On June 11, 1996, in a 3-0 ruling, the United States Third Circuit of Appeals granted an injunction blocking enforcement of the Communications Decency Act

From the United States Third Circuit of Appeals, Judges Dolores K. Sloviter, Ronald L. Buckwalter and Stewart Dalzell. June 11, 1996. For the full text of the ruling see http://www.eff.org/Alerts/HTML/960612_aclu_v_reno_decision.html or http://www.vtw.org/speech/decision.html. For an HTML version see Councel Connect.

[ lots of introductory material about the Internet and the background of the CDA and the various arguments presented by the government (the defendant) and the plaintiffs (those seeking to overturn the CDA) has been deleted ]

Plaintiffs have established a reasonable probability of eventual success in the litigation by demonstrating that 223(a)(1)(B) and 223(a)(2) of the CDA are unconstitutional on their face to the extent that they reach indecency. Sections 223(d)(1) and 223(d)(2) of the CDA are unconstitutional on their face. Accordingly, plaintiffs have shown irreparable injury, no party has any interest in the enforcement of an unconstitutional law, and therefore the public interest will be served by granting the preliminary injunction. Elrod v. Burns, 427 U.S. 347, 373-74 (1976); Hohe v. Casey, 868 F.2d 69, 72 (3d Cir.), cert. denied, 493 U.S. 848 (1989); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994). The motions for preliminary injunction will therefore be granted.

The views of the members of the Court in support of these conclusions follow.

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Subjecting speakers to criminal penalties for speech that is constitutionally protected in itself raises the spectre of irreparable harm. Even if a court were unwilling to draw that conclusion from the language of the statute itself, plaintiffs have introduced ample evidence that the challenged provisions, if not enjoined, will have a chilling effect on their free expression. Thus, this is not a case in which we are dealing with a mere incidental inhibition on speech, see Hohe v. Casey, 868 F.2d 69, 73 (3d Cir.), cert. denied, 493 U.S. 848 (1989), but with a regulation that directly penalizes speech.

Nor could there be any dispute about the public interest factor which must be taken into account before a court grants a preliminary injunction. No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.

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Applicable Standard of Review

The CDA is patently a government-imposed content-based restriction on speech, and the speech at issue, whether denominated "indecent" or "patently offensive," is entitled to constitutional protection. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). As such, the regulation is subject to strict scrutiny, and will only be upheld if it is justified by a compelling government interest and if it is narrowly tailored to effectuate that interest. Sable, 492 U.S. at 126; see also Turner Broadcasting, 114 S. Ct. at 2459 (1994). "[T]he benefit gained [by a content-based restriction] must outweigh the loss of constitutionally protected rights." Elrod v. Burns, 427 U.S. at 363

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I conclude inexorably from the foregoing that the CDA reaches speech subject to the full protection of the First Amendment, at least for adults.[1] In questions of the witnesses and in colloquy with the government attorneys, it became evident that even if "indecent" is read as parallel to "patently offensive," the terms would cover a broad range of material from contemporary films, plays and books showing or describing sexual activities (e.g., Leaving Las Vegas) to controversial contemporary art and photographs showing sexual organs in positions that the government conceded would be patently offensive in some communities (e.g., a Robert Mapplethorpe photograph depicting a man with an erect penis).

We have also found that there is no effective way for many Internet content providers to limit the effective reach of the CDA to adults because there is no realistic way for many providers to ascertain the age of those accessing their materials. As a consequence, we have found that "[m]any speakers who display arguably indecent content on the Internet must choose between silence and the risk of prosecution." Such a choice, forced by sections 223(a) and (d) of the CDA, strikes at the heart of speech of adults as well as minors.

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Whether Congress' decision was a wise one is not at issue here. It was unquestionably a decision that placed the CDA in serious conflict with our most cherished protection - the right to choose the material to which we would have access.

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The government makes yet another argument that troubles me. It suggests that the concerns expressed by the plaintiffs and the questions posed by the court reflect an exaggerated supposition of how it would apply the law, and that we should, in effect, trust the Department of Justice to limit the CDA's application in a reasonable fashion that would avoid prosecution for placing on the Internet works of serious literary or artistic merit. That would require a broad trust indeed from a generation of judges not far removed from the attacks on James Joyce's Ulysses as obscene. See United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934); see also Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U.S. 413 (1966). Even if we were to place confidence in the reasonable judgment of the representatives of the Department of Justice who appeared before us, the Department is not a monolithic structure, and individual U.S. Attorneys in the various districts of the country have or appear to exercise some independence, as reflected by the Department's tolerance of duplicative challenges in this very case.

But the bottom line is that the First Amendment should not be interpreted to require us to entrust the protection it affords to the judgment of prosecutors. Prosecutors come and go. Even federal judges are limited to life tenure. The First Amendment remains to give protection to future generations as well. I have no hesitancy in concluding that it is likely that plaintiffs will prevail on the merits of their argument that the challenged provisions of the CDA are facially invalid under both the First and Fifth Amendments.

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Finally, if the goal of our First Amendment jurisprudence is the "individual dignity and choice" that arises from "putting the decision as to what views shall be voiced largely into the hands of each of us", Leathers v. Medlock, 499 U.S. 439, 448-49 (1991) (citing Cohen v. California, 403 U.S. 15, 24 (1971)), then we should be especially vigilant in preventing content-based regulation of a medium that every minute allows individual citizens actually to make those decisions. Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. Cf. Butler, 352 U.S. at 383.

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I therefore have no doubt that a Newspaper Decency Act, passed because Congress discovered that young girls had read a front page article in the New York Times on female genital mutilation in Africa, would be unconstitutional. Tornillo, 418 U.S. at 258. Nor would a Novel Decency Act, adopted after legislators had seen too many pot-boilers in convenience store book racks, pass constitutional muster. Butler, 352 U.S. at 383. There is no question that a Village Green Decency Act, the fruit of a Senator's overhearing of a ribald conversation between two adolescent boys on a park bench, would be unconstitutional. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). A Postal Decency Act, passed because of constituent complaints about unsolicited lingerie catalogues, would also be unconstitutional. Bolger, 463 U.S. at 73. In these forms of communication, regulations on the basis of decency simply would not survive First Amendment scrutiny.

The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.

Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar -- in a word, "indecent" in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice. We should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.

Moreover, the CDA will almost certainly fail to accomplish the Government's interest in shielding children from pornography on the Internet. Nearly half of Internet communications originate outside the United States, and some percentage of that figure represents pornography. Pornography from, say, Amsterdam will be no less appealing to a child on the Internet than pornography from New York City, and residents of Amsterdam have little incentive to comply with the CDA.

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E. Conclusion

Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion.

True it is that many find some of the speech on the Internet to be offensive, and amid the din of cyberspace many hear discordant voices that they regard as indecent. The absence of governmental regulation of Internet content has unquestionably produced a kind of chaos, but as one of plaintiffs' experts put it with such resonance at the hearing:

What achieved success was the very chaos that the Internet is. The strength of the Internet is that chaos.[23]

Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.

For these reasons, I without hesitation hold that the CDA is unconstitutional on its face.

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