996, =09=09=09as reported at 1996 U.S.C.C.A.N. 133-43. APPENDIX 2: The Conference Report on the CDA =09=09=09(Joint Explanatory Statement of the Committee =09=09=09of Conference), as reported at 1996 =09=09=09U.S.C.C.A.N. Leg. Hist. 200-11. APPENDIX 3: Excerpts from the Congressional Record, =09=09=09(statements and submissions of Sen. Exon): =09=09=09141 Cong. Rec. S 9770-75 (daily ed. July =09=09=0912, 1995), Amicus NLCs Memorandum of Opinion =09=09=09in Support of the Communications Decency =09=09=09Amendment as Adopted by the U.S. Senate... =09=09=09and letter to Reps. Cox & Wyden of 7-10-95; =09=09=09141 Cong. Rec. S 8328-30, S 8337-47, S =09=09=098386-89 (daily ed. June 14, 1995), the =09=09=09introduction of the Exon-Coats bill, letters, =09=09=09debate; =09=09=09141 Cong. Rec. S 2095 (daily ed. March 14, =09=09=091996), editorial and letter submitted by =09=09=09Sen. Exon. APPENDIX 4: Correspondence with Congress, amici releases, =09=09=09and public debate and education materials. APPENDIX 5: News stories and reports on the CDA. APPENDIX 6: OCAF White Paper on Internet Pornography, =09=09=09Oklahomans for Children and Families (OCAF), =09=09=09Internet posting of Feb. 2, 1996. APPENDIX 7: Internet postings of sources and sites for =09=09=09pornography and sexually oriented materials, =09=09=09including the Jake Baker stories. APPENDIX 8: FCC opinions, orders, and letters re Indecency. TABLE OF AUTHORITIES PAGE Action for Childrens Television v. FCC, =0911 F.3d 170 (D.C. Cir. 1993)53 Alliance for Community Media v. FCC, =09 56 F.3d 105 (D.C. Cir. 1995) 39, 40, 51, 62 American Booksellers Assn v. Commonwealth of Va., =09882 F.2d 125 (4th Cir. 1989)53 Barnes v. Glen Theatre, Inc., =09501 U.S. 560 (1991)79 Bethel School District No. 403 v. Fraser, =09478 U.S. 675 (1986)77, 79 Breard v. Alexandria, =09341 U.S. 622 (1951)75 Broadrick v. Oklahoma, =09413 U.S. 601 (1973) 12 Brockett v. Spokane Arcades, Inc., =09472 U.S. 491 (1985) 26-27, 49, 64 Chaplinsky v. New Hampshire, =09315 U.S. 558 (1942)74 Clark v. Community for Creative Non-Violence, =09468 U.S. 288 (1984)64 Cohen v. California, =09403 U.S. 15 (1971)49 Commonwealth v. American Booksellers Assn, =09372 S.E.2d 618 (VA. 1988)53 Dial Information Services Corp. of New York v. Barr, =09937 F.2d 1465 (2nd Cir. 1991)82 Dial Information Services v. Thornburgh, =09938 F.2d 1535 (2nd Cir. 1991) 31, 39, 51 Dombrowski v. Pfister, =09380 U.S. 479 (1965) 26 Erznoznik v. City of Jacksonville, =09422 U.S. 205 (1975) 50, 51 FCC v. Pacifica Foundation, =09438 U.S. 726 (1978) 16, 18, 19, 33, 35, 52-55, 76, 79-80, =0982, 85 Frisby v. Schultz, =09487 U.S. 474 (1988)80 Ginsberg v. New York, =09390 U.S. 629 (1968) 9, 25, 27, 34, 35, 37, 62 Ginzburg v. United States, =09383 U.S. 463 (1966) 49 Grayned v. City of Rockford, =09408 U.S. 104 (1972) 10, 13, 24 Hamling v. United States, =09418 U.S. 87 (1974) 9, 11, 12-13, 25 Hess v. Indiana, =09414 U.S. 105 (1973)75 Information Providers Coalition v. FCC, =09928 F.2d 866 (9th Cir. 1991) 51, 82 Jenkins v. Georgia, =09418 U.S. 153 (1974) 50, 51 Kaplan v. California, =09413 U.S. 115 (1973)38 Kolender v. Lawson, =09461 U.S. 352 (1983) 12 Kovacs v. Cooper, =09366 U.S. 77 (1949) 75 M.S. News Co. v. Casado, =09721 F.2d 1281 (10th Cir. 1983)65-66 Manual Enterprises, Inc. v. Day, =09370 U.S. 478 (1962)78 Memoirs v. Massachusetts, =09383 U.S. 413 (1966) 11 Miller v. California, =09413 U.S. 15 (1973) 8, 11, 23, 48, 83 Mishkin v. New York, =09383 U.S. 502 (1966) 49 New York v. Ferber, =09458 U.S. 747 (1982) 13, 14, 25, 34, 35, 71 Osborne v. Ohio, =09495 U.S. 103 (1990) 9, 25, 34 Paris Adult Theatre v. Slaton, =09413 U.S. 49 (1973)38, 39, 62 Pinkus v. United States, =09436 U.S. 293 (1977)49 Polykoff v. Collins, =09816 F.2d 1326 (9th Cir. 1987)49 Pope v. Illinois, =09481 U.S. 497 (1987)50 Portland Fem. Women's H. Ctr. v. Advocates For Life, =09859 F.2d 681 (9th Cir. 1988)65 Ripplinger v. Collins, =09816 F.2d. 1043 (9th Cir. 1987)49 Rosenfeld v. New Jersey, =09408 U.S. 901 (1972)75 Roth v. United States, =09354 U.S. 476 (1957)10, 11, 49, 71, 78 Sable Communications of Cal., Inc. v. FCC, =09492 U.S. 115 (1989)8, 22, 29, 32, 35, 55, 62, 68, 81 Smith v. California, =09361 U.S. 147 (1959) 25 Splawn v. California, =09431 U.S. 595 (1977)49 Spokane Arcade, Inc. v. City of Spokane, =09 75 F.3d 663 (9th Cir. 1996)69 Turner Broadcasting System, Inc. v. F.C.C., =09512 U.S. __, 129 L.Ed.2d 497 (1994)64 U.S. v. X-Citement Video, Inc., =09__ U.S. __ , 115 S. Ct. 464, 130 L.Ed.2d 372 (1994) 9, 25 United States v. 12 200-ft. Reels of Film, =09413 U.S. 123 (1973)12 United States v. 37 Photographs, =09402 U.S. 363 (1971) 13, 25 United States v. Guglielmi, =09819 F.2d 451 (4th Cir. 1987)49 United States v. Pryba, =09678 F. Supp. 1225 (E.D. Va. 1988)49 United States v. Thomas, =0974 F.3d 701 (6th Cir. 1996) 36, 63 Upper Midwest Booksellers v. City of Minneapolis, =09780 F.2d 1389 (8th Cir. 1986)66 Village of Hoffman Estates v. Flipside, =09455 U.S. 489 (1982) 29 Ward v. Rock Against Racism, =09491 U.S. 781 (1989)64, 65 Watson v. Buck, =09313 U.S. 387 (1941)29 Young v. American Mini Theatres, Inc., =09427 U.S. 50 (1976)66, 67 STATUTES Communications Decency Act of 1996, =09Title V, Telecommunications Act of 1996, Act of Feb. 8, =091996, Pub. L. No. 104-104 (S.652), 1996 U.S.C.C.A.N. (110 =09Stat.) 133-431 18 U.S.C. 1462 1 18 U.S.C. 1464 44, 54 19 U.S.C. 1305 (a) 18 42 U.S.C. 1983 11 47 U.S.C. 2231 =09 223 (a)(1)(B) & (a)(2)7 223 (b) 7, 55, 61 223 (c)61 223 =09 (d)-(h)1, 7 223 (e)7, 9, 49 223 (f)(1) 7 OTHER AUTHORITIES Conference Report on the CDA, =09Joint Explanatory Statement of the Committee of Conference, =09Report for P.L. 104-104, Title V-Obscenity and Violence, =091996 U.S.C.C.A.N. Leg. Hist. 200-113, 9, 19-21, 42, 64 Cyberporn and Children: the Scope of the Problem, the State of =09the Technology, and the Need for Congressional Action, =09Hearing before the Committee on the Judiciary, U.S. Senate, =09on S. 892, July 24, 1995, Hearing Report Ser. No. J-104-3642 141 Cong. Rec. S 8328, 8337, 8386, et seq. =09(daily ed., June 14, 1995) (statements of Sen. Exon) 3 141 Cong. Rec. S 9770-75 =09(daily ed., July 12, 1995) (statements of Sen. Exon)3 B. Taylor, Hard-Core Pornography: A Proposal For a Per Se Rule, =0921 U. Mich. J.L. Ref. 255 (1988)49 Treaty Series, No. 559, =09Arrangement Between The United States And Other Powers =09Relative To The Repression of the Circulation of Obscene =09Publications71 White House letter of Feb. 28, 1996, =09 to Senator James Exon from Jack Quinn, Counsel to the =09President3 I. INTRODUCTION =09A. OVERVIEW AND SUMMARY OF ARGUMENT The , was passed =09by the United States Congress on February 1, 1996, and signed by the President into law on February 8, 1996. It updates federal obscenity statutes, codified at (common carriage of obscenity) and 1465 (interstate and foreign commerce in obscenity). It also amends the obscene and harassing telephone and dial-porn law, , to add a new offense of knowingly providing indecent material to minor children under age 18, codified at , and is alleged to invalidly do so in these consolidated facial challenges. See (Appendix 1 hereto). =09This Court is being asked to declare the indecency sections of the CDA to be unconstitutional, invalid, and unenforceable. To do so would cause an unprecedented legal and social paradigm shift of enormous proportion. To recognize an unfettered freedom to openly distribute any and all material over the Internet and BBS computer networks, however indecent and harmful, without any consideration for the large audience of children online, would be to surrender the legislatures compelling interests in protecting children in favor of the economic interests and ideological wishes of computer pornography providers so that they may be unburdened and untroubled by even reasonable responsibilities for their offensive discourse. It is unreasonable to posit the issue as an either-or proposition: either we have no law and technology flourishes, or we have law and technological progress grinds to a halt. Such would be a preposterous proposition. Internet technology will no doubt continue to flourish undaunted by the presence of the CDA.{2} To suggest that the CDA would seriously hinder the healthy development of this important new technology is to maintain that its development depends upon the ability of adults to use this technology to give or show patently offensive sexual or excretory depictions to children (or to each other in a way that is also available to children), as if it were an indispensable and necessary feature of the medium.{3} =09Plaintiff interpret the CDA so broadly that it would reach protected speech and thus be unconstitutional. =09Amici interpret the CDA so narrowly that it doesnt reach protected speech and thereby be fully constitutional. =09As we do, Congress, the CDAs sponsors, and the President viewed the CDA as narrowly applying to unprotected indecent material and not as a threat to serious sexual discussions and materials. See (Appendix 2); and (Appendix 3); (Appendix 4). =09These Amici Curiae submit that this Court should, and is bound by its constitutional obligations in reviewing federal statutes to, interpret the CDA to protect legitimate sexual treatment that should not be considered indecent and fashion guidance on complying with this important new law. =09The CDA was enacted by overwhelming votes of members of both political parties in both chambers of the Congress in order to protect minor children who use the new interactive computer services and the Internet from being given harmful pornography by adults. It requires that adults who wish to use adult sexual expression that is patently offensive in its treatment of sexual or excretory activities or organs to put electric blinder racks in front of such pornography so their and our children dont see it. This can be done to a great extent under present custom, usage, and technology, can be assisted in great degree by voluntary measures taken by industry and by parents with developing screening devices, and will be possible to a greater extent as the future unfolds with advancing technology, computer communication protocols, standards of practice, and hardware/software developments. =09Adults do not have a First Amendment right to speak indecently on publicly available sites of the Internet, World Wide Web, or Usenet where children are present, any more than they do in public streets, roadside billboards, privately owned retail bookracks open to the general public, public airwave radio and TV shows, CB radio bands, basic cable TV channels, the dial-it phone services, or other public forums and mass communications mediums. The issue before the Court should not be whether consenting adults who wish to traffic in indecent pornography on the Internet or within a commercial online service providers system would find it bothersome or difficult to restrict it from minors, but whether the provider of such indecency should bear the burden of taking good faith efforts to restrict his indecent material from minor children. This case should also clarify that the test for indecency is not vague and will not be allowed to be overbroad in its interpretation or application. Serious works of literature, art, science, and politics are not realistically within the scope of the CDA, are not patently offensive or indecent to the average person in American society, and are neither obscene nor legally indecent. Such truly legitimate communications were not intended by Congress to be within CDAs scope and can be declared by this Court to be outside its reach and fully protected on the Internet, as in all other public forums, even for children. =09The CDA only requires adults to refrain from sending flagrantly offensive pornographic representations of sex and nudity to children or posting them in cyber places where they know children will get such harmful materials. Placing adult material that is too indecent for children in adults only areas of the Internet is possible under available methods and practices and, where it is not possible to restrict it from children and the provider knows it will be obtained and available to children, then the provider has an obligation to society and common decency to refrain from putting such harmful pornography into the faces and minds of our children until such time as the material can be screened from them. The CDA uses the least restrictive yet effective means to frame the parameters of the legal requirements placed on adults to protect children from indecency. =09B. THIS COURT CAN TAKE JUDICIAL NOTICE OF THE =09=09LEGISLATIVE FACTS CONTAINED IN THE APPENDIX. =09These Amici Curiae hereby submit that: The documents in =09the Appendix to the Brief Amicus Curiae may be considered by this Court as legislative facts as to which this Court may take judicial notice. This is so because these appendices are all public record and were all available to the Plaintiff, the public, and the media during the past year as the CDA was under consideration in Congress. =09The Appendix consists of documents related to the CDA that were publicly distributed or available during the past year. Included are: public law and official record sources such as the published versions of the CDA and the Conference Report on the CDA from 1996 U.S.C.C.A.N. 133-43 and 200-11 (App. 1 & 2); CDA sponsor submissions to the Congressional Record (App. 3); correspondence with Congress and its staff, concerning various points at issue in the CDA, that were a part of the legislative record and debate in Congress and explain the legislative history, and press releases and public arguments on the CDA (App. 4); public information relating to the CDA, such as media and Internet news clippings, postings, and press releases (App. 5, 6, 7); and several of the FCCs decisions and letters on indecency (App. 8), all of which are public record and either published or available from the Federal Communications Commissions Mass Media Bureau. =09Since these amici played an advisory role in the development and passage of the Communications Decency Act, particularly because counsel for the amici had been invited by the CDAs sponsors, Senators Exon and Coats, and by other members of the Senate and House of Representatives to provide advice and comments to them and others during the legislative process and debate on the CDA, these amici were in a friend of the court position to provide these public legislative facts and background references to the attention of this Court as relevant to the legal reasoning and the lawmaking process for the law under consideration by this Court.{4} =09SO AS TO SAVE IT, AND, IF NECESSARY, LEND IT AN AUTHORITATIVE CONSTRUCTION, SO AS TO MAKE IT CONSTITUTIONALLY ENFORCEABLE. =09The Complaints filed by the Plaintiff allege that the CDAs indecency provisions, to be codified at , are unconstitutionally vague and overbroad in several respects and ask this Court to declare them unconstitutional on their face and enjoin their enforcement in toto. =09These amici respectfully submit that this Court may not do what Plaintiff ask. The Courts obligation is to interpret these sections narrowly and construe the CDA so as to be constitutionally valid and enforceable now and in the future. =09This may not be an expedient undertaking, and may require present and future consideration of developments in technology (as the FCC will also do in promulgating good faith defenses in the future pursuant to ), but this Courts supervisory jurisdiction and its duty to construe federal legislation that is subject to narrowing limits, as is the CDA, require such an analysis and interpretation in this case. The Supreme Court feels this burden as well, as stated in , but faces up to the tough individual problem of constitutional judgment involved in these cases. =09The CDA is not a total ban on indecency, and should not be interpreted to have the same effect as a ban. Because it is not a total ban of indecent speech, it is capable of narrowing constitutional construction by this Court. The CDA is unlike the indecent dial-a-porn statute that was before the Supreme Court in . There, the total ban version of prior was incapable of any narrowing construction, since Congress plainly criminalized the distribution of indecent material to consenting adults. In contrast, the CDA criminalizes the knowing transmission of indecent material to a specific minor child and the knowing display of indecent material to minors. The new crimes in this Act require that an offender act "knowingly" by knowing of the indecent character of the communication and knowing that it is going to or is available to minors. ; ; ; . =09Under the CDA, it is not a crime and is lawful activity for adults to speak indecently to other adults, consenting or not. Furthermore, even if a child or juvenile does obtain indecent material, it is a defense, under , to criminal or civil liability, that the provider of the indecent content took good faith actions under available technology to limit such speech to adults. This is the point upon which this case must turn, legally and technologically. This Court should render an interpretation of the CDA that allows for compliance under present technology as well as in the future according to what is feasible at that time. The CDA nicely lends itself to this type of interpretation by defining good faith defenses as "any method which is feasible under available technology". ; "Conference Report on the CDA," . III. THE CDA IS CONSTITUTIONAL. A. THE TEST FOR VAGUENESS IS NOT MERE UNCERTAINTY BUT SUFFICIENTLY DEFINITE WARNING OF CRIMINALITY. =09Condemned to the use of words, we can never expect mathematical certainty from our language. So stated the Court in . The Court in , upheld a city noise ordinance in light of three concerns in reviewing for unconstitutional vagueness: first, fair warning; second, prevention of arbitrary and discriminatory enforcement; and third inhibition of First Amendment freedoms. These principles are true when faced with First Amendment speech and expression issues, as in other areas of the law. =09The First Amendment test for facial validity in response to a vagueness challenge to a sexual expression statute was developed by the Supreme Court beginning with , where Justice Brennan noted that the statutory phrase of obscene, lewd, lascivious, or filthy..or...of an indecent character was not perfectly precise but was subject to reasonable interpretation, construction, and application (by combining them into the term obscenity and providing a Court announced test for applying that term in future cases): The thrust of the argument is that these words are not sufficiently precise because they do not mean the same thing to all people, all the time, everywhere. Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. * * * ...[T]he Constitution does not require impossible standards; all that is required is that the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.... =09The Court in construed the obscenity law and gave us the Roth Test -- basically, that obscenity be predominantly prurient in its intended appeal. Later the Court would give us the Roth-Memoirs Test by adding that obscenity must depict sex in a patently offensive way and be utterly without redeeming social value. . The Court then settled on a formula for the Miller Test that requires that unprotected material lack serious literary, artistic, political, or scientific value. . A year later, in , the Court was faced with a federal statute and avoided a vagueness problem by construing it to adopt the Miller Test as a constitutional standard to give notice of criminality, not absolute universal certainty, stating: As noted above, we indicated in ...that we were prepared to construe the generic terms in 18 U.S.C. 1462 to be limited to the sort of patently offensive representations or descriptions of the specific hard core sexual conduct given as examples in Miller v. California. We now so construe the companion provision in 18 U.S.C. 1461.... As so construed, we do not believe that petitioners attack on the statute as unconstitutionally vague can be sustained. * * * And while the Court in Miller did refer to specific prerequisites which will provide fair notice to a dealer in such materials, ...the Court immediately thereafter quoted the language of the Court in Roth...concluding with these words: =09That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.... [citations omitted] B. UNCONSTITUTIONAL OVERBREADTH MUST BE BOTH REAL AND SUBSTANTIAL AND IS CURED BY CONSTRUCTION. =09The substantial overbreadth doctrine of , is that, to be unconstitutionally overbroad, the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statutes plainly legitimate sweep. =09The Court in , at 113, prefaced it holding that 1461 was valid, as construed that day and understood in light of previous precedent, by quoting from : We further note that, while we must leave to state courts the construction of state legislation, we do have a duty to authoritatively construe federal statutes where a serious doubt of constitutionality is raised and a construction of the statute is fairly possible by which the question may be avoided. =09The Court has traditionally viewed vagueness and overbreadth as logically related and similar doctrines, , but the duty of federal courts differs with regard to their review of federal, as opposed to state, laws. If this were a state law challenge under , this Court would have no jurisdiction to authoritatively construe its language. As stated in , federal courts cannot extrapolate its allowable meaning...for it is not within our power to construe and narrow state laws. The task is appositive for federal laws, however, as the Court also noted in ,., where it referred to its decision in (a quote relied on in and , supra, above), where it was held that we lack jurisdiction authoritatively to construe state legislation...[but in] dealing with a federal statute...[federal courts have the] power to give it an authoritative construction...consistent with its legislative purpose. This duty was highlighted in the Courts child pornography case, , where the Court reminded: When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limited construction. C. AUTHORITATIVE CONSTITUTIONAL CONSTRUCTION IS PARTICULARLY APPROPRIATE FOR FIRST AMENDMENT RELATED LAWS SUCH AS THE COMMUNICATIONS DECENCY ACT. =09It is not enough to consider the narrowness of the challenge to the CDA as questioning only the indecency provisions, and not its obscenity law amendments, or argue that this case is not about obscenity or child pornography. Indeed, the indecency standard was developed with and because of the same First Amendment principles applicable to separating protected expression from unprotected obscenity and child pornography and materials harmful to minors. As discussed below, the test for determining whether the manner of treating sex and nudity is indecent had its roots and derives from the second prong of the Miller Test for patent offensiveness. The vagueness and overbreadth arguments made here as to indecency and patently offensive under contemporary community standards have been met and rejected and/or corrected in previous obscenity, and child exploitation, harmful to minors, and indecency cases in the Supreme Court. =09In , supra, 458 U.S. at 766-74, the Court discussed the rules governing facial challenges and those to statutes as applied. The New York Court of Appeals thought its child pornography statute could reach protected speech in some hypothetical applications and, instead of narrowing it by construction, struck the statute. The Supreme Court found, 458 U.S. at 769, that the court below misapplied the substantial overbreadth doctrine of Broadrick and reiterated that facial invalidity is a drastic and narrow exception that must be carefully tied to the circumstances in which facial invalidation of a statute is truly warranted and is strong medicine employed only as a last resort. The Court, at 773-74, explained: While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic, would fall prey to the statute. How often, if ever, it may be necessary to employ children to engage in conduct clearly within the reach of 263.15 in order to produce educational, medical, or artistic works cannot be known with certainty. Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statutes reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on lewd exhibition[s] of the genitals. Under these circumstances, 263.15 is not substantially overbroad and...whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied. [citing Broadrick] =09An analogous statement is evident for this case as to the use of indecent material to make a serious point on the Internet. How often, if ever, it may be necessary to use patently offensive sexual or excretory language or pictures in order to produce educational, medical, or artistic works cannot be known with certainty, but these arguably impermissible and certainly rare applications of the indecency standard can and should be considered to be beyond the legitimate reach of the law. =09For an illustration of the lack of impact that indecency laws and regulations have had in broadcasting, or would have on public BBS and other interactive computer systems, the courts need only inspect the dismissal letters and decisions of the Federal Communications Commissions Enforcement Division of the Mass Media Bureau, several of which are in Appendix 8 hereto.{5} Speculation is easy, but the courts and the public can look at the public FCC record to see that legitimate speech is not brought within the ambit of indecency regulation over the public airwaves. Even if speakers and content providers have to hold off using indecent language or images on public areas of the computer networks where children are invited as part of the general public, the messages the speakers convey can remain unchanged. The subject matter is not what can be found indecent, only the patently offensive sexual references used to convey the message need be tailored for the audience, when it contains minor children, or restricted only to reach adults, for whom it is protected. =09One of the most important legal quotations for use in understanding and deciding the instant controversy is that from the Court in , where the First Amendment principle of free expression of ideas was guaranteed its due protection by the law and the Government and the courts (emphasis added): A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. =09Furthermore, there is absolutely nothing in the record before this Court to prove or suggest or even imply that the indecency standard will apply to or should restrain serious treatment of sexual subjects such as alleged by some Plaintiff and their witnesses as to non-pornographic medical, public health, education, and political materials. The burden is on the Plaintiff to show the likelihood of success on their Complaints that the CDA would in fact cause a real and substantial prior restraint upon protected expression. They did not and cannot. This Court can and should reject their claim of facial invalidity and then interpret the CDA so that it could not have such allegedly unconstitutional applications. The issue need not be left unresolved. D. THE CDA IS SUBJECT TO PROPER NARROWING AND CAN BE INTERPRETED AS FULLY CONSTITUTIONAL, AS HAS BEEN DONE WITH EXISTING OBSCENITY AND SEXUAL EXPRESSION RELATED LAWS. =09If this Court decides that the indecency standard for the Internet would and should not apply to serious art and literature in our museums and libraries, nor to serious discussions and illustrations of sexual disease, medicine, or education programs, nor to protected political speech, nor to public discussions of law and legal cases on pornography, etc., then this Court is obliged to so state on the record and thus narrow the scope of the CDA to reach only the type of patently offensive, indecently pornographic sexual exploitation that is unprotected and harmful for minors. As it should be understood by this Court and by the public after an opinion is released in this case, Plaintiff hypothetical fears of prosecution for protected speech would cease to be any real or conjured restraint of free speech. =09The application of indecency under the CDA to the Internet, World Wide Web, Usenet, and within the proprietary services of online service providers like America Online, Prodigy, and CompuServe, may vary within each of these forums. It may also vary from its application to broadcast, telephone dial-a-porn, or cable TV mediums. An important feature of the indecency standard is its ability to adapt to its applicable context, as mandated by , supra, 438 U.S. at 750 under the nuisance rationale (discussed by Amicus Morality in Media in Part II of this Brief, infra). =09As interpreted by the Supreme Court in , by the FCC in its decisions finding indecency complaints either well taken or worthy of dismissal (for several examples of orders, opinions, and letters of liability and of dismissal, see Appendix 8 hereto), and the Department of Justice in these instant suits, the indecency standard would not apply to serious uses of merely graphic sexual language or medical or artistic nudity or sex. =09A reasonable construction of the test for indecency for the Internet, as opposed to the indecency test for radio or TV broadcasting or even dial-a-porn, would be to interpret the CDAs statutory definition in a specific contextual fashion that is uniquely applicable to the interactive computer services known as the Internet and BBS networks. =09As mandated in FCC v. Pacifica Foundation, supra, 438 U.S. at 750, the use of the indecency standard in any medium is rested entirely on a nuisance rationale under which context is all-important. The concept of context was explicitly incorporated into the CDA by Congress, in recognition of the following holding of the Court in Pacifica,.: The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and the differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. [Emphasis added.] =09The indecency standard, as thus interpreted by the Court and applied by the FCC, does not by any means reduce adults to hearing only what is fit for children,. at 750 n. 28, since consenting adults can obtain indecent materials at stores and theaters and maybe even at times or under circumstances where the broadcasting itself of offensive speech material may not be indecent,. =09Congress made its intent and understanding clear in the Conference Report on the CDA{6} by stating: =09The conferees intend that the term indecency (and the rendition of the definition of that term in new section 502 [ 223 (d)(1)(B)]) has the same meaning as established in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). ...[T]hese cases firmly establish the principle that the indecency standard is ... specifically limited in its reach so that the term is not unconstitutionally vague. ... [citing Circuit indecency cases =09The precise contours of the definition of indecency have varied slightly depending on the communications medium to which it has been applied. ... =09The conferees considered, but rejected, the so-called harmful to minors standard. See Ginsberg v. New York, 390 U.S. 629, 641-43 (1968). The proponents of the harmful to minors standard contended that that standard contains an exemption for material with serious literary, artistic, political, and scientific value, and therefore was the better of the two alternative standards. ... This assertion misapprehends the indecency standard itself, and disregards the Supreme Courts various rulings on this issue. See Pacifica, 438 U.S. at 743, n. 18, and its progeny. =09The gravamen of the indecency concept is patent offensiveness. Such a determination cannot be made without a consideration of the context of the description or depiction at issue. It is the understanding of the conferees that, as applied, the patent offensiveness inquiry involves two distinct elements: the intention to be patently offensive, and a patently offensive result. ...[citing FCC rulings] Material with serious redeeming value is quite obviously intended to edify and educate, not to offend. Therefore, it will be imperative to consider the context and the nature of the material in question when determining its patent offensiveness. =09[U]se of the indecency standard poses no significant risk to the free- wheeling and vibrant nature of discourse or to serious, literary, and artistic works that currently can be found on the Internet, and which is expected to continue and grow. As the Supreme Court itself noted when upholding the constitutionality of indecency prohibitions, prohibiting indecency merely focuses speakers to re-cast their message into less offensive terms, but does not prohibit or disfavor the essential meaning of the communication. ... Likewise, requiring that access restrictions be imposed to protect minors from exposure to indecent material does not prohibit or disfavor the essential meaning of the indecent communication, it merely puts it in its appropriate place: away from children. [Conference Report, at 188-89, 1996 U.S.C.C.A.N. Leg. Hist. at 202-03] [Emphasis added.] =09The rejection of the use of the harmful to minors standard from state laws was not, therefore, a rejection of the First Amendment sensitivity of that tests requirement that a lack of serious value for minors be found. Congress rejected codifying that standard because the indecency standard can accomplish a similar sensitivity to the value of serious communication. This Court could find that the two tests are more functionally equivalent to each other, rather than an exclusivity to the other. As a practical matter, the findings are essentially the same. Under a harmful to minors test, the trier of fact must find that the material lacks serious value for minors and is prurient with respect to minors. For indecency, such factual considerations may be incorporated in the application of the term to the facts of the given case. The presence of truly serious value may be a significant factor in a finding that a presentation does not offend. Also, that which has been pandered for its prurience could be found not to have been offered for a serious purpose. (This is consistent with Pacifica and with the FCCs interpretation, see Appendix 8.) =09Under the Internet indecency test, the Government need not affirmatively prove the presence of prurience or lack of serious value, but the trier of fact must nevertheless consider the presence of value and may consider any evidence of pandering to prurient interests in determining the patent offensiveness of the material in the specific factual context of the host of variables that are inherent in the legal term of art the law calls indecency. =09Therefore, this Court could recognize a medium specific meaning of the indecency standard in the CDA to be that of Internet indecency that is a synthesis of the host of variables in a nuisance rationale, such as the following: =09Internet indecency means any communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs. Any determination of patent offensiveness must consider the presence, lack, or inherent involvement of the following host of variables: any serious literary, artistic, political, or scientific value inherent in the material itself; any serious literary, artistic, political, or scientific purpose to which the material was intended or used by the communicator; the time, place, and manner of the communication; the content, theme, and context of the program in relation to its subject matter and manner of presentation; the composition and age of the audience; the pervasiveness of the medium used and its availability to minor children under the circumstances; any evidence of intention to be patently offensive; any evidence of pandering or exploiting a prurient interest in nudity, sex, or excretion in the creation, marketing, or dissemination of the material. =09As used, the CDAs indecency test for the Internet need not make each variable a separate element, but would clarify that it is the totality of the circumstances which coalesce in considering the host of variables required to make the ultimate determination of whether the communication was patently offensive in the context in which it was made, disseminated, and received. One need not pre-judge its application in every future or hypothetical circumstance to know that the fairness of the result will be governed by the mandate that each such future judgment be made by a proper test, as we do with the legal standards of beyond reasonable doubt and presumption of innocence or the marvelously instructive and variable reasonable man of fact finding.{7} =09Such a judicial melding of the generic definition with its constitutional considerations is faithfully consistent with the Supreme Courts development of the tests for obscenity, child pornography, harmful to minors, and indecency, and with the intent of Congress as expressed in the CDA and its accompanying Conference Report. This would accomplish the same sensitivity to First Amendment values and allow this test to be used, like that for obscenity and harmful to minors, as a constitutionally valid method of separating protected speech that may be freely and openly available to everyone from indecent material that is pornographically offensive and harmful to minor children to whom it is knowingly made available on the Internet. =09Unlike in the child pornography context, where a photo of a child having sexual conduct with another is per se contraband, but might still be saved by an overriding serious medical or law enforcement purpose as mentioned in , indecency considers serious value and purpose as part of the consideration of whether the treatment is patently offensive in context. First Amendment protections are preserved by both methods of judicially narrowing a law so as not to apply to protected speech. A serious use of otherwise offensive sexual references would render it not patently indecent to begin with, thus avoiding an impermissible application of the indecency standard. =09As the Court said in : It will always be true that the fertile legal imagination can conjure up hypothetical cases in which the meaning of [disputed] terms will be in nice question. =09Although a reviewing court must construe a statute so as to prevent invalid applications, some of which may be merely arguably possible though not plausible, this task is not all encompassing nor one that cannot vary with time and circumstance. The courts can only announce principles to guide future conduct, as all laws do. When the Supreme Court held that some degree of guilty knowledge of the content and character of the material involved in an obscenity case was required by the Constitution, it did not try to place absolute limits or bounds on what type of scienter would be required. See (We need not...pass today on what sort of mental element is requisite to a constitutionally permissible prosecution....). When faced with a federal statute, however, the Court in , provided the parameters of the scienter element.{8} =09The Supreme Court recognized that statutory construction can sometimes take on a substantial scope, if the situation warrants such detailed analysis and authoritative interpretation. As discussed in , the Court added time periods for judicial review of customs forfeitures of allegedly obscene material under and held that [s]o construed, 1305(a) may constitutionally be applied to the case before us.. at 374. The Court prefaced its holding by saying that we do not now decide that these are the only constitutionally permissible time limits. We note, furthermore, that constitutionally permissible limits may vary in different contexts..... The Court also discussed how, in order to save a statute, the Court may be required to provide authorizations to administrative agencies and create mechanisms for carrying it into effect.. at 370. The Court then foreshadowed a recent case mandating limiting construction or partial invalidation, rather than wholesale facial invalidity, when it said, at 375 n. 3, that if a lower court had thought some conduct could be proscribed but that other conduct would be protected, that the proper approach...was not to invalidate the section in its entirety, but to construe it narrowly and hold it valid in its application to the valid purpose. The Court continued by stating: This was made clear in , where the Court noted that, once the overbreadth of a statute has been sufficiently dealt with, it may be applied to prior conduct foreseeably within its valid sweep.. =09The partial invalidity rule was recently underscored in , where the Ninth Circuit struck down an entire state law because it felt that including lust in the definition of prurient could apply to protected speech which appealed only to normal and healthy sexual interests. Although an unhealthy or abnormally lustful interest can properly be included in prurience, had the Court of Appeals thought that lust refers only to normal sexual appetites, it could have excised the word..... at 505 (emphasis in original). (A misreading of Brockett leads many to argue that lust was found improper as a descriptive adjective for prurience. A careful reading of the Courts opinion and its prior cases on prurience and pandering show the opposite to be true.) Nevertheless, the Court held,., that any mis-application of the word lust should have been limited by declaring such applications unconstitutional, not that the law, or the word, be stricken: Unless there are countervailing considerations, the Washington law should have been invalidated only insofar as the word lust is to be understood as reaching protected materials. (Emphasis added.) =09The Supreme Court also stated the rule of law that should guide this Court as to the many legitimate parties who honestly seek to engage in serious discussions of sexual disease prevention, legitimate legal or sex education, or disseminate valuable artistic or literary works such as are found in museums and libraries: =09If the overbreadth is substantial, the law may not be enforced against anyone, including the party before the court, until it is narrowed to reach only unprotected activity, whether by legislative action or by judicial construction or partial invalidation. ... =09It is otherwise where the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish... The statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact. . at 503-04 [Emphasis added.] E. CONGRESS ANTICIPATED THE LEGITIMATE PROTECTION OF THE RIGHTS OF ADULTS TO ENGAGE IN PROTECTED, BUT INDECENT SPEECH, BUT REQUIRED IT TO BE CHANNELED SO THAT CHILDREN ARE ALSO PROTECTED. =09The clearly stated intent of Congress and the Acts sponsors and supporters is to interpret the CDA narrowly so as to save it from impacting truly legitimate, protected expression and information on the Internet and computer systems. The Conference Report on the CDA is the best evidence of legislative intent and clearly states the applicable law and First Amendment sensitivities that Congress recognizes as important for the Internet. See (copy in Appendix 2). =09Congress sought to protect the right of minors to learn and benefit from this new global communications tool, not be excluded from it as if it were a universal, in- home adult bookstore full of hard-core pornography as well as soft-core pornographic indecency. Both forms of pornography are harmful to minors and the CDA would protect children from either on the public areas of the BBS and Internet systems. These amici submit that it is this Courts solemn duty to interpret the Communications Decency Act to allow for its constitutional application in the protection of children, while preserving whatever legitimate rights adults have to communicate indecently to other adults. Plaintiff ask this Court to take the easy way out for them and simply strike the indecency provisions from the CDA. This is not an option unless this Court can find that the rule of total invalidity is the only and last resort. This would require a finding, as in , that the CDAs proscription against knowingly sending indecency to a minor or knowingly displaying such patently offensive sexual material on public sites on the Internet where it is available to minors as part of the general public, without taking good faith efforts to limit the speech to adults, is flagrantly and patently violative of express constitutional prohibitions in every clause, sentence and paragraph, and in whatever manner and against whomever an effort might be made to apply it. See (holding that the law was invalid in toto -- and therefore incapable of any valid application). This, we submit, is impossible in light of the legislative and judicial record which proves that there is both hard-core pornography that could be considered obscene and other graphically indecent pornography freely available to children on the Internet, World Wide Web, and especially on the alt.sex news groups of the Usenet. =09A reading of , should not lead one to find it analogous to the indecency crimes fashioned by the Congress in the CDA. The Court in was forced to review a law that was clearly intended to prohibit indecent as well as obscene interstate commercial telephone communications directed to any person regardless of age...since a total ban was imposed on dial-a-porn, making it illegal for adults, as well as children.. at 122- 23. No narrowing construction was possible to remove the crime of consensual sale of indecent messages to an adult. There, the Court had no choice. , however, does not mandate a similar remedy for an adults unwillingness to take some steps to obtain indecency in cyberspace so that it is not readily accessible to children at the same time. =09The forum for resolution of the complaints and concerns of Plaintiff is in this Court and the burden lies here to do the hard construction work necessary to give effect to this monumental act of Congress on behalf of children. Amici submit that this is necessary, but sympathize that the task is not so easy as the CDAs detractors would have it. Guided by established principles of First Amendment due process, and learning from past obscenity, harmful to minors, and indecency cases, the CDA is and can be fully constitutional. The last few pages of the decision and the application of the pandering and scienter cases of the Supreme Court will answer most of the legal questions. Time and technology will have to contribute to solving some of the concerns about ease of compliance. Ease is not a constitutional right, however, and this Court should admit that at some point an adult must refrain from truly indecent speech on the public Internet sites. With sensitivity to the protection and rights of children and to the legitimate expression rights of adults, this Court can fashion an order which will make the CDA enforceable against truly indecent material that reasonable minds would not differ as to its inappropriateness for minors on the Internets public square. III. THE CDA IS FACIALLY VALID AND IS A LEAST =09RESTRICTIVE MEANS OF PROTECTING MINOR CHILDREN FROM INDECENT =09PORNOGRAPHY ON THE INTERNET Plaintiff assert that the CDA is not the least restrictive means to further the Governments compelling interest in protecting children from exposure to online indecency. However, when Plaintiff explain the reasons for their conclusion, it becomes clear that they have misapplied the sum and substance of the least restrictive means test. =09A less restrictive means must be just as effective as the means at issue in accomplishing the asserted interest. It would be unreasonable to force Congress to enact legislation which allowed a less restrictive, but ineffective, means that would not achieve its purpose. A least restrictive means must be effective in order for Congress to achieve its compelling interest. =09In , 938 F.2d 1535, at 1541 (2nd Cir. 1991), cert. denied, 502 U.S. 1072 (1992), in addressing the least restrictive means issue, the Court of Appeals stated: Accordingly, in order for appellees to prevail, it must be determined that there are other approaches less restrictive than the Helms Amendment but just as effective in achieving its goal of denying access by minors to indecent dial-a-porn messages. As to the district court's reference to disobedient young people, 'parents and others . . . who have th[e] primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility. =09The Court cited and held that "[t]he Helms Amendment is such a law, 'narrowly tailored to serve [a compelling] interest.'"., 938 F.2d at 1542-43. =09The CDAs challengers argue for a "less" restrictive means to protect children from online indecency than that which the CDA requires. However, all that they have suggested are "non"-restrictive, some are non-existent, and many are non-effective in restricting access by children to the enormous amount of indecent pornography available online. =09The Supreme Court re-articulated the least restrictive means test in the context of furthering the Governments compelling interest in protecting children from exposure to indecency in : The government may...regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. =09The least restrictive means test has four components: =09Government has a legitimate compelling interest Government =09may regulate to promote this interest The subject of the =09regulation is speech The means employed by the regulation restricts only that speech necessary to fulfill the interest Plaintiff have failed to sustain their burden to show that the CDA is not a least restrictive means to accomplish its legitimate purpose of shielding minors from online indecency and the preliminary injunction should be denied. A. THE GOVERNMENT INTEREST UPON WHICH THE CDA IS BASED IS LEGITIMATE AND COMPELLING. =09It should not be seriously doubted that the Government has a compelling interest in protecting children from computer indecency. There are some, however, who disagree with the premise that any government has a compelling interest in protecting children from indecent speech. Even some who concede that the Government has a compelling interest in protecting children from exposure to patently offensive depictions of sexual or excretory activities will still argue that the Government may not employ the CDAs means to further its compelling interest. =09This Court need only imagine, if not take judicial notice, what is learned by a young boy or girl, or even a teenager, in the instant that he or she is staring into some of the online images brought to Congresss and this Courts attention. The CDA addresses a far more pernicious danger to minor children on the Internet than George Carlins monologue of dirty words did on daytime radio. In , the Supreme Court did not panic over the thought that profane political speech on a leather jacket could be seen by a few minors who might to be in a courthouse during an anti-war demonstration. The Court did state its concern, however, that Pacificas broadcast could have enlarged a childs vocabulary in an instant and upheld the FCCs judgment that the stations callous disregard for public decency and the protection of children was a flagrant administrative violation of {9} =09It cant be overlooked that the Supreme Court has used strong language to describe the interests of the States and the Congress to protect children by requiring that adults take steps not to disseminate harmful pornography to them or sexually exploit them. See , , and , supra. This, it should seem, forewarns a less than sympathetic forum in the Supreme Court (than those who misread , supra, would hope for) for an argument that adults should have a protected right to use the Internets public forums to indiscriminately post patently offensive pornography within the instant reach of children from coast to coast. B. THE GOVERNMENT MAY REGULATE TO FURTHER ITS COMPELLING INTEREST. =09The Supreme Court has concluded that governments may regulate. to protect minors from exposure to non-obscene materials in public places.{10} Plaintiff, however, submit that the Government should not and, indeed, cannot regulate indecent speech in public cyberspace. Plaintiff submit, instead, that the welfare of children must look only to commercially-available optional devices for protection. In essence, Plaintiff argue that the marketplace is the only possible source for regulation of computer indecency.{11} Plaintiff contend that software-blocking (particularly SurfWatch) is adequate to protect children on the Internet, World Wide Web, Usenet, and BBS networks, and that Congress and the law should stay out of the issue. In other words, Plaintiff claim that the Government may take steps to fulfill its compelling interest in protecting children from pornography in every other medium, including print, video, television, radio, and the private telephone, but as to computers connected via telephone and other communication lines, the Government may do nothing but leave it up to the market and to voluntary measures to further its compelling interest.{12} =09This concept of the market as a self-regulator can be seductive, but it is not a legal substitute for obeying the law. Still, good faith attempts at compliance can even be helpful, since the market should respond and comply with the social policy embodied in the law. The market is not known for protecting the vulnerable nor tempering the ambitious or exploitive, as noted in , supra, n. 8, and the law does not require child safety to be left entirely to the whim of good will or the ability of parents to protect their children from those who prey. =09In addition, if the Government were to do nothing to prevent children's access to online pornography, such an act of legal abandonment would itself contribute to and become part of the harm visited upon the young and impressionable. In , the Supreme Court upheld a state harmful to minors statute prohibiting the sale of certain sexually explicit material to minors under the age of 17. The Court quoted Dr. Gaylin of Columbia University Psychoanalytic Clinic on the harmful impact of sexually explicit material on minors, wherein he emphasized that "a child might not be as well prepared as an adult to make an intelligent choice as to the matter he chooses to read." . at 643. The Court noted that psychiatrists have made a distinction between the harm to children from reading pornography and "the permitting of the reading of pornography, which was conceived as potentially destructive. The child is protected in his reading of pornography by the knowledge that it is pornography, i.e. disapproved." . (emphasis added). The Court cited Dr. Gaylin further: "To openly permit implies parental approval and even suggests seductive encouragement. If this is so of parental approval, it is equally so of societal approval -- another potent influence on the developing ego." . (emphasis added). In , the Court got right to the heart of the matter: an essential part of government's furthering its compelling interest in protecting children from exposure to online pornography is "official" societal disapproval -- through laws in which this disapproval is manifested -- not only of children consuming pornography, but especially of adults providing it to them. =09To hold that government, which has always regulated in furtherance of its compelling interests in protecting minor children, could do nothing to further this compelling interest in the world of computers would be an enormous departure from precedent and wholly unjustified and unjust. C. THE SUBJECT OF THE REGULATION IS THE SPEECH, NOT THE CONSUMER OF THE SPEECH. =09In a least restrictive means analysis, the subject of the regulation is the speech. Plaintiff challenge has the effect of making the subject of the regulation be the consumer of the speech. These amici submit that Plaintiff have failed to show why the law should now be powerless to deal with users of computers as it does with users of phones, radio and TV systems, satellites, common carriers, and all other means and facilities of commerce and communication. Plaintiff position is legally indistinguishable from the consenting adults argument rejected by the Supreme Court in ([W]e hold that there are legitimate state interests at stake in stemming the tide of commercialized obscenity, even assuming it is feasible to enforce effective safeguards against exposure to juveniles and to passersby. Rights and interests other than those of the advocates are involved.), and ([W]e can take note of the tendency of widely circulated books of this category to reach the impressionable young and have a continuing impact.). Though the Court there dealt with an argument against the validity of obscenity laws, the Courts reasoning that pornography is harmful and available to children belies the Plaintiff position that publicly posted computer pornography can be blocked by adults by simply keeping them out of such electronic places.{13} =09The Court in , upheld the requirement that the speaker of indecent telephone speech bear the burden of keeping his speech away from children, despite the existence of commercially available blocking devices. The Court upheld the 1989 amendment, called the Helms amendment, that established a safe harbor defense for dial-a-porn providers who comply with telephone company pre-subscription procedures or engage in independent billing and collection, which are all speaker- based actions.. =09Recently, in the case, the Court of Appeals for the D.C. Circuit rejected the assertion that indecent programming on leased access cable channels should be regulated only by parents who obtain lockboxes from cable operators. . For the Internet, Plaintiff attempt to shift the burden of mitigating harmful speech from the speaker to the consumer of the speech. In other words, Plaintiff seek to absolve online indecent-content providers of any responsibility to protect children from pornography they create or distribute, and instead place it in the lap of the consumer-victims, the children and their parents. This the law and the courts need not and should not accede to. =09The location of the regulatory burden upon the speaker and not the consumer of the speech not only carries the weight of unanimous precedent, but also has the benefit of being practical. It is almost a truism to say that, as between speaker and consumer, the speaker is in the better position to know the content of his speech.{14} The consumer of the speech (under the CDA) does not know its content until it is consumed by a child, as in . Plaintiff would remove the obligation of those who already know where the material under their control is located and who are in the best position to know whether it contains patently offensive depictions of sexual or excretory activities, and would instead create the enormous and nearly impossible burden for the consumer to locate, identify, and block children's access to the multiple thousands of sites where pornographic material is, will be, and can be located. =09Expecting children to locate hidden Easter eggs sounds reasonable and enjoyable, unless those who have hidden the eggs are aware that they are rotten. No reasonable person, who cares about the well-being of children, would leave it up to children to find and dispose of rotten eggs. In the world of online communications, parents will be left as children, hunting frantically for thousands upon thousands of rotten eggs in a cyberworld of indecency, scurrying to find all of them before their children are contaminated. =09Plaintiff would have this Court decide not only that the Government may do no more than hope that parents purchase and install blocking software in the family computer, but that this is all that is necessary to protect children from online indecency. However, the least restrictive means of accomplishing the Government's compelling interest must also be effective. Ignoring for a moment the fatal flaw inherent in the argument that the Government may do nothing, these amici find the ineffectiveness of Plaintiff' suggested means to be obvious.{15} The Plaintiff themselves should admit that these programs are ineffective in protecting children from accessing computer indecency, much less the hard-core pornographic obscenity and child pornography.{16} Nevertheless, Plaintiff rely on the unsupported assertion that the available and developing blocking mechanisms would be much more effective than the CDA in keeping minors safe from material that their parents and teachers know to be inappropriate, harmful, and dangerous. =09Still, the question of the effectiveness of Plaintiff's suggested "means" is just not relevant. The only relevant question is whether the regulation imposed by the Government through the CDA is a least restrictive, yet effective, means of protecting children from accessing online indecency. IV. "INDECENCY" IS A VALID STANDARD FOR THE INTERNET AND OTHER INTERACTIVE COMPUTER SERVICES. =09The Indecency standard as a prohibition on the public dissemination of patently offensive representations and references to sex and nudity derives from the test for obscenity and is a sufficiently definite term of art so as to give notice and guidance to all as to what manner of sexual description or depiction must be channeled to adults on publicly accessible sites on the Internet, bulletin board systems, and other interactive computer services. As interpreted and applied by the FCC as a prohibition on broadcast communications under , the indecency standard has been part of American life since radio and television came into every home, school, office, and vehicle. What is indecent is well known to the public and the operators of mass communications media facilities.{17} Indecency is thus ingrained into American culture by the presence of mass communications that are held to the level of public decency that all citizens are familiar with and derives from the application of the indecency standard. =09Just as everyone is presumed to know the law and the law is presumed to know what everyone knows, adults in America know from their sense of common decency and from their universal experience with radio and television what types of words and pictures are "indecent" in such mass communications forums. Such a practical and common sense judgment as to public expression has made American TV, radio, and telephone services accessible to all those who wish to access them, whether selectively or incidentally. No one need avoid the public media for fear of being offended by pornographic descriptions or nudity and parents need not shield from nor deprive their children of the programming that is openly available and displayed to the general public. A. THE INDECENCY STANDARD IS APPROPRIATE FOR A PUBLIC FORUM, SUCH AS THE PUBLIC AREAS OF THE INTERNET. =09Most people, including Plaintiff, would admit that the Internet is probably the futures most public forum. The public square of the past is being replaced by the Internet. It is unreasonable to conclude that the interactive computer systems are not public or not pervasive or are not as uniquely accessible to children as radios or TVs have been. The world of computers will be even more so the frontier of the future. In all other public forums and places, in fact, minor children are protected by indecency or harmful to minors laws, display or access regulations, or time, place, and manner restrictions. The CDA would simply extend the same duties into the computer communications medium that public decency and protection of minors laws do in every other public medium. =09Amici recognize that the standard of indecency on the Internet would be even more permissive than public broadcasting and would allow unrestricted public availability for virtually all that one could say on radio or TV, sell to a minor in a store or in a mall, wear on ones jacket in public, provide to a minor by phone, fax, mail, cable, or in a school, library, or museum. The Supreme Courts precedent allows, and Congresss Conference Report on the CDA admits, of such an expectation. If the reasonable minds of average adults agree that a particular treatment of sex or nudity is patently offensive, and devoid of serious value or purpose or is pandered as prurient pornography, then its indecency is evident. Its harmful nature would make it illegal to provide to minors anywhere off-line and, thus, should likewise cause it to be restricted from minors online. Adults now channel or avoid indecent speech when and where children are in the audience. The burden falls on adults to comply with all other public decency provisions to shield children from such inappropriate and harmful matter and the same duty applies to the Internet. =09As we enter the next century, the importance and pervasiveness of computer systems and technologies will grow, no doubt about it, and their accessibility to children and importance to them will also grow. Cable, satellite, and phone assisted audio-visual systems, as well as the Internet, will dictate that such mass media facilities be available to the entire public, young and old, rich and poor, urban and rural. The Internet will be too important for it to be made "off limits" to minors because of patently offensive pornography on public access boards or sites. The Internet does not belong to Plaintiff or porn pirates, but to all of us. The indecency standard can protect children from the most offensive material while permitting consenting adults to avail themselves of such pornography in less public places, where appropriate restrictions to shield children have been implemented (or in other electronic hiding places in the dark corners of the Web). =09B. INDECENCY IS NOT AND CANNOT BE VAGUE OR OVERBROAD. The question of determining what material is indecent and off-limits to minors is not burdensome. Retail stores place mens sophisticate soft-core pornography magazines behind the counter, behind a blinder rack, in shrink wrap plastic, on a top shelf, on a rack from which an adult can monitor and keep kids from congregating or reaching the matter that is harmful to minors. Everyone knows which magazines go into this display treatment, since all adults have witnessed that the mens skin mags are together out of reach of children and not displayed next to magazines on news, sports, womens issues, fashion, cars, comics, etc. Likewise, what is commonly found proper to provide children as part of serious medical, sexual, disease, or social education will be no less proper or any more offensive on the Internet. There simply is no legitimate basis for hysteria or fear that truly protected speech for minors in any other media or forum would be prohibited from the same display electronically online. =09Indecency as a governing standard is the functional equivalent of the second prong of the "Miller Test" on patent offensiveness.{18} The difference is not in the manner of its application, but upon the types of acts or words to which it can be applied and the contexts in which it is applied. The obscenity test was stated to apply to "hard-core sexual conduct" of the types given as "Miller Examples",{19} whereas the indecency test is applied to sex and nudity in mass communications when amounting to "patently offensive references to excretory and sexual organs and activities."{20} It is the purpose to be served by each standard that distinguishes the scope and breadth of their applications. The obscenity test was designed to provide "concrete guidelines to isolate 'hard-core' pornography from expression protected by the First Amendment". {21} Because obscenity is unprotected in all streams of commerce and public access, its patently offensive representations of sexual conduct and genital exposure must also be designed to appeal to a prurient interest{22} and lack serious literary, artistic, political, and scientific value,{23} as a matter of law and fact. =09As a further guarantee that First Amendment principles applicable to both obscenity and indecency, as presumptively protected expression, will prevent the indecency standard from being overbroad in its reach and encompass serious, non- pornographic materials, this Court can also point to the Supreme Courts guidance in , and . In , the Court held that the movie Carnal Knowledge could not be found under the Miller standards to depict sexual conduct in a patently offensive way even though a jury might have thought so. As in indecency, the standard is a constitutional test but the independent supervision of trial courts and the required appellate review places substantive limitations on the reach of the standard, as a matter of law. explained,., that: While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including ultimate sexual acts is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards. =09Likewise, in , the Court held that a citys nude display ordinance for drive-in screens could not stand, since it was not narrowed by the state to apply to that which was harmful to minors and banned all nudity to both adults and minors. As explained at 213-14: The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. ... Clearly, all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. ... Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. =09These laws were not held vague, but rather their application was overbroad so as to reach protected speech as to adults in and even as to minors in . Likewise, the test for indecency, having its roots in the Miller Test, is not unconstitutionally vague, as found by the Supreme Court in and and by the Courts of Appeals in ; (upholding criminal prohibition on transmission of indecent communication to persons under 18 through telephone facilities); (upholding requirement that indecent programming on leased access channels be blocked to prevent access by minors). =09Applying the indecency standard does not require affirmative or ancillary proof of prurience or lack of value, as in obscenity, since "the normal definition of 'indecent' merely refers to nonconformance with accepted standards of morality" and "'indecency' as a shorthand term for 'patent offensiveness'...[is] a usage strikingly similar to the Commission's definition in this case." . However, the Court in , held that context is all-important. Therefore, the standard of what is indecent includes a consideration of any serious value or purpose in making a judgment on patent offensiveness and the FCC, Department of Justice, and the courts would also consider any intentional pandering to the prurient interest as evidence that a claim of serious value was unwarranted or that the offensiveness of the material itself is more apparent.{24} =09Indecency is an inherently variable standard that accounts for the time, place, manner, and context in which it is exhibited for a determination on a specific circumstance whether a particular program is "indecent" or not in that setting. No "safe harbor" is even needed, since what may be indecent at three o'clock in the afternoon may not be indecent at three o'clock in the middle of the night.{25} The Supreme Court mandated such variable "nuisance rationale" application of the indecency standard in , when it held: The Commission's decision rested entirely on a nuisance rationale under which context is all- important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience, and differences between radio, television, and perhaps closed- circuit transmissions, may also be relevant. =09People do not have to "turn away" or tune out or forego use of broadcast media in their homes, as they may in other more publicly available settings outside the home. . As stated in , the reasons for distinguishing broadcast media are twofold and include both the rights of the adult public as well as the juvenile public. The CDA chose only to prohibit the knowing transmission or display of indecent material to minors, not unconsenting adults, so the offense is even narrower than under .{26} V. COMPLIANCE WITH THE CDA IS POSSIBLE AND NOT UNREASONABLE. =09First, despite Plaintiff' repeated characterization of the CDA as a "ban" of indecency in cyberspace, the CDA, on its face, does not ban indecency. The CDA does no more than that which is necessary to further the compelling interest in protecting children from accessing online indecency: prohibit adults from knowingly distributing or displaying to minors online patently offensive depictions or descriptions of sexual or excretory activities or organs. Thus, the liability provisions of the CDA are, on their face, constitutional restrictions. =09Moreover, the defenses in the CDA further narrow its reach, and ensure that no more speech than necessary is burdened. In , the Supreme Court upheld the ban on obscene commercial dial-a-porn under , as amended by Congress in 1988, but struck down the total ban of indecent dial-a-porn. The Court applied its holding in , supra,{27} and validated the FCC regulations, enacted in 1988, which provided defenses to prosecution for dial-a-porn providers. The "credit card, access code, and scrambling rules were a satisfactory solution to the problem of keeping indecent dial-a-porn messages out of the reach of minors....[A] 'feasible and effective' way to serve the Government's compelling interest in protecting children."{28} (Emphasis added.) =09In order to avail themselves of the good faith defenses in , a provider whose content is indecent, and is knowingly available to minors, should have to demonstrate that he or she: has taken good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. =09Though the testimony is disputed between the parties, there is evidence in the record to show that there ways to comply with the CDA that are presently available, other means that are technically possible and trivial to institute, and there will undoubtedly be more and easier ways to comply in the future. Potential mechanisms of compliance include: =091) designing system-wide protocols which allow screening of children (this is much less complex than designing an electronic system of commerce and billing to enable consumers to buy and sell products/services via the Internet -- a process the industry is vigorously working on with no complaints that its impossible), =092) server level screening, such as the Exon Machine technology as dubbed by the Interactive Week report of March 25, 1996 (copy in Appendix 5) =093) agreement on an -L18 or digital or access provider user or some other mechanism or combination of devices which allow content providers to identify adult visitors to their sites, pages, or GIFs and thereby exclude children (such as refinement of the present method of fingering to identify the name of a visitor so that the visitors access provider or ISP releases the users age as well as his or her identity-a fact no less anonymous), =094) simply removing patently offensive depictions of sexual or excretory activities from universally available public areas of the Internet to private electronic spaces where access is controlled (since there is no constitutional right to distribute bestiality or any other pornography that is harmful to minors or indecent in the immediate presence of minor children). =09Content providers, who have not already done so, could identify their newsgroups, postings, chat rooms, Bulletin Boards, Web pages, etc., and block access to children if the material is indecent. The material available online is already identified to some degree and is indexed by directories as well as browsers.{29} =09For example, a site might be currently identified as, "AIDS Information-Sexually Explicit." If the site proved to be what its name indicated, then, in "context", it may have serious scientific value, although sexually explicit, and would not be "indecent." Therefore, a minor could legally access the site, and the good faith defenses would be unnecessary. Alternatively, if a site were identified, "Alt.sex.bestiality", to add an appropriate tag ("-L18"), and require some form of adult verification: a credit card number, PIN, access code, etc., to block access to minors would be both reasonable, effective, and the least restrictive means of accomplishing Congress' compelling interest.{30} (However, "alt.binaries.pictures.erotica...", with no restriction, it is as now, is a magnet that attracts, rather than repels, children.) =09If a minor is somehow able to access the site despite the blocking provisions in place, the good faith defenses would apply. In addition, adults would be on notice of the kinds of material offered at the site, and could avoid any material which they would not choose to access. =09Many existing sites available via the Internet already identify content according to its general category, e.g., "alt.sex.bestiality" or "alt.binaries.pictures.erotica. bestiality." "No new technology" is required for adding "- L18" to the listing.{31} Requiring content providers to identify pornography through an appropriate tagging mechanism is not unduly burdensome in light of the Government's compelling interest in shielding children from such material. Indeed, tagging such material would assist adults who want to access pornography and, at the same time, it would allow providers to restrict such material from children. =09The "Internet Yellow Pages" lists specific pornographic sites.{32} The Yellow Pages also identifies content by categories, e.g., "Sex", with sub categories that indicate the information is sexually explicit (and could be patently offensive), e.g., "Amputee Fetish," "Bestiality," "Watersports."{33} The Internet Yellow Pages, therefore, is just one way in which content providers can find the pornographic sites in order to restrict them from minor subscribers. =09The ALA's assertion that they would have to spend 100,000 dollars to hire people to read every book to find any pornography in the library is absurd. Numerous indexing and categorizing resources are available which help identify pornographic content available via the Internet or in "adult" bookstores. It would be very surprising to find any of this hard-core pornography in a public library. Certainly, listing a library's card catalogue on the Internet would not be patently offensive. Therefore, libraries have virtually no burden imposed by the CDA. =09The Plaintiff' assertions, that the Internet, World Wide Web, and Usenet offer no reasonable means to identify sites is patently false. This is a matter of doctrine, not feasibility. The content of the material available on the Internet, the World Wide Web, the Usenet, and Bulletin Board Services is completely unregulated only because the content providers have refused to regulate themselves, but the existing protocols and standards are certainly not anarchic or easily capable of adapting to present or future needs.{34} =09For example, "FTP" (File Transfer Protocol) is one electronic procedure by which a computer connects with another computer to access and retrieve information. It requires adherence to the standard computer address identifiers, much like an area code and number identifier acts as a phones address in the telephone medium. One may call from Los Angeles to New York City only if using the prescribed area code. Without its use, no telephone connection with New York City can be made. =09The commercial, educational, institutional, and corporate online service providers, in addition to acting as ISPs and providing access to the Internet and World Wide Web, can and usually do offer material over which they have editorial control (services, boards, chat rooms, pages, etc.). A service provider must also exercise conscious and deliberate subscription control over which commercial or privately owned services it will take onto its own server(s) in order to re- offer it to its customers or users. For example, each service provider must choose which Usenet feeds to accept (i.e., whether to take or subscribe to all the alt hierarchies, or all but alt.sex, or some of those but not alt.sex.bestiality or alt.sex.pedophilia or others). A provider must decide which commercial services to subscribe to, such as encyclopedias, magazines (Time, Newsweek, Playboy, Hustler, etc.), other news or financial data services (AP, UPI, Reuters, NY Times, NYSE, NASDAC, etc.). Many commercial BBSs (Bulletin Board Services) do the same and either use the Internet to advertise their BBS telephone number (as did the defendants in the involving the Amateur Action BBS) or contract to have their board's content offered by a commercial online content or access provider. =09The defenses provided in the CDA are both all inclusive of true good faith efforts and allow for more defenses than are available under any other federal indecency law, including broadcasting, cablecasting, or dial-a-porn. The CDA not only incorporates the defenses applicable to the dial-a-porn offenses in , which were promulgated by the FCC and specifically referred to with approval by the Supreme Court in , but the CDA also provides good faith defenses to those who take steps of their own device or choosing in order to protect minors from indecent material or who comply with future FCC approved defensive methods, if any. =09For purposes of legal analysis of the current regulatory scheme, there is a significant difference between impossibility of compliance and an unwillingness to comply with Congress clear intent. =091) Many site or page operators will concede that they could screen children from areas or specific electronic addresses which pander pornographic materials. Their objection is that they ought not to bear the legal responsibility of implementing any screening mechanisms as content providers or content enablers. The argument is the equivalent of an adult bookstore/peepshow owner complaining that the law requires him to exclude children from the confines of the store. See . =092) With respect to speech in a public space, with significant children in the audience, providers of patently offensive sexual or excretory depictions rightly bear the burden (including some increase in economic compliance costs) of shielding children from this material. Societys interest is compelling. See , supra. =093) For those unwilling to implement any mechanisms to protect children from patently offensive depictions of sexual of excretory activity in widely available public areas of the Internet, they still have the option of taking their materials to electronic spaces which are private or which choose to exclude children as a matter of policy. (As retail stores and theaters do with adult materials that are made available to adults but displayed out of reach of minors.) =094) Commercial bulletin board services provide adults with thousands of additional outlets to electronically disseminate hard and soft core pornography in areas easily restricted from children. See . =095) Plaintiff objection to shielding children from patently offensive depictions of sexual or excretory activity here is philosophical, not technical. Plaintiff may take positions that the law cant or shouldnt apply to them, that indecency shouldnt exist as a category of regulated speech regarding minors online, or that its even beneficial to show 5 year olds sexually explicit pornography. It is no surprise that several Plaintiff complained that technical compliance is difficult or impossible. It demonstrates the need for legal sanction for those distributors of patently offensive depictions of sexual or excretory activity unwilling to take any responsibility to help protect children. =09Purely selfish motivations based on one's desire to rebel against the "government" and be free from society's code of conduct in "cyberspace" is not a legal justification that should be accepted by the courts, including the present tribunal VI. THE CDA IS A REASONABLE TIME, PLACE, AND MANNER REGULATION. =09The CDA is really more like a content-neutral time, place, and manner regulation because it does not affect the content or message of speech, does not affect serious sexual speech and as such, it is constitutional. =09Content-neutral time, place, and manner regulations pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. , 468 U.S. 288, 293 (1984). =09In , 512 U.S. ___, 129 L.Ed.2d 497, 516, 518 (1994), the Supreme Court gave instruction to courts when deciding whether a regulation is content-based or content-neutral. "Deciding whether a particular regulation is content-based or content- neutral is not always a simple task. We have said that the 'principal inquiry in determining content-neutrality . . . is whether the government has adopted a regulation of speech because of [agreement or] disagreement with the message it conveys." , [citation].'" =09The purpose of Congress in enacting the CDA and the effect of the CDA have nothing whatsoever to do with the Government's "agreement or disagreement with the message" conveyed by indecent online speakers, as explicitly stated in the Conference Report, at 189 (1996 U.S.C.C.A.N. Leg. Hist. at 203). The purpose and effect of the regulation is to protect children from harmful material. Distribution of indecent computer speech is not illegal between adults. The sole focus and purpose of the CDA is preventing crime, i.e., the distribution of harmful indecent material to minors. The CDA is akin to the content-neutral time, place, and manner regulation focused on reducing and eliminating the adverse secondary effects of "adult" businesses addressed in , , and their progeny, which have been consistently upheld by the courts. =09The Supreme Court held, in , 491 U.S. 781 (1989), that "[w]hile time, place or manner regulations must also be narrowly tailored in order to survive First Amendment challenge, we have never applied strict scrutiny in this context." . at 798. =09In , 859 F.2d 681, 687 (9th Cir. 1988), it was held that the limitation on anti-abortion protests is not a content-based restriction of expression. ... Rather, it focuses exclusively on the location and manner of expression. Pro-Choice Network v. Project Rescue, supra, [citation]. [Injunction limiting pro-life protest activities 'is content-neutral'.... It regulates when, where and how defendants may speak, but not what they may say.] [T]he fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based. =09In , 721 F.2d 1281 (10th Cir. 1983), a harmful to minors display case, a facial and as applied challenge was made to the section of the statute which prohibited "promotion" of harmful to minors materials through the use of "blinder racks." =09The Court of Appeals held that the statute was "conduct plus speech" because it regulated the manner in which material can be disseminated, and therefore, required a finding of substantial over breadth on its face. "We find no such infirmity.". at 1289. Reasonable time, place and manner regulations are permissible where the regulations are necessary to further significant governmental interests, Young v. American Mini Theatres, [citations] . . . .Similarly the display provision of the Wichita ordinance is a regulation based on content. We believe that it is likewise justified by the substantial governmental interest in protecting minors from exposure to harmful adult material. [Casado, supra, at 1288] =09In , 780 F.2d 1389, 1395 (8th Cir. 1986), the Eighth Circuit upheld the constitutionality of a display ordinance which required sealing of any material that was harmful to minors and displayed for commercial purposes, stating: =09"Any burden here is the result of the permissible regulation of material that is obscene as to minors. The restriction in relation to adults is merely an incidental effect of the permissible regulation and is minimal in its impact." =09As with adult use zoning and mens magazine display regulations, the CDAs obligations are time, place, and manner restrictions, rather than content prohibitions. In , 427 U.S. 50 (1976), the Supreme Court upheld the right of municipalities to regulate "adult" theaters, which exhibited sexually explicit films presumptively protected by the First Amendment, in a more stringent way than other theaters. "We hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures.". at 70, 71. =09The CDA regulates "how" the Plaintiff may distribute their indecent computer speech. It does not regulate "what they may say." , supra; Conference Report, supra. =09The tobacco industry is prevented by federal and state law from targeting minors by their advertising, despite their First Amendment objections.{35} If the tobacco or alcoholic beverage industry even attempted to place their products, which are illegal to sell to minors, in unattended vending machines on public sidewalks, they would face criminal prosecution and public outrage immediately. =09The CDA is a valid, content-neutral time, place, and manner regulation focused on eliminating the adverse secondary effect of crime, i.e., the distribution to minors of harmful, indecent material to minors. It serves a substantial state interest and does not unreasonably limit Plaintiff' or other Internet users alternative avenues of communication. The CDA has no effect on the content of Internet speech nor does it prevent adults from obtaining it. VII. SOME ADDITIONAL COSTS INCURRED FOR COMPLIANCE WITH A LAW DO NOT AFFECT ITS CONSTITUTIONALITY. =09It is also argued that the CDA defenses do not provide enough economically feasible means for most Internet speakers to shield themselves from liability. Whether the defenses are economically feasible is not dispositive for First Amendment analysis and should be rejected as irrelevant under present situation. American Online or CompuServe or Prodigy could give all its subscribers an adult code for free, and do it immediately, but it's just not the way they do things right now that's all. For most good faith efforts, it could be free or cheap. If not yet, then take down the indecent pornography from the public areas where minors would have it made available to them, leave up the serious works, and it won't cost anything for all the legitimate, serious speakers. =09The Court in , supra, 492 U.S. at 126-27, made it clear that additional costs incurred by the providers of sexual expression, in order to comply with the law, did not affect the constitutionality of the statute: Furthermore, Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve. While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law which may impose such costs on a medium electing to provide these messages. Whether Sable chooses to hire operators to determine the source of the calls or engages with the telephone company to arrange for the screening and blocking of out-of-area calls or finds another means for providing messages compatible with community standards is a decision for the message provider to make. There is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others. If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages. * * * . . .The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. [citations]. =09The Court of Appeals for the Ninth Circuit recently held that decreased profits and costs of market participation are not adequate grounds to support a First Amendment challenge in , and , 75 F.3d 663, 96 Daily Journal D.A.R. 797 (1/24/96). The pornographers argued that the City's ordinance, which regulated "adult" arcades ("peep booths" for viewing sexually explicit videos), were invalid restrictions on the manner in which protected speech may be expressed. They complained that compliance with the ordinance would require hiring more employees, thus increasing their payroll expenses and decreasing their profits, thereby denying them access to the adult entertainment market. In rejecting this argument, the Court of Appeals held [96 Daily Journal D.A.R. at 798-99]: Even if World Wide Video demonstrated that the hiring of additional employees was unavoidable, the adverse economic impact it posits is irrelevant to First Amendment analysis. . . . . . .The ordinances do not prohibit World Video from engaging in that protected speech which will allow it to compete in the adult entertainment market, but merely provide that the costs of doing so may increase. This type of 'injury,' however, should not inform First Amendment analysis: in Topanga, we cautioned against inquiring into the costs of continued market participation, and limited the scope of permissible economic analysis to an examination of whether one is permitted to enter or participate in the market in the first instance. . . . . . Thus, an absolute bar in this matter would be a regulation that prohibited arcade owners from engaging in their protected speech, and not one that merely prohibited them from realizing the profits to which they were accustomed. . . . .. . . Even if the costs of compliance were so great that World Video would be forced out of business, the ordinances do not pose any intrinsic limitation on the operation of the arcades, but merely increase World Video's vulnerability to such market forces as the increased costs of labor and the decreased or stagnant demand for pornography. Accordingly we hold that the ordinances constitute valid manner restrictions. =09This Court should reject the "economically infeasible" argument by Plaintiff as irrelevant for First Amendment analysis. VIII.THE CDA IS NOT UNDER-INCLUSIVE BECAUSE IT PROVIDES FOR PROSECUTION FOR IMPORTING FOREIGN COMPUTER PORNOGRAPHY AND OF DISTRIBUTORS WHO EXPLOIT U.S. CHILDREN. =09The United States can and does punish those who bring illegal material across its borders through foreign commerce, including obscenity and child pornography.{36} =09In addition to the aforementioned laws, the United States is a signatory to , which was ratified by the U.S. Senate on January 13, 1911, and signed by the President on February 4, 1911. Ratification of the United States was deposited with the Government of the French Republic, March 15, 1911, and was proclaimed, April 13, 1911. This Treaty is now under the United Nations and still in force. As such, the . of the Constitution: "all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land". =09The Treaty was cited by the Supreme Court and in , 354 U.S. 476, 485 n. 15 (1957), and again in New York v. Ferber, 458 U.S. 747, 754 (1982): "This rejection [of First Amendment protection of obscenity] for that reason is mirrored in the universal judgment that obscenity should be restrained, reflected in the international agreement of over 50 nations...." =09Although the subject matter of the Treaty is obscenity, its existence is significant to demonstrate the universal, world wide condemnation of pornography and the "resolve" to cooperate in "centralizing all information" and in "supplying all information" and in "communicating the laws" by the member nation-states to "repress" illegal material.{37} =09The CDA deals with indecency being knowingly made available to minors within the United States. Existing federal laws and the Treaty can deal with the foreign pornography that is smuggled or brought into this Country. The remedies are complimentary, not contradictory, and the relative success of either remedy is no indictment of the other, at least in a constitutional sense. In regard to indecency being available to minors in America from foreign sites, such materials can be dealt with, to the extent technically possible, by the resolve of the computer companies, Internet access providers, and Internet Service Providers in their Good Samaritan roles, as also provided for and protected by the CDA. II Arguments Of Amicus Morality In Media In Support Of The Communications Decency Act. I. INDECENT COMMUNICATIONS WHICH, BY MEANS OF COMPUTER, INTRUDE INTO THE PRIVACY OF THE HOME AND ARE READILY ACCESSIBLE TO CHILDREN, ARE A FORM OF 'NUISANCE SPEECH' WHICH CONGRESS CAN PROHIBIT OR REGULATE. =09The United States Supreme Court has stated that there are narrowly limited classes of speech which are not protected by the First Amendment. One such class is "nuisance speech," and Amicus Morality In Media contends that "indecent" speech which, by means of computer, intrudes into the privacy of the home and is easily accessible to children is a form of "nuisance speech"{38} which Congress can constitutionally prohibit or regulate.{39} =09The concept of "nuisance speech," as a class of speech unprotected by the First Amendment, was first alluded to by the Supreme Court in ,{40} where the Court stated: There are certain, well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene...those which by their very utterance inflict injury or tend to incite an immediate breach of the peace ...[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.{41} =09The public nuisance rationale was also applied by three Justices writing in dissent in {42}. Justice Powell, with whom the Chief Justice and Mr. Justice Blackmun joined, wrote: But the exception to the First Amendment protection in Chaplinsky is not limited to words whose mere utterance entails a high probability of an outbreak of physical violence. It also extends to the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience. . . . [A] verbal assault on an unwilling audience may be so grossly offensive and emotionally disturbing as to be the ...subject of criminal proscription, whether under a statute denominating it disorderly conduct or, more accurately, a public nuisance. . . . The Model Penal Code ... also recognizes a distinction between utterances which may threaten physical violence and those which may amount to a public nuisance, recognizing that neither category falls within ... First Amendment [protection].{43} [Emphasis added]. =09In {44} and ,{45} the Court upheld nuisance ordinances aimed at means of communication that intrude uninvitedly into the privacy of the home. In ,{46} the Supreme Court identified speech that amounts to a public nuisance as outside the protection of the First Amendment: It hardly needs repeating that '[t]he guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech'...Hess' words could [not] be punished as obscene...could not withstand scrutiny. . . . In addition, there is no evidence to indicate that Hess' speech amounted to a public nuisance in that privacy interests were being invaded.{47} [Emphasis added]. =09In ,{48} the Supreme Court applied the "nuisance speech" rationale to the broadcast media, affirming an F.C.C. ruling that the monologue, "Filthy Words," as broadcast, was indecent and prohibited by . In so doing, the Court observed that the F.C.C. decision "rested entirely on a nuisance rationale under which context is all important" and compared indecent broadcast to a "pig in a parlor instead of the barnyard."{49} The Court also stated that special regulation of broadcast indecency was justified because it "confronts the citizen, not only in public, but also in the privacy of the home" and because it is "uniquely accessible to children."{50} =09In ,{51} the Supreme Court held that a student could be penalized for making an indecent speech before a school assembly, attended by both minor students and adult faculty. Justice Stevens (dissenting on due process grounds) noted: [A] nuisance may be merely a right thing in the wrong place-like a pig in the parlor instead of the barnyard. . . . Vulgar language, like vulgar animals, may be acceptable in some contexts, and intolerable in others. . . . It seems...obvious that [the] speech would be inappropriate in certain...settings.{52} =09Amicus Morality in Media contends that indecency which, by means of computer, intrudes into the privacy of the home and is readily accessible to children and also amounts to a "nuisance" and is unprotected by the First Amendment.{53} II. APPLYING INDECENCY STANDARD TO THE INTERNET WILL NOT REDUCE ADULTS TO VIEWING ONLY WHAT IS FIT FOR CHILDREN. =09Amicus Morality in Media contends that there are many circumstances in "cyberspace" where adults in the privacy of their homes can be exposed unwillingly to patently offensive, indecent material transmitted by means of computers {54} and that while protecting children was Congress' immediate concern in enacting the Communications Decency Act, it utilized a legal standard that protects not just children but also adults. =09The "Indecency" standard is determined by what offends community standards, not by what is "harmful to minors."{55} In ,{56} the Supreme Court stated: "This Court, as early as 1896, said of the Federal Obscenity Statute: '...Every one who uses the mails...must take notice of what...is meant by decency...in social life.'" [Emphasis added]. =09In ,{57} Justice Harlan stated that indecency (viz. "patent offensiveness") involves application of community standards: "The words...'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores...[T]he statute reaches only indecent material. . . ." =09In , the Supreme Court stated that the "normal definition of 'indecent' merely refers to non conformance with accepted standards of morality.'"{58} In ,{59} the Supreme Court noted that members of Congress were prohibited from using "indecent language" against the proceedings of the House," and also stated: "[S]chools must teach by example the shared values of a civilized social order. . . . The pervasive sexual innuendo in [the student's speech was plainly offensive to...teachers and students-indeed to any mature person."{60} [Emphasis added]. =09In ,{61} the Supreme Court upheld an Indiana statute prohibiting "Public indecency." In so doing, Chief Justice Rehnquist noted: "Public indecency statutes of this sort...reflect the moral disapproval of people appearing the nude among strangers in public places. . . . Thus the public indecency statute furthers a substantial government interest in protecting order and morality."{62} =09Nor has the Supreme Court said that Congress may only regulate indecency to protect children. In , the Supreme Court held that government could restrict indecent broadcast material to protect "all Americans" in the privacy of their homes: [T]he broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen...in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder...[P]rior warnings cannot completely protect the listener or viewer from unexpected program content.{63} [Emphasis added]. =09In ,{64} the Supreme Court described the "interest" in protecting the well-being, tranquillity, and privacy of the home as being "certainly of the highest order in a free and civilized society." The Court then stated: One important aspect of residential privacy is protection of the unwilling listener. Although in many locations we expect individuals simply to avoid speech..., the home is different. . . . Thus, we have repeatedly held that individuals are not required to welcome unwanted speech into their own homes and that government may protect this freedom. See, e.g., F.C.C. v. Pacifica, 438 U.S. 726, 748-749 (1978)...., at 750, 760 (Powell, J. concurring in part and concurring in judgment).{65} =09In ,{66} the issue was whether a TOTAL BAN on indecent dial-a-porn messages could be justified. The Court said "No" but also stated that unlike the broadcast medium, adults in the privacy of their homes were not likely to be exposed, by means of telephone, to indecent communications unwillingly.{67} =09Clearly, the C.D.A., which restricts but does not prohibit the display of depictions or descriptions of sexual or excretory activities or organs, which are portrayed in a manner so offensive as to make them unacceptable under current community mores, does not reduce the adult population to viewing only what is fit for children.{68} It does reflect a judgment that the ease with which children may obtain access to such material by means of computer, "coupled with the concerns recognized in ,"{69} amply justify the C.D.A.'s minimal restriction on adult access to indecent communications. III. THE 'INDECENCY' STANDARD IS NEITHER VAGUE NOR OVERBROAD. =09Plaintiff argue that the definition of "indecent" is vague and overbroad. In , however, the Supreme Court rejected a very similar challenge: [Pacifica] argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required. . . . At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. . . . The danger dismissed so summarily in Red Lion...was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of hypothetical application to situations not before the Court is 'strong medicine' to be applied 'sparingly and only as a last resort.'{70} =09Vagueness challenges to the term "indecent," as defined by the F.C.C. for the telephone medium were also rejected by the Second Circuit in {71} and by the Ninth Circuit in {72} =09In ,{73} the Supreme Court also pointed to the "patently offensive sexual conduct" prong of its obscenity test as providing "fair notice" to those who traffic in sex materials.{74} This prong of the test is very similar to the F.C.C.'s "indecency definition, and Amicus Morality in Media would contend that what provides adequate notice for a prohibition on obscene speech also provides adequate notice for a restriction on indecent speech. =09Amicus also contend that the "nuisance rationale," combined with the requirement that the depiction or description of sexual or excretory activities be "patently offensive" when applying "community standards," obviate petitioners concern about "overbreadth." =09The test of whether a depiction or description of sexual or excretory activities is "indecent" is not whether some people in the community are offended{75} or even whether almost everyone is "offended."{76} The test is whether, when applying "community standards," such depictions or descriptions are "patently offensive," and Amicus would contend that the term "patently offensive" has a well-defined meaning in the law.{77} =09In addition, the "nuisance" concept "requires consideration of a host of variables."{78} In , the "time of day"{79} was emphasized. "Serious value,"{80} is another key variable to be considered in determining whether content is "indecent." "Place", whether in the physical realm or in "cyberspace", is also a key variable in determining whether something is a nuisance. As noted in , a "nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard."{81} =09What may be acceptable in a part of "cyberspace" devoted to the discussion of health or human rights issues, or as part of a database on "gay rights", may not be acceptable if displayed in other areas of the Internet or World Wide Web, particularly if viewers would likely be surprised and offended by the display.{82} In "cyberspace", as in other media, whether sexually explicit materials are indecent will often also depend, in part, on whether the materials "appeal to the prurient interest" or are pandered for that appeal.{83} =09There is an extensive history of court and F.C.C. rulings to guide program providers in determining what is "patently offensive"{84} and "indecent."{85} Amicus Morality in Media would contend that the real problem is not that the "indecency" concept is vague or overbroad, but rather a failure to recognize that there are "rights and interests, 'other than those of the advocates involved'"{86}- which include the "right of the Nation...to maintain a decent society"{87} and the compelling interest in protecting children from patently offensive, indecent material. Respectfully submit- ted, Robert W. Peters Paul J. McGeady Counsel for Ami- cus Curi- ae, Morality in Me- dia, Inc. .c.Conclusion =09The CDA is narrowly tailored to serve the compelling interest in protecting children from accessing computer pornography. It is the least restrictive, yet effective, means of accomplishing this interest and addresses a problem of immediate importance. =09At issue is the law's protection for children in the next great communication technology. America has never had a mass communications medium that openly displayed indecent pornography in public. We should not start one now. =09Criminal laws against distributing pornography to children have literally saved countless lives. These laws are needed not for any threat posed by men of good will, but rather by those who would exploit the vulnerable and impressionable for their personal gain. =09The Communications Decency Act is a narrowly drawn work of art. It is sensitive to the First Amendment and the rights of children. This Court should not accept the arguments against it and should declare the CDA valid. =09Senators Exon and Coats deserve thanks from every family in America and the CDA deserves to be upheld. Respectfully sub- mitted, Bruce A. Taylor Cathleen A. Cleav- er Co-Counsel for Amici Curiae CERTIFICATE OF SERVICE =09Copies of the foregoing BRIEF AMICUS CURIAE, with MOTION FOR LEAVE TO FILE and the separate APPENDIX, were served on the following counsel on this 22 day of May, 1996, by delivery to Washington and New York counsel for the Plaintiff and the Attorney General, and by mail to counsel for the ACLU and the Department of Justice. Counsel for Plaintiff, Joe Shea: Randall J. Boe, Esq. James K. Stronski, Esq. Arent Fox Kitner Plotkin & Kahn Arent Fox Kitner Plotkin & Kahn 1050 Connecticut Ave., N.W. 1675 Broadway, 25th Floor Washington, D.C. 20036-5339 New York, NY 10019 (202) 857-6000, Fax: 857-6395 (212) 484-3900, Fax: 484-3990 Counsel for Defendant, the Attorney General: Hon. Mary Jo White, United States Attor- ney Southern Dis- trict of New York William J. Hoffman, Assis- tant U.S. Attor- ney Marla Alhadeff, Assis- tant U.S. Attor- ney USAO- Civil Divi- sion 100 Church Street, 19th Floor New York, NY 10007 (212) 385- 6250, Fax: 385- 6252 ACLU Foundation: Department of Justice: Christopher A. Hansen, Esq. Anthony J. Coppolino, Esq. Marjorie Heins, Esq. Jason R. Baron, Esq. American Civil Liberties Union Dept. of Justice, Civil Div. 132 West 43rd Street 901 E Street, N.W. New York, NY 10036 Washington, D.C. 20530 (212) 944-9800, Fax: 730-4652 (202) 514-4782, Fax:616-8470 =09=09=09=09=09=09Bruce A. Taylor =09=09=09=09=09=09Counsel for Amici =09=09=09=09=09=09Curiae FOOTNOTES******************************** {1} * See, for example: Interactive Week, March 25, 1996, p. 1, Exon Machine Could Automate Censorship, p. 10, Censorship Server Could Enforce Decency Act, March 11, 1996, p. 7, Politico Wants PICS Standards, by Will Rodger; San Jose Mercury News, March 3, 1996, p. 1D, How the decency fight was won, by Howard Bryant and David Plotnikoff; Washington Times, Feb. 1, 1996, p. A19, OP-ED, Whos responsible for controlling cyberporn?, by Cathleen A. Cleaver; St. Louis Post-Dispatch, Sept. 22, 1995, p. 7B, Commentary: Cleanse Pornography From Cyberspace, by Cathy Cleaver; Philadelphia Inquirer, July 30, 1995, p. C1, A free-for-all debate over stopping cybersmut, and July 27, 1995, p. G1, Steamy stuff on the Net? His findings raise tempers, by Reid Kanaley; Newsweek, July 3, 1995, p. 47, No Place For Kids?, by Steven Levy. (Copies in Appendix 5.) {2} As the rapid development of the PICS platform and proposed rating system to go with it were developed in the past one year as a way to forestall the obligations of the CDA to place responsibility only on those who would knowingly provide or expose minors to patently offensive indecency. {3} Imagine what would have happened if television and radio had not had the benefit of indecency regulations- part of the success of these mediums was their universal accessibility. The CDA would likewise help to make the Internet universally acceptable and accepted, and thereby even more beneficial and profitable for everyone. {4} See Stern, Gressman, et al., Supreme Court Practice (7th ed. 1993): Courts take judicial notice of legislative facts, as distinct from adjudicative facts. The Advisory Committees Note to Federal [Evidence] Rule 201 explains that: Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court in the enactment of a legislative body. =09The Federal Rules of Evidence, Rule 201(b), states: A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. {5} In fact, the form letters used by the FCC state either that Material will not be found to be indecent by virtue of subject matter alone. or Subject matter alone does not render material indecent. and discuss the Commissions consideration of serious value and purpose and of pandering to prurient interest in judging patent offensiveness in context and under the particular circumstances, as do the opinions and orders finding the presence of indecency. {6} Joint Explanatory Statement of the Committee of Conference, 1996 U.S.C.C.A.N. Leg. Hist. 200-11 (reprinted in Appendix 2 hereto). {7} As stated in Miller v. California, supra, 413 U.S. at 26 n. 9: The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, 354 U.S., at 492 n 30,... it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system.... {8} The Court in Hamling, at 123, noted a like scienter requirement for state harmful to minors laws, as announced in Ginsberg v. New York, 390 U.S. 629, 643-45 (1968). The Court would apply a similar rule for child pornography cases, hold that scienter is required both as to the sexual character and minority of the performer, but not define the precise limits of such a requirement other than to refer to the obscenity/harmful to minors cases on scienter discussed above. See New York v. Ferber, supra, 458 U.S. at 765, Osborne v. Ohio, 495 U.S. 103, 112 n. 9, 115 (1990), and United States v. X-Citement Video, Inc., __ U.S. __, 115 S.Ct. 464 (1994). {9} What effect, in an instant, attends to seeing one of Robert Thomas's Amateur Action images, or reading a Jake Baker kidnap-rape-mutilation-murder story? See Appendix 7. {10} Ginsberg v. New York, 390 U.S. 629 (1968); FCC. v. Pacifica Foundation, 438 U.S. 726 (1978); New York v. Ferber, 458 U.S. 747 (1982); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989). {11} Compare Pacifica, supra, 438 U.S. at 744 n. 19: We are assured by Pacifica that the free play of market forces will discourage indecent programming.... [T]he prosperity of those who traffic in pornographic literature and films would appear to justify skepticism. {12} Amici encourage and commend the good faith efforts of most of the screening software developers (such as Net Nanny, Rated PG, Cyber Patrol, Cybersitter, and SurfWatch) and recommend to parents that they should obtain and institute whatever parental control and electronic restrictions are currently available to protect their children as best they can from the extreme types of hard-core and soft-core pornography now on the Internet. These hunt and block screening indexes are less than perfect, as testimony before this Court demonstrated. (Reviewers have found glitches in the armor, as well, finding that filename based Cybersitter wont catch cryptic titles, word based Net Nanny wont get porn images, and SurfWatch doesnt work non-Internet sources, such as BBSs. PC Magazine, Nov. 7, 1995.) Parents can only hope and trust that present and future versions are better, since the stakes are high when the defenses fail. As the conviction of the bestiality, torture, excretory, and child exploitation pictures from the Amateur Action BBS illustrate, the problem is severe no matter how small a percentage of the total information available on the Net. See U.S. v. Thomas, 74 F.3d 701 (6th Cir. 1996). Though commercial pornographers like Thomas can and may comply with the adult access requirements of the CDA as for indecency, the hard-core nature of the pornography makes them liable for obscenity violations nonetheless. In addition, customers can and do purchase such pornography from commercial BBS sources and post them for free on WWW sites, Usenet news groups (alt.sex...). These porn pirate customers have polluted cyberspace with the toxic pornography (both obscene and indecent, and equally and instantly available to children) that the CDA seeks to control. {13} See Paris, supra, at 57 n. 7 (The legitimate interest in preventing exposure of juveniles to obscene materials cannot be fully served by simply barring juveniles from the immediate physical premises of adult bookstores, when there is a flourishing outside business in these materials.) {14} Dr. Dan Olsen, Jr. of Brigham Young University (and soon to be the director of Carnegie Mellons computer lab) stated in his April 9, 1996, Declaration, at 38-44: In summary, identifying sexually explicit material is a human judgment that is not fully automatable using any known technology. The process of evaluating sites and producing lists of inappropriate sites is a huge task that is already ineffective in its current efforts and will become increasingly more difficult as the Internet grows. The only economically viable mechanism for evaluating Internet content is for content providers to assume the responsibility. Technologically, if the number of inappropriate sites continues to escalate the burden on users to store lists of blocked sites can become large. There is no known mechanism for automatically screening Internet content. =09Likewise, Air Force computer crime investigator Howard Schmidt testified that user- based controls, while commendable, will always face obstacles in keeping up with the growing number of pornographic postings in new and revised and re-named sites. See Hearing Trans. at 402-03. {15} The truth of this assertion is apparent from the reality of the Internet today: 1) Not all parents can or will avail themselves of "blocking" software and filtering and screening devices. 2) Children have access to many computers which will not employ software and filtering devices (schools, libraries, neighbors). 3) Many juveniles are capable of out-maneuvering such technology. 4) Pornographers and veteran netizens are capable of out-maneuvering such devices. =09As many parents testified to Congress at Senator Grassleys hearing, it is a fact of life that many of our minor children have or are being taught a higher level of skill and sophistication with computers than that of their parents, making supervision that much more difficult. See Cyberporn and Children: the Scope of the Problem, the State of the Technology, and the Need for Congressional Action, Hearing before the Committee on the Judiciary, U.S. Senate, on S. 892, July 24, 1995, Hearing Report Ser. No. J-104-36. {16} Even Surfwatch finds a couple hundred sexually explicit sites a week that are new and were not blocked. These programs are not and cannot be foolproof. New online sites are created daily and no software can promise to block access to all the sites that provide explicit sex. {17} These amici submit that this is more so than with obscenity due to the nature of hard-core pornography as a traditionally closeted, shameful, and morbid fetish associated with voyeurs and "dirty old men" outside the mainstream of normal adult society. Notwithstanding some hard-core videos now available to the general public at video stores, rather than exclusively at "adult" porn shops and theatres, obscenity as a legal concept is not as easily recognized or understand by the average citizen or businessperson than is indecency in public broadcasting. {18} Miller v. California, 413 U.S. 15, at 24 (1973). {19} Miller, 413 U.S. at 25: "patently offensive representations of ultimate sexual acts, normal or perverted, actual or simulated...masturbation, excretory functions, and lewd exhibitions of the genitals". {20} Pacifica, 438 U.S. at 743; Public Notice: New Indecency Enforcement Standards... (4- 27-87), 2 FCC Red. at 2726. {21} See also: B. Taylor, "Hard-Core Pornography: A Proposal For A Per Se Rule", 21 U. Mich. J.L. Ref. 255 (1988). {22} Prurience refers to the commercially exploited erotic or lustful qualities of a work, Roth v. United States, 354 U.S. 476, 487, n. 20 (1957), Mishkin v. New York, 383 U.S. 502, 508-10 (1966), Cohen v. California, 403 U.S. 15, 20 (1971), Miller v. California, 413 U.S. at 18, n. 2, rather than serious sexual treatment that provokes "only normal, healthy sexual desires", Brockett v. Spokane Arcades, 472 U.S. 491, 498, n. 8 (1985). See also Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987), United States v. Guglielmi, 819 F.2d 451, 454-55 (4th Cir. 1987), Ripplinger v. Collins, 868 F.2d 1043, 1051-54 (9th Cir. 1987), United States v. Pryba, 678 F.Supp. 1225 (E.D. Va. 1988). It is the evidence of commercial or public "pandering" to this prurience that distinguishes obscene "hard-core" pornography from fine art and literature that may be sexually explicit. See Ginzburg v. United States, 383 U.S. 463, 466-67, 471-74 (1966), Hamling v. United States, 418 U.S. 87, 127-29 (1974), Splawn v. California, 431 U.S. 595, 598 (1977), Pinkus v. United States, 436 U.S. 293, 303-04 (1977). {23} Pope v. Illinois, 481 U.S. 497, 500-01 (1987). {24} The indecency standard, thus applied, may apply to less speech than would the harmful to minors test, which considers each prong -- prurience, offensiveness, and value -- in relation to minors only, rather than as a general judgment. As the FCC interprets the indecency standard and the mandate of Pacifica, pandering pornographically for prurient appeal and serious value or lack of it are essential components of a judgment that a description or depiction of a sexual or excretory act or organ is patently offensive. For many examples of this contextual judgment, see the liability and dismissal opinions of the FCC that are included in Appendix 8. In this regard, indecency can be more protective of a broader range of speech than a state harmful to minors display or sale statute. The harmful to minors test may vary even as to age groups of minors, as in Commonwealth v. American Booksellers Assn., 372 S.E.2d 618 (VA. 1988)(on certified questions from the Supreme Court), and American Booksellers Assn. v. Com. of Va., 882 F.2d 125 (4th Cir. 1989)(upholding Virginias harmful to minors display law, on remand from the Supreme Court, in light of the Supreme Court of Virginias opinion), and this rule of context could be equally applicable to the application of indecency on the Internet as mandated in Pacifica, supra, at 750 (content of the program ...will also affect the composition of the audience). See Actions for Children's Television v. FCC, 11 F.3d 170, 178-80 (D.C. Cir. 1993) ("ACT III") {25} It cannot be said that there are few children online. {26} One main factor given in Pacifica, at 750, is equally applicable to the Internet and will be increasingly relevant as plaintiffs and the rest of the industry succeed at getting more families and children online: The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. {27} 438 U.S. 726 (1978). {28} Sable, at 128. {29} A fact obvious from the SurfWatch evidence, as well as that of Dr. Olsen and Mr. Schmidt. {30} =09As shown to be trivially possible by Dr. Olsen. {31} =09As is also obvious from Dr. Olsens simple program. {32} See, Hahn & Stout, The Internet Yellow Pages (Osborne McGraw-Hill: 2d ed. 1995). {33} Another category in the Yellow Pages is "Sexuality," with sub categories such as: "Abuse and Recovery," "Homosexuality," "Lesbian, Gay and Bisexual Mailing Lists." In context, the material offered at these sites may have serious literary, artistic, political or scientific value, and therefore, would not be patently offensive in their depictions or description of sexual or excretory organs or functions under contemporary community standards for the interactive computer medium. As such, it would be legal to allow minors access to the material offered and the good faith defenses of 223 would be unnecessary. {34} See, Declaration and testimony of Dr. Olsen. {35} 15 U.S.C. 1331 et seq; Cipollone v. Liggett Group, Inc., 505 U.S. __, 112 S. Ct. 2608 (1994); California Penal Code 308 (a) and (b) prohibit the sale to or purchase by minors of tobacco products. {36} See 18 U.S.C. 1462 which prohibits the importation of obscenity into the United States through foreign commerce (and making smuggling an offense for both the carrier and the customer, whoever brings, unlike domestic carriage which exempts the carrier and only hold the customer liable, whoever uses a common carrier) and 2252 which prohibit the importation (by anyone) of child pornography into the United States through foreign commerce. {37} Treaty Series, No. 559, at 7; 37 Stat. 1511, Treaties in Force 209 (U.S. Dept. State, Oct. 31, 1956). {38} Cf., 50 Am.Jur.2d, Lewdness, Indecency, pp. 484-85 ("use of indecent language...under the circumstances...considered a nuisance."); Am.Jur. Proof of Facts, Vol. 8, p. 530 (1960): ("(A)nuisance may be established by showing that the thing involved violates the laws of decency; and a showing of hurt to moral sensibilities is deemed sufficiently substantial to justify judicial interposition."). {39} Amicus does not say that indecency is unprotected in every medium or context. Cf., Pacifica, 438 U.S. 726, At 746. ("We may assume, arguendo, that this monologue would be protected in other contexts.") Time of day is one variable to be considered. . at 750. {40} 315 U.S. 558 (1942). {41} . at 571-572. Amicus says "alluded to" because the above quoted material, while not specifically mentioning nuisance speech, twice cites the book, Free Speech in the United States, by Zechariah Chafee, Jr. (1941), which does so at pp. 149, 150: But the law also punishes a few classes of words like obscenity, profanity ...because the very utterance of such words is considered to inflict a present injury upon listeners, readers. . . . This is a very different matter from punishing words because they express ideas thought to cause future danger to the state. . . . [P]roperly limited they fall outside the protection of the free speech clauses. . . . [P]rofanity, indecent talk and pictures, which do not form an essential part of any exposition of ideas, have a very slight social value as a step toward truth, which is clearly outweighed by the social interests in order, morality, the training of the young and the peace of mind of those who hear or see. . . . The man who swears in a street car is as much of a nuisance as the man who smokes there. [Emphasis supplied]. {42} 408 U.S. 901 (1972). {43} . at 408 U.S. 905-906. {44} 341 U.S. 622 (1951). {45} 366 U.S. 77 (1949). {46} 414 U.S. 105 (1973). {47} . at 107-108. Cf Redrup v. New York, 358 U.S. 757, 765 (1967) and Close v. Lederele, 424 F.2d 988, 990 (1st Cir. 1970), cert. den., 400 U.S. 903 (1970), both of which recognize a need for government protection against an "assault upon individual privacy." {48} 438 U.S. 726 (1978); see also, Tollman v. United States, 465 F.2d 282, 285-286 (7th Cir. 1972). {49} . at 750. {50} . at 748-749. {51} 478 U.S. 675 (1986). {52} . at 696. {53} If Amicus is correct that "nuisance speech" is unprotected, then "strict scrutiny" is not the level of scrutiny to be applied. Cf., City of Dallas v. Stanglin, 109 S. Ct. 159, 57 LW 4406, 4407 (1989): "Unless laws 'create suspect classifications or impinge upon constitutionally protected rights,'...it need only be shown that they bear 'some rationale relationship to a legitimate state purpose.'" {54} Cf., op ed article, The Internet's Private Side, N.Y. TIMES, March 2, 1996, wherein author David S. Bannahum, publisher of MEME, an online newsletter, states: During a jaunt through the World Wide Web, I came across a seemingly innocuous invitation, 'This is a HOT link.' I clicked on the glowing words which connected me with another computer that generated a picture of a nude woman with the tag line, 'Slut for Rent.'... This phone-sex service advertising its wares, just an accidental mouse click away, shows how easily browsers can stumble across pornography on computer networks. [Emphasis supplied by Amicus]. {55} See, e.g., Ginsberg v. New York, 390 U.S. 629 (1968). {56} 354 U.S. 476, at 491, n.28 (1957). {57} 370 U.S. 478, at 482 (1962). {58} 438 U.S. 726, at 740. {59} 478 U.S. 675, at 682 (1986). {60} . at 683. {61} 501 U.S. 560 (1991). {62} . at 568-569. {63} 438 U.S. 726, at 748-749 (1978). Justice Powell, concurring, agreed that protecting adults was a valid concern. ., at 759-760. {64} 487 U.S. 474 (1988). {65} . at 485-486. See also, People v. Starview Drive-in Theatre, 427 N.E.2d 201 (Ill. App. Ct. 1981), appeal dism'd sub nom., Starview Drive-in Theatre, Inc. v. Cook Co., 457 U.S. 113 (1982). {66} 492 U.S. 115 (1989). {67} 492 U.S. 115, at 127-128 (1989). Amicus notes that the Federal Dial-a-Porn law 47 U.S.C. 223 (b) now prohibits making, by means of telephone, any indecent communication for commercial purposes both to minors AND to "any other person without that person's consent." Like the dial-a-porn medium, adults, usually are "forewarned" about indecent content in "cyberspace." There are circumstances, however, where they are unwilling viewers. In such circumstances, Amicus would contend that the Pacifica nuisance rationale controls. {68} Cf., F.C.C. v. Pacifica Foundation, 438 U.S. at 750, n. 28. {69} ., at 438 U.S. 750. See also, Alliance for Community Media v. F.C.C. 56 F.3d 105 (D.C. Cir. 1995), rev. granted, 64 LW 3347 (1995) (restricting children's access to indecent material on cable TV access channels); Dial Information Service Corp. of New York v. Barr, 937 F. 2d 1485 (2nd Cir. 1991), cert. den., 60 LW 3520 (U.S. 1992) (restricting children's access to indecent communications by means of telephone). {70} . at 742-743. {71} 937 F.2d 1465 (2nd Cir.199l), cert. den. 60 LW 3520 (U.S. 1/27/92). {72} 928 F.2d 865 (9th Cir. 1991). {73} 413 U.S. 15 (1973). {74} . at 27-28. {75} While some Federal judicial districts may be more conservative than others, every district contains both "liberals" and "conservatives," religious and non religious citizens. Even among devoutly religious Americans, there are differences as to what is deemed "indecent." The test is not what the most sensitive individuals and groups find acceptable, but what the community as a whole finds acceptable. {76} As noted in the Supreme Court's "Seven Dirty Words Case" (F.C.C. v. Pacifica Foundation, 438 U.S. at 745-748): {77} [T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that...is a reason for according it constitutional protection. . . . But...[t]hese words offend for the same reasons that obscenity offends. . . . [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit derived from them is clearly outweighed by the social interest in order and morality. [Emphasis added]. See, e.g., United States v. Ginzburg, 338 F.2d 12, at 14 (3rd Cir. 1964), aff'd. 383 U.S. 463 (1966). The origin in case law and meaning of "patent offensiveness" are annotated and described in Volume 1, 7000-"Patent Offensiveness," the Obscenity Law Reporter (National Obscenity Law Center, 1986), at pp. 7002-42, and is summarized at 7002-03 as follows: In Manual Enterprises v. Day, 370 U.S. 478 (1962), Justices Harlan and Stewart, in a plurality opinion, added a new element to the...test for obscenity by requiring that the material...also be "patently offensive" before it can be labeled "obscene." They stated, "These magazines cannot be deemed so offensive on their face as to affront current community standards of decency-a quality that we shall hereafter refer to as 'patent offensiveness' or 'indecency.' The two Justices also noted that the American Law Institute's draft of a Model Penal Code took the position that...for a thing to be obscene, it must go substantially beyond the limits of candor in description or representation of such matters. . . . Justices Harlan and Stewart indicated that...obscenity connotes something that is portrayed in a manner so offensive as to make it "unacceptable under community mores." and is aimed at "obnoxiously debasing portrayals of sex." [Emphasis supplied by Amicus]. . . . It is also to be observed that the Supreme Court in Hamlin g v. United States, 418 U.S. 105 [at 112] (1974) treated Manual Enterprises as an authoritative binding precedent.... {78} Pacifica, 438 U.S. at 750 (1978). {79} . at 750. While not all indecent communications in "cyberspace" can be "time channeled", many such communications can be displayed only after 10 p.m. or midnight. {80} Cf. Pacifica, 438 U.S. at 732, n.,6; Action for Children's Television v. F.C.C., 852 F.2d 1332, at 1339-1340 (D.C. Cir. 1988). {81} Pacifica at 750. {82} Cf., Sable Communications of Cal., Inc. v. F.C.C. 492 U.S. 115, at 127-128 (1989). {83} In F.C.C. v. Pacifica Foundation, the Supreme Court held that while "prurient appeal" is an element of the obscene, it is not an "essential component of indecent language." . at 438 U.S. at 741. As noted in Manual Enterprises v. Day, 370 U.S. 478, at 486 (1961). However, the two elements tend to coalesce, for that which is patently offensive will also usually carry the requisite 'prurient interest' appeal." {84} Cf., Obscenity Law Reporter, Vol. 1, pp. 7002, et seq. (NOLC 1986). {85} Cf., F.C.C. v. Pacifica Foundation, 438 U.S. at 741, n. 16; 5 Indecency Complaints Dismissed by the F.C.C., N.Y. TIMES, April 9, 1988 (copy in Appendix 5), [describing dismissals of five indecency complaints, including one against a TV station that broadcast a "sex education" program for teenagers (with "frank discussions of sexual topics, the use of sex organ models and simulated demonstrations of various birth control devices") [In re King Broadcasting, 5 FCC Rcd. 2971 (1990)] and one against a radio station for airing a reading of the "Penelope" chapter of "Ulysses" (with "sexual and excretory references" "dispersed" throughout the three-hour reading) [Letter to William J. Byrnes, Esq., 63 Radio Reg.2d 216 (1987)] (copies of F.C.C. ops. in Appendix 8). {86} Paris Adult Theatre I v. Slaton, 413 U.S. 49, at 58 (1973) [quoting from Breard v. Alexandria, 341 U.S. 622, 642 (1951)]. {87} ., 413 U.S. at 59-60 [quoting from Jacobellis v. Ohio, 378 U.S. 184, 199 (1964) (Chief Justice Warren, dissenting)]. _________________________________________________________________