From john1@usa.netWed Apr 10 16:43:12 1996 Date: Tue, 9 Apr 1996 08:36:11 -0600 (MDT) From: Fred Cherry Subject: My new complaint in the Southern District of NY Here is the complaint that I filed in the Southern District of New York on 4/8/96, after having filed a notice of dismissal of my case in the Eastern District of New York under Rule 41(a)(1) of the F.R.C.P. Since the [In]Justice Department had not yet filed either an answer or a motion for summary judgment, my notice of dismissal was without prejudice. The Index number of my new case is 96 Civ. 2498. The exhibit at the end is appended to the complaint. When I filed the complaint, I filled out a form in which I indicated that my case is related to the case of Shea v. Reno. I am waiting to see if Judge Coty accepts that designation and accepts assignment of my case. If so, then my case gets consolidated with the Shea case. ///////////////////////////////snip//////////////////////////////// UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------X : Fred Cherry, : : PLAINTIFF, : : 96_Civ.______ : -v- : : COMPLAINT : : : JANET RENO, in her official capacity as : ATTORNEY GENERAL OF THE UNITED STATES, : : : DEFENDANT. : : : ----------------------------------------X PRELIMINARY STATEMENT 1. This is an action for declaratory and injunctive relief challenging provisions of the "Communications Decency Act of 1996" (the challenged provisions are referred to hereinafter as "the Act"). One provision imposes criminal penalties for "indecent" but constitutionally protected telecommunications to individuals under the age of 18; another criminalizes the use of any "interactive computer service" to "send" or "display in a manner available" to a person under 18 any communication that "depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." The plaintiff, a user of computer communication systems, asserts that the Act is unconstitutional on its face and as applied because it criminalizes expression that is protected by the First Amendment; it is also impermissibly overbroad and vague; and it is not the least restrictive means of accomplishing any compelling governmental purpose. 2. In addition, plaintiff asserts that the Act violates the constitutional right to privacy encompassed in the First, Fourth, Fifth, Eighth and Ninth Amendments because it criminalizes private "e-mail" computer correspondence to or among individuals under the age of 18 if the correspondence is deemed "patently offensive" or "indecent." 3. Plaintiff further asserts that the Act in effect prohibits the right to anonymous speech, guaranteed by the First Amendment, for vast portions of the computer networks. JURISDICTION AND VENUE 4. This Court has jurisdiction pursuant to 28 U.S.C. Secs. 1331 and 1361. Venue is proper under 28 U.S.C. Sec. 1391(e). 5. Plaintiff requests that this Court declare the Act unconstitutional, pursuant to 28 U.S.C. Sec. 2201. 6. Under Sec. 561 of the Act, this action must be adjudicated by a three-judge court convened pursuant to 28 U.S.C. Sec. 2284. PARTIES 7. Plaintiff is a native-born citizen of the United States, more than twenty-one years of age. Plaintiff is presently residing in the Borough of Brooklyn, City of New York. 8. Plaintiff is a "disabled person", as that term is defined in 42 U.S.C. 12102(2). 9. Plaintiff is a "disabled person", as that term is defined in Section 292.21 of the New York State Executive Law. 10. Plaintiff is not an attorney-at-law. Plaintiff has never been a student at any school of law. 11. Plaintiff is the Chairman of the Board of Directors of Johns & Call Girls United Against Repression, a not-for-profit corporation chartered by the State of New York. 12. The purposes for which this corporation were formed are stated as follows in its Certificate of Incorporation: (a) To work for the repeal of all laws penalizing prostitution and the patronizing of adult prostitutes. (b) To dispel the notion that there is anything reprehensible or immoral in being a prostitute whose customers are adults, or in being the customer of an adult prostitute. (c) To instill in adult prostitutes and their adult customers a sense of self-respect. (d) To safeguard the civil liberties and civil rights of adult prostitutes and their adult customers by any and all legal means possible. (e) To speak out on public issues affecting prostitutes and their customers. (f) To hold meetings and social events for the better realization of the aforementioned purposes set forth in (a) through (e) above, and to achieve, ultimately, the complete liberation of adult prostitutes and their adult customers from all injustices visited upon them as such, that they may receive ultimate recognition as free and equal members of the human community. 13. Plaintiff uses online communications services in several ways. Plaintiff subscribes to several mailing lists. Material relating to plaintiff's activities in furtherance of the aims of Johns & Call Girls United Against Repression appears on the World Wide Web. Plaintiff also engages in debates in newsgroups. 14. In addition to suing on his own behalf, plaintiff also sues on behalf of all people who wish to communicate with plaintiff, using online communication services. 15. While engaging in debates in newsgroups, plaintiff frequently encounters opponents who lower the level of discussion by engaging in truly "indecent speech." Said opponents describe plaintiff in terms patently offensive as measured by almost ANY standard. Said opponents refer to plaintiff's excretory organ and excretory activities, using all the traditional three and four letter words. 16. One such opponent is an Australian citizen and resident of Australia who posts messages to newsgroups using an Australian internet service provider. Said Australian citizen is a homosexual nazi. Plaintiff is a Jewish person. 17. An exhibit, hereto attached, is a true copy of a transcript of a series of posted messages on Usenet newsgroups, involving several persons, including plaintiff and said Australian nazi. This transcript is made a part of this complaint to demonstrate the manner in which said Australian nazi subjects plaintiff to verbal abuse involving "patently offensive" references to plaintiff's excretory organ and excretory activities, and plaintiff's responses which also violate the "patently offensive" provisions of the Act. 18. Plaintiff never initiates "indecent speech" in a newsgroup debate. Nevertheless, plaintiff finds it necessary to counter this "indecent speech" with plaintiff's own "indecent speech." 19. Since said Australian opponent is not subject to the Act, said Australian opponent will have MORE freedom of speech, if the constitutionality of the Act is upheld. THIS is plaintiff's principal objection to the Act, and the main reason that plaintiff contends that the Act is unconstitutional. 20. Defendant ATTORNEY GENERAL JANET RENO heads the United States Department of Justice, which is the agency of the United States government responsible for enforcement of federal criminal laws, including the statute at issue in this case. FACTS Enactment of "Indecency" Standard for Cyberspace Communications 21. In February, 1996, Congress adopted and the President signed the Act. In relevant part, the Act provides: "Section 502. Obscene or Harassing Use of Telecommunications Facilities Under the Communications Act of 1934. Section 223 (47 U.S.C. 223) is amended-- (1) by striking subsection (a) and inserting in lieu thereof: (a) Whoever -- "(1) in interstate or foreign communications ... "(B) by means of a telecommunications device knowingly -- "(I) makes, creates, or solicits, and "(ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent knowing that the recipient of the communication is under 18 years of age regardless of whether the maker of such communication placed the call or initiated the communication; ... (2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both." This provision appears in the United States Code as 47 U.S.C. Sec. 223(a)(1)(B) (hereinafter the "indecency" provision). 22. Subsection (h)(1) of Sec. 502(2) of the Act provides that "the use of the term telecommunications device' in this section (A) shall not impose new obligations on broadcasting station licensees and cable operators covered by obscenity and indecency provisions elsewhere in this Act; and (B) does not include the use of an interactive computer service." Because "interactive computer service" is defined broadly in the Act (see below), the definition of "telecommunications device" to exclude any "interactive computer service" leaves entirely uncertain the meaning and scope of the statutory prohibitions for computer communications. 23. Section 502(2) of the Act adds to 47 U.S.C. Sec. 223, in pertinent part: "(d) Whoever -- (1) in interstate or foreign communications knowingly (A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or (B) uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, shall be fined under title 18, United States Code, or imprisoned not more than two years, or both." This provision appears in the United States Code as 47 U.S.C. Sec. 223(d)(1) (hereinafter the "patently offensive" provision). 24. Subsection (h)(2) of Sec. 502(2) of the Act provides that "[t]he term 'interactive computer service' has the meaning provided in section 230(f)(2)." Section 230(f)(2) defines "interactive computer service" to mean "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or service offered by libraries or educational institutions." 25. The provisions described in this section became effective immediately upon passage of the Act. 26. No definition is given in the Act for the term "indecent." The Federal Communications Commission, however, has interpreted the prohibition of "indecent" radio and television broadcasts under 18 U.S.C. Sec. 1464 to cover communications that "depict or describe, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." The Commission has ruled that this definition includes the use of common Anglo-Saxon street terms for sexual or excretory functions, as well as sexual innuendoes and double entendres. In addition, the Commission has ruled that communications with substantial literary, artistic, political, scientific, or other educational or social value, may be "patently offensive" or "indecent." 27. The Act contains two provisions that appear to establish partial defenses to criminal liability. Section 502 adds to 47 U.S.C. Sec. 223 a new subsection (e), which provides that "[i]n addition to any other defenses available by law: (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." Various exceptions to this defense are set out in subsections (e)(2), (3), and (4), for conspiracies, co-ownership situations, and employer liability. 28. In addition, new 223 U.S.C. Sec. 223(e)(5) provides a defense for any person who "(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or (B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." New Sec. 223(e)(6) permits the Federal Communications Commission to "describe measures which are reasonable, effective, and appropriate to restrict access to prohibited communications under subsection (d)," but does not authorize the Commission to enforce the Act or approve such measures. 29. Section 509 of the Act may provide a different defense to liability. Section 509 adds a new section, Sec. 230, to Title 47 of the United States Code. Section 230(c)(1) provides: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." This section appears to conflict with new 47 U.S.C. Sec. 223(e), which only provides a defense if a "facility, system, or network" on which "indecent" or "patently offensive" material appears is not under the "control" of the person who provides access. 30. Before passing this Act, Congress made no findings about alternative, less restrictive means of accomplishing the goals of the Act. The Nature of the Online Medium 31. Online services use computers, phone lines, and modems to connect users to networks that allow them to communicate with thousands of other users throughout the world, and to access extensive information databases from a variety of sources. Most online services offer a package of services that can include: electronic mail to transmit private messages to one or a group of users or to an established mailing list on a particular topic; chat rooms that allow simultaneous online discussions; discussion groups in which users post messages and reply to online "bulletin boards"; informational databases; and access to the Internet. 32. Textual, audio, and video files can all be exchanged through computer communications networks if the user has the right computer hardware and software. 33. The Internet is the largest online network in the world. It links a large number of smaller networks set up by universities, industry, nonprofit organizations, and government. While estimates can only be approximations due to rapid growth, the Internet is believed to connect at least 59,000 computer networks, 2.2 million computers, 159 countries, and 40 million users. The Internet has no centralized distribution point. 34. Many users are connected to the Internet through an Internet Service Provider (ISP). ISPs provide connections, software, and tools for using the Internet. Like the large commercial online services, ISPs also often host online discussion groups and chat rooms that are housed and maintained through the ISP's computers. 35. Some businesses and institutions have a direct connection to the Internet, which means they are part of the vast network of computers that comprise the Internet. Many universities in the United States are directly connected to the Internet and provide accounts on their participating computer to students, faculty, and staff. 36. Some online services provide content as well as access to computer networks. That is, in addition to providing the technical ability to subscribers to send and receive information and messages, some online services create their own information databases. 37. Electronic mail, or e-mail, is the most basic online communication. Users are given a personal e-mail address that allows them to exchange messages or files with other persons and organizations that have Internet e-mail addresses. 38. "Gopher" is a popular way to create and access databased information on the Internet. Gopher is a menu-driven program that allows the user to "gopher" through multiple layers of menus to search for information on a particular topic. A "gopher site" is a database that provides content associated with a particular person or organization. As a reference service, gopher sites often include links to related gopher sites that are associated with other organizations or persons. 39. The "World Wide Web" (Web) is a popular way to create and access databased information on the Internet. The World Wide Web contains sophisticated graphics and audio files in addition to text files. Web sites are databases that provide content associated with a particular person or organization; they allow users to link instantly to other documents and Web sites by clicking on highlighted words in the text of the document being viewed. As an example, from a web site, plaintiff obtained the text of the complaint filed in Philadelphia by the American Civil Liberties Union, et al, challenging the constitutionality of the Act. Plaintiff used that document in the preparation of this complaint, which is obvious when comparing the two complaints. 40. "Online discussion groups" are hosted by online services or by particular networks connected to the Internet. The host sets up a section on the network devoted to the discussion of a particular issue 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 responses to particular messages. 41. "Online mailing lists," or "listservs" are e-mail distribution lists. Internet 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 the other subscribers on the list. 42. "Chat rooms" are sections provided by online services and some computer bulletin board systems in which online users can engage in simultaneous live interactive online discussion. 43. Online discussion groups, chat rooms, and online mailing lists are sometimes moderated (censored) by someone not necessarily connected with the online service provider. Many of these "moderators" (censors) are volunteers who simply are interested in a particular topic. The moderators (censors) review incoming messages before they are posted to determine whether the messages are related to the subject matter of the group or conform to other (censorship) standards set up by the moderator. 44. "Computer bulletin board systems" (BBSs) are online networks that are independent of the Internet and that usually cater to people interested in specialized subject matter or to people from a particular geographic region. Subscribers dial directly from their computers into the BBS host computer. BBSs often offer e-mail services among users, online discussion groups, and information databases. 45. A user with access to the Internet may use most gopher sites and Web sites without providing further identification or paying an additional fee. A user with access to newsgroups, online discussion groups, online mailing lists, and chat rooms may generally use particular services without providing further identification or paying an additional fee. 46. "Cyberspace" refers to the combination of all of the online communications systems described above. 47. Users of online systems are also content providers (that is, they are publishers), because they can transmit and distribute their own communications and can create a permanent archive of information accessible by other users. There is no limit to the number of people on either side of the sending or receiving end of computer communications. Plaintiff, for example, was a member of a team of four who made a mathematical discovery which was published in a mathematical journal. Said discovery consisted of generating a ten-by-ten pair of orthogonal DIAGONAL latin squares. Said discovery was first announced on a BBS system. 48. Online communications are interactive. This means, in part, that users of online systems must seek out with specificity the information they wish to retrieve and the kinds of communications they wish to engage in. It also means that users can easily respond to the material they receive or view online. 49. Online systems provide users with a multitude of options for controlling and limiting, if desired, the kinds of information they access through online networks. Commercial online services like American Online, Prodigy, and CompuServe provide features to prevent children from accessing chat rooms and to block access to some kinds of newsgroups based on keywords, subject matter, or specific newsgroup. They also offer screening software that automatically blocks messages containing certain words, and tracking and monitoring software to determine which resources a particular online user (e.g., a child) has accessed. They also offer children-only discussion groups that are closely monitored by adults. ComPUserve engages in heavy political censorship. Plaintiff was censored by ComPUserve for attempting to post material similar to the material which the Post Office Department censored in 1966. See Cherry v. Postmaster-General, 272 F. Supp. 982. 50. Online users can also purchase special software applications to control access to online resources. These applications allow users to block access to certain resources, 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. 51. Once information is posted to an international online network like the Internet, it is not possible to allow only residents of a particular region or country to access that information; the information becomes available to anyone in the world who has access to the online network. There is currently no technological method for determining with specificity the geographic location from which users access or post to online systems. 52. Online users are given a password and user name which they must use in order to sign onto their online service. While some users use their full proper name as their online user name, many users have online names that are pseudonyms. These users therefore may send, view, and receive online communications anonymously. 53. There are forums for both "public" and "private" communications in cyberspace. E-mail and online mailing lists are private communications between specified persons or group of persons. Only the intended recipients of an e-mail message receive the message; in this sense e-mail is like regular mail. Similarly, only subscribers to an online mailing list should receive the messages posted to that mailing list. Web sites, gopher sites, online discussion groups, and chat rooms, by contrast, are public because anyone with online access can access them or participate in them at any time. These forums are the public libraries and public squares of cyberspace. CAUSES OF ACTION 54. Plaintiff repeats and realleges Secs. 1-60. 55. 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2)(the "indecency" provision) and 223(d)(the "patently offensive" provision) violate the First Amendment to the United States Constitution on their face and as applied because they effect a total ban on constitutionally protected communications in many parts of cyberspace. Even in those portions of cyberspace where it is technologically and economically feasible to deny access to minors, Secs. 223(a)(1)(B) and (a)(2) and 223(d), are not the least restrictive means of accomplishing any compelling governmental purpose, and thus violate the First Amendment. 56. 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2) and 223(d) are vague, in violation of the First and Fifth Amendments to the United States Constitution. 57. Even if the government could criminalize some constitutionally protected online communications to minors, 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2) and 223(d) are unconstitutionally overbroad, in violation of the First Amendment, because they ban far more constitutionally protected expression to minors than possibly could be justified by any governmental interest. 58. 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2) and 223(d) violate the First, Fourth, Fifth, and Ninth Amendment privacy rights of members and officers of the plaintiff's organization who use private e-mail. 59. 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2)and 223(d) violate the First Amendment rights of members of the plaintiff's organization and other users of computer resources to engage in anonymous speech. WHEREFORE, plaintiff respectfully requests the Court to: (1) Declare that 47 U.S.C. Secs. 223(a)(1)(B) and (a)(2), 223(d), and 18 U.S.C. Sec. 1462(c) violate the First, Fourth, Fifth, Eighth and Ninth Amendments to the U.S. Constitution and enjoin their enforcement. (2) Award plaintiff costs. (3) Award such further relief as the Court deems just and appropriate. Respectfully submitted, [signature] ________________________________ Fred Cherry, Chairman Johns & Call Girls United Against Repression, Inc. Post Office Address Post Office Box 021011 Brooklyn, New York 11202-0022 Dated: April 8, 1996 /////////////////////////////////snip////////////////////////////////// UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ----------------------------------------X : Fred Cherry, : : PLAINTIFF, : : 96 Civ. 0609 -v- : : JANET RENO, in her official capacity as : ATTORNEY GENERAL OF THE UNITED STATES, : : DEFENDANT. : : ----------------------------------------X AFFIDAVIT STATE OF NEW YORK ) ) ss.: COUNTY OF KINGS ) I, Fred Cherry, being duly sworn, depose and say that I am a native-born citizen of the United States, more than twenty-one years of age. The attached twenty pages are a true transcript of material which was posted on the Internet. The facts alleged by me in said transcript are true. In particular, I have never threatened Rod Swift with death, as he alleges in his post on the Internet. [signature] ___________________________ FRED CHERRY Sworn to and subscribed before me this 26th day of February, 1996 /////////////////////////////snip//////////////////////////////////