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    et al.,                        :
               v.                  :
JANET RENO, Attorney General of    :
   the United States               :    No. 96-963
  INC., et al.,                    :
               v.                  :
   et al.                          :    No. 96-1458
Before:   Sloviter, Chief Judge, United States Court of Appeals
          for the Third Circuit; Buckwalter and Dalzell, Judges,
          United States District Court for the Eastern District
          of Pennsylvania
                           June 11, 1996
                       Procedural Background
          Before us are motions for a preliminary injunction
filed by plaintiffs who challenge on constitutional grounds
provisions of the Communications Decency Act of 1996 (CDA or "the
Act"), which constitutes Title V of the Telecommunications Act of
1996, signed into law by the President on February 8, 1996.[1]
Telecommunications Act of 1996, Pub. L. No. 104-104,  502, 110
Stat. 56, 133-35.  Plaintiffs include various organizations and
individuals who, inter alia, are associated with the computer
and/or communications industries, or who publish or post
materials on the Internet, or belong to various citizen groups.
See ACLU Complaint ( 7-26), ALA First Amended Complaint ( 3,
          The defendants in these actions are Janet Reno, the
Attorney General of the United States, and the United States
Department of Justice.  For convenience, we will refer to these
defendants as the Government.  Plaintiffs contend that the two
challenged provisions of the CDA that are directed to
communications over the Internet which might be deemed "indecent"
or "patently offensive" for minors, defined as persons under the
age of eighteen, infringe upon rights protected by the First
Amendment and the Due Process Clause of the Fifth Amendment.
          Plaintiffs in Civil Action Number 96-963, in which the
lead plaintiff is the American Civil Liberties Union (the
ACLU),[2] filed their action in the United States District Court
for the Eastern District of Pennsylvania on the day the Act was
signed, and moved for a temporary restraining order to enjoin
enforcement of these two provisions of the CDA.  On February 15,
1996, following an evidentiary hearing, Judge Ronald L.
Buckwalter, to whom the case had been assigned, granted a limited
temporary restraining order, finding in a Memorandum that 47
U.S.C.  223(a)(1)(B) ("the indecency provision" of the CDA) was
unconstitutionally vague.  On the same day, Chief Judge Dolores
K. Sloviter, Chief Judge of the United States Court of Appeals
for the Third Circuit, having been requested by the parties and
the district court to convene a three-judge court, pursuant to
561(a) of the CDA, appointed such a court consisting of, in
addition to Judge Buckwalter, Judge Stewart Dalzell of the same
district, and herself, as the circuit judge required by 28 U.S.C.
          After a conference with the court, the parties entered
into a stipulation, which the court approved on February 26,
1996, wherein the Attorney General agreed that:
          she will not initiate any investigations or
          prosecutions for violations of 47 U.S.C.
          223(d) for conduct occurring after enactment
          of this provision until the three-judge court
          hears Plaintiffs' Motion for Preliminary
          Injunction . . . and has decided the motion.
The Attorney General's commitment was qualified to the extent
          her full authority to investigate or
          prosecute any violation of  223(a)(1)(B), as
          amended, and  223(d) as to conduct which
          occurs or occurred during any period of time
          after enactment of these provisions
          (including for the period of time to which
          this stipulation applies) should the Court
          deny plaintiffs' motion or, if the motion is
          granted, should these provisions ultimately
          be upheld.
Stipulation,  4, in C.A. No. 96-963.
          Shortly thereafter, the American Library Association,
Inc. (the ALA) and others[3] filed a similar action at C.A. No.
96-1458.  On February 27, 1996, Chief Judge Sloviter, again
pursuant to  561(a) of the CDA and upon request, convened the
same three-judge court pursuant to 28 U.S.C.  2284.  The actions
were consolidated pursuant to Fed. R. Civ. P. 42(a), "for all
matters relating to the disposition of motions for preliminary
injunction in these cases, including the hearing on such
          The parties were afforded expedited discovery in
connection with the motions for preliminary injunction, and they
cooperated with Judge Dalzell, who had been assigned the case
management aspects of the litigation.  While the discovery was
proceeding, and with the agreement of the parties, the court
began receiving evidence at the consolidated hearings which were
conducted on March 21 and 22, and April 1, 12 and 15, 1996.  In
order to expedite the proceedings, the parties worked closely
with Judge Dalzell and arranged to stipulate to many of the
underlying facts and to place much of their cases in chief before
the court by sworn declarations, so that the hearings were
largely devoted to cross-examination of certain of the witnesses
whose declarations had been filed.  The parties submitted
proposed findings of fact and post-hearing memoranda on April 29,
and the court heard extensive oral argument on May 10, 1996.[4]
                   Statutory Provisions at Issue
          Plaintiffs focus their challenge on two provisions of
section 502 of the CDA which amend 47 U.S.C.  223(a) and
          Section 223(a)(1)(B) provides in part that any person
in interstate or foreign communications who, "by means of a
telecommunications device,"[5] "knowingly . . . makes, creates, or
solicits" and "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," "shall be criminally
fined or imprisoned." (emphasis added).
          Section 223(d)(1) ("the patently offensive provision"),
makes it a crime to use an "interactive computer service"[6] to
"send" or "display in a manner available" to a person under age
18, "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."
          Plaintiffs also challenge on the same grounds the
provisions in  223(a)(2) and  223(d)(2), which make it a crime
for anyone to "knowingly permit[] any telecommunications facility
under [his or her] control to be used for any activity
prohibited" in  223(a)(1)(B) and 223(d)(1).  The challenged
provisions impose a punishment of a fine, up to two years
imprisonment, or both for each offense.
          Plaintiffs make clear that they do not quarrel with the
statute to the extent that it covers obscenity or child
pornography, which were already proscribed before the CDA's
adoption.  See 18 U.S.C.  1464-65 (criminalizing obscene
material); id.  2251-52 (criminalizing child pornography); see
also New York v. Ferber, 458 U.S. 747 (1982); Miller v.
California, 413 U.S. 15 (1973).
          Plaintiffs in the ACLU action also challenge the
provision of the CDA that criminalizes speech over the Internet
that transmits information about abortions or abortifacient drugs
and devices, through its amendment of 18 U.S.C.  1462(c).  That
section now prohibits the sending and receiving of information
over the Internet 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".  The Government has stated that it does not contest
plaintiffs' challenge to the enforceability of the provision of
the CDA as it relates to 18 U.S.C.  1462(c).[7]
          As part of its argument that the CDA passes
constitutional muster, the Government cites the CDA's "safe
harbor" defenses in new  223(e) of 47 U.S.C., which provides:
          (e)  Defenses
          In addition to any other defenses available
          by law:
               (1)  No person shall be held to have violated
          subsection (a) or (d) of this section 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.
               (2)  The defenses provided by paragraph (1)
          of this subsection shall not be applicable to a
          person who is a conspirator with an entity
          actively involved in the creation or knowing
          distribution of communications that violate this
          section, or who knowingly advertises the
          availability of such communications.
               (3)  The defenses provided in paragraph (1)
          of this subsection shall not be applicable to a
          person who provides access or connection to a
          facility, system, or network engaged in the
          violation of this section that is owned or
          controlled by such person.
               (4)  No employer shall be held liable under
          this section for the actions of an employee or
          agent unless the employee's or agent's conduct is
          within the scope of his or her employment or
          agency and the employer (A) having knowledge of
          such conduct, authorizes or ratifies such conduct,
          or (B) recklessly disregards such conduct.
               (5)  It is a defense to a prosecution under
          subsection (a)(1)(B) or (d) of this section, or
          under subsection (a)(2) of this section with
          respect to the use of a facility for an activity
          under subsection (a)(1)(B) that a person --
               (A)  has taken, in good faith, reasonable,
          effective, and appropriate actions under the
          circumstances to restrict or prevent access by
          minors to a communication specified in such
          subsections, which may involve any appropriate
          measures to restrict minors from such
          communications, including any method which is
          feasible under available technology; or
               (B)  has restricted access to such
          communication by requiring use of a verified
          credit card, debit account, adult access code, or
          adult personal identification number.
               (6)  The [Federal Communications] Commission
          may describe measures which are reasonable,
          effective, and appropriate to restrict access to
          prohibited communications under subsection (d) of
          this section.  Nothing in this section authorizes
          the Commission to enforce, or is intended to
          provide the Commission with the authority to
          approve, sanction, or permit, the use of such
          measures.  The Commission shall have no
          enforcement authority over the failure to utilize
          such measures. . . .
                         FINDINGS OF FACT
          All parties agree that in order to apprehend the legal
questions at issue in these cases, it is necessary to have a
clear understanding of the exponentially growing, worldwide
medium that is the Internet, which presents unique issues
relating to the application of First Amendment jurisprudence and
due process requirements to this new and evolving method of
communication.  For this reason all parties insisted on having
extensive evidentiary hearings before the three-judge court.
The court's Findings of fact are made pursuant to Fed. R. Civ. P.
52(a).  The history and basic technology of this medium are not
in dispute, and the first forty-eight paragraphs of the following
Findings of fact are derived from the like-numbered paragraphs of
a stipulation[8] the parties filed with the court.[9]
                     The Nature of Cyberspace
  The Creation of the Internet and the Development of Cyberspace
          1.   The Internet is not a physical or tangible entity,
but rather a giant network which interconnects innumerable
smaller groups of linked computer networks.  It is thus a network
of networks.  This is best understood if one considers what a
linked group of computers -- referred to here as a "network" --
is, and what it does.  Small networks are now ubiquitous (and are
often called "local area networks").  For example, in many United
States Courthouses, computers are linked to each other for the
purpose of exchanging files and messages (and to share equipment
such as printers).  These are networks.
          2.  Some networks are "closed" networks, not linked to
other computers or networks.  Many networks, however, are
connected to other networks, which are in turn connected to other
networks in a manner which permits each computer in any network
to communicate with computers on any other network in the system.
This global Web of linked networks and computers is referred to
as the Internet.
          3.  The nature of the Internet is such that it is very
difficult, if not impossible, to determine its size at a given
moment.  It is indisputable, however, that the Internet has
experienced extraordinary growth in recent years.  In 1981, fewer
than 300 computers were linked to the Internet, and by 1989, the
number stood at fewer than 90,000 computers.  By 1993, over
1,000,000 computers were linked.  Today, over 9,400,000 host
computers worldwide, of which approximately 60 percent located
within the United States, are estimated to be linked to the
Internet.  This count does not include the personal computers
people use to access the Internet using modems.  In all,
reasonable estimates are that as many as 40 million people around
the world can and do access the enormously flexible communication
Internet medium.  That figure is expected to grow to 200 million
Internet users by the year 1999.
          4.  Some of the computers and computer networks that
make up the Internet are owned by governmental and public
institutions, some are owned by non-profit organizations, and
some are privately owned.  The resulting whole is a
decentralized, global medium of communications -- or "cyberspace"
-- that links people, institutions, corporations, and governments
around the world.  The Internet is an international system.  This
communications medium allows any of the literally tens of
millions of people with access to the Internet to exchange
information.  These communications can occur almost
instantaneously, and can be directed either to specific
individuals, to a broader group of people interested in a
particular subject, or to the world as a whole.
          5.  The Internet had its origins in 1969 as an
experimental project of the Advanced Research Project Agency
("ARPA"), and was called ARPANET.  This network linked computers
and computer networks owned by the military, defense contractors,
and university laboratories conducting defense-related research.
The network later allowed researchers across the country to
access directly and to use extremely powerful supercomputers
located at a few key universities and laboratories.  As it
evolved far beyond its research origins in the United States to
encompass universities, corporations, and people around the
world, the ARPANET came to be called the "DARPA Internet," and
finally just the "Internet."
          6.  From its inception, the network was designed to be
a decentralized, self-maintaining series of redundant links
between computers and computer networks, capable of rapidly
transmitting communications without direct human involvement or
control, and with the automatic ability to re-route
communications if one or more individual links were damaged or
otherwise unavailable.  Among other goals, this redundant system
of linked computers was designed to allow vital research and
communications to continue even if portions of the network were
damaged, say, in a war.
          7.  To achieve this resilient nationwide (and
ultimately global) communications medium, the ARPANET encouraged
the creation of multiple links to and from each computer (or
computer network) on the network.  Thus, a computer located in
Washington, D.C., might be linked (usually using dedicated
telephone lines) to other computers in neighboring states or on
the Eastern seaboard.  Each of those computers could in turn be
linked to other computers, which themselves would be linked to
other computers.
          8.  A communication sent over this redundant series of
linked computers could travel any of a number of routes to its
destination.  Thus, a message sent from a computer in Washington,
D.C., to a computer in Palo Alto, California, might first be sent
to a computer in Philadelphia, and then be forwarded to a
computer in Pittsburgh, and then to Chicago, Denver, and Salt
Lake City, before finally reaching Palo Alto.  If the message
could not travel along that path (because of military attack,
simple technical malfunction, or other reason), the message would
automatically (without human intervention or even knowledge) be
re-routed, perhaps, from Washington, D.C. to Richmond, and then
to Atlanta, New Orleans, Dallas, Albuquerque, Los Angeles, and
finally to Palo Alto.  This type of transmission, and re-routing,
would likely occur in a matter of seconds.
          9.   Messages between computers on the Internet do not
necessarily travel entirely along the same path.  The Internet
uses "packet switching" communication protocols that allow
individual messages to be subdivided into smaller "packets" that
are then sent independently to the destination, and are then
automatically reassembled by the receiving computer.  While all
packets of a given message often travel along the same path to
the destination, if computers along the route become overloaded,
then packets can be re-routed to less loaded computers.
          10.  At the same time that ARPANET was maturing (it
subsequently ceased to exist), similar networks developed to link
universities, research facilities, businesses, and individuals
around the world.  These other formal or loose networks included
BITNET, CSNET, FIDONET, and USENET.  Eventually, each of these
networks (many of which overlapped) were themselves linked
together, allowing users of any computers linked to any one of
the networks to transmit communications to users of computers on
other networks.  It is this series of linked networks (themselves
linking computers and computer networks) that is today commonly
known as the Internet.
          11.  No single entity -- academic, corporate,
governmental, or non-profit -- administers the Internet.  It
exists and functions as a result of the fact that hundreds of
thousands of separate operators of computers and computer
networks independently decided to use common data transfer
protocols to exchange communications and information with other
computers (which in turn exchange communications and information
with still other computers).  There is no centralized storage
location, control point, or communications channel for the
Internet, and it would not be technically feasible for a single
entity to control all of the information conveyed on the
                How Individuals Access the Internet
          12.  Individuals have a wide variety of avenues to
access cyberspace in general, and the Internet in particular.  In
terms of physical access, there are two common methods to
establish an actual link to the Internet.  First, one can use a
computer or computer terminal that is directly (and usually
permanently) connected to a computer network that is itself
directly or indirectly connected to the Internet.  Second, one
can use a "personal computer" with a "modem" to connect over a
telephone line to a larger computer or computer network that is
itself directly or indirectly connected to the Internet.  As
detailed below, both direct and modem connections are made
available to people by a wide variety of academic, governmental,
or commercial entities.
          13.  Students, faculty, researchers, and others
affiliated with the vast majority of colleges and universities in
the United States can access the Internet through their
educational institutions.  Such access is often via direct
connection using computers located in campus libraries, offices,
or computer centers, or may be through telephone access using a
modem from a student's or professor's campus or off-campus
location.  Some colleges and universities install "ports" or
outlets for direct network connections in each dormitory room or
provide access via computers located in common areas in
dormitories.  Such access enables students and professors to use
information and content provided by the college or university
itself, and to use the vast amount of research resources and
other information available on the Internet worldwide.
          14.  Similarly, Internet resources and access are
sufficiently important to many corporations and other employers
that those employers link their office computer networks to the
Internet and provide employees with direct or modem access to the
office network (and thus to the Internet).  Such access might be
used by, for example, a corporation involved in scientific or
medical research or manufacturing to enable corporate employees
to exchange information and ideas with academic researchers in
their fields.
          15.  Those who lack access to the Internet through
their schools or employers still have a variety of ways they can
access the Internet.  Many communities across the country have
established "free-nets" or community networks to provide their
citizens with a local link to the Internet (and to provide local-
oriented content and discussion groups).  The first such
community network, the Cleveland Free-Net Community Computer
System, was established in 1986, and free-nets now exist in
scores of communities as diverse as Richmond, Virginia,
Tallahassee, Florida, Seattle, Washington, and San Diego,
California.  Individuals typically can access free-nets at little
or no cost via modem connection or by using computers available
in community buildings.  Free-nets are often operated by a local
library, educational institution, or non-profit community group.
          16.  Individuals can also access the Internet through
many local libraries.  Libraries often offer patrons use of
computers that are linked to the Internet.  In addition, some
libraries offer telephone modem access to the libraries'
computers, which are themselves connected to the Internet.