IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ___________________________________________________ AMERICAN CIVIL LIBERTIES UNION, et al., : : Plaintiffs, : : CIVIL ACTION v. : : NO. 96-963 JANET RENO, : : Defendant. : : : ___________________________________________________: AMERICAN LIBRARY ASSOCIATION, INC., et al., : : : Plaintiffs, : : CIVIL ACTION v. : : NO. 96-1458 UNITED STATES DEPARTMENT OF JUSTICE, et al., : : Defendants. : : : ___________________________________________________: _________________________________________________________________ BRIEF OF AMICI CURIAE AUTHORS GUILD, AMERICAN SOCIETY OF JOURNALISTS AND AUTHORS, ED CARP, COALITION FOR POSITIVE SEXUALITY, CONNECTNET, CREATIVE COALITION ON AOL, TRI DANG DO, FEMINISTS FOR FREE EXPRESSION, MARGARITA LACABE, MAGGIE LaNOUE, LOD COMMUNICATIONS, PETER LUDLOW, PALMER MUSEUM OF ART, CHUCK MORE, ROD MORGAN, PEN AMERICAN CENTER, PHILADELPHIA MAGAZINE, PSINET, INC., ERIC S. RAYMOND, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, DON RITTNER, THE SEXUALITY INFORMATION AND EDUCATION COUNCIL OF THE UNITED STATES, LLOYD K. STIRES, PETER J. SWANSON, KIRSTI THOMAS, WEB COMMUNICATIONS, AND MIRYAM EHRLICH WILLIAMSON IN SUPPORT OF MOTION BY PLAINTIFFS FOR PRELIMINARY INJUNCTION _________________________________________________________________ James D. Crawford Carl A. Solano Jennifer DuFault James Theresa E. Loscalzo Joseph T. Lukens Attorneys for Amici Curiae Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, Pennsylvania 19103 Of Counsel. Dated: March 20, 1996. _________________________________________________________________ INTRODUCTION A vast array of speech having serious social, political, literary, artistic, medical, and educational merit is transmitted daily on the international computer network known as the Internet. 1 The Communications Decency Act of 1996 ("CDA") (42 U.S.C. § 223, as amended), 2 criminalizes much of this valuable and constitutionally protected speech. In so doing, it chills current and future speech on the Internet. The amici curiae who submit this brief represent only a small fraction of the Internet speakers who have experienced this chill since enactment of the CDA. The statute cannot achieve its stated ends without simultaneously inhibiting or prohibiting amici's constitutionally protected and socially valuable speech. Amici are a diverse group of individuals and organizations that use the Internet, and include Internet service providers ("ISPs"), over whose lines speech targeted by the CDA is carried; individuals and organizations who place speech and other forms of expression on the Internet on wide-ranging subjects; individuals and organizations that access the Internet seeking to receive speech on diverse topics; and others who believe firmly in freedom of expression on the Internet. Many are individuals for whom the Internet provides an unprecedented opportunity to publish and disseminate speech on issues that they consider important. A complete list of amici, with descriptions of their use of the Internet and their interest in this litigation, is set forth in the Statement of Interest of Amici Curiae attached to this brief as Appendix B. Amici have the unique ability in this litigation to illustrate one of the fatal flaws in the CDA: the overbreadth of its prohibitions. The terms "indecent" in Section 223(a)(1)(B) of the statute and "patently offensive as measured by contemporary community standards" in Section 223(d) encompass speech by amici that has independent value for both adults and minors. By bringing such speech within its scope and chilling its dissemination, the CDA is unconstitutionally overbroad. 3 In illustrating this overbreadth, amici do not advocate access by all minors to all forms of expression on the Internet. Amici recognize, for example, that some valuable and protected speech that is appropriate for older teenagers may not be appropriate for elementary school children. Likewise, some such speech, while appropriate and even necessary for adults to express and to hear, may not be appropriate for minors under the age of 18. Amici's point, demonstrated by examples throughout this brief, is that the CDA fails to take these gradations into account, thus reducing all speech on the Internet to that appropriate for elementary school children. In the process, the CDA not only criminalizes protected speech, but also deprives parents of the right responsibly to choose what their own children will access on the Internet. Parents understand their own childrens' maturity levels, life experiences, and needs to receive different types of speech far better than the government ever can, and, as plaintiffs' briefs explain in detail, computer technology now has the ability to permit parents to make those selections for themselves. Accordingly, the CDA's censorship of all speech that the government deems "indecent" or "patently offensive" for minors is intolerable under the First Amendment. ARGUMENT 1. In Criminalizing Speech with Serious Social, Political, Artistic, Literary, Medical, Journalistic, and Educational Value, the CDA Is Unconstitutionally Overbroad. Great and emerging works of art and literature. Life-saving and life-enriching medical information. Social exchange and personal interaction. Expression of opinion on issues of politics and societal concern. Journalistic reporting. Education on a wide variety of issues. To some extent, the CDA potentially criminalizes all of these things. It makes unlawful the transmission of any not-otherwise-defined "indecent" communication (§ 223(a)(1)(B)) and the sending or display of any description of certain body parts that is "patently offensive as measured by contemporary community standards" (§ 223(d)). Those terms embrace much that is not obscene or pornographic, is not harmful to minors, and is protected expression under the First Amendment. For that simple reason, the CDA fails the overbreadth test. Plaintiffs, whom amici support, do not challenge any of the CDA's proscriptions against speech that is obscene or otherwise outside the scope of the First Amendment's protections. By definition, then, this action challenges only the CDA's prohibition of speech that is constitutionally protected. A statute is constitutionally overbroad if it presents a genuine likelihood that it will sweep within its prohibition a substantial amount of speech that is beyond its permissible application. See Massachusetts v. Oakes, 491 U.S. 576 (1989); Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Schad v. Mount Ephraim, 452 U.S. 61 (1981). The argument advanced by the government that rather than striking the CDA on its face, the Court should strike it only as to protected speech that comes within its terms (see Government Brief, filed March 18, 1996, at 14-16) concedes that the CDA is overbroad. All "indecent" speech is protected, and thus the statute is facially invalid. 4 It also ignores the vagueness infirmity of the CDA, which makes it impossible to determine what speech actually comes within the CDA's reach. Thus, the government's proposed solution to the overbreadth problem is no solution at all. The Supreme Court has held that a local ordinance that prohibited the display of nudity at drive-in theaters but that included in its sweep not only obscenity but also films protected by the First Amendment was unconstitutionally overbroad. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). The Supreme Court observed that while "[m]uch that we encounter offends our esthetic, if not our political and moral, sensibilities," nevertheless "the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer." Id. at 210. It noted that the Jacksonville ordinance, like the CDA here, discriminated among movies "solely on the basis of content," id. at 211, and that its effect would be "to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational." Id. Rejecting arguments, substantially similar to those advanced in support of the CDA, that protection of minors warranted the sweeping content-based prohibition in Erznoznik, the Court observed that minors themselves have a significant First Amendment right to receive speech and that this right is infringed by a law that "sweepingly forbids the display of all films containting any uncovered buttocks or breasts, irrespective of content or pervasiveness." Id. at 213. The Court added: Thus [the ordinance] would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well a shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. 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. Id. at 213-14. The Court's characterization of the Jacksonville ordinance could apply just as well to the CDA. In enacting the CDA, Congress failed to recognize and provide for the First Amendment protection enjoyed by speech that has serious social, political, literary, artistic, medical, or educational merit. Ignoring the redeeming qualities of the speech, the CDA criminalizes all speech that might be viewed as "indecent" or "patently offensive as measured by contemporary community standards" in the hands of children, regardless of the value that the speech may have for children (particularly adolescents). And it utterly disregards the value of this speech to adults. This sweep renders the CDA unconstitutionally overbroad. See, e.g., Vernon Beigay, Inc. v. Traxler, 790 F.2d 1088 (4th Cir. 1986). The "level of discourse . . . cannot be limited to what might be appropriate for an elementary school library." American Booksellers Ass'n. v. Strobel, 617 F. Supp. 699, 705 (E.D. Va. 1985) (permanently enjoining on overbreadth ground state law restricting sales of books deemed harmful to minors). Yet that is precisely what the CDA does. 1. The CDA Is Overbroad in Banning Speech of Content Providers. The overbreadth of the CDA is best demonstrated by the speech that amici content providers and others situated similarly to them regularly place on the Internet and that is endangered under the CDA's proscriptions. That speech deals with medical information ranging from information about cancer detection and treatment to information about sexually transmitted diseases such as the AIDS virus; depictions of artwork ranging from established masterpieces in recognized museums to avant garde works in less renowned galleries; literary works ranging from classic novels and poetry to new compositions; speech on social and political issues ranging from sexual abuse to human rights; news reporting on all of these issues; and educational materials of similar scope. The speech ranges from the generally (although by no means universally) acceptable, to that which is less in the mainstream though no less valuable. Under the overbroad CDA, all of it is criminalized. * Medical Information on the Internet. Medical information is widely available on the Internet. It includes descriptions and depictions of sexual and excretory activities and organs that in some "communities" may well be considered "patently offensive," or that some might consider "indecent," but which unquestionably have medical, scientific, social, and educational value. The subjects discussed include prostate cancer and surgery; testicular cancer and preventive self-examination; breast cancer and preventive self-examination; breast reconstruction after a mastectomy; breast feeding; childbirth; sex during pregnancy; and sexually [INLINE] transmitted diseases and means to avoid their transmission. Discussion of these subjects necessarily entails frank and even graphic descriptions that are within the CDA's scope despite their high social, medical, and scientific importance. 5 Illustrations and frank discussions concerning such important health matters as breast cancer detection through self-examination and the warning signs of penile cancer are not uncommon on the Internet. See, e.g., Exhibit 22 (http://www.execpc.com/~media/breast.html; http://cancer.med.upenn.edu/disease/genito1/). Although these may fall within the broad language of the CDA, they are essential to informed discourse on these vital subjects. The same is true of sites candidly discussing surgical issues, such as breast reconstruction and penile prothesis or enlargement, and pregnancy issues, such as intercourse during pregnancy and post-caesarean vaginal birth. See Exhibit 23 (http://web.mit.edu/pamurray/www; http://www.netrunner.net/~south7/reed/centre.html; http://www.2020tech.com/mensurg/; http://www.gate.net/~infosrce/). Many of these sites publish photographs, drawings, or other depictions of sexual and excretory activities and organs illustrations that are essential to convey information about these subjects. Under the overbroad scope of the CDA, all of these authors are subject to the threat of criminal prosecution. Because of that threat, the CDA potentially denies millions of Americans accurate sources of health information that could improve, and in certain cases even save, countless lives. A paradigm example of legitimate - even compelling - medical material on the Web is information advising about how to avoid sexually transmitted diseases, particularly AIDS. Frequently, the Web sites offering this information are addressed to sexually active teenagers, a group most likely to engage in sexual experimentation and least likely to have adequate knowledge of how to avoid the dangers of "unprotected" sexual activity in today's world. Often unsophisticated when it comes to medical terminology, any delivery of meaningful sexual information to such an audience requires the use of "street language" including language that was at issue in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Supreme Court held that a broadcast featuring George Carlin's use of seven specified "dirty" words in a comedy routine could be restricted to time slots when children were unlikely to be in the audience. According to the Conference Report to the CDA (see Government's Brief, filed February 14, 1996, Exhibit 2 at 188), that decision sets the legal standard for determining whether speech violates the CDA's provisions that would ban from all sites and at all times (not just restrict to time slots) all "indecent" and "patently offensive" speech. Yet, the Pacifica-like language that Congress seeks to ban from the Internet completely is essential to the communication of this essential medical information. For example, amicus Coalition for Positive Sexuality authors a Web page designed to provide teenagers with comprehensive information about sexual issues. 6 See Appendix B at 2-3. As it states on that page, "We chose words . . . that we use when we talk about sex with our friends. We're not doctors and we don't pretend to be, so pardon our French!" See Exhibit 3 (http://www.positive.org/cps/jsy/jsy.html). The site contains detailed and graphic information about "safe sex" practices, including illustrated instructions about how to use a condom, which is an essential element in [INLINE] preventing the spread of AIDS. See id. at http://www.positive.org/cps/jsy/safe_sex.html. Those instructions are frank, friendly, colloquial, and unvarnished. See, e.g., id. ("That dick has to be hard before you put a condom on it"; "Guys if you cum in the condom while having sex, hold the condom near your balls and pull out while you're still hard"). The site uses similar "street language" to convey frank information about safety measures necessary to prevent the spread of sexually transmitted diseases, including AIDS, when engaging in other forms of sexual contact, such as oral sex. See id. The language used in these examples undoubtedly is crude, distasteful, or shocking to many segments of society. But it is the language most likely to be understood by an intended audience that, as the phrase "street language" implies, makes use of such words every day. Although the examples in the preceding paragraph do not contain any of the precise "seven dirty words" from Pacifica, no one has suggested that Internet users can avoid criminal liability simply by shunning these seven words, and, in any event, other paragraphs from the Coalition for Positive Sexuality's Web site do contain the the Pacifica language. See generally Exhibit 3. The language used on its site is just as likely to strike censorious adults as "indecent" or "patently offensive" as the words at issue in Pacifica, and it is precisely such language that, according to the conference report, the CDA was intended to ban. That ban is oblivious to the instructional value provided by frank speech of this type, and a statutory proscription of such speech merely because minors those arguably most in need of the information may receive it is unconstitutionally overbroad. Of course, the language used in the foregoing examples will, for many people, be just one small source of objections. For many, any frank discussion of sexual topics is indecent, regardless of the words used, and that certainly is true when the discussion turns to less conventional sexual practices such as oral or anal intercourse. Add to that a discussion of homosexual relations and, further, the thought of minors participating in such activities, and, for many, a conclusion of "indecency" and "patent offensiveness" will follow a fortiori. 7 But it is a well-known fact that such sexual activities are a part of the social scene experienced by many teenagers (as well as large groups of adults). And it is a depressingly well-known fact that such activities can be fatal without proper precautions and advice. Life-saving advice about how to take those precautions therefore cannot be dismissed as too indecent to be communicated. Nevertheless, the CDA is broad enough to sweep it within its prohibitions. * Artwork on the Internet. With increasing frequency, art institutions are placing home pages on the Internet. Museums such as the Palmer Museum of Art at Pennsylvania State University, an amicus here, have created Web sites or home pages not only to discuss their exhibits and provide a cyberspace forum for art aficionados, but also to display art on the Internet. The overbreadth of the CDA's "indecent" and "patently offensive" prohibitions ensures that the subjective opinions forming the [INLINE] basis of art appreciation now must take a back seat to concerns about what the government or certain unspecified "communities" may deem unacceptable. The Palmer Museum's Web site, the Palmer ONLINE Lobby, allows selection from a menu of choices that include a complete listing of the artists and artworks displayed in the museum, with links to the images discussed; a guided tour through the Palmer's American painting collection, displaying on the Internet 15 works from the Palmer's collection dating from 1799 to the present; and descriptions of the Palmer's seven permanent galleries, also with links to images displayed there. See Exhibit 11. Additionally, the Palmer's site includes links to numerous other renowned museum sites, including the Whitney Museum of American Art, the Smithsonian Museum, and the Vatican Museum. Some sites, including the Palmer, have provided a search mechanism to assist in locating other art-related sites and have created links to allow access to those sites. See Exhibit 11. Depicted on these sites is a diverse array of art, ranging from Sistine Chapel nudes (works that themselves, until just a few years ago, were covered with strategic drapes of paint because church authorities found the lack of clothing indecent) to modern art collections. Creators and purveyors of such works now have a reasonable fear of prosecution under the CDA for these activities because the CDA encompasses so much. The value of an unfettered display of art on the Internet cannot be exaggerated. With the exponential growth of the Internet and the ability of Web sites to reach millions, the potential for exposure to art is unbounded. See Exhibit 25. Internet users everywhere can view paintings, drawings, and sculpture housed in museums located thousands of miles away without ever having to leave their homes. Far more people can be exposed to art of all varieties through this medium than through any other, including libraries or television, simply because of the Internet's unprecedented capacity for transmitting information. There also can be no doubt that adults are not the only beneficiaries of this broadened exposure to the art world. Art education is invaluable to children of all ages. Appreciation of selected works of art is, of course, a most subjective judgment. In 1989, for example, Washington's Corcoran Gallery refused to show an exhibition of bold photographs taken by Robert Mapplethorpe, organized by the University of Pennsylvania's Institute for Contemporary Art, even though Mapplethorpe was a National Endowment of the Arts grant recipient and many had acclaimed his work. A Cincinnati museum director was arrested on obscenity charges for choosing to show the exhibit, but the jury returned a not-guilty verdict, finding that the art was not obscene. See Hartigan, "Mapplethorpe's Chilling Effect': A Year [INLINE] Later, Battle Goes On," The Boston Globe, Oct. 6, 1991, Sunday, City Edition, p. 1. To many, the exhibit, which included homoerotic photographs, was indecent. To many others, the photographs were modern artistic expressions deserving of exhibition and appreciation. This case demonstrates the dangers posed by a law criminalizing speech based on "community standards" of offensiveness. Mapplethorpe's works are among those now exhibited on the Internet and (once again) in danger of prosecution. See Exhibit 26. The First Amendment does not tolerate banning non-obscene art works merely because of differing subjective judgments. But the CDA subjects art exhibited on the Internet to precisely that damage. In certain communities, even such classic works as Michelangelo's David and the now-undraped Sistine Chapel may fall within the broad language of the CDA. The CDA will chill, and indeed cripple, this valuable use of the Internet. Where art that some may consider potentially "indecent" or "patently offensive as measured by contemporary community standards" is already on the Internet, the museums and other institutions that have placed it there may be exposed to criminal prosecution. See Appendix B at 9-10. Museums, galleries, and individuals now must choose between placing art on the Internet that some might find objectionable, thus opening themselves up to prosecution, or deliberately excluding from their Web sites art that is protected under the First Amendment. Simply put, the choice for these amici - as for all the amici - is between prosecution for free speech or chilled speech. The First Amendment protects against such a choice. * Literature on the Internet. Like art, literature is particularly susceptible to differences in interpretation. That is as true on the Internet as it is on bound pages. The CDA's overbreadth fails to acknowledge that one Internet user's literature is another's "indecent" or "patently offensive" communication. 8 Communities throughout the United States have on occasion banned classic literature from libraries, purportedly for being harmful to minors. See, e.g., Exhibit 19 to Brief of Plaintiff American Library Association et al. at Exhibit O. The banned works include Leaves of Grass by Walt Whitman, Ulysses by James Joyce, Voltaire's Candide, and Chaucer's The Canterbury Tales, all of which are now on the Internet. See Exhibit 27 ( http://www.columbia.edu/acis/bartleby/whitman/index.html; gopher://wiretap.spies.com/00/Library/Classic/canterbury.txt; gopher://gopher.vt.edu:10010/02/155/1; http://www.datatext.co.uk/library/joyce/ulysses/chapters.htm). The Supreme Court itself has determined that another target of would-be book banners, Fanny Hill by John Cleland, is not obscene. See Memoirs v. Massachusetts, 383 U.S. 413 (1966). It too is on the Internet. See Exhibit 27 ( gopher://ftp.std.com:70/00/obi/book/John.Cleland/Fanny-Hill.Z). Considering their track records, there is no reason to believe that communities that have tried to ban or exclude from libraries books in print form will not target them as being "indecent" or "patently offensive" when transmitted, to minors among others, over the Internet. The reasonable fear of prosecution that this prospect will instill in speakers who place all or portions of these works on the Internet renders the CDA unconstitutionally overbroad. The CDA gives such communities an ostensible legal basis for what amounts to online book banning, even though courts have held that the removal from school libraries of hard copies of these same works violates of the First Amendment. See Minarcini v. Strongville City School District, 541 F.2d 577 (1976). Even works of a less literary nature are protected when in hard copy. See, e.g., Herceg v. Hustler Magazine, Inc., 814 F.2d 1017 (5th Cir. 1987). No different result should obtain as to such works simply because they are placed on the Internet. See Exhibit 28 (short stories by noted feminist Andrea Dworkin). Yet under the CDA, a very different result, of criminal proportions, will indeed obtain. There is nothing in the CDA that permits consideration of the literary, social, or historical merit of a targeted literary work. Arbitrary "contemporary community standards" are the only touchstone for whether a targeted work is "patently offensive." As discussed later in this brief, the CDA does not even instruct how to determine what "community's" standards should apply. The so-called "classics" are not the only literature transmitted on the Internet that the CDA endangers. Perhaps even more so, newly composed works by emerging authors and poets are likely to be the target of the "indecency police." The Internet is a ground-breaking medium for such authors because they can publish and disseminate their literary creations without the need for traditional agents and publishing houses or for personal financial expenditures. On the Internet, they can share their works with readers and fellow writers, exchange criticism and suggestions, hone their craft, and achieve satisfaction knowing that others are finding enjoyment or inspiration reading their works. Yet works placed on the Internet that touch on subjects of love and romance or sexuality can be expected to be prime targets for those quick to find "indecency." Groups such as amicus the Creative Coalition on AOL, an organization of online poets, have felt the chill from this overbreadth. Even prior to the final enactment of the CDA, America OnLine removed dozens of poems from Creative Coalition's Poetry Corner in response to demands of some who believed that the use of words such as "breast" rendered the poems indecent. See Appendix B at 4-5. Some poems were removed for no discernible reason whatsoever, making it impossible for their authors to understand what language had been considered "indecent" and therefore must be avoided. See id; see also Exhibit 4. Now the vagaries of "indecency" also carry the threats of government censorship and criminal prosecution. Nor is the scope of the CDA limited to books. Technological innovations now make it possible to transmit and receive not just text and pictures on the Internet, but also motion pictures, television and theatrical productions, and musical compositions (as well as scripts and lyrics from those works). These contemporary compositions sometimes contain explicit sexual themes or lyrics. Just one example of a contemporary musical composition on the Internet and that has a sexual theme and lyrics is Alanis Morissette's You Oughta Know, which won the 1996 Grammy Award for Best Rock Song of the Year. See Exhibit 29 ( http://archive.uwp.edu/pub/music/lyrics/; http://www.seas.upenn.edu/~avernon/lyrics/alanis_morissette.html; http://charlotte.acns.nwu.edu/charm/html/alanis/oughta.html). Such new compositions on the Internet are in jeopardy under the CDA. * Social and Political Discourse on the Internet. Issues of social and political import are widely discussed on the Internet. Certain issues implicate topics of discussion that fall squarely within the overbroad language of the CDA, and yet are both vital to informed discourse in a democratic society and fully protected under the First Amendment. See Appendix B at 2-3, 6-7, 15-16. For example, both Khijol (an amicus here) and The Survivor's Page are Web sites dedicated to sexual abuse and rape survivors. See Exhibit 2 ( http://dal1820.computek.net/); see also Exhibit 30 ( http://cam043212.student.utwente.n1/). They include chat rooms offered as a forum for survivors to share their experiences and recoveries with one another, and pages for posting original poems and stories composed by them. It is impossible for such sites to avoid occasionally describing or depicting sexual activities and organs in a manner that would, as measured by the contemporary standards of some communities, be patently offensive. Considering the nature of the issue, it would be unreasonable and unrealistic to expect otherwise. Unfortunately, these realities are no impediment to the CDA's reach. It would likewise be undesirable for such sites to prevent minors from participating, considering that, as the Court can take judicial notice, sexual abuse is perpetrated most commonly on minors. Even if it were technologically possible for those who to maintain such Web sites to exclude minors (which it is not), such a restriction would undermine the sites' very purpose and impair their ability to fulfill their mission. One site, for example, deals explicitly with ritual abuse. See Exhibit 30 ( http://www.xroads.com/rainbow/ra_cases.html). Others address family violence, sexual abuse, and child abuse, all linked by common sites such as that of Internet Support Groups. See id. at http://www.xroads.com/rainbow/support.html. Still another site carries writings, letters, and poetry by survivors. See id. at http://cam043212.student.utwente.nl/writing.htm. To deprive these Internet users of the ability to speak, communicate, and assist one another having survived (or being still trapped in) the horrifying experience of sexual abuse would be yet a further violation. Yet the authors of sites like these are concerned that they now face prosecution for providing this service and may be unable to continue doing so. See Appendix B at 2. Similarly, it is essential to the mission of human rights organizations, such as Derechos, an amicus here, to inform about the nature of human rights abuses wherever and in whatever form they occur. See Appendix B at 6-7; Exhibit 7. Too often, such abuses include physical atrocities relating to the victims' "sexual or excretory organs." However distasteful, difficult, or "offensive" this topic may be for some to confront, it is speech of truly serious social and political merit. Educating about human rights abuses, and persuading people to fight against them, is a vital form of speech on the Internet. For example, amicus Margarita LaCabe, who authors the human rights Web site called Derechos, includes on that site excerpted personal accounts of torture, including sexual torture of both men and women, recounted in Nunca Mas (Never Again), the Report of the Argentine National Commission on the Disappearance Persons, which covers the disappearance of 30,000 people in Argentina in the 1970's. They include the following: . . . At some point he feels that they pick him up, they take him through a corridor to another place, where they order him to undress, they throw him on a cot and they say to him: "Look, I am El Aleman,'" while the victim was hearing women and men screaming. "El Aleman" tries to introduce a pipe into his anus. Another voice tells them to leave him, and speaking to the victim, he says: "you see, I am "El Gallego," and saved you from him putting the iron bar in you." They put him naked, with his legs and arms opened, tied with leather. "El Gallego" tells him to speak, while he applies an electric shock on his ankle, burning his muscles, he still has the marks. He is also interrogated by a woman. "El Gallego" applies the "picana" [electric cattle-prod-like instrument] on his armpits, where he also still has the scars. "El Gallego" laughed and tells the woman: "You, you like the piece, you continue." Then he feels as the woman takes his member and introduces in it some caustic-like liquid, and because of this he still has problems urinating. . . . Then they proceeded to introduce in my vagina what I knew afterwards to be a baton or a police stick. Then they took me to another building, where they made me eat handcuffed to a table. When I refused to, they took me to another building, where they would make me stand and go back to interrogating me, hitting me on the head and threatening to introduce the stick I mentioned before in my anus. Many of the victims of such torture were themselves younger than 18. To omit from Internet coverage of human rights abuses such personal accounts as these, written by those who have suffered through them for the sake of the values they champion, would be to silence voices of experience, education, and warning. Nevertheless, the CDA is broad enough to do so. The CDA forces authors of home pages dedicated to these issues, and users of those pages, to make a choice between emasculating their speech by omitting descriptions and depictions of human rights abuses, or risking criminal prosecution for speaking out. The First Amendment does not tolerate that choice. Indeed, the irony of our democratic government silencing speech on human rights abuses inflicted in non-democratic regimes should not be lost on the Court. Of course, the story of the Argentine disappearances, like many of the reports of human rights abuses on the Internet, is historical and and serves only to warn readers: "Never again" as to crimes against humanity that have already occurred. But abuses involving "indecent" and "patently offensive" behavior also are perpetrated today, and the Internet is the quickest and most effective tool for exposing them. One wonders whether the disappearances or indeed the Holocaust would have occurred so brazenly if the Internet had been reporting on them twenty or sixty years ago. Yet the graphic reports that might have caught the world's attention would have been threatened with criminal prosecutions under the CDA. * Journalism on the Internet. The news media have gone online. Hundreds of news providers in the United States alone, ranging from daily newspapers to weekly news periodicals to broadcast news agencies, have placed home pages on the Internet. Countless more around the world have done so, and are accessible by computer users in this country. Some individuals and groups have created home pages to link these news sites together for ready access by Internet users eager to receive information on current events via computer, rather than the traditional print and broadcast media. See Appendix B at 7-8; Exhibits 8, 12. Information contained in news sites online contains a wealth of speech that inevitably will include speech considered by some to be "indecent" or "patently offensive." High on that list are reports or photographs regarding the various other subject areas that are discussed in this amicus brief. Medicine, art, literature, and social and political issues of all kinds are covered in the news media. The Internet coverage of them is no different. See, e.g., Exhibit 31. The angry posturing of combatants in war, at the scenes of crime, in the political arena, outside abortion clinics, or in other newsmaking settings will often provoke the use of language adjudged by some to be indecent. Under the First Amendment coverage of such issues, disturbing though they may be, is not limited to material suitable to minors. Cf. Herceg, 814 F.2d at 1020 (First Amendment protected article detailing life-threatening sexual act, even though adolescent who obtained article died trying to imitate act). It is reasonable for those who place their reporting on the Internet to fear prosecution under the CDA. Precedent as to the print and broadcast media demonstrates the prpensity of some to consider factual reporting, which is at the core of the First Amendment, as "indecent" or "patently offensive." For example, when National Public Radio in a profile of John Gotti aired an evidentiary tape used in court of Gotti's repetitive use of expletives, a listener sued the Federal Communications Commission trying to force the agency to bring action against NPR. See Branton v. FCC, 993 F.2d 906 (D.C.Cir. 1993). In another instance, public interest in government funding of the controversial Mapplethorpe exhibit led to extensive media coverage over a period of years. Under the CDA, the media might have been subject to prosecution for reporting that one of the works was entitled "Piss Christ," or for describing it as a crucifix placed in a jar of urine, which many would certainly find offensive. The current issue of Philadelphia Magazine, an amicus here, contains a report on male prostitution in Center City, Philadelphia that normally would be placed on the magazine's Web page (now under reconstruction), along with other major articles from the issue. See "The Vampires of Delancey Street," Philadelphia Magazine, March 1996, p. 64. Under the CDA, the necessarily graphic content of that article raises the specter of criminal liability for a compelling journalistic report if it is placed on the Internet. See Appendix B at 10. As newspapers and magazines establish Web sites on the Internet, they also will be faced with the threat under the CDA that personal columns published therein through which readers make contact with other readers for a wide variety of purposes including the romantic or sexual, may expose them to criminal liability. Mere headings like "man seeking man" and "woman seeking woman," with their overt acknowledgement of gay and lesbian relationships, may strike at least some parents and prosecutors as indecent for children. When the ads speak of specific practices that the advertisers prefer, the threat is increased. Yet these clearly protected communications in magazines and newspapers, where they already are readily available to minors in paper form, serve a valuable purpose for the communicators. Plainly, this communication would be naturally adopted to the Internet, with its possibility of instant response and ongoing communication. The threat posed by the CDA means, however, that such materials may be completely off-limits for the Internet because children may see them there. The CDA places a gag on those who would report the news, forcing them to self-police themselves far beyond anything required in the print media (to which the Internet is most analogous) or even the broadcast media. The CDA ban on speech is twenty-four hours a day, seven days a week, every day of the year. Unlike the broadcast restrictions approved in Pacifica, there is no "adult" time zone available here, and no recognition of the utility of scrambling mechanisms, as there is in the broadcast arena. The gag on the Internet is complete and total. * Education on the Internet The Internet is a powerful teaching tool. In universities, for example, professors use the Internet to supplement print materials available to students in order to offer more comprehensive treatment of facts and issues. The ready access to information made possible by the Internet, in addition to smaller local area networks within university communities, enhances the educational experience. Professors use the Internet not only to teach courses covering the subjects discussed above, but also courses on such issues as the social and psychological effects of pornography and the philosophical implications of cyberspace. See Appendix B at 8-9, 14-15; Exhibit 9. This is accomplished by posting course materials on Web sites; transmitting, via e-mail, information located elsewhere on the Internet; encouraging students to explore the information available on the Internet in a particular subject area; and, in many cases, by a combination of all of these methods. See id. For example, amicus Peter Ludlow, an Associate Professor at the State University of New York at Stony Brook places online all of his course materials for his course, entitled Conceptual Issues in Cyberspace, which covers, in an online context, such philosophical issues as the nature of online sexual behavior in the multi-user online games known as "MUD's." See Appendix B at 8-9; Exhibit 8. The very reason that some materials are used in the course is that they are construed by some as "indecent," and an analysis of that construction is part of what the course addresses. Transmitting these materials, even in the context of providing a comprehensive academic analysis, may itself be construed "indecent" and, therefore, criminalized by the CDA. Certainly the CDA does not provide for consideration of the context in which materials are placed on the Internet. For that reason, Professor Ludlow is gravely concerned that the course material he intends to place online next semester for his course on moral reasoning as applied to the Internet, which will include materials actually subject to censorship and thus considered by some to be "indecent" or "patently offensive" per se, may expose him to criminal prosecution. The CDA also stifles access to the full range of information available in libraries, including those affiliated with institutions of higher learning. See Appendix B at 16-17. "A library is a mighty resource in the free market place of ideas. It is specially dedicated to the broad dissemination of ideas. It is a forum for silent speech." Minarcini, 541 F.2d at 582-83 (citations omitted). Yet while materials available in print form are fully accessible to minors and adults, the CDA prohibits the same access on the Internet. And, while a library has the freedom to choose what books and periodicals to include in its collection, so that it can identify and eliminate works it determines to be unsuitable, the CDA prevents it from making its own judgment of what Internet sites its users may access. By making any access to the Internet available to minors, a library or individual librarian now risks prosecution under the CDA. The CDA Also Is Overbroad in Banning Speech Sought by Content Recipients. It is not only speakers on the Internet who feel the chill posed by the CDA. The millions who access speech on the Internet feel it as well. They do not open themselves up to criminal prosecution, as do content providers (although, if they download into e-mail or otherwise disseminate any questionable content to a minor, whether knowingly or not, they risk becoming content providers themselves). But they are deprived of access to speech with serious redeeming merit which they are entitled to hear (or view, in the case of the Internet) under the First Amendment. Recipients of speech are equally entitled to protection under the First Amendment. That protection is afforded "to the communication, to its source and to its recipients both." Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756 (1976). The "right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences" is "crucial" and "may not be constitutionally abridged" by statute or regulation. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). Nevertheless, the CDA violates this principle. Several of the amici experience the chill of the CDA from the perspective of a recipient of speech. For example, Lloyd K. Stires, a social psychologist and professor who teaches a seminar entitled "Pornography: Critical, Behavioral and Legal Approaches" at Indiana University of Pennsylvania, conducts research for the course on the Internet. The CDA jeopardizes his ability to research non-obscene speech protected by the First Amendment. See Appendix B at 14-15. Similarly, Miryam Ehrlich Williamson, a freelance technical journalist who conducts nearly of all her research on the Internet and whose topics have included medical disorders that affect "sexual or excretory activities or organs," may find under the CDA that the Internet has become, not a font of information, but rather eventually a dry well for some of those topics. See Appendix B at 18-19. That will also be true for the entire journalism profession, which increasingly relies on the Internet as an invaluable research source. See id. at 1, 10, 12-13. The ban affects all Internet users, including those serviced by amicus Eric Raymond, a director of Chester County InterLink, which provides free access to the Internet for economically disadvantaged and physically challenged users who may be interested in any of these subjects. See id. at 11-12. As these examples illustrate, the CDA could freeze out entire segments of society from exercising their First Amendment right to participate in this high-tech marketplace of ideas. The CDA, particularly because it poses the harsh sanction of criminal prosecution, decreases the likelihood that in the future there will be speech on the Internet that these amici can view and use for undeniably legitimate purposes. In this way as well, the CDA is unconstitutionally overbroad. The CDA Is Overbroad in Banning Speech According to the Tastes of Undefined "Communities." The overbreadth of the CDA is readily apparent when viewed in light of the huge range of protected speech that it places in jeopardy. The problem is accentuated by another great failing of the CDA the use of the phrase "contemporary community standards" in Section 223(d). Whether a communication is "patently offensive" is highly subjective, and that judgment may differ according to the diverse mores and beliefs that prevail in a community and that help to formulate the prevailing views in that community. For communications media that are predominantly local, such as newspapers or broadcast stations, it may be possible to identify a relevant community and to determine what standards apply there. But the Internet community knows no geographical boundaries, since all Internet material is readily accessible across municipal lines, state lines, and even national lines. Thus, a speaker may be located in Pennsylvania, but his or her home page or chat room message may be read by Internet users in communities in every state in the nation (leaving aside the additional complication of international transmission). By which community standards is that speech to be judged? The speaker's own jurisdiction, Pennsylvania, itself contains a diversity of communities ranging from urban Philadelphia to rural Potter County, "liberal" pockets of academia to "conservative" religious enclaves, blue collar smokestack industrial areas to suburban developments populated by high income professionals, homogenous ethnic and racial neighborhoods to localities having members of diverse backgrounds, political views, and religions (including no religion at all). The recipients' communities are guaranteed to be equally if not more diverse. The only solution for the amici who are threatened with criminal prosecution under the CDA is to assume that the standards of the most conservative or puritanical communities will be applied to measure the offensiveness of all communications on the Internet. Forcing Internet users such as amici to act on that assumption, as the CDA does, will chill or exclude vast amounts of protected speech from the Internet. The "community standards" element of the CDA also fails to recognize the fact that, even within a fixed community, "contemporary" standards of decency change over time. For example, much of what was considered indecent during the 1950's would not be so considered today. The technology that has developed since then accelerates the rate of change, so that what is "indecent" in a community now, might not be shortly, or, conversely, what is accepted now could be viewed as indecent as soon as next year. It is not possible for Internet content providers to follow or predict these swings even within identifiable communities, further forcing them to reduce their speech on the Internet to the lowest common denominator in order to avoid the risk of criminal prosecution. The CDA Is Unconstitutionally Overbroad Because Those Who Provide Access to Speech Prohibited by the CDA and Not Under Their Control Nevertheless May Be Subject to Criminal Prosecution. ISPs are the common carriers of cyberspace. They provide the lines over which speech on the Internet is shared among individual computers and networks. 9 They do not monitor or censor the content of the speech that flows over those lines. It is no part of their business to do so, and, given the enormous and exponentially growing amount of Internet speech, it would be impossible for them to do so. While the CDA purports to recognize that fact, the reality is otherwise. Because ISPs and other service providers such as community providers and Web site hosting services (see Appendix B at 3-4, 8, 11-12, 17-18) are held legally accountable for the Internet speech of their customers, the CDA is unconstitutionally overbroad as applied to them. Under the CDA It is a defense to a prosecution under subsection (a)(1)(B) [the "indecency" provision] or (d) [the "patently offensive" provision], or under subsection (a)(2) with respect to the use of a facility for an activity under subsection (a)(1)(B) that a person (A) has taken, in 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 (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number. 47 U.S.C. § 223(e)(5). The affirmative burden that this defense places on ISPs, who have neither involvement in the creation of, or general knowledge of the content of, speech carried over their lines, is the primary source of the CDA's overbreadth as to ISPs. The sheer volume and variety of speech on the Internet that may fall within the parameters of the CDA's prohibitions is immeasurable. That in turn is merely a subset of the entire universe of speech that is carried over the Internet a universe that changes constantly. In order to "restrict or prevent access by minors" to communications banned under the "indecent" and "patently offensive" provisions of the CDA, ISPs would first need to identify those communications. Yet, as a technical matter, it is not possible for ISPs to review all of the content carried over their lines, to filter out communications based on content, or to identify which of their users are minors and when they are online. 10 Because it is not possible for ISPs to determine what communications fall under the CDA and thus must be restricted as to minors especially not with the accuracy necessary when a criminal prosecution is at stake it also is logistically impracticable for ISPs to resort to the identification number or credit card alternatives offered in the statutory defense. Even in the telephone communications context, such alternatives are questionable requirements under the First Amendment. See, e.g., Fabulous Assoc. v. Pennsylvania Public Utility Comm'n, 896 F.2d 780 (3d Cir. 1990) (access codes to adult telephone communications not least restrictive means of preventing access to such communications by minors, and accordingly statute could not withstand constutional attack). The meaning of "good faith, reasonable, effective and appropriate actions" under the defense in Section 223(e)(5) also places the ISPs in a state of uncertainty. Considering the stated aims of the CDA, it would not appear that efforts ISPs could possibly make, such as random searches of the Internet for "indecent" or "patently offensive" communications (although even then the overbreadth and vagueness of those terms could not be overcome), would satisfy the "good faith" requirement. For these reasons, as illustrated by amici's use of the Internet recounted in the Statement of Interest, the CDA is unconstitutionally overbroad as to ISPs and other access providers. _________________________________________________________________ CONCLUSION For the foregoing reasons and those set forth in the Statement of Interest of Amici Curiae that is attached to this brief, amici curiae urge the Court to grant plaintiffs' motion for a preliminary injunction enjoining enforcement of the Communications Decency Act of 1996. Respectfully submitted, James D. Crawford Carl A. Solano (I.D. No. 23986) Jennifer DuFault James Theresa E. Loscalzo Joseph T. Lukens Attorneys for Amici Curiae Schnader Harrison Segal & Lewis 1600 Market Street, Suite 3600 Philadelphia, Pennsylvania 19103 Of counsel. Dated: March 20, 1996. _________________________________________________________________ NOTES 1 For a discussion of the Internet, see Brief of Plaintiffs ACLU, et al. in Support of Motion for Preliminary Injunction, filed February 8, 1996, at 10-23; Complaint of Plaintiffs American Library Assoc., et al., filed February 26, 1996, at µµ 31-62 and Brief filed March 1, 1996, at 3-10. Internet jargon explained in those briefs, such as "the Web," "links," and "home pages," is used here without explanation to avoid redundancy. All Web sites referenced in this brief are cited to their Universal Resource Locator ("URL"). 2 The CDA is Title V of the Telecommunications Act of 1996, Pub. L. No. 104-104, ºº 501 et. seq., 110 Stat. 56, ___. Section 502 of the statute enacted the operative provisions here as amendments to Section 223 of the Communications Act of 1934, 47 U.S.C. º 223. Citations in this brief are to the provisions as they will be codified in the Communications Act, the relevant sections of which (Sections 223, as amended, and a new Section 230) are reproduced in full in Appendix A at the end of this brief. 3 Amici join plaintiffs in the view that the CDA suffers from numerous infirmities under the First Amendment, including the fact that it is not the least restrictive means of achieving a compelling governmental interest and that its operative terms are hopelessly vague. Amici shall not repeat the extensive arguments in plaintiffs' briefs discussing those issues, but instead are limiting this submission to illustrations of the statute's unconstitutional overbreadth. 4 In support of its response to plaintiffs' overbreadth challenge, the government relies on cases that treat overbreadth from a standing perspective. It ignores the core cases on the overbreadth doctrine cited in this brief and by plaintiffs. 5 Examples of some of the illustrations included on the Internet, along with citations to their sources, are included in boxes reproduced throughout this brief. 6 There are a number of such sites on the Web. For example, the site of amicus Tri Dang Do, a medical student at Boston University, includes a page that provides education to teens on sexually transmitted diseases. See Appendix B at 5; Exhibit 5 (http://med-www.bu.edu/people/sycamore/std/std.htm/). An illustrative site operated by others is Healthwise, the Health, Education and Wellness program of Columbia University Health Service, which includes an award-winning feature entitled "Go Ask Alice," an interactive question and answer service explicitly dealing with sexual health and relationships. See Exhibit 24 (http://www.columbia.edu/cu/healthwise). 7 Community efforts to control public school curriculums have often focused on sex education. See Polner, "The Four Forbidden Words," Newsday Feb. 5, 1996, at A03; Baumman, "Groups Pushing Parental Rights," The Des Moines Register, Metro Iowa, Feb. 3, 1996, at 5. Similarly, much of the effort to remove books from public school libraries, discussed at pages 15-16, infra, has been aimed at sexually explicit literature, including books specifically aimed at helping teenagers deal with their emerging sexuality. See "State Ranks 9th in Censorship Tries," Wisconsin St. Jour., Sept. 2, 1993, at 2B; "Panel Says Ban Judy Blume Novel," Wisconsin St. Jour., Mar. 31, 1993, at 3D. 8 Yet another indication of the CDA's overbreadth is the irony that results from the availability in the print media of speech identical to that banned on the Internet under the CDA. Although, as discussed in the main text, book-banning efforts are not uncommon, no federal statute purports to authorize such silencing of protected speech. In books, magazines, and newspapers, adults and minors alike therefore have lawful access to information and other forms of speech of the same nature as that falling under the CDA's rubric of "indecent" or "patently offensive." While the Internet, because of its limitless capacity for providing forums for individual speakers, expands the amount of information available in other media, it does not necessarily expand the types of information available there. Thus, minors can check out books from libraries, purchase books or magazines or newspapers in bookstores or from other vendors, or subscribe to periodicals in their home, all containing speech of the same sort that they are now legally prohibited from receiving on the Internet. And, publishers in the print and even broadcast media can disseminate that speech while those on the Internet cannot. In failing to be sufficiently narrowly tailored to achieve its stated ends, the CDA fails both to meet those ends and to pass constitutional muster. 9 For a description of the technical workings of ISPs, see Brief of Plaintiffs American Library Assoc. et al., at 5; Complaint of Plaintiffs American Library Assoc. et al., at µ 49. 10 For a discussion of the technical limits involved, see Brief of Plaintiffs American Library Assoc. et al., at 17-19, 77-78. _________________________________________________________________ CERTIFICATE OF SERVICE I hereby certify that on March 20, 1996, I served a copy of the Brief of Amici Curiae in Support of Motion of Plaintiffs for Preliminary Injunction, and the exhibits in support thereof, on counsel for all parties by the indicated methods addressed as follows: Christopher Hansen, Esquire Senior Staff Counsel National Legal Department American Civil Liberties Union Foundation, Inc. 132 West 43rd Street New York, New York 10036 (Via Hand Delivery) Stefan Presser, Esquire Legal Director American Civil Liberties Union of Pennsylvania 125 South Broad Street Suite 701 Philadelphia, Pennsylvania 19107 (Via Hand Delivery) Anthony Coppolino, Esquire United States Department of Justice Civil Division Federal Programs Branch 901 E. Street, N.W. Washington, D.C. 20530 (Via Hand Delivery) Michael R. Stiles United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, Pennsylvania 19106 Attn: Mark R. Kmetz Assistant United States Attorney (Via Hand Delivery) Bruce J. Ennis, Esquire Jenner & Block 601 Thirteenth Street, N.W. Washington, D.C. 20005 (Via Hand Delivery) Ronald P. Schiller, Esquire Piper & Marbury, L.L.P. 3400 Two Logan Square 18th & Arch Streets Philadelphia, Pennsylvania 19103 (Via Hand Delivery) APPENDIX B STATEMENT OF INTEREST OF AMICI CURIAE The Authors Guild is a national association of almost 7,000 professional book and periodical writers of all genres, including journalists, historians, biographers and other writers of fiction and nonfiction. Founded in 1912, it is the oldest and largest organization of published writers in the United States. Members of the Authors Guild include winners of the Pulitzer and Nobel Prizes, National Book Awards, and other prestigious awards and prizes. The Authors Guild works to promote the professional interests of its members and to educate the community at large on issues facing publishing-related industries. One of the Authors Guild's principal purposes is to express its members' views in cases involving questions of freedom of expression and to support that fundamental constitutional right. Many of its members rely heavily on the extraordinary opportunity for free and open communication offered by on-line services and the Internet, which allow its members to participate in a true "marketplace of ideas." The Authors Guild opposes the CDA because it will chill free speech in this important forum. The American Society of Journalists and Authors is a professional association representing journalists and authors, primarily in the print media, many of whose works are placed in whole or in part onto the Internet. Claire Safran is the Chairperson of the ASJA's First Amendment Committee and its amicus contact person. The ASJA and its members are concerned that the CDA will prohibit certain writings from being placed on the Internet and chill free expression online. See Exhibit 1. Ed Carp authors a Web site called Khijol that is dedicated to survivors of sexual abuse (http://dal1820.computek.net/). See Exhibit 2. The site is a forum where these survivors can reach out to one another and know they are not alone; offer comfort, guidance and empathy; confront their abusers; or simply find an outlet for their need to express the powerful emotions associated with their abuse. Among other services, it offers chat rooms, private e-mail, and a page where survivors may post original works of poetry and composition regarding their experiences. It also offers information on different types of abuse, on helplines, on other avenues for contacting fellow survivors and on obtaining assistance whether practical assistance in escaping from an abusive environment, or psychological assistance in finding emotional healing. Khijol is accessed by both adults and minors, which is not surprising considering that the vast majority of sexual abuse is perpetrated on minors. There is no way for Mr. Carp or for adults who access the site to know whether or when minors are participating in chat room discussions, reading the creative writing posted on the site, or otherwise using the site. Considering the horrific nature of the abuse suffered by those who access the site, it is understandable and in fact unavoidable that at times language that some might find "indecent" or "patently offensive" would be used. A survivor himself, Mr. Carp is concerned that the CDA may put him at risk of criminal prosecution for permitting free expression on the site without the ability to screen out minors from participating, and that in any event it is critical that minors who have experienced or are still experiencing sexual abuse be permitted to access the site. The Coalition for Positive Sexuality is a grassroots volunteer group originally formed by high school students and members of various AIDS awareness, pro-choice, women's health and gay rights groups to respond to what it identified as a health crisis among Chicago teenagers in terms of teen pregnancy, sexually transmitted disease and lack of awareness of issues relating to homosexuality. Its purpose is to provide teens with comprehensive information on sexuality and reproductive control, and to stimulate debate on the quality of sex education in public schools and around the country. The Coalition maintains a Web site directed to teenagers and intended to provide accurate information on sexuality. See Exhibit 3 ( http://www.positive.org/cps/). The site includes, in both English and Spanish, information on state laws regarding abortion, and a listing of electronic and general resources. The information includes definitions of sexual organs, sexually transmitted diseases, and other issues related to sexuality that could be considered "indecent" or "patently offensive" according to particular community standards. The site is visited by more than 1,500 users daily from more than eighty countries, including countries where abortion and homosexuality are illegal. The Coalition also communications via e-mail directly with minors, frankly answering questions about sexuality. Natasha Minsker is the amicus contact person for the Coalition. CONNECTnet Internet Network Services is an Internet service provider based in San Diego, California. It is concerned that the CDA makes it responsible for monitoring and removing communications by its customers, or Web sites that it carries, based on a vague, undefined and overbroad standard of what is "indecent" or "patently offensive." CONNECTnet believes that the CDA transfers the ISP industry from providing information to policing and controlling information. That result will adversely affect its cost of doing business, forcing it to abandon providing Internet service altogether. Chris Vulovic is CONNECTnet's amicus contact person. Creative Coalition on AOL is a national Internet organization comprised of poets who place their works on an America OnLine page called the Poetry Corner. See Exhibit 4 (http://www.silcom.com/~timber/aol.html/). The poets within Creative Coalition use the Internet to share their poetry and to exchange critiques, suggestions and comments on it, as well as to enable others simply to enjoy reading it. Jordanne Holyoak is its media coordinator and amicus contact person. Creative Coalition and its members are concerned that the CDA may prohibit certain writings from being placed on the Internet and that it will chill free expression. Their concern is particularly valid because, even prior to enactment of the CDA, AOL had removed dozens of poems from the Poetry Corner in response to demands by some who believed that the use of such words as "breast" rendered a poem "indecent." Some poems were removed for no discernable reason whatsoever, making it impossible for their authors to understand what language had been considered "indecent" and therefore must be avoided. Under the CDA, the poets of Creative Coalition face not only removal of their poetry by the server, but also the even harsher and more chilling threat of criminal prosecution by the federal government. In light of the fact that some already have labeled poetry written by members of the Creative Coalition as "indecent" or "patently offensive" as measured by some unarticulated standards, the fear of prosecution experienced by its members is well founded. In the past, works of poetry such as those authored by the beat poets Allen Ginsburg and Jack Kerouac were deemed "indecent" and were banned in some communities during the 1950's and 1960's. The CDA poses a threat to those who post such works on the Internet, as well as to those who author or post newly composed poetical works that might be deemed "indecent" according to some community standards but which have artistic and social merit today and which may even become the classics of future generations. See id. at http://www.indirect.com/www/proteios/northstar.html/. Tri Dang Do is a student at Boston University School of Medicine. He authors a Web site that includes a page "prepared for and dedicated to the teens of East Boston" that provides education on sexually transmitted diseases (http://med-www.bu.edu/ people/sycamore/std/std.htm/). See Exhibit 5. The information is strictly medical in nature, but presented in a way that teenagers will understand and with which they can identify. His goal is to help teens accessing the site to engage in healthy behaviors and to teach them how to handle their sexuality in a safe and responsible manner, by arming them with factual information. He believes that it is vital that he perform this service and that teens accessing the Internet have a way of receiving this potentially live-saving information. He is concerned that the CDA poses a risk of prosecution to him for posting language that is essential to any discussion of sexually transmitted diseases their symptoms, prognoses, treatments or cures, and avoidance. Feminists for Free Expression is an organization comprised of a diverse group of women who believe that freedom of expression is especially important for protecting and furthering women's rights. It maintains a Web site on which it describes these beliefs. See Exhibit 6 (http://www.well.com/user/freedom/). It believes that the appropriate way to protect children from exposure to harmful materials on the Internet is increased parental responsibility and supervision combined with advancing technology to aid parents in their efforts to protect their own children. See id. In addition to these beliefs, the organization's opposition to the CDA stems from a concern that it could be used to ban from the Internet works of art and literature that are expressions by women of their own sexuality; and materials that inform women and teenage girls about their own bodies. Similar material in print form, such as the landmark book Our Bodies, Ourselves, has in the past been the target of those who felt that it was "indecent" or "patently offensive" while failing to recognize or appreciate on its tremendous educational value. Feminists for Free Expression has a reasonable concern that similar works transmitted on the Internet will be prohibited under the CDA. Margarita Lacabe is a student at the Hastings School of Law who authors a Web site called Derechos that is devoted to encouraging human rights activism world-wide by providing human rights information. See Exhibit 7 (http://www.derechos.org/). An active member of Amnesty International, Ms. Lacabe through her site provides links to Web sites maintained by that organization and other human rights organizations, and also publishes a Human Rights Newsletter available on its site. Id. Included on the site is a page excerpting personal accounts of torture, including sexual torture, contained in Nunca Mas (Never Again), the Report of the Argentine National Commission on the Disappearance of Persons, which covers the disappearance of 30,000 people in Argentina during the 1970's. While the accounts are graphic and might be deemed to be "indecent" or in some communities "patently offensive," Ms. Lacabe believes that it is the human suffering itself that is indecent, not the description of it. She believes that such descriptions are vital to informing people, including minors who have a right to know what is happening in their world, of human rights abuses; and vital to persuading people to fight these abuses. For placing this information on the Internet, where it is accessible to minors, Ms. Lacabe has a reasonable fear of prosecution under the CDA. Maggie LaNoue authors a Web site called NewsBoy, which provides links to hundreds of world news sites on the Web. See Exhibit 8 (http:/www.newsboy.com/). The NewsBoy site allows users to go to news of state, national and international news services online. It carries links to such nationally syndicated news sources as Time Magazine, The Wall Street Journal, ABC News and CNN. There is also a link to a site called ElectNet, which carries election news in each of the fifty states. One of the largest networks linked is the U.S. Community Page Index out of Massachusetts, linking to over 1,000 American newspapers. NewsBoy also carries links to international news sources such as OneWorld News Service out of the United Kingdom; and "Daily News: Just the Links," a Web site out of the Netherlands that links users to more than 200 media organizations worldwide. Many of the sites to which NewsBoy provides links have RealAudio clips. Ms. LaNoue plans in the future to add to NewsBoy additional features, including an index of news sources online in all fifty states, including state-by-state weather and sports. The news sources to which NewsBoy provides links may include descriptions or depictions that some might deem "indecent" or "patently offensive," particularly depending upon the individual community standards to be applied. Ms. LaNoue can neither identify such material nor edit sources to delete such material. The list of NewsBoy links is so extensive that she cannot even visit them all, let alone monitor them regularly. She is concerned that under the CDA she could be held responsible and criminally prosecuted for providing these links. The user-friendly NewsBoy site may no longer be able to provide this wealth of news access to computer users if the author may be held responsible for all the content of the links. LoD Communications is an Internet service provider serving the Tallahassee, Florida region. It is concerned that the CDA makes it responsible for monitoring and removing communications by its customers, or Web sites that it carries, based on a vague, undefined and overbroad standard of what is "indecent" or "patently offensive." Todd Lawrence is LoD Communications's amicus contact person. Dr. Peter Ludlow is an Associate Professor in the Department of Philosophy at the State University of New York at Stony Brook. Included among the classes he teaches is a course entitled "Conceptual Issues in Cyberspace" which covers, in the online context, philosophical issues such as the nature of self and community. He places all of his course materials for the class on his home page. See Exhibit 9 (http://semlab2.sbs.sunysb.edu/Users/pludlow/highnoon.html). He believes that under the CDA he is prohibited from placing on that site materials relating to the nature of online sexual behavior in MUDs (multi-user interactive games played over the Internet) and other materials that are essential to the course but that may be termed "indecent" or "patently offensive." The teaching materials used for that course and located on the home page will be published under the title High Noon on the Electronic Frontier: Conceptual Issues in Cyberspace by MIT Press this spring. Professor Ludlow also plans to offer in the fall 1996 semester a course entitled "Moral Reasoning," which will attempt to apply traditional concepts in moral reasoning to the ethical dilemmas that arise in cyberspace. Include on the class syllabus are discussions of censorship on the Internet and the CDA itself. He believes he cannot comprehensively or meaningfully teach these issues without giving examples of communications that might be "indecent" or "patently offensive" under the CDA but which nevertheless are worthwhile communications; and that he cannot do so without violating the CDA himself. Chuck More owns an art gallery in Philadelphia, Pennsylvania. He authors a Web site to display exhibitions of artwork sold at his gallery. See Exhibit 10 (http://www.libertynet.org~artst/more/). The art displayed there regularly includes nudes, both painted and photographed. See id. Such artwork, displaying as it does sexual organs, could be considered "patently offensive" according to the standards of some communities, thus placing Mr. More in jeopardy of criminal prosecution. Rod Morgan is an Internet user who accesses such features as e-mail and Internet news groups. He is concerned that the CDA will chill the speech that he views and receives on the Internet, by causing fear among content providers that the criminal penalties of the CDA for unspecified "indecency" will cause them to avoid speech on whole topics altogether. The Palmer Museum of Art at Pennsylvania State University maintains a Web site called the Palmer ONLINE Museum of Art. See Exhibit 11 (http://cac.psu.edu~mtd120/palmer/lobby.html/). It is concerned that its placement of art on the Internet and its linking to other sites that place art on the Internet, will be chilled or prohibited by the CDA. The Palmer ONLINE Museum includes descriptions and digital depictions of artwork in the Museum's collection, as well as providing links to other art museums and art resources such as art galleries that also are online. The Palmer is concerned that the CDA will prohibit it from posting certain artistic images that some might consider "indecent" or "patently offensive" and that it could be held responsible for similar images at sites to which it is linked. M. Travis DiNicola is the Digital Curator of the PalmerONLINE Museum of Art and its amicus contact person. Philadelphia Magazine is a general interest magazine published by MetroCorp. It covers a broad range of issues of interest to the Greater Philadelphia area, some of which relate to medicine, art, literature, social affairs, politics, education, and sexual topics. For example, its March 1996 issue includes a report on male prostitution in a Center City, Philadelphia neighborhood, and some material in that article may be within the CDA's scope if the article is placed on magazine's Web site. See "The Vampires of Delancey Street," Philadelphia Magazine, March 1996, p. 64. The magazine also publishes classified advertisements, including personal advertisements by people seeking companions. See id. at 158. It is placing some of its editorial content and advertising online and is in the process of redesigning its Web page. See Exhibit 12 (http://www.libertynet.org:80/~philamag/). The magazine fears that it may not be able to engage in cyberspace publishing of some articles and advertising, including personal ads and feature articles such as the one described above, without risk of prosecution under the CDA. PEN American Center ("PEN") is an organization of 2,400 novelists, poets, essayists, translators, playwrights and editors, chartered to defend free and open communication within all nations and across national boundaries. American PEN has taken a leading role in attacking restrictive laws, rules, regulations and practices that censor, curb or limit freedom of speech or expression in the nation. Of all the restrictive practices that might censor an author's work and restrict freedom of speech, PEN American Center believes there is none more sweeping and dangerous than a prior restraint against publication. PEN American Center and its members believe that the CDA has ominous implications for the entire craft of writing and publishing, which relies increasingly on the Internet for both information gathering and publishing. PSINet, Inc. is a leading international provider of Internet access and integration services with hundreds of points-of-presence throughout the United States, and internationally in Canada, the United Kingdom, Japan and South Korea. Founded in 1989, it is a publicly-traded company with offices in Virginia, New York, California, Pennsylvania, England and Japan. PSINet provides Internet services to more than 100,000 businesses and individuals. PSINet will not monitor its subscribers' communications or transmissions on the Internet, because it does not want to censor their transmissions on the Internet, and PSINet firmly believes that its customers have a right of privacy in their transmissions. In addition, PSINet does not have the technical or logistical capability routinely to monitor and screen the millions of domestic and international transmissions of hundreds of thousands of customers to determine whether any of those transmissions might be "indecent." Finally, the additional complications presented by the CDA's monitoring requirements with respect to the communications that PSINet carries from foreign points of origin and in foreign languages further conspire to make its defenses meaningless. Eric S. Raymond is the co-founder and a member of the Board of Chester County InterLink (CCIL), a volunteer-run nonprofit organization started in 1993 that provides community networking and Internet access for over two thousand users in Chester County, Pennsylvania. Its mission is to support access by poor, disadvantaged, elderly and minority county residents who have traditionally been either financially unable or lacked the background, education and confidence to take advantage of commercial Internet services and BBSes. CCIL runs active community-outreach and educational programs designed to assist ordinary people in taking advantage of the new electronic media. See Exhibit 13 (http://locke.ccil.org:80/~esr/). Mr. Raymond believes that the CDA is a death warrant for CCIL. Under it, any person displeased by any of the content its users offer could find it all too easy to instigate prosecution of CCIL itself under the vague "indecency" language. CCIL does not command the resources needed to conduct the elaborate self-censorship required by the CDA's purported defenses, nor to defend itself against prosecution. The drain on CCIL's volunteer time required even to attempt to filter the entire Internet would cripple every educational and support program it runs. Moreover, Mr. Raymond fears that the CDA's overbroad indecency provisions effectively require content-based censorship and would prohibit CCIL from carrying information for teenagers on such issues as safe sex, AIDS prevention, abortion, or alternatives to abortion. The Reporters Committee for Freedom of the Press is a nonprofit association of print and broadcast news reporters and editors dedicated to defending the First Amendment and freedom of information interests of the news media. The Reporters Committee is concerned with the restrictions that the CDA will impose on all news media services on the Internet, as well as on its own Internet World-Wide Web site. See Exhibit 16 (http://www.rcfp.org/rcfp). As part of its long-standing mission to help journalists understand the case law and statutes that affect reporting, the Reporters Committee regularly reports on cases and controversies that contain offensive or indecent allegations or communications. It has long been taken for granted that intelligent discussion of such controversies is appropriate and even necessary to help journalists understand the law, and the Reporters Committee has done so in print publications for a quarter of a century. Under the CDA, the same level of discussion in its online newsletter and other periodical publication available through the Internet could be criminal. The Reporters Committee's web site also contains links to numerous other online resources to help reporters. Monitoring the content of all of these sites is beyond the control of the organization and removing the links would eliminate a valuable service for journalists. In addition, news organizations are finding that by offering online services complete with discussions of the news, they can more directly interact with their readers. The give and take cannot be regulated by the newspaper without destroying the immediacy that makes these discussions valuable. Don Rittner is the publisher of The MESH - Inside Cyberspace, a Web version of a monthly magazine covering the Internet. See Exhibit 14 (http://www.albany.globalone.net/theMESH/). Since enactment of the CDA, Mr. Rittner has felt compelled to remove several columns from The MESH web page out of fear of criminal prosecution. He believes that the CDA has limited his choice of content for his magazine, thus infringing on his First Amendment right to free expression. He further believes that it is unclear under the terms of the CDA precisely what speech he must remove or exclude in order to avoid prosecution and that in order to reconcile that lack of clarity, he must take an overbroad view of materials that might be deemed "indecent" or "patently offensive." The Sexuality Information and Education Council of the United States (SIECUS) is a national nonprofit organization incorporated in 1964 that develops, collects and disseminates information, promotes comprehensive information about sexuality, and advocates the rights of individuals to make responsible sexual choices. See Exhibit 15 (http://www.siecus.org/). It believes that sexually explicit speech and visual materials are indispensable elements of sexuality education, and that the CDA may restrict the appropriate professional use of such materials by sexuality educators, therapists, and researchers. See id. Betsy Wacker is the amicus contact person for SIECUS. Dr. Lloyd K. Stires is a social psychologist and professor in the psychology department at the Indiana University of Pennsylvania. His primary academic research is in the area of the content and effects of pornography. In the context of his work, he subscribes to several Internet discussion groups that sometimes involve frank discussions of human sexuality, as well as censorship issues and First Amendment rights. He also teaches an annual seminar at the university entitled "Pornography: Critical, Behavioral and Legal Approaches." He sends announcements regarding the seminar to students and also forwards to them information downloaded from the Internet that is relevant to the course and that could be deemed "indecent" or "patently offensive." He is concerned that this academic activity may expose him to prosecution under the CDA. Further, he is concerned that the CDA will chill his ability to conduct his research on the Internet, by forcing the removal of materials that are "indecent" or "patently offensive" according to some community standards but which form a vital part of his studies and teaching. Peter J. Swanson is a Ph.D. candidate in Electrical Engineering and Computer Science at the University of Michigan and a member of the University's Advanced Technology Laboratory. He authors a Web site that includes a page dedicated to a discussion of United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995). See Exhibit 17 (http:// ai.eecs.umich.edu/people/pjswan/). The Baker case concerned a United States prosecution under 18 U.S.C. § 875(c) for threats transmitted via e-mail over the Internet, including stories written by the defendant, a student at the University of Michigan. The Baker web page is typically accessed by scholars interested in the legal and social implications of the case and by students of philosophy and composition who use the case as a discussion topic. While the stories and e-mail messages themselves are unquestionably offensive, they are so central to an understanding of the case that the United States District Court for the Eastern District of Michigan quoted them extensively in its opinion dismissing the indictment. See Baker, 890 F.Supp. at 1387-90. The text of that opinion is reproduced on Mr. Swanson's Web page. See Exhibit 18. However, since enactment of the CDA, Mr. Swanson has felt compelled to remove from that page the full text of the stories, despite his conviction that it is important to the public interest for those interested in the controversy to understand its underpinnings. See id. Fear of the strong penalties imposed by the CDA e also has forced him to refuse legitimate requests for the material by some who access the Baker page because he is unable to confirm the age of the requestors a problem exacerbated by the fact that he is part of a university system attended by minors. Kirsti Thomas is a Reference and Technical Services Librarian at Seattle Pacific University in Seattle, Washington. Users of the library include undergraduates (including many under the age of 18), children of graduate students, faculty members and their children, and members of the outside community including minors. Ms. Thomas believes that the CDA has a serious detrimental effect on how she fulfills her duties as a librarian serving these varied constituencies. The Internet is a major reference source within the field of library science, on which Ms. Thomas relies heavily in providing the library's patrons with rapid access to current and sometimes controversial information. Ms. Thomas has a reasonable fear of prosecution under the CDA for simply fulfilling those duties. For example, by showing a 17-year old nursing student online information on AIDS prevention and safe sex education, using such sources as a Web site, mailing list, discussion groups or even access to LEXIS/NEXIS, she could be transmitting "indecent" or "patently offensive" information to a minor. Ironically, Ms. Thomas may show identical materials located in print to the same student without any legal repercussions at all, thus demonstrating that the CDA is not narrowly tailored to achieve the government's stated compelling interest of preventing minors from receiving "indecent" or "patently offensive" information. Additionally, consistent with her academic concentration in German culture and civilization, Ms. Thomas maintains a home page that includes a link to the German weekly news magazine Der Spiegel (which is carried in print form in most major libraries in the United States). See Exhibit 19 (http://paul.spu.edu/~kst/art.html). The covers of Der Spiegel, which appear on her home page, frequently show naked breasts, which while not offensive to German sensibilities is not generally accepted mainstream journalism in this country. She is concerned that under the CDA she could be prosecuted if a minor accesses her home page and views or links to Der Spiegel. Ms. Thomas also believes that the CDA deprives her of her First Amendment right to post artwork on her home page that some might find "indecent" or "patently offensive." See id. Overriding these specific concerns is Ms. Thomas's belief as a librarian and an educator that the Internet is an international source of information that is unlike any medium known before and that possesses unlimited educational and social value. Web Communications is a Web hosting service that provides a self-service online facility used by its customers to post Web sites on the Internet. See Exhibit 20 (http://www.webcom.com/). They currently service over 1650 Web sites, and that number grows daily. The driving purpose of Web Communications is its desire to make the positive social benefits of the free exchange of ideas and expression among individuals that the Internet makes possible available at a grassroots level. Web Communications is concerned that if one of its customers places on the Internet a communication that could be deemed "indecent" or "patently offensive" and accordingly unlawful under the CDA, then it too could be in danger of prosecution. The large and growing number of Web Communications customers posting information on their Web sites makes monitoring of those sites impossible as a technical and financial matter. However, under the CDA if it were brought to the attention of Web Communications that one of its customers was placing "indecent" or "patently offensive" speech on the Internet, it would be Web Communications' responsibility to remove it. That burden imposed by the CDA is both unworkable and also runs counter to Web Communications mission to provide open access to the Internet. It believes this mission is protected under the First Amendment. Web Communications' president and amicus contact person is Chris Schefler. Miryam Ehrlich Williamson is a freelance technical journalist who has written a medical book concerning a neurochemical disorder called fibromyalgia. She conducted all the research for the book on the Internet the only means available to her for locating all the information she required. Over the Internet, she interviewed hundreds of people who have fibromyalgia to determine their concerns and opinions, as well as to discuss the as-yet unknown cause and cure for the disorder. In the course of this research she participated in discussions on the Internet that included references to bowel movements, menstruation, urinary tract infections, sexual relations and contraception. These discussions included use of specific terminology and descriptions that were sometimes graphic but always central to the symptoms of the disorder and the struggle to live with it. According to Ms. Williamson, they were discussions that some might consider "indecent." Under the CDA, research of the sort that Ms. Williamson conducted is now impossible. The threat of prosecution posed by the CDA prohibits her from conducting unfettered follow-up interviews on fibromyalgia; or from conducting research on that or similar medical disorders or diseases that might implicate "sexual or excretory activities or organs" and that might include communications considered by some to be "indecent," because other authors of speech on the Internet that she would need to access may themselves be chilled by the threat of prosecution. Ms. Williamson has written an essay posted on the Internet regarding the restrictions that the CDA has placed on her work. See Exhibit 21 (http://www.privateI.com/democracy24/essay/wmson.html/).