UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA ________________________________________ ) AMERICAN CIVIL LIBERTIES UNION, et al., ) ) Plaintiffs, ) ) v. ) Civ. No. 96-963 ) JANET RENO, in her official capacity as ) ATTORNEY GENERAL OF THE UNITED STATES, ) ) Defendant. ) ) _________________________________________) PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF A MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION INTRODUCTION The plaintiffs in this First Amendment challenge to the "Communications Decency Act of 1996" seek emergency relief to stop the enforcement of provisions of the Act that criminalize their expression of constitutionally protected information and ideas over computer communications systems/1. The Act bans all expression that is "indecent" or "patently offensive" from all online systems that are accessible to minors. Not only does this ban unconstitutionally restrict the First Amendment rights of minors and those who communicate with them about important issues, but, because of the nature of the online medium, it essentially bans "indecent" or "patently offensive" speech entirely, thus impermissibly reducing the adult population to "only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383 (1957). The prohibitions are also unconstitutionally vague and overbroad. The terms "indecency" and "patently offensive" are not further defined. None of the plaintiffs knows how to define the Act's terms or how much of their communications are criminal under the Act. The Act explains neither how to comply, nor which participants in the distribution of online speech may be held liable. Further, there are many alternatives already available for those parents who wish to shield their children from online communications that they deem inappropriate. Finally, the Act interferes with the privacy rights of minors, and impermissibly discriminates against computer communications by imposing censorship that would not be permitted for the print medium/2. The plaintiffs are providers and users of online communications with significant educational, political, medical, artistic, literary, and social value that deal with issues such as sexuality, reproduction, human rights, and civil liberties. The censorship provisions that they challenge threaten not only to chill these important communications but to dismantle the free and open nature of a promising new medium that could empower citizens and promote democracy in the next millennium. The exponential growth in computer technology, and international computer networks like the Internet, is transforming the nature of communication. Computer networks have created new communities with new opportunities for people with similar interests to communicate with each other. Computer networks embody the values that underlie the First Amendment by nurturing the robust exchange of ideas. By imposing vague and broad-ranging standards wholly inappropriate for this new medium, the Act would stifle the creativity and breadth of expression occurring in cyberspace. This result cannot be reconciled with the First Amendment. Because plaintiffs and their members and online audiences face the irreparable loss of First Amendment rights, plaintiffs ask the Court to enter preliminary relief enjoining the Act's enforcement. STATEMENT OF THE CASE A. The Plaintiffs' Online Speech Plaintiffs include more than twenty organizations and individuals who use online computer networks to send, display and view information. All of the plaintiffs are both online speakers and online listeners or recipients of information who communicate through electronic mail ("e-mail"), online discussion groups, and online databases that can be accessed by millions of other online users simultaneously. Plaintiffs sue on their own behalf and on behalf of those who access their online communications. Plaintiffs who are membership organizations sue on their own behalf and on behalf of their members who use online communications. All of the plaintiffs use online networks to send, display or view information that could be considered to be "indecent" or "patently offensive." Some communicate important health-related information about sex/3. Others communicate important news and educational information about human rights and civil liberties/4. Still others communicate material that contains strong language that many consider unsuitable for minors to read or hear and that the Federal Communications Commission has found "indecent" in the broadcast context/5. Notwithstanding the social value of plaintiffs' speech for both minors and adults, all face possible prosecution under the Act. More specifically, plaintiffs include/6: * American Civil Liberties Union (ACLU): a national civil rights organization, the ACLU posts online information that includes the language deemed offensive in the Supreme Court's 1978 decision in FCC v. Pacifica , 438 U.S. 726 (1978), and hosts online discussions on civil liberties issues such as arts censorship, obscenity and indecency law, discrimination against gay men and lesbians, and reproductive freedom. The ACLU also sends and receives information about abortion through online networks, the mails, telephone and FAX lines/7. * Human Rights Watch (HRW): an international human rights organization, HRW uses computer technology to communicate around the world with members, interested persons, and the public. These discussions, and HRW's published online human rights reports, sometimes contain graphic language about prostitution, rape and torture involving sexual mutilation/8. * Electronic Privacy Information Center (EPIC): a research organization advocating for free speech and privacy rights in the online medium, EPIC maintains extensive online resources that include references to censored material. For example, EPIC has posted poems that were written by subscribers of America Online (AOL) and then removed from AOL on the grounds that they were "vulgar or [contained] sexually oriented language."/9 * Electronic Frontier Foundation (EFF): a national non-partisan organization advocating for civil liberties in the online medium, EFF maintains extensive online resources. EFF's electronic resources, like those of the ACLU and EPIC, include considerable material about censorship including quotations from previously censored material/10. * Journalism Education Association (JEA): a national organization of high school journalism teachers, JEA members teach minors how to access information on computer networks and assist minors with online research on many subjects, including censorship, gay and lesbian issues, teenage sexuality, reproduction, abortion, art, literature, and law/11. * Computer Professionals for Social Responsibility (CPSR): a national organization of computer professionals, CPSR and its members are involved in every aspect of computer technology. They use the online medium as a primary method of communication and also host a number of online discussion groups that include frank discussions of sex/12. * National Writers Union (NWU): a national organization of writers, NWU and its members use computer technology to communicate with each other often in frank terms and some of whom post erotic fiction on the networks/13. * ClariNet: publishers of an electronic newspaper, ClariNet distributes news articles that sometimes use frank, strong language, and describe sexual subjects. ClariNet also publishes a humor newsgroup which posts jokes, some of which include vulgar language or sexually explicit material/14. * Institute for Global Communications (IGC): a national online service provider, IGC provides Internet web sites, access to the Internet, and other online services primarily to nonprofit organizations, including SIECUS (the Sex Information and Education Council of the United States), the Family Violence Prevention Fund, Stop Prisoner Rape, Human Rights Watch, and Pacifica Radio/15. * Stop Prisoner Rape (SPR): an organization dedicated to advocacy to end prison rape, SPR hosts an Internet site that uses frank street terms to discuss the problem of rape in the nation's jails, prisons, and juvenile facilities in order to assist inmates or former inmates in dealing with the consequences of that experience/16. * AIDS Education Global Information System (AEGIS) and Critical Path AIDS Project (Critical Path): organizations that offer vital information about AIDS and HIV, AEGIS and Critical Path often necessarily contain discussions of sex because HIV/AIDS is a sexually transmitted disease. In order to ensure that those accessing the information fully understand prevention methods, Critical Path and AEGIS discussions often use street terms for sexual organs and/or acts. Critical Path also provides access services for connection to other online networks/17. * Safer Sex Page: an Internet site that provides safe sex education materials, Safer Sex Page often uses frank and explicit language and pictures. Safer Sex Page also hosts an online discussion group that allows individuals to discuss sexual subjects relevant to safer sex(Fn 18). * BiblioBytes: a publisher of electronic books for sale over the World Wide Web ("the web"), BiblioBytes offers romance novels, erotica, classics, adventure, and horror /19. * Wildcat Press: a publisher that specializes in classic gay and lesbian literature, Wildcat Press advertises its books by publishing excerpts online. Wildcat also sponsors two online youth magazines that publish poetry, fiction, essays, fine art and photography by teenagers, some of which is sexually explicit/20. * Queer Resources Directory (QRD): one of the largest online distributors of gay, lesbian, and bisexual resources on the Internet, QRD includes some material about human sexuality that is sexually explicit/21. * Justice On Campus (JOC): a student-operated Internet site on free speech, JOC posts and discusses material that has been censored, particularly material censored by schools/22. * Cyberwire Dispatch (CWD): an online editorial column about telecommunications issues, CWD often uses vulgar and graphic language to protest censorship. Brock Meeks, publisher and editor of Cyberwire Dispatch, also writes for other print and online magazines/23. * The Ethical Spectacle: an online monthly newspaper, The Ethical Spectacle discusses ethical issues including Nazi experimentation and the morality of pornography. In the course of those discussions, works that have in the past been censored or considered pornography are discussed and quoted/24. * Planned Parenthood Foundation of America (PPFA): the leading national voluntary health organization in the field of reproductive health care, PPFA sends and receives, through online communications, telephone, FAX, and regular mail, a broad range of information about abortion/25. B. The Censorship Provisions of the Act Plaintiffs principally challenge two sections of the Act. Section 502, amending 47 U.S.C. Section 223(a)(1)(B) (hereinafter Section 223(a)(1)(B) or "the indecency provision"), provides in part that anyone who, "by means of a telecommunications device," "makes, creates, or solicits" and "initiates the transmission" of any material "which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age," "shall be criminally fined or imprisoned." Section 502, adding 47 U.S.C. Section 223(d)(1) (hereinafter Section 223(d)(1) or "the patently offensive provision"), makes it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18, any material that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs ... Plaintiffs also challenge Section 223(a)(2) and Section 223(d)(2), which makes it a crime for anyone to "knowingly permit[] any telecommunications facility under his control to be used for any activity prohibited" in Sections 223(a)(1)(B) and 223(d)(1). Finally, plaintiffs challenge 18 U.S.C. Section 1462, as amended by the Act, which prohibits the sending and receiving of information by any means regarding "where, how, or of whom, or by what means" "any drug, medicine, article, or thing designed, adapted, or intended for producing abortion . . . may be obtained or made." C. The Nature of the Online Medium To understand the urgency of the issues presented by this case, it is necessary to appreciate the unique nature of the online medium. Online networks represent a revolutionary synthesis of several traditional means of communication and places for communicating and exchanging information -- including the telephone system, the postal service, a television or radio broadcast, a newspaper, a library or book store, a fax machine, a town hall or public park, and a shopping mall. The following section discusses the ways people communicate over online networks, the types of online systems and how they operate, and the distinctions between the online medium and traditional forms of communication. 1. Types of Online Systems Although computer communications systems are various and complex, there are a few basic types and functions that are critical to understanding why censorship of material that is "indecent" or "patently offensive" is unnecessary and unconstitutional on these networks. An estimated 75,000 online systems currently exist, varying widely in size, subject matter, scope and features. These systems are accessed with a computer, phone line, and modem. There is usually a start-up and subscription fee, which varies in price depending on the size and features of the system. Subscribers are provided with a user name and a password that allows them to access the online service. While some users employ their full proper names as their online user names, others have online names that are pseudonyms. These users therefore may send, view, and receive online communications anonymously. Most online systems offer a package of services that can include e-mail to transmit private messages to one or a group of users or to an established mailing list on a particular topic; chat groups that allow simultaneous online discussions; ongoing discussion groups; informational databases; and access to the Internet. Text, audio, and video files can all be exchanged on an online system if the user has the right computer hardware and software. Once users obtain online access, they may generally use all of the services without providing further identification or paying an additional fee/26. The quintessential online system is the Internet, the largest online network in the world. The Internet is an enormous network that links a large number of smaller networks set up by universities, industry and government. While estimates are unreliable due to its astronomical growth, the Internet is believed to connect at least 59,000 computer networks and 2.2 million computers in 159 countries/27. There are an estimated 20-40 million users of the Internet/28. The Internet grows at a rate of 10-15 percent per month, and a new online network is connected to the Internet every 30 minutes/29. Many Internet users are connected to the service through an Internet Service Provider (ISP). ISP's provide connection, software, and tools for using the Internet/30. Larger businesses and institutions often have a direct connection to the Internet. Most universities in the United States are now directly connected to the Internet and provide free accounts on their participating computers to students, faculty, and staff. Online users can communicate over the Internet in many different ways. E-mail is the most basic online communication method; users are given a personal e-mail address that allows them to exchange messages or files with anyone else with an Internet e-mail address. Gopher and the World Wide Web ("the web") are two popular ways to create and access permanent information databases, or online sites, established by thousands of organizations and individuals through the Internet. Both gopher and the web allow the user to print or download documents from the Internet/31. The web, the newest Internet tool, provides thousands of sites that contain menus, text, and graphics. Most sites allow users to link instantly to other documents and web sites by clicking on highlighted words in the text of the document being viewed. The Internet and other online services also provide access to "online discussion groups," which are set up by particular computer networks connected to the Internet. The host of the discussion group sets up a section on the network that is devoted to the discussion of a particular issue (akin to a public bulletin board), and any other online user with access to the host network can post messages on the topic by sending an e-mail message to the discussion group. Users can also post reponses to particular messages/32. Plaintiffs host online discussion groups on topics such as AIDS education; safer sex practices; and university censorship/33. Online users can also communicate using "chat rooms," which are usually dedicated to a particular topic and allow users to engage in simultaneous live interactive discussion (similar to a multi-party phone call). Like online discussion groups, chat rooms are usually hosted by particular networks that are connected to the Internet/34. Software is also available that allows any online user to establish an "online mailing list" for a particular topic or purpose. Other online users "subscribe" to online mailing lists by sending messages from their own e-mail addresses. Any subscriber can then send a message that is distributed to all of the other subscribers on the list/35. There are a number of methods available for searching for information on the web. These methods, often called "search engines," allow an online user to insert a string of words and simultaneously search the thousands of databases on the web for information on a particular subject/36. While users may tailor their searches to exclude some extraneous information, it is not possible to screen all unrelated information from appearing in the search results. The search results provide users with a citation list of sites on the subject searched, and the user then chooses which of those sites to access/37. The summary above provides only a cursory overview of a very complex and promising new communications medium/38. All online systems, though, have two important features in common: users must seek out with specificity the information they wish to retrieve and the kinds of communications in which they wish to engage. online systems provide users with a multitude of options for controlling and limiting, if desired, the kinds of information they access through the networks. 2. Who Runs Cyberspace Nobody owns cyberspace, and the ability of anyone to control what goes into or through online networks varies widely depending on the nature of the system. Many aspects of online networks and sites run automatically without the active involvement of the host. For example, online system software automatically answers the telephone when a user attempts to log on, verifies passwords, connects the user to the system, allows users to exchange messages, downloads and uploads files when requested by users and disconnects the user when the user logs off the system. Large online services like America Online and Prodigy create their own content files and also negotiate with other information providers to post content on their systems. Some of these online services review the content from outside information providers before it is posted/39. However, in contrast to the control and review of information they create themselves or received from third parties, these systems have little prior control over the content of subscribers' e-mail or the speech that takes place in their simultaneous chat rooms. In addition, it is impossible to monitor access to other networks and sites through the host network. For example, Plaintiff ACLU's web site provides a "link" to Plaintiff EFF's web site, but Plaintiff ACLU has no power to monitor EFF's web site communications/40. There are other gatekeepers in cyberspace known as moderators. Online mailing lists, online discussion groups and chat rooms on a particular subject are often "moderated." Some moderators are employed by universities or companies that set up the list or newsgroup, but the overwhelming number are people who volunteer to serve as moderator because they are interested in the topic. These moderators review incoming messages before they are posted to a public site or sent to a mailing list to determine whether the message is related to the subject matter or conforms to other standards set up by the discussion group. For example, Plaintiff Safer Sex Web Page hosts an online discussion group about safe sex, but the creator of the web page reviews messages posted by others before he posts them to the public discussion group in order to screen out messages that do not relate to the topic/41. Given the lack of centralized Internet gatekeepers and the huge flow of online information, moderators play a valuable role in focusing online discussion and eliminating superfluous messages. 3. How Cyberspace Differs From Other Media Users of online networks are producers as well as consumers of information. Perhaps the most revolutionary aspect of cyberspace is its ability to turn the passive consumer into a mass producer of information. Online users, through services like e-mail, online discussion groups, or the web, can publish or post information to other users -- or to the entire Internet -- and then use the same services to read or receive information. In fact, online networks make no distinction between information providers and information users, and "most users play both roles from time to time./42" Unlike radio or television networks, in which spectrum scarcity limits the number of potential information producers, an online network can accommodate a virtually unlimited number of both users and producers of information/43. Cyberspace is also more decentralized than any other communications medium. It is comprised of thousands of individual computers and computer networks, with thousands of individual speakers, information providers, and information users, and no centralized distribution point. Access to start-up technology, content production, and connectivity are all decentralized in cyberspace. Anyone can purchase the necessary equipment to get online or to create a web site from her home computer. Once a person becomes connected to global networks like the Internet, there are no central gatekeepers who determine where that person can travel in cyberspace. Many commentators have noted that the decentralized nature of cyberspace is what has made the medium flourish/44. It also makes cyberspace fundamentally different from the broadcast medium/45. Attempts to control content in cyberspace affect not just a few distributors and producers, but the millions of US citizens and international users who speak daily online/46. The effect of censorship is thus much broader than on radio and television, which have a limited and identifiable number of producers; it is even broader than print because information travels instantaneously across national boundaries. Congress has conducted no study to determine how the Act's censorship provisions would affect the interactive environment, or indeed, whether they would be effective in keeping ostensibly harmful materials from children. Cyberspace also differs from print, television or radio because it is "interactive." Other, traditional media are one-way communications systems with no opportunity for input from the user. Online communications, by contrast, allow users to shift fluidly from the position of listener to that of speaker, and from the role of consumer to that of information provider. Moreover, unlike the traditional phone or fax, cyberspace communications can be more than just two-way. There is no limit to the number of people on either side of the sending or receiving end of the communication. Also unlike traditional media, cyberspace contains various types of interactive communications. Online users can exchange e-mail to one or a specified group of other users; engage in an ongoing exchange of postings on a particular subject through online discussion groups; talk simultaneously with others in an online chat group; or retrieve documents from web sites. Online media thus "offer users tremendous control over the information that they and their children receive. Unlike traditional mass media which 'assaults' viewers with content, interactive media requires users to seek out information from any number of the millions of available [online sites]./47" Viewing messages or files in cyberspace does not happen automatically. Each participant in this form of communication chooses not only whether, when and where to participate, but also whether to send or receive information at any specific time; at what rate writing and reading (sending and receiving) will occur; and what topic this communication will concern. Thus, in contrast to television or radio, it is very difficult to be "assaulted" with images online. There is little risk of accidental exposure to established online files, because an online user sees a subject line or headline describing the content before it is viewed, and actively chooses what she wishes to see or hear in cyberspace. Computer communications and online communities also differ from other media in their global reach. The Internet is accessible from a growing number of countries around the world/48. Once information is posted to an international online network like the Internet, it is not possible to allow only residents of a particular country to download that information; the information becomes available to anyone in the world who can access the Internet. Similarly, it is impossible to prevent persons in other countries from posting information to international online networks. There is currently no technological method for determining with specificity the geographic location from which users access or post to online systems. Finally, unlike other media, online systems offer both "public" and "private" spaces for communication. E-mail and online mailing lists are private. Web sites, online discussion groups and chat rooms are "public" in the sense that any Internet subscriber can access them, but they are not akin to a town hall or public park because it is impossible to identify the physical characteristics of other online users. This fact is particularly relevant to legislation targeting minors. In public parks and other public spaces in the geographical world, adults can easily determine whether children are present, and may decide to alter their speech and conduct accordingly. On the Internet, as it currently functions, it is impossible to determine whether a child or teenager is participating in a chat room or whether a minor is accessing a public space on the network. Thus, any regulations governing communications to minors inevitably affects communications among adults. 4. Screening and Filtering Devices Available to Control Content As described above, the very nature of the online medium puts control of information and content in the hands of the users. In addition, there are an increasing number of devices that assist users in screening and blocking access to certain kinds of information. Almost all online information has a headline or subject line that tells the online user what will be viewed if the user chooses to access the information. Online users can simply choose not to view or download information if the headline relates to information the user finds objectionable. There are also methods that allow users to block out all incoming messages from a particular person (for example, an harassing e-mailer), or messages related to particular subject matter in Usenet newsgroups or mailing lists/49. In addition, some online services offer filtering and screening devices specifically designed for parents, and industry continues to develop software programs for the specific purpose of assisting online users in controlling the information they receive through their systems. Currently, there are four general categories of technological options, each providing "a slightly different, but equally effective, point of intervention."/50 First, commercial online services like America Online, Prodigy, and Compuserve provide optional features to prevent children from accessing simultaneous chat rooms and to block access to Usenet newsgroups based on keywords, subject matter, or specific newsgroup. They also offer screening software that automatically blocks messages that contain language such as the "seven dirty words," and tracking and monitoring software so that parents can see which sites their children have accessed. In addition, there are "kids-only" discussion groups that are closely monitored by adults. Finally, these services offer telephone help and detailed instructions for parents/51. Parents who subscribe to the Internet through an ISP can also purchase software applications to control access to content/52. "SurfWatch" software allows parents to block access to Usenet groups and Internet sites which are known to contain sexually explicit material. SurfWatch employs a group of professional "net.surfers" who monitor the Internet for new sites; these findings are then reviewed by a group of parents and educators, and the list is automatically updated on the home computer. "NET NANNY" allows parents to block any areas on the Internet that the parent deems appropriate, to prevent children from giving personal information to strangers by e-mail or in chat rooms, and to keep a log of all online activity that occurs on the home computer. "CYBERsitter" allows parents to monitor their children's computer activity and can prevent children from downloading specified files/53. Other available software caters to schools and businesses that provide access to the Internet. Products such as the "Netscape Proxy Server" and "WEBTrack" allow schools and businesses to block specific sites from access by all users on the network, and to track and monitor Internet use. WEBTrack is providing its software free to all K-12 schools/54. These products are only some of the currently available ways that parents can control their children's access to the Internet and other online services. New products are constantly being developed. About two dozen online companies have formed a coalition entitled the Platform for Internet Content Selection (PICS) to develop technical standards to enable voluntary rating of a variety of online content. The standards would enable content creators voluntarily to label their own content so that individuals and families could block material, if they chose. The group will also create standards to allow multiple third-party rating of online content/55. These programs are not foolproof. New online sites are created daily and no software can guarantee that it will block access to every site that discusses sex or uses "vulgar" words. However, the various blocking mechanisms are much more effective than a government ban in keeping minors away from material that their parents and teachers deem inappropriate. Particularly given the inability of any government to ban material posted outside its borders, blocking mechanisms are a more effective alternative than censorship. ARGUMENT Plaintiffs more than satisy the requirements for preliminary injunctive relef. In order for this Court to grant a Temporary Restraining Order and Preliminary Injunction pursuant to Rule 65, Federal Rules of Civil Procedure, plaintiffs must establish: (a) that they are likely to prevail on the merits; (b) that they will suffer irreparable harm if injunctive relief is not granted; (c) that potential harm to the defendants from issuance of a temporary restraining order does not outweigh possible harm to the plaintiffs if such relief is denied; and (d) that the granting of injunctive relief would not be against the public interest. See In re Arthur Trecher's Franchise Litigation, 689 F.2d 1137, 1143 (3d Cir. 1982); Constructors Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 814-15 (3d Cir. 1978). A. Plaintiffs, Their Members, and Audiences Will Suffer Irreparable Harm if Preliminary Relief is not Granted Plaintiffs have no adequate remedy at law for deprivation of the constitutional right of free expression. As the Supreme Court ruled in Elrod v. Burns, 427 U.S. 347, 373-74 (1976), "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Plaintiffs all use the online medium to communicate information that fits within the broad definitions of "indecent" and "patently offensive," and the statute's vague and overbroad terms will force some plaintiffs to self-censor/56. Others, who either choose not to self-censor or are unable to apply the statute's vague and overbroad terms, will face the risk of criminal prosecution if the Act is not temporarily enjoined/57. In addition, many of the plaintiffs rely on online providers and other carriers to distribute their online information. If the statute is not temporarily enjoined, these providers will likely ban communications that they consider potentially "indecent" or "patently offensive" in order to avoid criminal prosecution themselves/58. By doing so, they would deprive the plaintiffs, their members, and those who use their online resources of the ability to communicate about important issues. B. Plaintiffs Have a Substantial Likelihood of Success on the Merits 1. The Act Violates The First Amendment Because It Criminalizes Constitutionally Protected Expression The "indecency" and "patently offensive" standards in Sections 223(a)(1)(B) and 223(d) are unconstitutional because they criminalize constitutionally protected expression/59. As noted, §223(a)(1)(B) criminalizes "mak[ing], creat[ing], or solicit[ing]" and "transmi[tting]" any communication "which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age." Section 223(d)(1) makes it a crime to use an "interactive computer service" to "send" or "display in a manner available" to a person under age 18, any communication that in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs . . . . Yet "indecency" (unlike obscenity) is constitutionally protected speech that often has substantial social value. Sable Comm. v. FCC, 492 U.S. 115, 126 (1989). Subject only to "narrow and well-understood exceptions, [the First Amendment] does not countenance governmental control over the content of messages expressed by private individuals." Turner Broadcasting System v. FCC, 114 S. Ct. 2445, 2458-59 (1994) (citing R.A.V. v. St. Paul, 112 S. Ct. 2538, 2547 (1992); Texas v. Johnson, 491 U.S. 397, 414 (1989)). The "indecency" and "patently offensive" provisions of Sections 223(a)(1)(B) and 223(d) are unquestionably content-based bans, and thus are presumptively unconstitutional. Content-based regulations of speech will be upheld only when they are justified by "compelling" governmental interests and "narrowly tailored" to effectuate those interests. See Turner Broadcasting System, 114 S. Ct. at 2445; Simon & Schuster, Inc. v. New York State Crimes Victims Bd., 502 U.S. 105 (1991); Sable Comm. v. FCC, 492 U.S. 115, 126 (1989); Fabulous Assoc., Inc. v. Pennsylvania Pub. Util. Comm., 896 F.2d 780, 784 (1990). The Supreme Court has applied strict scrutiny to content-based regulations because "[a]t the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence." Turner Broadcasting System, 114 S. Ct. at 2458. The censorship provisions of the Act fail this strict scrutiny test. First, there is simply no evidence of a "compelling government interest" in protecting minors from a vague category of "indecent" or "patently offensive" material in the online medium. When First Amendment rights are at stake, courts cannot defer to a legislative judgment but must make an independent inquiry to assess whether the record supports the government's interests. Sable, 492 U.S. at 129; Landmark Comm., Inc. v. Virginia, 435 U.S. 829, 843 (1978); Turner Broadcasting System, 114 S. Ct. at 2471. The Court has found this "particularly true where the Legislature has concluded" that the statute "does not violate the First Amendment." Sable, 492 U.S. at 129. The chief proponent in the Senate of the online indecency legislation described its purpose by waving around a "blue book" of images and declaring that children must be protected from such images/60. Most of these images were of hard-core pornography or child pornography, both of which are currently subject to criminal prosecution under existing federal law/61. While courts have found "a compelling interest in protecting the physical and psychological well-being of minors," Sable, 492 U.S. at 126; FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978); Ginsberg v. New York, 390 U.S. 629, 640 (1968), to discuss that interest in the abstract "is not to scrutinize the Government's assertions as applied to this case." ACT III, 58 F.3d at 678 (Edwards, C.J., dissenting). Even assuming that the images circulated among Congressmen as a justification for the Communications Decency Act were not already illegal under existing obscenity and child pornography laws, Congress provided not one iota of evidence that minors are actually harmed by exposure to communications deemed by some government agent to be "indecent" or "patently offensive."/62 Unlike Ginsberg, 390 U.S. at 639, which targeted speech that was obscene under a variable obscenity test applied to minors, and that therefore lacked any serious value, the Act targets any reference to sexual activity or body parts that is considered "offensive," even if the ideas or information in question undeniably has serious literary, artistic, scientific, or eduational value. Offensiveness is surely not a proxy for harm/63. The Act thus bans much material that is unquestionably valuable rather than harmful to older minors, including information on safe sex practices, human rights abuses, and civil liberties issues/64. The Supreme Court has stated, "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Ginsberg, 390 U.S. at 639 (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Yet rather than facilitate parents' supervision over what material their children should view, the Act establishes the Government as final arbiter. A far cry from gentle government assistance to parents, the Act actually puts parents at risk of criminal prosecution if they choose to expose their children to material deemed "indecent" or "patently offensive" by a government officer. In fact, the inquiry-driven nature of online communications may put parents and teachers at risk of prosecution if they simply allow children to use online communications, since any online use by a minor could result in the "transmission" or "display" of "indecent" or "patently offensive" material. The statute fails the second prong of the strict scrutiny test as well. That is, even if the government could establish a compelling interest in protecting minors from "indecent" or "patently offensive" material in cyberspace, the government cannot show that a total ban on indecency is a "narrowly tailored" way to achieve that interest. Indeed, the Congressal Record shows no consideration of alternative ways to restrict children's access to indecent materials, although alternatives clearly exist/65. This failure to examine itself makes the statute constitutionally infirm. How can the Government argue that a ban on indecency is the "least restrictive means" without ever having examined other means? In Sable, the Supreme Court struck down a content-based statute banning "indecent" commercial telephone messages on the ground that "the congressional record contains no legislative findings that would justify us in concluding that there is no constitutionally acceptable less restrictive means, short of a total ban, to achieve the Government's interest in protecting minors." 492 U.S. at 29; see also id. at 131 (Scalia, J., concurring) (available technological alternatives render statute invalid, even though some children "would manage to secure access")/66. Had Congress bothered to hold hearings on various ways to restrict minors' access to communications with sexual content or vulgar words, it would have learned of a myriad of ways in which all online users, including parents, can control the information they receive/67. While not failproof, these methods put responsibility for making choices about minors' access to sexually explicit material "where our society has traditionally placed it -- on the shoulders of the parent." Fabulous Assoc., Inc., 896 F.2d at 788 (citing Bolger, 462 U.S. at 73-74). In fact, because of the nature of the online medium, even a total ban will be ineffective at ridding online networks of "indecent" or "patently offensive" material. See TBS, 114 S. Ct. at 2470 (regulation must "in fact alleviate the . . . alleged harms in a direct and material way.") (citing Edenfield v. Fane, 113 S. Ct. 1792, 1798-1800 (1993) (emphasis added). Unlike broadcasting, where the vast majority of Americans receive radio and television only from broadcasts within the United States, cyberspace is a global medium. Anyone in the world who has access to an online network can post information that can be viewed by anyone else in the world with access to the same network. While the jurisdiction and practical ability of the U.S. Justice Deparment to enforce this law outside the United States is an open question, in fact online users and content providers in other countries may not even know of the law and are unlikely to follow it in any event. Therefore, it is highly unlikely that online users, information providers and access providers based in other countries will "purge" their systems of material that could be "indecent" or "patently offensive" in the United States. Censorship by any government (including the United States) is simply not an effective way to eliminate "indecent" or "patently offensive" communications from online services because these services transcend national boundaries. Technologies that allow online users to control the material from the receiving end are a much more effective way to shield minors from allegedly harmful material than any attempt to ban expression from the distribution end. In Fabulous Assoc., Inc., the Third Circuit held that requiring adults to obtain an advance identification code in order to obtain access to sexually explicit phone messages failed the least restrictive means test and thus violated the First Amendment. 896 F.2d at 788. As discussed above, in cyberspace, screening and identification methods are not technically or economically feasible, are ineffective, and result in an effective total ban of "indecent" speech. The "indecency" provisions of the Act are clearly even more restrictive than those held unconstitutional in Fabulous Assoc., Inc./68 The statute is thus clearly not the least restrictive means for controlling minors' access to objectionable material. The rationale that led the Supreme Court to uphold time channeling (not a total ban) of "indecent" language in broadcast, Pacifica, 438 U.S. 726 (1978), does not apply in cyberspace/69. Recently, the Supreme Court emphasized the narrowness of the Pacifica holding when it said, "the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation" -- "the unique physical limitations of the broadcast medium" -- "does not apply in the context of cable regulation." Turner Broadcasting System, 114 S. Ct. at 2456; see also Sable, 492 U.S. at 127; Bolger v. Youngs Drug Prods., 463 U.S. 60, 74 (1983); Fabulous Assoc., Inc., 896 F.2d at 794; (Pacifica an "emphatically narrow" holding). Just as the Supreme Court clarified in Turner Broadcasting System for the cable medium, "[t]he broadcast cases are inapposite" in the cyberspace medium because cyberspace "does not suffer from the inherent limitations that characterize the broadcast medium." 114 S. Ct. at 2456. The Supreme Court has emphasized many times that its "decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media does not readily translate into a justification for regulation of other means of communication." Youngs, 463 U.S. at 74; Turner Broadcasting System, 114 S. Ct. at 2456. 2. The Act Is Unconstitutionally Vague a. "Indecency" and "Patent Offensiveness" Vague laws violate two fundamental principles of due process: (1) they leave the public guessing as to what actions are proscribed; and (2) they invite arbitrary and discriminatory enforcement by giving unbridled discretion to law enforcement officers. Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Connally v. General Construction Co., 269 U.S. 385, 391 (1926). Vagueness is a particular problem where laws regulate expression; and, accordingly, the Supreme Court has ruled that perhaps the most important factor affecting the clarity that the Constitution demands of a law is whether it threatens to inhibit the exercise of constitutionally protected rights. If, for example, the law interferes with the right of free speech or association, a more stringent vagueness test should apply. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)/70. In short, "[p]recision of regulation ... must be the touchstone" where free expression is concerned. NAACP v. Button, 371 U.S. 415, 438 (1963). Such exactitude is necessary since "[u]ncertain meanings" inevitably lead citizens to "‘steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.'" Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)). The "indecency" and "patently offensive" standards violate both objectives of the vagueness doctrine and fail to meet the stringent constitutional test for laws regulating speech. Both standards are so vague that a "person of ordinary intelligence" could not possibly "know what is prohibited." Grayned, 408 U.S. at 108; Smith v. Goguen, 415 U.S. at 572. "Indecency" itself is a completely imprecise term -- wholly subjective and dependent on individual values and attitudes that no person engaged in speech can be expected to anticipate/71. Any one person's notion of "indecency" will be influenced by such factors as his or her age, occupation, race, level of education, socioeconomic status, geographic location, personal interests and politics. Rock or country music fans are likely to have very different ideas on the subject from conservative ministers; a New York sophisticate's notions will contrast dramatically with those of many rural residents; artists, students, intellectuals, and political leaders are also likely to have different definitions/72. Some courts have resolved challenges to the vagueness of the term "indecent" or "patently offensive" by construing it to mean "obscene." See, e.g., Hamling v. United States, 418 U.S. 87 (1974)/73. Such a saving construction is not possible in this case because Congress plainly intended to suppress more than "obscene" communications. Its deliberate use of the FCC's "indecency" definition and the legislative history citations to FCC v. Pacifica, 438 U.S. 726 (1978), demonstrate that Congress intended to expand the narrow plurality decision in Pacifica, explicitly limited to time-channeling and to the broadcast medium, to a total ban on "indecency" throughout cyberspace. 142 Cong. Rec. At H1128-29 (Jan. 31, 1996). In fact, the "patently offensive" language of Section 223(d) shows that Congress, like the FCC in Pacifica, intended to use only one part of the three-part test for obscenity, set out in Miller v. California, 413 U.S. 15, 24 (1973), thus banning communications that lack prurient appeal and that have serious literary, artistic, political, or scientific value. Defining "indecency" as material that is "patently offensive as measured by contemporary community standards" does little to resolve the vagueness problem. First, what is "patently offensive" is purely a matter of personal taste. As Justice Harlan succinctly put it, "one man's vulgarity is another's lyric." Cohen v. California, 403 U.S. 15, 25 (1971). Second, the addition of "contemporary community standards" does nothing to solve the vagueness problem. Just as nobody can predict what a particular individual, organization, government agency, judge, or prosecutor will consider "indecent," so no one can predict what the varied and multifarious elements in our society might consider "patently offensive as measured by contemporary community standards." Nor does the ban's confinement to "sexual or excretory activities or organs" resolve the vagueness problem. The Supreme Court has recognized that sex is "a great and mysterious motive force in human life," and thus "one of the vital problems of human interest and public concern." Roth v. United States, 354 U.S. 476, 487 (1957). Most speech about "sexual ... activities or organs" is therefore entitled to full constitutional protection, see, e.g., Sable, 492 U.S. at 126 (1989); it is only "hardcore pornography" that lacks any serious literary, artistic, political, or scientific value that may be outside the First Amendment's umbrella. Miller v. California, 413 U.S. 15, 24, 27 (1973)/74. Since most communications on the subject of human sexuality are constitutionally protected, and the Act seeks to ban such communications only if they are "patently offensive" according to "community standards," it is these latter completely vague terms that are pivotal. While much sex-related speech was considered taboo in the past, contemporary America absorbs a great deal of such speech through mainstream culture. For example, birth control, masturbation, and orgasm are discussed on popular prime time television shows such as "Seinfeld," "Roseanne," "Married with Children," and "Mad About You;" "excretory functions" are a popular source of humor on the animated show "The Simpsons," watched by children and adults. Sexually explicit literature such as Philip Roth's Sabbath's Theatre, winner of last year's National Book Award, are on best-seller lists and available through numerous bookstores and libraries. World-renowned museums such the Museum of Modern Art in New York and the Walker Art Center in Minneapolis exhibit the art of Robert Mapplethorpe and Andres Serrano. Broadway musicals and plays such as "Love, Valour, & Compassion" and "Oh! Calcutta" with all-nude scenes win theater awards and are attended by hundreds of thousands of people. Given the availability and consumption through mainstream print, broadcast, and live performance of art and information about sexuality by both adults and older minors, it is more impossible than ever for anyone to judge what material would constitute a non-obscene but "patently offensive" description or depiction of "sexual or excretory activities or organs." Thus, the fact that the only "patently offensive" expression barred by §223(d)(1) deals with sex, excretion, or body parts does nothing to alleviate the imprecision of the operative terms: "patently offensive as measured by contemporary community standards."/75 Both the "indecency" and the "patently offensive" standard also violate the second prong of the constitutional vagueness doctrine because they give unbridled discretion to prosecutors and invite the worst type of arbitrary and viewpoint-discriminatory censorship actions. See Forsyth County v. The Nationalist Movement, 505 U.S. 123, 132 (1992); City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 757-58 (1988). The arbitrary effect of applying such terms to online speech has already been experienced by some of the plaintiffs when their online providers have attempted to screen "vulgar" or "offensive speech." The host of plaintiff ACLU's web site has expressed the possible need to remove certain explicit information from the ACLU site/76. Plaintiff Clarinet had its entire set of newsgroups about sexual subjects (covering news stories about anti-abortion activists, gay rights, and information) blocked by certain online providers who feared liability under German law for sex-related speech/77. For prosecutors to be allowed to prosecute persons or organizations using such vague standards is to invite the most serious kind of constitutional harm. As Justice Harlan said in Cohen, 403 U.S. at 25, "it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." Subjective standards for speech are not cured by a government's interest in protecting children from exposure to harmful material. As the Supreme Court said in Interstate Circuit v. Dallas, 390 U.S. 676 (1968): The permissible extent of vagueness is not directly proportional to, or a function of, the extent of the power to regulate or control expression with respect to children. . . . "It is . . . essential that legislation aimed at protecting children from allegedly harmful expression -- no less than legislation enacted with respect to adults -- be clearly drawn and that the standards adopted be reasonably precise so that those who are governed by the law and those that administer it will understand its meaning and application." Id. at 689 (quoting People v. Kahan, 15 N.Y.2d 311, 313 (1965) (Fuld, C.J., concurring). The Supreme Court's 1978 plurality decision in FCC v. Pacifica Foundation, 438 U.S. 726, does not salvage the vagueness of such terms as "indecency" or "patently offensive." Pacifica narrowly upheld the application of an earlier version of the FCC's "indecency" test -- confined to the time channeling of programs using specific vulgar words -- to a comic monologue that involved repetitive, "shock value" use of common vulgar words/78. Without addressing the inherent vagueness of an "indecency" definition that turned on such ineffable concepts as "patent offensiveness" and "community standards" -- indeed, without addressing the facial constitutionality of the FCC's definition at all/79 -- the Pacifica plurality narrowly held that it did not violate the First Amendment for the agency to prohibit a radio station from broadcasting the repetitive use of these particular words during hours when children were most likely to be in the listening audience. Id. at 750. Because the Pacifica decision was narrowly limited to its facts,/80 involved only time-channeling, and rested on the "`unique' attributes of broadcasting," Sable, 492 U.S. at 127, Bolger, 463 U.S. at 74, it does not foreclose a vagueness challenge to the "indecency" and "patently offensive" provisions of Sections 223(a)(1)(B) and 223(d)(1)/81. The Supreme Court is scheduled on February 21, 1996 to hear oral argument in Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995), a case challenging "indecency" regulations for cable television. The Supreme Court may decide a vagueness challenge to the "indecency" regulations in that case. Meanwhile, a stay is in effect preventing application of the "indecency" regulations to cable television. Certainly, this Court should stay application of vague "indecency" bans to all of cyberspace at the very least until a decision in Alliance. b. The Vagueness of the Liability Provisions The Act puts access providers like plaintiffs IGC, AEGIS, and Critical Path AIDS Project at risk of criminal prosecution simply for allowing users to access their online systems, regardless of whether they produced the content of the material that is "indecent" or "patently offensive." Sections 223(a)(1)(B) and 223(d)(1) contain no specific intent clause. Any access provider that provides general access to a variety of online information databases, online discussion groups, and chat rooms "knows" that "indecent" or "patently offensive" information could be "displayed" to a minor if a minor gains access through its system. The only sure way to comply with the statute would be to provide accounts only to adults, or to provide two separate networks -- one for adults, and one for minors -- which would be econimically infeasible and would impermissibly restrict the First Amendment rights of minors to engage in online communication. The defense set out in Section 223(e) exacerbates the uncertainty of the liability provisions. Section 223(e) provides: (1) No person shall be held to have violated subsection (a) or (d) solely for providing access or connection to or from a facility, system, or network not under that person's control, including transmission, downloading, intermediate storage, access software, or other related capabilities that are incidental to providing such access or connection that does not include the creation of the content of the communication. Because even access providers who do not themselves create the content of communications on their systems can technologically exercise "control" over the communications for which they are conduits, it is far from clear that this defense relieves access providers of liability. The Act also puts information providers at risk for content posted by others on their sites. Many of the plaintiffs sponsor online discussion groups and chat rooms in which they allow online users to post messages on a particular topic or to discuss a topic simultaneously with other online users/82. While these plaintiffs do not themselves create the posted messages, their online resources are used to "display" or "initiate the transmission" of the messages, and thus they could be held liable if someone posted an "indecent" or "patently offensive" message and a minor gained access to the message through their sites. 3. The Act is Substantially Overbroad a. The Act Bans Speech That Is Constitutionally Protected for Minors The constitutional infirmity of overbroad legislation "is that it sweeps protected activity within its proscription." M.S. News Co. v. Casado, 721 F.2d 1281, 1287 (10th Cir. 1983) (citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13 (1975); Grayned v. City of Rockford, 408 U.S. 104, 114 (1972)); See also NYS Club Ass'n v. City of New York, 487 U.S. 1 (1988); Maryland v. Munson, 467 U.S. 947 (1984); Broadrick v. Oklahoma, 413 U.S. 601 (1973). Sections 223(a)(1)(B) and 223(d) are overbroad because they ban much expression that is protected even for minors. The Supreme Court has ruled in many contexts that the First Amendment protects minors as well as adults; and that minors have the constitutional right to speak and to receive the information and ideas necessary for their intellectual development and their participation as citizens in a democracy,/83 including information about reproduction and sexuality, Carey v. Population Serv., Int'l , 431 U.S. 678, 693 (1977). With only narrow exceptions, therefore, it is unconstitutional for the government to restrict minors' participation in the marketplace of ideas. The statute impermissibly burdens minors' First Amendment rights in two ways. First, the Act could result in the outright exclusion of minors from many of the vast public spaces in the online medium that are currently accessible to both minors and adults. Most information providers and other online users do not currently know whether they are communicating with a minor. Thus, there is no way to ensure that they could not be held criminally liable for "transmi[tting]," §223(a)(1)(B), or "displaying," Section 223(d) to minors "indecent" or "patently offensive" material. Minors would have to be completely excluded from online public spaces to ensure that adult users and information providers could post material they are constitutionally entitled to post. (This would also require an identification scheme that in the online medium is both technically and economically infeasible, and would impermissibly burden adult access.) While minors could access online public spaces that had been cleared of all "patently offensive" or "indecent" speech, most information providers, including the plaintiffs in this case, do not have the resources to create two versions of their online communications -- one for adults, and one for minors/84. Second, the statute impermissibly burdens minors' First Amendment right to ideas and information about sexuality, reproduction, and the human body -- subjects of interest not only to humanity generally, but of special interest to maturing adolescents. While there are limited exceptions to minors' First Amendment rights to sex-related materials, those exceptions to not apply to the Act's vague and overbroad speech ban. One such exception is obscenity, a category of expression which the Court has ruled does not merit First Amendment protection because it is "no essential part of the exposition of ideas" and is "utterly without redeeming social importance." Roth v. United States, 354 U.S. at 484-485. In Ginsberg v. New York, 390 U.S. 629 (1968), the Court held that a state could ban the dissemination to minors of materials not obscene when distributed to adults, but only if the material met an adjusted three-pronged "obscene" or "harmful to minors" test/85. Thus, states may only prohibit the dissemination to minors of material that lacks serious value for them, appeals to their shameful or morbid (not healthy) interest in sex, and contains depictions or descriptions of specified sexual activities that a local community would consider patently offensive for minors/86. And in upholding "harmful to minors" laws as constitutional, some courts have been careful to consider the First Amendment rights of older adolescents and have construed such laws to prohibit only that material that would lack serious value for a 17 year-old. American Booksellers Assoc. v. Webb, 919 F.2d 1493, 1504 (11th Cir. 1990); American Booksellers Assoc. v. Virginia, 882 F.2d 125 (4th Cir. 1989)/87. The statute deliberately encompasses a vast amount of valuable material that falls outside the Ginsberg "harmful to minors" test -- material that has serious value to minors and that appeals only to a healthy interest (or no interest) in sexuality. It is therefore unconstitutionally overbroad because it criminalizes speech and information that minors have a First Amendment right to engage in and receive, including the information provided by plaintiffs in this case. Plaintiff ACLU, EPIC, and EFF believe that it is important for minors to be able to access their online educational materials about civil liberties issues so that they can recognize when their rights are being infringed/88. Plaintiffs Journalism Education Association, AEGIS, Critical Path AIDS Project, and Safer Sex Web Page believe that it is important that minors, many of whom are sexually active, have access to their online safe sex education material because it could literally save their lives/89. b. The Act Unconstitutionally Restricts the Free Speech Rights of Adults Even if an "indecency" or "patent offensiveness" standard could constitutionally be applied to restrict the ideas and information available to minors, government may not, by asserting its interest in "protecting" minors, ban the exercise of First Amendment rights by adults. Butler v. Michigan, 352 U.S. at 382; see also Erznoznik v. City of Jacksonville, 422 U.S. at 212-13 (holding unconstitutional ordinance that prohibited the showing of films containing nudity ostensibly in the interests of protecting minors); Fabulous Assoc., Inc., 896 F.2d at 788 (holding unconstitutional statute that inhibited adult access to sexually explicit phone messages ostensibly in the interests of protecting minors). Because of the nature of the online medium, the Act is effectively a total ban on "indecency" and "patent offensiveness" in cyberspace and thus violates the free speech rights of adult online users. In the words of Justice Frankfurter, the Act "burn[s] up the house to roast the pig." Butler, 352 U.S. at 383. The Act criminalizes the "transmission" or "display" to minors of "indecent" or "patently offensive" material. The vast majority of information in online networks is displayed in "public" spaces -- spaces that act as online libraries or bookstores -- and that minors as well as adults can access. As described above, World Wide Web sites, gopher sites, online discussion groups, chat rooms, and Usenet news groups are all accessible by minors. There is no way to prevent transmission or display to minors of "indecent" or "patently offensive" material in the public areas of cyberspace without seriously restricting the rights of adults and minors to constitutionally protected material and crippling the potential of a new communications medium/90. A review of the nature of online communications illustrates the problem. There are two ways in which plaintiffs and other online users and providers could attempt to comply with the Act. The first would be to attempt to screen all "indecent" or "patently offensive" material from all of the public spaces on online networks. This would de facto reduce all of the information in online public spaces to material that is suitable only for children, in direct violation of Butler. In addition, because "indecent" and "patently offensive" are inherently vague terms, plaintiffs and other online users and providers have no idea how to determine which material on the subject of sexuality or reproduction, or containing "vulgar" language, they need to screen. An attempt to screen would thus inevitably lead to suppression of constitutionally protected material both for adults and for minors/91. Baggett v. Bullitt, 377 U.S. at 372. Screening is also practically if not technically infeasible. Unmoderated Usenet discussion groups would be eliminated because there is no one distribution point for such services at which to even attempt screening. Other online discussion groups, web sites, and interactive information databases would be eliminated because of the enormous burden of attempting to screen postings from outside users. To shut down the "interactive" feature of online communications would be to stifle its communication potential as a diverse marketplace of ideas in which anyone can participate. For many noncommercial providers, such a screening requirement would also be economically infeasible, given the enormous time and human resources it would take to screen the vast amount of information that flows into a given online site. See Fabulous Assoc., Inc., 896 F.2d at 788 (noting economic burden of requiring access codes substantially burdens constitutionally protected speech)/92. In addition, the mechanisms that allow users to search hundreds of different online information databases simultaneously could no longer be used because it is technically impossible to screen all "indecent" or "patently offensive" material from appearing in the search results/93. Similarly, the tremendously useful "linking" feature of online communications would have to be eliminated because it would be impossible to screen all the material on the linked sites in addition to the content on the home site/94. The second way in which plaintiffs and other online users and providers could attempt to comply with the Act would be to forbid minors from accessing online resources that might be "indecent" or "patently offensive." This would require online information providers to create two versions of their online communications -- one for adults, and one for minors. It would also require an identification scheme to ensure that minors could not gain access to the adult sites. While requiring payment via credit card or other identification card (e.g., driver's license) would be a way to exclude most minors, most online information is currently provided for free (once the user has paid a general access subscription fee), and without identification requirements. Imposing such requirements would both be economically infeasible for all but the largest corporate online providers and would prevent adults without credit or proper identification from accessing online resources, thus excluding a large class of American adults and an even larger class of adults outside the United States). Identification requirements would also prevent anonymous access, and would require content and access providers to maintain records of users who had accessed their sites in order to prove that a particular user was not a minor. All of these burdens on adult access are impermissible in the the context of constitutionally protected material/95. See Fabulous Assoc., Inc., 896 F.2d at 788. 4. The Act is Impermissibly Underinclusive The Act constructs an impermissible system of discrimination by imposing regulations on those who communicate through the online medium but not on those who communicate the same information through the print medium. See First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 784-85 (1978) ("In the realm of protected speech, the legislature is constitutionally disqualified from dictating . . . the speakers who may address a public issue."); Minneapolis Star & Tribune Co. v. Minnesota Comm'r, 460 U.S. 575, 592 (1983). The statute distinguishes among speakers for content-based regulation based upon a criterion that "bears no relationship whatsoever to the particular interests . . . asserted." City of Cincinnati v. Discovery Network, Inc., 113 S. Ct. 1505, 1514 (1993). Many of the plaintiffs provide educational materials through both the print and the online medium. For example, plaintiffs ACLU, Human Rights Watch, Electronic Privacy Information Center, and Electronic Frontier Foundation all create educational materials about civil liberties and human rights issues that are distributed through brochures, books, and pamphlets and that are also available through its online sites/96. Irrationally, the statute would make it a crime to send an electronic version of a document that is "indecent" or "patently offensive" even though print distribution of the same document is unquestionably protected by the First Amendment. It makes no sense for plaintiffs to deny a minor access to an online version of a publication that the minor could easily -- and legally -- request from plaintiffs in printed form. The discrimination between online speakers and print speakers is particularly problematic because online communications systems have provided a low-cost forum for many speakers who do not own mainstream newspapers, broadcast, or other mass media. With absolutely no constitutional justication or rationale, the statute creates second-class First Amendment rights for online users and information providers/97. 5. The Act Unconstitutionally Criminalizes Private E-mail Sections 223 (a)(1)(B) and (d) criminalize "indecent" or "patently offensive" communications to or between minors. The Act thus prohibits a 17-year-old from having an online discussion with a romantic partner about activities in which they had lawfully engaged, and which they had lawfully discussed on the phone, in person or by regular mail. The Act also prohibits e-mail distribution among or between minors of important information about sexuality, reproduction and the human body that minors are clearly constitutionally entitled to receive. The Act has an additional constitutional defect when applied to private e-mail. E-mail is the equivalent of a private, personal correspondence sent through the U.S. mail, or private conversations by telephone or within the home. Such communications are protected against governmental invasion or censorship by the constitutional right to privacy found in the First, Fourth, and Ninth Amendments and the substantive due process clause of the Fifth Amendment. See Griswold v. Connecticut, 381 U.S. 479, 484-85 (1965); id at 487-91 (Goldberg, J. concurring)(Ninth Amendment); id at 500 (Harlan, J. concurring) (substantive due process); Carey, 431 U.S. at 684-85 (due process clause). As the Supreme Court recognized in Katz v. United States, 389 U.S. 347 (1967), individuals ordinarily have a "reasonable expectation of privacy" in their telephone conversations. Minors as well as adults have constitutional privacy rights that include a right to personal decisionmaking about intimate matters concerning sex and reproduction. See, e.g., Bellotti v. Baird, 443 U.S. 622, 642-43 (1979). The exercise of such a privacy right requires access to information, particularly when acquired through personal, intimate, one-on-one conversations with family members, romantic partners, or trusted friends. If, as the Court ruled in Stanley v. Georgia, 394 U.S. 557 (1969), the right of privacy, combined with the First Amendment principle of freedom of thought, prohibits the government from criminalizing the possession of even obscenity within the privacy of the home, surely the combined weight of free thought and privacy principles protect "indecent" communications through private e-mail from governmental invasion or control. 6. The Act Violates the First Amendment Right to Access Information Anonymously Currently, online users have a password and user name which they use to sign on to their online service. Many user names are pseudonyms that allow users to send, view, and receive online communications anonymously/98. Several of the plaintiffs offer information that users might want to access anonymously. For example, AEGIS provides information and opportunities for discussions about AIDS or HIV. Similarly, Queer Resources Directory provides information and discussion opportunities to gays, lesbians, and bisexuals. The Safer Sex Page provides information on safer sex and sponsors a Safer Sex Forum for open discussion/99. Users of these online services have reasons to remain anonymous. For instance, users could fear discrimination and harassment, or simply want to maintain their privacy on sensitive issues. Some people might forego or be inhibited from discussing issues and receiving information if they had to disclose their identities/100. In order to comply with the Act, plaintiffs would have to require identification of those seeking access to a web site, chat room, discussion group, or other online forum. Such an identification requirement would remove the current option of anonymity for both speakers and receivers of information. As the Court recently stressed, anonymity "exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society." McIntyre v. Ohio Elections Com'n, 115 S.Ct. 1511, 1524 (1995). Thus, with regard to speakers, the Court has held on a number of occasions that the right to publish anonymously is protected by the First Amendment. E.g., id. at 1516; Talley v. California, 362 U.S. 60, 64-65 (1960). Cyberspace represents a new frontier for literary, political, and other publishers who must be granted the same rights of anonymity in this medium as they are accorded in print. The anonymous receipt of information in cyberspace is also a First Amendment right. The Supreme Court has held that the right to receive literature is protected by the First Amendment. Lamont v. Postmaster General, 381 U.S. 301, 305, 307 (1965). The government cannot require a written request to receive mail because such a requirement limits "the unfettered exercise of the addressee's First Amendment rights." Id. at 305. Because the receipt of information is protected by the First Amendment, the importance accorded anonymous receipt should be as great as that given to anonymous publishing as discussed above. Further, the Supreme Court has concluded that compelled disclosure of identity may unconstitutionally deter the exercise of First Amendment rights. E.g., Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87 (1982) (holding unconstitutional as applied to unpopular political party statute requiring candidates for political office to disclose identities of contributors and recipients of campaign funds); NAACP v. Alabama, 357 U.S. 449 (1958) (denying state access to membership lists). This is no less so for recipients of information than for publishers. As the Third Circuit has discussed, "[a]n identification requirement exerts an inhibitory effect ... and such deterrence raises First Amendment issues comparable to those raised by direct state imposed burdens or restrictions." Fabulous Associates v. Pennsylvania Public Utility Com'n, 896 F.2d 780, 785 (3d Cir. 1990) (citing Talley, 362 U.S. at 64-65). Thus, the court held unconstitutional a statute mandating access codes with an identification requirement for the use of phone sex services because there was a less restrictive alternative. Fabulous, 896 F.2d at 787-88. The identification requirement for receipt of information over the computer is analogous and a fortiori violates First Amendment rights of anonymity. 7. 18 U.S.C. Sec. 1462(c), as Amended, Criminalizes Constitutionally Protected Speech About Abortion Plaintiffs ACLU and Planned Parenthood, and others routinely engage in communications barred by 18 U.S.C. § 1462(c) by providing information about how and where to obtain abortions or abortifacient drugs and devices, and when and under what conditions doctors may perform abortions/101. These plaintiffs also receive information about the conditions under which abortions are performed, how they are performed, where they are performed, and how to use abortifacient drugs and devices/102. Plaintiffs receive this information from physicians performing abortions, abortion rights advocates, and others/103. Through these communications, Plaintiffs send and receive information regarding "where, how, or of whom, or by what means" "any drug, medicine, article, or thing designed, adapted, or intended for producing abortion . . . may be obtained or made." 18 U.S.C. § 1462 (c). Thus, the activities of Plaintiffs fall squarely within the §1462(c) ban. Speech regarding abortion, including the communications barred by §1462(c), is protected by the First Amendment. Bigelow v. Virginia, 421 U.S. 809 (1975); see also Bolger v. Youngs, 463 U.S. 60 (information regarding contraceptives); Carey v. Population Servs. Int'l, 431 U.S. at 700-02 (plurality opinion) (same); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976) (information regarding prescription drugs in general). Restrictions on abortion-related speech are impermissible even under the lesser scrutiny applied to commercial speech. Bigelow, 421 U.S. at 828-29; see also Bolger, 421 U.S. 809; Carey, 431 U.S. at 700-02. In this case, where the speech is non-commercial and the restriction is content-based, the statute is "presumptively invalid," R.A.V. v. City of St. Paul, 505 U.S. at 382, and is subject to "the most exacting scrutiny," Turner Broadcasting System v. FCC, 114 S. Ct. at 2459 (1994). The government has no compelling interest in restricting speech about abortion. On the contrary, speech about abortion "relates to activity which is [constitutionally] protected from unwarranted state interference." Bolger, 463 U.S. at 69 (information regarding contraception); see also Carey, 431 U.S. at 700-01 (same); Bigelow, 421 U.S. at 822 (abortion). The Supreme Court has never found a government interest in suppressing speech related to abortion or contraception sufficient to uphold a restriction. See, e.g., Bigelow, 421 U.S. at 827 (rejecting, inter alia, argument that ban on abortion-related advertising furthered the state's interests in maintaining the quality of medical care); Bolger, 463 U.S. at 71 (rejecting, inter alia, argument that alleged offensiveness could justify suppression of protected speech); Carey, 431 U.S. at 701 (same). Therefore, §1462(c) is invalid on its face. C. Any Asserted Harm to Defendants from Issuance of a Temporary Restraining Order and Preliminary Injunction does not Outweigh the Potential Harm to Plaintiffs if Censorship Provisions of the Act are Not Enjoined The harm to the plaintiffs, their members, and audiences, if the Act is not enjoined, is of constitutional dimension. Plaintiffs face suppression of constitutionally protected speech. The banned speech includes material of significant educational, political, medical, artistic and social value that deals with issues such as sexuality, reproduction, human rights and civil liberties. Some of the speech could literally save lives. Moreover, the vagueness and subjectivity of the bans will result in suppression of even greater amounts of information than "if the boundaries were clearly marked." Speiser v. Randall, 357 U.S. 513, 526 (1958). Plaintiffs will eit her have to self-censor their communications or face criminal prosecution if the Act is not enjoined. Plaintiffs who rely on online providers to distribute their information may be deprived of the ability to communicate about important issues if the Act is not enjoined and the providers ban their material in order to avoid prosecution themselves. The only governmental interest is in suppression of speech that is "indecent" or "patently offensive" and transmitted by computers. Such a purpose is flatly unconstitutional. Even if the government could show some harm to minors from some subcategory of "indecent" speech, there are numerous less burdensome methods available for protecting those minors. Finally, the identical speech is available to minors in print form and will continue to be available whether or not the Act is in effect. D. Preliminary Relief Would Serve the Public Interest For all the foregoing reasons, the injunction will not disserve the public interest. There is no public interest in suppressing constitutionally protected speech or in reducing all speech in the promising new online medium to a level considered by the government to be acceptable for minors. On the contrary, the public interest is served by robust exchange of ideas, and many alternatives are available for those parents who wish to shield their children from online communications that they deem appropriate. CONCLUSION For all these reasons, plaintiffs respectfully ask that the motion be granted. Christopher A. Hansen Marjorie Heins Ann Beeson Steven R. Shapiro Laura K. Abel Catherine Weiss Reproductive Freedom Project American Civil Liberties Union 132 West 43 St. New York, NY 10036 212-944-9800 Stefan Presser ACLU of Pennsylvania 125 South Ninth St. Suite 701 Philadelphia, PA 19107 215-923-4357 David L. Sobel Marc Rotenberg Electronic Privacy Information Center 666 Pennsylvania Ave. SE Suite 301 Washington, D.C. 20003 202-544-9240 Michael Godwin Electronic Frontier Foundation 1550 Bryant St., Suite 725 San Francisco, CA 94103 415-436-9333 Roger Evans Legal Action for Reproductiv Rights Planned Parenthood Federation of America 810 Seventh Avenue New York, NY 10019 212-261-4708 February 8, 1996 /FOOTNOTES/ /1 The Terms "computer communications systems," "online medium," "interactice computer service," "online networks," and "cyberspace" will be used synonymously in this brief to refer to the combination of all online computer technologies affected by the Act. /2 Plaintiffs also challenge a portion of the Act that bans communications about abortion, and argue that the Act violates the First Amendment rights of those who wish to receive ideas and information anonymously. /3 Sister Mary Elizabeth Aff. Paragraphs 3, 6. /4 Chatelle Aff. Para. 9; McCullagh Aff. Para. 4; Rotenberg Aff. Para. 7. /5 Glasser Aff. Para. 11; Meeks Aff. Para. 4. /6 For further detail on the plaintiffs and the basis for their fear of prosecution under the Act, see the Complaint and the affidavits submitted with this motion. /7 Glasser Aff. /8 Mariner Aff. /9 Rotenberg Aff. /10 Godwin Aff. /11 Perkins Bowen Aff. /12 Krause Aff. /13 Chatelle Aff. /14 Templeton Aff. /15 Sears Aff. /16 Donaldson Aff. /17 Sister Mary Elizabeth Aff; Kuromiya Aff. /18 Troyer Aff. /19 Hauman Aff. /20 Nell Warren Aff. /21 Casti Aff. /22 McCullagh Aff. /23 Meeks Aff. /24 Wallace Aff. /25 Johnson Aff. /26 Computer bulletin board systems that specialize in adult material generally require identification and payment and screen out minors, and are thus not at issue in this case. /27 General Accounting Office, Report to Congress: Information Superhighway-An Overview of Technology Challenges, January 1995, at ch. 1. /28 Peter Lewis, "On the Net," New York Times, May 29, 1995; see also White House Interagency Task Force on the National Information Infrastructure, "The Global Information Infrastructure: Agenda for Cooperation," Feb. 15, 1995, at 5. /29 White House Task Force, at 6. See also statistics on the Internet, at gopher://nic.merit.edu:7043/11/statistics/nsfnet /history/netcount. /30 See, e.g., Sears Aff. /31 Gopher, the older of the methods (and now becoming somewhat obsolete), is a menu-driven program that allows the user to "gopher" through multiple layers of menus to search for information on a particular topic, and to link to other sites on the Internet. For other ways to access information on the Internet, see Plaintiff EFF's Guide to the Internet, available in print form and on the Internet at http://www.eff.org. /32 "Usenet" is another set of online discussion groups that has its own generalized distribution system. Usenet discussion groups are known as "newsgroups." Usenet carries more than 40 million characters a day -- "roughly the equivalent of volumes A-G of the Encyclopedia Britannica." EFF's Guide to the Internet, ch. 3. Most online systems that provide access to the Internet also provide access to Usenet. /33 See, e.g., Kuromiya Aff. Para. 7; Troyer Aff. Para. 17; McCullagh Aff. Par a. 9. /34 Glasser Aff. Para. 3; Godwin Aff. Para. 3. /35 Godwin Aff. Para. 5; Mariner Aff. Para. 7; Sister Mary Elizabeth Aff. Para . 6; Kuromiya Aff. Para. 10. /36 The search mechanisms work somewhat similarly to the searching features used on the popular online legal databases LEXIS and Westlaw. Interne t search engines differ from LEXIS and Westlaw, though, because they allow users to search hundreds of computer networks located all over the world rather than sim ply searching one centralized computer network. /37 Kuromiya Aff. Para. 12; Godwin Para. 4. /38 For example, many online services were developed separately from the Internet. These services provide their own content to subscribers and now also usually provide access to content over the Internet. Large commercial services like Am erica Online, CompuServe, and Prodigy have over a million subscribers each and contai n thousands of databases and chat groups on a variety of topics. Smaller online networks, known as Computer Bulletin Board Systems (BBS's), usually cater to pe ople interested in specialized subject matter or to people from a particular geograp hical region. /39 For example, America Online negotiated with businesses to advertise on their "Downtown AOL" section. ATKOL Video, a gay video store, negotiated a con tract to post its mail order catalog on the service. After signing an agreement with ATKOL, AOL reviewed the catalog and then censored several video titles from the online version before it would allow posting. See "AOL Censors Gay Video Titles, Find s Buns' Acceptable but Studs' Too Sleazy," ACLU Cyber-Liberties Update, 12/6/95 . /40 Glasser Aff. Para. 12; Godwin Aff. Para. 4; Troyer Aff. Para. 17; Wallace Aff. Para. 10; McCullagh Aff. Para. 9. /41 Troyer Aff. Para. 11. /42 Jerry Berman and Daniel Weitzner, "Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media," 104 Yale L.J. 1619, 1623-24 (1995). /43 Id. /44 "Any attempt to impose centralized content control in a bureaucratic manner on this fundamentally decentralized medium is bound to stifle the growth of the medium, squander the democratic potential of the Internet, and may even cut the United States off from the growing global information infrastructure." Interac tive Working Group Report to Senator Leahy, Parental Empowerment, Child Protection, & Free Speech in Interactive Media, 7/24/95, (Leahy Report), at 4-5; see also Ber man and Weitzner, Abundance and User Control, at 1624. /45 "Unlike centralized broadcast radio and television services, there are no central control points through which either a single network operator or govern ment censors can control particular content. . . . [The] proliferation of individua l speakers stands in sharp contrast to broadcast television or even cable television, wher e one may count five, ten or perhaps one hundred speakers, each of whom controls a channel." Leahy Report, at 4-5. /46 Leahy Report, at 4-5. /47 Leahy Report, at 5-6. /48 Unlike the phone system, cost does not depend on the distance between sender and receiver. Thus, it may cost no more for an online user in Australia to communicate by e-mail with an Irishman than it does for two neighbors in Beijin g to exchange messages on a computer bulletin board. /49 See EFF's Guide to the Internet, at 4.2. /50 Leahy Report, at 6. /51 Leahy Report, at 7-8. /52 Because there is no central distribution point on the Internet, unlike lar ge commercial online systems like AOL, Prodigy, and Compuserve, it is difficult if not impossible for Internet Service Providers to monitor all of the content that pa sses through their networks. /53 Leahy Report, at 8-10. /54 Leahy Report, at 10-11. /55 "On-Line Firms Team Up on Technology," Washington Post, September 9, 1995. /56 Glasser Aff. Para. 21; Perkins Bowen Aff. Para. 12; Sister Mary Elizabeth Aff. Para. 12; Donaldson Aff. Para. 20. /57 Glasser Aff. Para. 16; Wallace Aff. Para. 8; Rotenberg Aff. Para. 9; Perki ns Bowen Aff. Para. 14; Kuromiya Aff. Para. 16. /58 Troyer Aff. Para. 16; Meeks Aff. Para. 8; McCullagh Aff. Para. 8; Templeto n Aff. Para. 8; Wallace Aff. Para. 9. /59 The Federal Communications Commission has defined the term "indecency" for purposes of regulating broadcast radio and television as materi al that "depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." See Action for Children's Television v. FCC, 58 F.3d 654, 657 (D.C.Ci r. 1995) (en banc), cert. denied, 133 L.Ed.2d 658 (1996). The FCC has issued the same definition of "indecency" in other statutes or regulations designed to suppress speech on sexual subjects. See, e.g., Alliance for Community Media v. FCC, 56 F.3d 10 5, 124 n.4 (D.C.Cir. 1995) (en banc), cert. granted, 64 U.S.L.W. 3347 (U.S. Nov. 13, 1 995) (No. 95-124) ("indecency" on leased access and public, education, and governmen tal access cable channels); Dial Information Services v. Thornburgh, 938 F.2d 1535, 1540 (2d Cir. 1991), cert. denied, 112 S.Ct. 966 (1992) ("indecent" telephone communications). Although Sec. 223(d) tracks this FCC definition, the "indecen cy" provision in Sec. 223(a)(1)(B) does not incorporate the "patently offensive" la nguage and thus differs from the cases considering "indecency" in broadcast, cable televis ion and telephones because the provision contains no further definition of "indecent" a nd the FCC is given no jurisdiction under the statute to issue any such definition. I n fact, other provisions of the Act expressly deny jurisdiction to the Federal Communications Commission. See Sec. 509, adding 47 U.S.C. Sec. 230(d); Sec. 502, adding 47 U. S.C. Sec. 223(e)(6). /60 See 141 Cong. Rec. S8130-31, June 12, 1995. /61 Indeed, the Justice Department has already prosecuted online obscenity and child pornography in several cases. See, e.g., U.S. v. Thomas, 1996 U.S. Ap p. LEXIS 1069 (6th Cir. Jan. 29, 1996) (Nos. 94-6648/94-6649); "Use of Computer Network For Child Sex Sets Off Raids," The New York Times, 9/14/95. /62 The Supreme Court has not ruled precisely on what is required in terms of a showing of harm from exposure to "indecency" or "patently offensive" material . The harm to children from exposure to indecency was not at issue in Pacifica, which narrowly upheld the FCC's time channeling of vulgar words in the broadcast medi um. /63 The Supreme Court has repeatedly made it clear that the government "may not prohibit the expression of an idea simply because society finds the id ea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). See a lso Hustler Magazine v. Falwell, 485 U.S. 46, 55-56 (1988); Bolger v. Youngs Drug P rods. Corp., 463 U.S. 60, 71 (1983); ("offensiveness" not a justification for suppre ssing speech); Cohen v. California, 403 U.S. 15, 25 (1971) (government cannot "cleans e public debate" of certain "offensive" words). /64 Troyer Aff.; Sister Mary Elizabeth Aff; Kuromiya Aff.; Mariner Aff.; Glass er Aff.; Rotenberg Aff.; Godwin Aff. /65 See 142 Cong. Rec. H1128-29, Jan. 31, 1996. /66 After Sable, Congress passed more narrowly tailored legislation designed to bar minors' access to "dial-a-porn" services. This statute was upheld in Di al Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991); Information Providers v. FCC, 928 F.2d 866 (9th Cir. 1991). Those decisions are irrelevant to the present case, however, because there Congress had made findings that the blocki ng mechanisms mandated by the statute were the least restrictive means of achievin g the government's compelling goal. The present statute, by contrast, is supported b y no such legislative findings and wil effectively deny adults as well as minors ac cess to valuable speech. /67 See discussion at section C4 supra . /68 In addition, the adult access restrictions in Fabulous Assoc., Inc. applie d only to material deemed "harmful to minors" under the Ginsberg test, a much nar rower restriction than the Act's ban of "indecent" and "patently offensive" speech. 896 F.2d at 896. /69 One commentator has noted that "First Amendment lawyers should be wary of applying current legal metaphors to the newer electronic communication spaces without substantially immersing themselves in the experience of using such cyberspaces. Legislators should be equally cautious." Anne Wells Branscomb, Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces, 104 Yale L.J. 1639, 1676 (1995). See also Thomas G. Krattenmaker and L.A. Powe, Jr., Converging First Amendment Principles for Converging Communications Media, 104 Yale L.J. 1719 (1995) ("How can one reconcile the fac t of technology and media convergence with the legal presumption of distinct treatme nts?"); Donald Lively, The Information Superhighway: A First Amendment Road Map, 35 B. C. L. Rev. 1067 (1994) (arguing for the abandonment of different levels of First Amendment protection for different media). /70 See also Hynes v. Mayor & Council of Oradell, 425 U.S. 610, 620 (1976) (more exacting vagueness scrutiny required where First Amendment rights are implicated); Smith v. Goguen, 415 U.S. 566, 573 (1971) (where statute "is capab le of reaching expression sheltered by the First Amendment, the [vagueness] doctrine demands a greater degree of specificity than in other contexts"); Cramp v. Boa rd of Public Instruction, 368 U.S. 278, 287 (1961) (same). /71 See, e.g., Smith v. Goguen, 415 U.S. at 573 (law barring "contemptuous" treatment of the flag is unconstitutionally vague); Coates v. Cincinnati, 402 U .S. 611, 614 (1971) (law prohibiting "annoying" conduct is unconstitutionally vague); Southeastern Promotions Ltd. v. Conrad, 420 U.S. 546, 552-53 (1975) ("clean and healthful and culturally uplifting" standard impermissibly gives city unbridled discretion); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 573 (9th Cir. 1984), cert. d enied, 471 U.S. 1054 (1985) ("family entertainment" standard not sufficient to limit " arbitrary and capricious action"); Finley v. National Endowment for the Arts, 795 F.Supp. 1457, 1471-72 (C.D.Cal. 1992), app. pending ("general standards of decency" is unconstitutionally vague); Gay Men's Health Crisis v. Sullivan, 792 F. Supp. 27 8, 295 n.35 (S.D.N.Y 1992) ("offensiveness" is unconstitutionally vague). /72 With absolutely no other guidance, the use of the term "indecency" in Sec. 223(a)(1)(B) encompasses material that does not even relate to sexuality o r contain "vulgar" language. /73 See also United States v. 12,2000-ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973); Manual Enterprises, Inc. v. Day, 370 U.S. 478, 482-83 (1962); Carli n III, 837 F.2d at 558-60; Osborne v. Ohio, 495 U.S. 103, 132 n.7 (1990) (Brennan, J., dissenting) (reviewing cases in which "courts found it necessary to equate lew d' [and indecent'] with obscene' in order to avoid overbreadth and vagueness problems ."). /74 Under Miller, even socially worthless hardcore pornography is not necessarily unprotected; it must also appeal to a shameful or morbid, rather th an a healthy, interest in sex, and be patently offensive according to the relevant l ocal community. Id. at 24; see also Brockett v. Spokane Arcades, 472 U.S. 491 (1985 ). /75 As the Supreme Court noted in Miller v. California, 413 U.S. at 30, "[O]ur Nation is simply too big and too diverse for this Court to reasonably expect th at such standards [as `patently offensive'] could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists." No court could possibly determine what is "patently offensive" according to the "community standards" o f cyberspace, which is not a national, but a global communications medium. Such decisions plainly should not be left to myriad local prosecutors, judges, and j uries. /76 Glasser Aff. Para. 9. The company has not yet decided what action to take . /77 Many other examples of private application of standards like "indecency" have received attention from the mainstream and online press. America Online r ecently banned a poetry discussion group for using "vulgar" and "offensive" speech. Se e Rotenberg Aff. Para. 8. /78 The original FCC definition of "indecency" pursuant to the broadcast prohibition in 18 U.S.C. Sec. 1464 referred only to "patently offensive" langua ge; it was later expanded to include descriptions or depictions. See Action for Children's Tele vision v. FCC, 852 F.2d 1332, 1336 (D.C. Cir. 1988); John Crigler & William Byrnes, Decen cy Redux: The Curious History of the New FCC Broadcast Indecency Policy, 38 Cath.U.L.Rev. 329 (1989). /79 Pacifica, 438 U.S. at 742-43. /80 See 438 U.S. at 750; Sable Communications, 492 U.S. at 128; Bolger v. Youngs, 463 U.S. at 74. /81 In the context of vagueness challenges to "indecency" restrictions in othe r media, the Second, Ninth, and D.C. Circuits have held that Pacifica determined that "indecency" was not unconstitutionally vague. Dial Information v. Thornburgh, 938 F.2d at 1541 (2d Cir. 1991) (dismissing vagueness challenge to FCC's "indecency" regulations for dial-a-porn); Information Providers v. FCC, 928 F.2d 866 (9th C ir. 1991) (same); Alliance for Community Media v. FCC, 56 F.3d 105 (D.C. Cir., (1995) (re jecting vagueness challenge to "indecency" restrictions on cable, but welcoming "correc tion" from "Higher Authority"). But see Finley v. National Endowment for the Arts, 7 95 F. Supp 1457, 1471 (C.D.Cal 1992), appeal pending, (finding statute imposing "gene ral standards of decency" to be unconstitutionally vague). /82 Glasser Aff. Para. 4, Para. 13; Troyer Aff. Para. 4; Godwin Aff. Para. 3. /83 See, e.g., Board of Education v. Pico, 457 U.S. 853, 864 (1982); Erznoznik v. City of Jacksonville, 422 U.S. at 213-14; Tinker v. Des Moines Ind . School Dist., 393 U.S. 503 (1969); West Virginia Bd. of Educ. v. Barnette, 319 U.S. 6 24 (1943). /84 See Glasser Aff. Para. 18; Mariner Aff. Para. 13; Meeks Aff. Para. 5; Dona ldson Aff. Para. 14; Godwin Aff. Para. 11; Nell Warren Aff. Para. 9; Wallace Aff. Para. 7. /85 Ginsberg pre-dated Miller. While the Supreme Court has not revisited the so-called "obscene as to minors" or "harmful to minors" test since Ginsburg, ci rcuit courts dealing with "harmful to minors" laws have concluded that the Ginsburg s tandard should simply be adjusted to take account of the most recent Supreme Court defi nition of obscenity in Miller. See American Booksellers Assoc. v. Webb, 919 F.2d 1493 , 1496 (11th Cir. 1990); American Booksellers Assoc. v. Virginia, 882 F.2d 125, 127 (4 th Cir. 1989); Upper Midwest Booksellers Assoc. v. Minneapolis, 780 F.2d 1389, 1391 (8t h Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281, 1286 (10th Cir. 1983). /86 See ABA v. Webb, 919 F.2d 1493; ABA v. Virginia, 882 F.2d 125 Upper Midwest Booksellers Assoc. v. Minneapolis, 780 F.2d 1389; M.S. News Co. v. Casa do, 721 F.2d 1281. /87 Another very limited exception to minors' First Amendment rights has been the "indecency" rules for radio and television broadcast. See Pacifica, 4 38 U.S. 726 (1978) For the reasons articulated in section B.1. supra, Pacifica cannot b e expanded to ban all "patently offensive" communications in the completely diffe rent medium of cyberspace. /88 Glasser Aff. Para. 15; Godwin Aff. Para. 9; Rotenberg Aff. Para. 8. /89 Sister Mary Elizabeth Aff. Para. 7; Kuromiya Aff. Para. 17; Troyer Aff. Pa ra. 8. /90 Kuromiya Aff. Para. 21; Sears Aff. Para. 7; Krause Aff. Para. 21; Sobel Af f. Para. 10. /91 Chatelle Aff. Para. 7; Templeton Aff. Para. 6; Troyer Aff. Para. 12; Siste r Mary Elizabeth Aff. Para. 12; McCullagh Aff. Para. 7; Meeks Aff. Para. 7; Donaldson Aff. Para. 20; Casti Aff. Para. 11; Mariner Aff. Para. 9; Nell Warren Aff. Para. 8. /92 Sears Aff. Para. 6. /93 JEA Aff. Paras. 6, 14. /94 Wallace Aff. Para. 10; Templeton Aff. Para. 10; Krause Aff. Para. 24; Troy er Aff. Para. 17; Donaldson Aff. Para. 8; Chatelle Aff. Para. 7; McCullagh Aff. Para. 9; Casti Af f. Para. 12. /95 Ginsberg-type "harmful-to-minors" display statutes that have been upheld under narrowing constructions are readily distinguishable from the statute at i ssue in this case. First, those statutes prohibited the display only of material that fit the three-part Ginsberg/Miller "obscene as to minors" standard, as opposed to the much more broad and vague catergories of "indecency" and "patent offensiveness." Second, courts have careful to interpret those statutes to require compliance that does not impermissibly burden adult access to constitutionally protected materials. ABA v. Virginia, 882 F.2d at 127 (booksellers only need take "reasonable steps" to pre vent juveniles from browsing material deemed "harmful to minors"); ABA v. Webb, 919 F.2d at 1507 (booksellers need only put material deemed "harmful to minors" behind b linder racks, and need not physically segregate it from other materials, in order to c omply with the statute). In contrast, because of the unique nature of the online medium, any strategy by which an online information user or provider might comply with the Act would unduly burden both minors' and adults' access to constitutionally protect ed speech. /96 Glasser Aff. Para. 3; Mariner Aff. Paras. 5-6; Rotenberg Aff. Para. 3; God win Aff. Para. 4. /97 While the Supreme Court has held that speakers in the broadcast medium have less First Amendment protection than speakers in the print medium, see Pac ifica, 438 U.S. 726 (1978), the rationale for the distinction is absent in cyberspace. See discussion infra at section B.1. supra. /98 Troyer Aff. Para. 9; Kuromiya Aff. Para. 21; Nell Warren Aff. Para. 9. /99 Sister Mary Elizabeth Aff.; Casti Aff.; Troyer Aff. /100 Nell Warren Aff. Para. 7; Sister Mary Elizabeth Aff. Para. 7; Kuromiya Af f. Para. 21;Troyer Aff. Para. 9. /101 Glasser Aff. Paras. 23, 25; Johnson Aff. Paras. 3, 4, 7, 11. /102 Glasser Aff. Paras. 24, 26; Johnson Aff. Paras. 8, 11. /103 Glasser Aff. Paras. 24, 26; Johnson Aff. Paras. 8, 11.