Schnader Harrison Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, Pennsylvania 19103
(215) 751-2162
Of Counsel.

The decision below correctly held that provisions of the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. § 223(a) & (d), as amended,1 that criminalize "indecent" and "patently offensive" speech on the international computer network known as the Internet impermissibly infringe rights of communication under the First Amendment and must be enjoined from enforcement. If not enjoined, the statute will deprive both adults and minors of information that is essential to their health and well-being. The statute is unconstitutionally overbroad in criminalizing non-obscene speech that has any connection with sexual topics, despite the fact that the speech possesses serious literary, artistic, political, or scientific value and is protected by the First and Fifth Amendments.

[P. 2]


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Amici are a diverse group of 25 individuals and organizations that use the Internet, and include Internet service providers ("ISPs"), over whose lines speech targeted by the CDA is carried; individuals and organizations who place on the Internet speech and other forms of expression on wide-ranging subjects; individuals and organizations that access the Internet to receive speech on diverse topics; and others who require and believe firmly in freedom of expression in connection with their use of the Internet. Many are individuals for whom the Internet provides an unprecedented opportunity to publish and disseminate speech on issues that they consider important. Some are educators who use the Internet for both teaching and research. A complete list of amici, with descriptions of their use of the Internet, their interest in this litigation, and the impact that the CDA has had (and would continue to have if enforced) on their varying uses of the Internet, is set forth in a more detailed Statement of Interest of Amici Curiae that is appended to this brief. All parties have consented to the filing of this brief, and letters of consent are being lodged with the Clerk.

Amici have the unique ability in this litigation to illustrate one of the fatal flaws in the CDA: its broad sweep that is the antithesis of a narrowly tailored infringement on protected speech. As users of the Internet, amici are directly affected by the deterrence of speech that the CDA's overbreadth causes. In some cases, amici are deterred themselves from engaging in speech because of fear of prosecution under the statute. In other cases, amici are deprived of important information because the statute's deterrent effect causes others to make information unavailable. In either event, the CDA impermissibly infringes amici's rights of communication.



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Great and emerging works of art and literature. Life-saving and life-enriching medical information. Social exchange and personal interaction. Expressions of opinion on issues of politics and societal concern. Journalistic reporting. Education on a wide variety of issues. - To some extent, the CDA potentially criminalizes all of these things. It makes unlawful the transmission of any not-otherwise-defined "indecent" communication (§ 223(a)(1)(B)) and the sending or display of any description of certain body parts that is "patently offensive as measured by contemporary community standards" (§ 223(d)). Those terms embrace much that is not obscene or pornographic, is not harmful to minors, and is protected expression under the First Amendment. For that simple reason, the CDA fails the overbreadth test. It is not narrowly tailored to achieve its stated objective of protecting minors.

Appellees, whom amici support, do not challenge any of the CDA's proscriptions against speech that is obscene or otherwise outside the scope of the First Amendment's protections. By definition, then, this action challenges only the CDA's prohibition of speech that is constitutionally protected. A statute is constitutionally overbroad if it presents a genuine likelihood that it will prohibit a substantial amount of speech that is beyond its permissible application. See Massachusetts v. Oakes, 491 U.S. 576 (1989); Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987); Schad v. Mount Ephraim, 452 U.S. 61 (1981). Because the speech placed on the Internet by amici and by appellees is protected speech under the First Amendment, the court below correctly held (929 F. Supp. at 851, 858, 867 n.2) - and the Government's brief does not appear seriously to contest - that the CDA's content-based criminal prohibition on that speech must be subjected to strict scrutiny. Whatever verbal [P. 5] formula is used to describe this applicable standard, the CDA must be narrowly tailored to achieve its stated justification, no matter how compelling that justification may be, or, stated differently, must be the least restrictive alternative restriction on speech that will satisfy that objective. Denver Area Educational Telecommunications Consortium v. FCC, 518 U.S. __, 116 S. Ct. 2374, 2391-92 (1996).

This Court has held that an ordinance that prohibited the display of nudity at drive-in theaters but included in its sweep non-obscene films protected by the First Amendment was unconstitutionally overbroad. See Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). The Court observed that while "[m]uch that we encounter offends our esthetic, if not our political and moral, sensibilities," nevertheless "the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer." 422 U.S. at 210. The Court noted that the Jacksonville ordinance, like the CDA here, discriminated among movies "solely on the basis of content," id. at 211, and that its effect would be "to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational." Id. Rejecting arguments that protection of minors warranted the sweeping content-based prohibition in Erznoznik, the Court observed that minors themselves have a significant First Amendment right to receive speech and that this right is infringed by a law that "sweepingly forbids the display of all films containing any uncovered buttocks or breasts, irrespective of content or pervasiveness." Id. at 213.
The Court added:

Thus [the ordinance] would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit news- reel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is [P. 6] neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

Id. at 213-14 (citation and footnote omitted). The Court's characterization of the Jacksonville ordinance could apply just as well to the CDA.

In enacting the CDA, Congress failed to recognize and provide for the First Amendment protection enjoyed by speech that has serious social, political, literary, artistic, medical, or educational merit.
"Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power." Denver Area, 116 S. Ct. at 2416 (separate opinion of Kennedy, J.). But by ignoring the redeeming qualities of the speech, the CDA criminalizes all speech that might be viewed as "indecent" or "patently offensive as measured by contemporary community standards" in the hands of children, regardless of the value that the speech may have for children (particularly adolescents). And it utterly disregards the value of this speech to adults. The Government itself admits (Govt. Br. at 17-18) that "[t]here may be borderline cases in which it is difficult to determine on which side of the line particular material falls."2 The CDA's sweep renders it unconstitutionally
overbroad. "Quarantining the general [Internet] public against [transmissions] not too rugged for grown men and women in order to shield juvenile innocence . . . is to burn the house to roast the pig." Butler v. Michigan, 352 U.S. 380, 383 (1957). See Sable Communications v. FCC, 492 U.S.
115 (1989).

[P. 7]


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A. The CDA Is Overbroad in Banning Speech of Content Providers.

The overbreadth of the CDA is best demonstrated by the speech that the amici content providers and others situated similarly to them regularly place on the Internet and that is endangered under the CDA's proscriptions. In contrast to the "ocean" of "pornography" postulated by the Government and its supporting amici (Br. of Amici Enough Is Enough, et al., at 7), the affected speech deals with medical information about subjects ranging from cancer detection to AIDS; depictions of artwork, ranging from established masterpieces in recognized museums to avant garde works in less renowned galleries; literary works ranging from classic novels and poetry to new compositions; speech on social and political issues ranging from sexual abuse to human rights; news reporting on all of these issues; and educational materials of similar scope. The speech ranges from the generally (although by no means universally) acceptable, to that which is less in the mainstream - though no less valuable. Under the CDA, all of it is criminalized.


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Medical Information on the Internet.

Medical information is widely available on the Internet. It includes descriptions and depictions of sexual and excretory activities and organs that in some "communities" may well be considered "patently offensive," or that some might consider "indecent," but which unquestionably have medical, scientific, social, and educational value. Some sites discuss the onset of puberty. Others discuss sexually transmitted diseases and means to avoid their transmission - an issue of obvious importance to youth and adults alike in today's world. Other topics include prostate cancer and surgery; testicular cancer and preventive self-examination; breast cancer and preventive self-examination; breast reconstruction after a mastectomy; breast feeding; childbirth; and sex during pregnancy. Discussion of these subjects necessarily entails frank and even graphic descriptions [P. 8] that are within the CDA's scope despite their high social, medical, and scientific importance.3


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Artwork on the Internet.

With increasing frequency, art institutions are placing home pages on the Internet. Museums have created Web sites or home pages not only to discuss their exhibits and provide a cyberspace forum for art aficionados, but also to display art on the Internet. The overbreadth of the CDA's "indecent" and "patently offensive" prohibitions ensures that the subjective opinions forming the basis of art appreciation now must take a back seat to concerns about what the government or certain unspecified "communities" may deem unacceptable.
The numerous art galleries, museums, and other art institutions on the Internet include the Metropolitan Museum of Art, Whitney Museum of American Art, Smithsonian Institution, and the Vatican Museum. Frequently, their sites provide descriptions of their galleries with links to some of the images displayed there and guided tours through some of the collections.

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Literature on the Internet.

Like art, literature is particularly susceptible to differences in interpretation. That is as true on the Internet as it is on bound pages. The CDA's overbreadth fails to acknowledge that one [P. 17] Internet user's literature is another's "indecent" or "patently offensive" communication.
Communities throughout the United States have on occasion banned classic literature from libraries, purportedly for being harmful to minors. See, e.g., Dist. Ct. Br. of Pl. Amer. Library Assn. in Support of Mo. for Prelim. Inj., Ex. 19, at Ex. O. The banned works include Whitman's Leaves of Grass, Joyce's Ulysses, Voltaire's Candide, and Chaucer's The Canterbury Tales, all of which are now on the Internet.


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Social and Political Discourse on the Internet.

Issues of social and political import are widely discussed on the Internet. Certain issues implicate topics of discussion that fall squarely within the overbroad language of the CDA, and yet are both vital to informed discourse in a democratic society and fully protected under the First Amendment. They include, but certainly are not limited to, sexual abuse and human rights issues.


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Journalism on the Internet.

The news media have gone online. Hundreds of news providers in the United States alone, ranging from daily newspapers to weekly news periodicals to broadcast news agencies, have placed home pages on the Internet. Countless more around the world have done so, and are accessible by computer users in this country. Some individuals and groups have created home pages to link these news sites together for ready access by Internet users eager to receive information on current events via computer, rather than the traditional print and broadcast media.

Information in news sites online contains a wealth of speech that inevitably will include speech considered by some to be "indecent" or "patently offensive." High on that list are reports or photographs regarding the various other subject areas that are discussed in this amicus brief. Medicine, art, literature, and social and political issues of all kinds are covered by the news media. The Internet coverage of them is no different


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Education on the Internet

The Internet is a powerful teaching and research tool. In universities, for example, professors use the Internet to supplement printed materials available to students, some of whom are minors, in order to offer more comprehensive treatment of facts and issues. The ready access to information made possible by the Internet, in addition to smaller local area networks within university communities, enhances the educational experience. Professors use the Internet not only to teach courses covering the subjects discussed in the foregoing sections of this brief - for example, medicine, anatomy, biology, art, social work, journalism, and human rights - but also courses on such issues as the social and psychological effects of pornography and the philosophical implications of cyberspace. This is accomplished by posting course materials on Web sites; transmitting, via e-mail, information located elsewhere on the Internet; encouraging students to explore the information available on the Internet in a particular subject area; and, in many cases, by a combination of all of these methods. And as discussed later in this brief, professors also utilize the Internet in their own research and to communicate and exchange information with their colleagues at other institutions. The CDA also stifles access to information available in libraries, including those affiliated with institutions of higher learning. "A library is a mighty resource in the free market place of ideas. It is specially dedicated to the broad dissemination of ideas. It is a forum for silent speech." Minarcini, 541 F.2d at 582-83 (citations omitted). Yet, while materials available in print form are fully accessible to minors and adults, the CDA prohibits the same access on the Internet. And, while a library has the freedom to choose what books and periodicals to include in its collection, so that it can identify and eliminate works it determines to be unsuitable, the CDA prevents it from relying on its own judgment of what Internet sites its users may access. By making access to the Internet available to minors, a library or individual librarian now risks prosecution under the CDA.


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B. The CDA Also Is Overbroad in Banning Speech Sought by Content Recipients.

It is not only speakers on the Internet who feel the chill posed by the CDA. The millions who access speech on the Internet feel it as well. They do not open themselves up to criminal prosecution, as do content providers (although, if they download the content into e-mail messages to minors or otherwise disseminate questionable content so that it may reach a minor, they risk becoming content providers themselves). But they are deprived of access to speech with serious redeeming merit which they are entitled to receive under the First Amendment.

The CDA, particularly because it poses the harsh sanction of criminal prosecution, decreases the likelihood that in the future there will be speech on the Internet that these amici can view and use for undeniably legitimate purposes. In this way as well, the CDA is unconstitutionally overbroad.


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Each day, the Internet carries a vast array of speech having serious social, political, literary, artistic, medical, and educational merit. The CDA criminalizes much of this valuable [P. 3] and
constitutionally protected speech in a broad sweep that is not narrowly tailored to achieve its stated justification. In so doing, it chills the current and future speech of those who use the Internet. The amici curiae who submit this brief represent only a small fraction of the Internet speakers touched by the CDA's chill. The statute cannot achieve its stated ends without simultaneously inhibiting or prohibiting amici's constitutionally protected and socially valuable speech.


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The terms "indecent" in Section 223(a)(1)(B) of the statute and "patently offensive as measured by contemporary community standards" in Section 223(d) encompass speech by and to amici that has independent value for both adults and minors. By bringing such speech within its scope and chilling its dissemination, the CDA is unconstitutionally overbroad. The three-judge panel below correctly so held. See American Civil Liberties Union v. Reno, 929 F. Supp. 824, 854-57 (E.D. Pa. 1996).

In illustrating this overbreadth, amici do not advocate access by all minors to all forms of expression on the Internet. Amici recognize, for example, that some valuable and protected speech that is appropriate for older teenagers may not be appropriate for elementary school children, and that some speech, while appropriate and even necessary for adults to express and to hear, may not be appropriate for minors under the age of 18. But as demonstrated by examples throughout this brief, the CDA fails to take these gradations into account, thus reducing all speech on the Internet to that appropriate for elementary school children. In the process, the CDA not only criminalizes protected speech, but also deprives parents of the freedom and responsibility to choose what their own children will access on the Internet. Parents understand their own children's maturity levels, life experiences, and needs to receive different types of speech far better than the government ever can, and, as appellees' briefs explain in detail, computer technology now has the ability to permit parents to make those selections for themselves. Accordingly, the CDA's censorship of all speech that the government deems "indecent" or "patently offensive" for minors is intolerable under the First Amendment.


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Maggie LaNoue authors a Web site called NewsBoy, which provides links to hundreds of world news sites on the Web. See http://www.newsboy.com/ (Exhibit 41). The NewsBoy site allows users to go to news of state, national, and international news services online. It carries links to such nationally syndicated news sources as Time Magazine, The Wall Street Journal, ABC News, and CNN. There also are links to ElectNet, a site which carries election news in each of the fifty states, and to the U.S. Community Page Index out of Massachusetts, a network that itself links to over 1,000 American newspapers.
NewsBoy also carries links to such international news sources as the OneWorld News Service out of the United Kingdom and "Daily News: Just the Links," a Web site out of the Netherlands that links users to more than 200 media organizations worldwide. Many of the sites to which NewsBoy provides links have RealAudio clips. Ms. LaNoue plans in the future to add to NewsBoy additional features, including an index of news sources online in all fifty states, including state-by-state weather and sports.

The news sources to which NewsBoy provides links may include descriptions or depictions that some might deem "indecent" or "patently offensive," particularly depending upon the individual community standards to be applied. Ms. LaNoue can neither identify such material nor edit sources to delete such [Statement of Interest, P. 8] material. The list of NewsBoy links is so extensive that she cannot even visit them all, let alone monitor them regularly. She is concerned that under the CDA she could be held responsible and criminally prosecuted for providing these links. The user-friendly NewsBoy site may no longer be able to provide this wealth of news access to computer users if the author may be held responsible for all the content of the links.

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Peter J. Swanson is a Ph.D. candidate in Electrical Engineering and Computer Science at the University of Michigan and a member of the University's Advanced Technology Laboratory. He authors a Web site that includes a page dedicated to a discussion of United States v. Baker, 890 F. Supp. 1375 (E.D. Mich. 1995). See http://ai.eecs.umich.edu/people/pjswan/ (Exhibit 48).

The Baker case concerned a United States prosecution under 18 U.S.C. § 875(c) for threats transmitted via e-mail over the Internet, including stories written by the defendant, a student at the University of Michigan. The Baker Web page is typically accessed by scholars interested in the legal and social implications of the case and by students of philosophy and composition who use the case as a discussion topic. While the stories and e-mail messages themselves are unquestionably offensive, they are so central to an understanding of the case that the United States District Court for the Eastern District of Michigan quoted them extensively in its opinion dismissing the indictment. See Baker, 890 F. Supp. at 1387-90. The text of that opinion is reproduced on Mr. Swanson's Web page. See Exhibit 48. However, since enactment of the CDA, Mr. Swanson has felt compelled to remove from that page the full text of the stories, despite his conviction that it is important to the public interest for those interested in the controversy to understand its underpinnings. See id. Fear of the strongpenalties imposed by the CDA also has forced him to refuse legitimate requests for the material by some who access the Baker page because he is unable to confirm the age of the requesters - a problem exacerbated by the fact that he is part of a university system attended by minors.

For the foregoing reasons, amici curiae urge the Court to affirm the decision of the three-judge panel that preliminarily enjoined enforcement of the Communications Decency Act of 1996, and to declare the Act unconstitutional.
Respectfully submitted,

James D. Crawford
Carl A. Solano
Theresa E. Loscalzo
Jennifer DuFault James
Joseph T. Lukens
   Attorneys for Amici Curiae

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For more information, see the entire brief (over 300K) from Schnader Harrison Segal & Lewis

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