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Tuesday, October 14, 1997

ApolloMedia v. Reno
Plaintiff's Reply Memorandum in Support of Motion for Preliminary Injunction

William Bennett Turner (State Bar No. 48801)
Rogers, Joseph, O'Donnell & Quinn
311 California Street, 10th Floor
San Francisco, CA 94104
Telephone: (415) 956-2828

Michael Traynor (State Bar No. 31474)
Tsan Merritt-Poree (State Bar No. 183753)
Cooley Godward LLP
One Maritime Plaza
San Francisco, CA 94111

Attorneys for Plaintiff






JANET RENO, Attorney General of
the United States,


Case No. C 97-346 MMC


Hearing: October 20, 1997
Time: 3.00PM
Ceremonial Courtroom (Three-Judge Court)


Page No.







A. The government's "construction" of the statute conflicts with its plain language, with Pacifica Foundation v. FCC, and with Reno v. ACLU 6

B. Defendant's contention that the meaning of § 223's terms is "settled" is not persuasive and conflicts with Pacifica Foundation and Reno v. ACLU 8

C. The structure and terms of § 223 preclude the construction proposed by defendant Reno in this case 10

D. Congress did not intend to limit § 223 to obscenity 12

E. The statutory history shows that § 223(a)(1)(A) is not limited to Miller obscenity 14





The government's entire Opposition to the motion is that Congress enacted a statute that does not mean what it says. The government does not even attempt to defend the constitutionality of 47 U.S.C. § 223(a)(1)(A) as written. Instead, it now contends that the statutory prohibitions of communications that are "obscene, lewd, lascivious, filthy, or indecent," expressed disjunctively, criminalize only communications that are "obscene" as defined by Miller v. California, 413 U.S. 15 (1973). In other words, says the government, the statute does not prohibit "indecent" communications at all, whether or not they are made "with intent to annoy" another person.

But this is not the Communications "Obscenity" Act; it is the Communications Decency Act. The government's position is a last-minute tactic designed to avoid a determination that the statute violates the First Amendment. As will be seen, the government's position is inconsistent with everything it did in this litigation up until the moment when it had to defend the statute as written. It also is inconsistent with FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Reno v. ACLU, 117 S. Ct. 2329 (1997). It is inconsistent with the position the government has maintained for decades regarding prohibition of "indecent" speech. It is inconsistent with the legislative history of the Communications Decency Act. The government's new "construction" of § 223 would make it entirely redundant of existing federal obscenity statutes. It also would render the "intent to annoy" provision surplussage. Finally, it would give "indecent" different meaning in one subsection than the very same term has in different subsections of the very same statute, including the subsections struck down in Reno v. ACLU.

Plaintiff fears that defendant's construction of the statute is incorrect. Defendant does not offer to submit to a judgment with full preclusive effect. She does not even contend that the government would be estopped from changing its position. Nor does she contend that federal prosecutors throughout the country are barred by defendant's filing a brief in this case from prosecuting plaintiff or any other Internet speaker for "indecent" communications "with intent to annoy." The facial prohibition of "indecent" speech should not be allowed to stand without judicial condemnation. Plaintiff is entitled to a preliminary injunction or, at a minimum, to a declaratory judgment declaring that § 223 cannot constitutionally be invoked to prosecute "indecent" communications.


Plaintiff served and filed its complaint and motion for preliminary injunction on January 30, 1997. On January 31, the Court entered an order finding that plaintiff's allegations "support standing to bring suit over the challenged provisions of [47] U.S.C. § 223(a)." The Court specifically noted that:

Plaintiff alleges both that it transmits and receives material over the Internet that some may consider indecent, and that plaintiff knowingly permits its members to do the same. Compl., ¶ 7. Transmission and knowingly permitting the transmission of indecent material is expressly proscribed by the statute and is punishable as a criminal offense. 'When a plaintiff seeks to engage in conduct proscribed by statute and a credible threat of prosecution exists, he need not "expose himself to actual arrest and prosecution to be entitled to challenge [the] statute . . . ."' [citations omitted]

The Court, "having determined plaintiff's complaint satisfies the requirements of § 561(a) of the Act," proceeded to convene a three-judge court to determine the merits of whether § 223(a)(1)(A)'s "indecency" prohibition is consistent with the First Amendment. Id. at p. 3.

The government did not protest that the Court had misread the statute as reaching ""indecent" speech. Instead, the government requested and obtained extensions of time to respond, never hinting that it considered § 223(a)(1)(A) as limited to Miller obscenity. On March 28, 1997, defendant served an Answer to all of the allegations of the Complaint -- which deal only with "indecent" speech -- never suggesting that the statute is limited to obscenity. Defendant requested that the case be held in abeyance pending the decision in Reno v. ACLU, a case in which, like this one, the plaintiffs elected not to challenge the prohibition of obscenity. On June 20, the government served voluminous interrogatories and document requests (attached as Exhibits 1 and 2 to defendant's Opposition to the instant motion). This discovery, subjecting plaintiff to considerable nuisance and expense, was totally unnecessary if § 223 is limited to obscenity.

When plaintiff's counsel inquired about exposure to criminal prosecution by responding to the government's discovery, defendant responded with a letter dated July 17, taking the position that any Fifth Amendment privilege had been waived by submitting the Fein declaration filed with the Complaint -- a declaration in which Mr. Fein discussed plaintiff's desire to communicate "indecent, annoying" messages. (Defendant's letter is attached as Exhibit A to the accompanying declaration of William Bennett Turner.) Defendant's letter did not mention that, under the government's new construction of the statute, Mr. Fein could not in fact be prosecuted.

Indeed, the government repeatedly insisted, in the Stipulation and Order of April 4, 1997 (paras. 2, 3), on its power to prosecute plaintiff for violations -- explicitly for "indecent" communications -- of the very § 223 that it now claims plaintiff cannot be prosecuted under.

Just days before filing its response to plaintiff's motion, the government was negotiating an agreement that one of its two experts (hired at taxpayer expense to help defend this action) could visit the annoy.com web site for the purpose of sending a digital postcard, copies of which had already been provided in discovery. Turner decl., para. 3. No expert and no discovery was required, of course, if the statute prohibited only obscenity, a prohibition not challenged in this case.

Defendant has failed to respond to plaintiff's proposal that she stipulate to a declaratory judgment providing that plaintiff cannot be prosecuted for "indecent" communications. Turner decl., para. 4 and Exh. B.

In short, it is apparent that the government's "construction" of § 223 was purely a last-minute change of litigation tactics, a recognition that the constitutionality of the statute could not be defended as written. This attempt to manipulate the outcome cannot be allowed to deprive plaintiff of declaratory and injunctive relief.


The relevant facts concerning plaintiff's communications are set forth in plaintiff's Memorandum in Support of Motion for Preliminary Injunction, at pp. 2-3, based on the declaration of Clinton Fein. They also are established by plaintiff's responses to defendant's Interrogatories and defendant's Request for Production of Documents, which are Exhibits 1 and 2 to defendant's Opposition to the motion. Additional facts concerning the nature and operations of the Internet are contained in the findings of fact in Reno v. ACLU; plaintiff requested that the Court take judicial notice of them./ Finally, to round out the factual picture, plaintiff submits herewith a supplemental declaration of Clinton Fein and a declaration of William Bennett Turner.





The government does not contend, nor could it, that plaintiff lacks standing to challenge § 223(a)(1)(A) as written. That is, the government does not assert that plaintiff could not be prosecuted if the statute covers "indecent" material. Rather, defendant's "standing" argument depends entirely on its "construction" of the statute as covering only Miller obscenity, an argument addressed in point II, infra.

The Court already has found that plaintiff has standing in this case because "it transmits and receives material over the Internet that some may consider indecent, and ... knowingly permits its members to do the same....Transmission and knowingly permitting the transmission of indecent material is expressly proscribed by the statute and is punishable as a criminal offense." Order of January 31, 1997, at p. 2./ Plaintiff unquestionably has standing to challenge the constitutional validity of § 223(a)(1)(A)'s prohibition of "indecent" communications.



Plaintiff anticipated that the government might ask the Court to come up with a narrowing interpretation of the statute that would save it from unconstitutionality. See Plaintiff's Memorandum in Support of Mot. for Prelim. Inj., at pp. 9-13. Defendant, however, expressly disavows any need for a saving construction. See Defendant's Opposition to Mot. for Prelim. Inj. ("Def.Opp.") at p. 15, n.16. Instead, defendant argues that § 223's prohibitions have always been limited to obscenity within the definition of Miller. For the reasons stated in plaintiff's previous Memorandum and below, the government cannot so easily avoid a judicial determination of the unconstitutionality of criminalizing "indecent" communications "with intent to annoy" others.

The heart of the government's argument is its assertion that the meaning of the "string" of statutory prohibitions is "settled," and that, specifically, "indecent" means nothing more or different than "obscene" as defined in Miller. There are several reasons for not accepting this assertion.

A. The government's "construction" of the statute conflicts with its plain language, with Pacifica Foundation v. FCC, and with Reno v. ACLU


The statutory terms, specifically "obscene" and "indecent," are not synonyms. As legal terms, they have recognized and quite different meanings. For example, "prurient appeal" is an element of obscenity, but indecency merely refers to "nonconformance with accepted standards of morality." Pacifica Foundation v. FCC, 438 U.S. 726, 740-41 (1978); see Reno v. ACLU, supra, 117 S. Ct. at 2345-46 (discussing legal differences between obscene speech and indecent speech); Denver Area Educational Telecommunications Consortium v. FCC, 116 S. Ct. 2374, 2389-90 (1996) (same). Further, the prohibitions are expressed in the disjunctive -- "obscene...or indecent." As in Pacifica Foundation, "the words obscene, indecent or profane are written in the disjunctive, implying that each has a separate meaning." 438 U.S. at 739-40. See Reno v. ACLU, 117 S. Ct. at 2350-51 (construing "obscene or indecent" in § 223(a)(1)(B) to give each separate meaning).

To read § 223 as the government now proposes would rob each of the terms other than "obscene" of all independent meaning. This violates the rule that the courts must read a statute "with the assumption that Congress intended each of its terms to have meaning" and that "a legislature is presumed to have used no superfluous words." Bailey v. United States, 116 S. Ct. 501, 506-07 (1995) (emphasis added) (quoting Platt v. Union Pacific R.R. Co., 99 U.S. 48, 58 (1879)). This statement of the rule is taken verbatim from the brief recently filed by defendant Reno in another case in this District by lawyers in the very same office of the Justice Department./ It is apparent that the government is speaking with a forked tongue, urging different courts to read statutes differently to suit the outcomes desired by the government.

Moreover, if § 223 is limited to obscenity and none of its other terms has any independent meaning, the statute is redundant of other federal laws criminalizing the communication of obscenity by computer, like 18 U.S.C. § 1465. See United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S. Ct. 74 (1996)(affirming conviction under § 1465 for communicating obscene material by computer over telephone wires). No statute should be interpreted so as to render it redundant. In Finley v. NEA, 100 F.3d 671 (9th Cir. 1996), for example, the Ninth Circuit rejected the government's attempt -- remarkably similar to the attempt in this case -- to interpret a "decency" statute as merely proscribing "obscene" art, pointing out that "the proposed construction would render redundant a separate prohibition against funding projects determined to be obscene." 100 F.3d at 678.

The government does not suggest what legislative purpose would be served by reading everything but "obscene" out of § 223(a)(1)(A). Since it would render the provision superfluous, adding nothing whatever to existing federal obscenity laws like 18 U.S.C. § 1465, adopting the government's "construction" would frustrate the manifest Congressional intent to restrict "indecency" on the Internet through the Communications Decency Act.

B. Defendant's contention that the meaning of § 223's terms is "settled" is not persuasive and conflicts with Pacifica Foundation and Reno v. ACLU


None of the four cases on which the government relies for its entire contention involved this statute, § 223, and none of them involved the issue that the government claims is "settled" by the cases. In fact, none of them involved precisely the same "string" of statutory terms as in § 223: the terms were slightly to significantly different from the terms of § 223. Roth v. United States, 354 U.S. 476 (1957), which predated Miller by 16 years, involved 18 U.S.C. § 1465. There was no contention in Roth that any of the various terms had different meanings from obscenity. The only issue in Roth was whether obscene speech, however defined, enjoyed First Amendment protection. Similarly, Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), decided eleven years before Miller, involved 18 U.S.C. § 1461. There was no issue whether any of the statutory terms had separate meaning; the issue was whether appeal to the prurient interest was "the sole test of obscenity." 370 U.S. at 486. United States v. 12,200-Ft. Reels of Film, 413 U.S. 123 (1973), involved 19 U.S.C. § 1305(a)'s provision concerning "obscene or immoral" matter; there was no "indecent" term at all. As in the other cases, there was no issue in 12,000-Ft. Reels of whether the statutory terms had different meanings.

Finally, as plaintiff acknowledged in its initial Memorandum (at pp. 9-10), Hamling v. United States, 418 U.S. 87 (1974), did say that the terms of 18 U.S.C. § 1461 would be treated the same as Miller obscenity, but there was no issue in the case whether any of the various terms had separate meaning.

The government cannot disguise the fact that Pacifica Foundation v. FCC is completely inconsistent with its theory of this case. When asked in Pacifica to construe 18 U.S.C. § 1464's prohibition of "obscene, indecent, or profane" communications as limited to obscenity -- precisely as the government demands that the Court do here -- the Supreme Court held that the "reasons supporting Hamling's construction of § 1461 do not apply" to the communications statute. 438 U.S. at 741. The "string" in § 1464 cannot meaningfully be distinguished from the "string" in any of the cases relied on by the government./ Nor can "indecent" in § 223(a)(1)(A) be distinguished from the meaning given the same term in § 223(a)(1)(B) by Reno v. ACLU. Accordingly, "indecent" in § 223 has not been determined to mean "obscene."/

C. The structure and terms of § 223 preclude the construction proposed by defendant Reno in this case


Defendant's four cases may still govern the statutes that they interpreted, but they do not, and could not, govern § 223. See Pacifica, Reno, supra. Section 223 treats obscenity and indecency as distinctly different categories of speech. Thus, § 223(a)(1)(B) proscribes "obscene or indecent" communications to minors. The Supreme Court in Reno v. ACLU held that the "indecency" prohibition violated the First Amendment, but severed the "obscenity" prohibition which, as in the instant case, the plaintiffs had not challenged. 117 S. Ct. at 2350-51. As is abundantly clear from the ACLU opinion, the government vigorously argued, and the Court agreed, that "indecent" speech is a much broader and different category speech than "obscenity." In ACLU, the government argued that "the CDA's definition of indecency is almost identical to the definition" in Denver Area Educational Telecommunications Consortium v. FCC, supra, 116 S. Ct. 2374. Brief for the Appellants, p. 43 (Exh. D to Turner decl.). It would be absurd to ascribe different meaning to the term "indecent" in § 223(a)(1)(A) than to the very same term in § 223(a)(1)(B).

Similarly, § 223(b) treats "obscene" telephone communications as entirely distinct from "indecent" telephone communications. Subsection (b)(1), regarding obscene communications, carries significantly more severe penal consequences than Subsection (b)(2), regarding merely indecent communications; in addition, the indecency prohibition is subject to safe harbor defenses necessary to its constitutionality. The Supreme Court held that the previous version of Subsection (b)(2) violated the First Amendment by prohibiting indecent communications (which are constitutionally protected among adults), but the Court upheld the prohibition of obscene communications (which are unprotected). Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989). Again, it would be absurd to ascribe different meaning to the term "indecent" in Subsection (a)(1)(A) of § 223 than to the very same term in Subsection (b)./

Further, there is more in Subsection (a)(1)(A) itself than the "string" referred to by the government. Unlike the statutes in the cases relied on by the government, § 223(a) does not apply unless the defendant has the "intent to annoy, abuse, threaten, or harass another person." But if the statute were limited to "obscene" communications, as the government now proposes, the intent to annoy requirement would be entirely surplussage: obscene communications can be proscribed regardless of such intent. Rendering such a crucial statutory provision unnecessary again violates established canons of statutory construction. E.g., Bailey v. United States, 116 S. Ct. 501, 506-07 (1995), and the other cases cited by the government in Exhibit C to the Turner decl. and note 3, supra.

Finally, the government's "construction" ignores the rest of the provisions of § 223(a)(1)(A). The statute does not criminalize a "work" that appeals to the "prurient interest" and lacks literary value, as in the Miller definition. Instead, it applies to a "comment," a "proposal" a "suggestion," or other "communication." It is difficult to see how a comment, a proposal or a suggestion could ever constitute an "obscene" work (like a book or a videotape) under Miller.

D. Congress did not intend to limit § 223 to obscenity


Congress did not pass the Communications "Obscenity" Act; it passed the Communications Decency Act, and Congress was well aware of the difference. Defendant asserts that the legislative history is "ambiguous." Def.Opp. at 18. It is not. Neither in the debate nor in the only Congressional report is there the slightest indication that § 223(a)(1)(A) was limited to obscenity. The only references to this provision unequivocally show that this provision was intended to reach far beyond obscenity.

On the Senate floor, no Senator even hinted that § 223(a)(1)(A) was limited to obscenity. After sponsor Exon explained the provisions of the Communications Decency Act (141 Cong. Rec. S8328)(daily ed. June 14, 1995), Senator Leahy pointed out that § 223(a)(1)(A) made it a felony "not only to send obscene messages" but also to use "indecent or filthy words" that may "annoy" another person. 141 Cong. Rec. S8331./ Senator Feingold then complained at length that "Senator Exon's bill would likely have a chilling effect on protected speech -- speech which may be perceived as indecent, but not obscene." 141 Cong. Rec. S8334, S8335 (emphasis added). Immediately following Senator Feingold's observation that "existing criminal statutes" already dealt with "the transmission of obscenity using interactive communications" (S8336),/ Senator Exon rose again, saying that he had been "listening with keen interest" to the points made by Senators Leahy and Feingold (S8337) and he wanted to "straighten out some of the concerns." S8339. But not once did he indicate in any way that Leahy and Feingold were misconstruing the bill. Then Senator Leahy repeated his point about § 223(a)(1)(A)'s reaching "an email message with an indecent or filthy word" that may "annoy" the recipient (S8340), and noted that existing laws already covered "obscenity transmitted over computer networks." S8341.

Sponsors Exon and Coats responded again, never disputing these points. S8344, S8345. Then Senator Biden complained that the bill reached "indecent speech [that] -- unlike obscenity -- is protected first amendment expression." S8345. Next, Senator Levin objected to § 223(a)(1)(A)'s prohibiting "a 'filthy comment' on the Internet which, in the words of the amendment, is intended to annoy." S8346. Senator Exon rose again and yielded back his time without disputing these points, whereupon the Senate immediately voted 84-16 to adopt the Exon bill. S8346-47.

The following day, Senator Moynihan complained that the bill was "too broad," covering "computer transmission of obscenity and indecency," and would "prohibit an individual from sending an annoying e-mail message." S8462 (daily ed. June 15, 1995). No senator disagreed with his point.

The only congressional report on the Communications Decency Act specifically adopts the broad FCC/ Pacifica/Sable definition of indecency. H.R. Cong. Rep. No. 104-458, at 188. See plaintiff's Memorandum in Support of Motion for Preliminary Injunction at 11-12. The government acknowledges that the FCC "had long interpreted section 1464 to extend to communications that are not obscene under Miller." Def.Opp. p. 14. In Reno v. ACLU, the government told the Supreme Court that in the Communications Decency Act, as shown by the Report, "Congress intended to codify the FCC's definition of indecency that was approved in Pacifica." Brief of the Appellants, p. 44 (Exh. D to Turner decl.)(emphasis added). Congress did not intend "indecent" in § 223 (a)(1)(A) to have a different meaning from the same term in all the other provisions of the Communications Decency Act.

E. The statutory history shows that § 223(a)(1)(A) is not limited to Miller obscenity


Nor does the evolution of the predecessor of § 223(a) demonstrate that Congress intended to limit it to Miller obscenity. Indeed, the statutory history demonstrates that there was no such intent. First, § 223 was originally enacted five years before Miller and six years before Hamling held that a similar (but not identical) "string" of terms would be deemed Miller obscenity. Second, nothing in legislative history shows an intent to limit the provision to obscenity. To the contrary, the House Report repeatedly refers to "obscene, abusive or harassing" telephone calls. H.R. No. 1109 (attached as Exh. F to Turner decl.)(emphasis added). The only concrete example of speech prohibited by § 223 is "calling families of men serving in Vietnam and falsely reporting the serviceman's death, or if death has in fact occurred, gloating over it." Id. at p. 1916. Whatever else this is, it is not Miller obscenity.

Third, the Department of Justice opposed the statute because, among other things, the term "annoy" "might well be unconstitutionally vague." Letter from Ramsey Clark, Deputy Attorney General, May 11, 1966, cited at Def.Opp. 15, n.15 and attached as Exh. G to Turner decl. The Department opposition said that there would "probably" be no problem with the terms "obscene," "lewd," "lascivious," "filthy" or "indecent," because Roth concluded that "they" are not unconstitutionally vague. Id. There was no suggestion that the terms meant the same thing, viz., "obscene" only.

Fourth, the cases that upheld the predecessor of § 223(a) did so because it was read to reach the conduct of making "harassing" calls, not Miller obscenity. See United States v. Lampley, 573 F.2d 783, 786-88 (3d Cir. 1978); cf. Thorne v. Bailey, 846 F.2d 241, 243, 244 (4th Cir.) (construing state statute "practically identical" to § 223), cert. denied, 488 U.S. 984 (1988); United States v. Darsey, 342 F. Supp. 311 (E.D. Pa. 1972). The decision in United States v. Darsey, 431 F.2d 964 (5th Cir. 1970), demonstrates that "obscene" phone calls by an angry estranged husband do not under § 223 have to meet the requirements for Miller obscenity. It does not appear that the government has ever heretofore contended that § 223 was limited to unprotected "obscene" speech.

Finally, the government notes that the predecessor was moved to subsection (a) to "make room" for the dial-a-porn provisions added as subsection (b) in 1983. Def.Opp. at p. 3. Those provisions, of course, prohibited "obscene or indecent" telephone communications. The government does not explain how Congress could have intended "indecent" in subsection (b) to mean something far broader and different than "indecent" in subsection (a).

In short, defendant's contention that § 223 is limited to speech that is "obscene" under Miller is not persuasive. As in Reno v. ACLU, the Court should decline to "dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn..." 117 S. Ct. at 2351 (quoting United States v. Treasury Employees Union, 513 U.S. 454, 479, n.26 (1995)). Adopting the government's "construction" to avoid declaring § 223 unconstitutional would present the same vice condemned by the Court in ACLU: "It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could rightfully be detained and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government." 117 S. Ct. at 2351 n.49, quoting United States v. Reese, 92 U.S. 214, 221 (1876). As in ACLU, the Court should not "rewrite" the statute to save it. Id.; accord, Finley v. NEA, supra, 100 F.3d at 678./



The government says in a footnote that if its new-found construction of the CDA is not adopted by the Court, it "reserves the right" to argue -- at some unspecified future time and place -- that § 223 is constitutional as written. Def.Opp. at 11, n.11. The Stipulation and Order of July 15, 1997, however, required defendant to file her "complete" response to plaintiff's motion by August 22. Accordingly, the government's opposition to the preliminary injunction must stand or fall on the record before the Court. If the government wishes to contend that the statute is constitutional and should not permanently be enjoined at the conclusion of this litigation, it may do so after the preliminary injunction is in place.

Inconsistently with its position that the statute reaches only obscenity, the government argues that a preliminary injunction against prosecuting plaintiff for merely "indecent" communications would impair the "public interest." Def.Opp. at 22. If the statute covers only obscenity, however, then granting an injunction against prosecuting plaintiff for "indecency" does not impair any public interest.

Defendant inexplicably asserts that a preliminary injunction would prevent enforcement of a statute "designed to protect the public from harassment." Id. (Emphasis added.) The government cannot have it both ways -- either the statute was designed only to protect against obscenity, in which case harassment or annoyance is irrelevant, or it was designed to cover everything comprehended by its plain language.

If further authority were required for the proposition that irreparable injury is presumed from a First Amendment violation, there is plenty of it. Among only 1997 cases, see Conant v. McCaffrey, 172 F.R.D. 681, 697 (N.D. Cal. 1997) (granting preliminary injunction); Nakatomi Investments, Inc. v. City of Schenectady, 949 F. Supp. 988, 991 (N.D.N.Y. 1997)("per se irreparable injury"); ACLU v. Miller, ___ F. Supp. ___ (N.D. Ga. 1997) (copy attached to Turner decl. as Exh. H); cf. American Library Ass'n v. Pataki, 969 F. Supp. 160, 167-68 (S.D.N.Y. 1997)(granting preliminary injunction on Commerce Clause grounds)./

Finally, both First Amendment values and the public interest would be disserved if the Court allowed § 223 to stand on the books untouched by judicial condemnation. It is unclear whether, by filing a brief in a federal district court, the government would be estopped from later changing its position. The government's position in this case contravenes the statute. On that ground alone, a court would lack authority to estop the government regardless of the equities. Office of Personnel Management v. Richmond, 496 U.S. 414, 432 (1990) ("we cannot accept the suggestion . . . that the terms of a statute should be ignored based on the facts of individual cases"); cf. Heckler v. Community Health Services, 467 U.S. 51, 60 (1984) (discussing estoppel against government). Indeed, in Richmond, the government urged that "the courts are without jurisdiction to compel the Government to act contrary to a statute, no matter what the context or circumstances." 496 U.S. at 423. See Brief for the Petitioner at 12-13, Richmond (no. 88-1943). Moreover the Department of Justice Manual states that "The general rule is that the federal government may not be equitably estopped from enforcing public laws, even though private parties may suffer hardships as a result in particular cases." 3 DOJ Manual § 4-8.700 (Aspen Law & Bus. 1997)./

In ACLU v. Reno, the government stated that even a submission by the Assistant Attorney General to a three-judge court interpreting the CDA "would not prohibit a United States Attorney from taking a contrary position in a particular prosecution." 929 F. Supp. at 878 n.20. Defendant does not assert that an obscure brief filed in one district court would be binding on United States Attorneys throughout the nation, barring all of them from prosecuting plaintiff or any other Internet speaker for communicating anything "indecent" with "intent to annoy."

Further, anyone reading the statute would have no clue that it did not mean what it says on its face./ Section 223 would chill and discourage a wide range of speech that enjoys constitutional protection. At a minimum, therefore, the Court should grant a declaratory judgment formally determining that § 223's prohibition of "indecent" speech cannot constitutionally be enforced./


A principled position by the government would be to submit to a judgment with preclusive effect, ruling out any prosecution for "indecent" speech, with or without the "intent to annoy." Instead, defendant attempts a desperate distortion of the statute to avoid a ruling of unconstitutionality. For the reasons stated in plaintiff's previous memorandum, plaintiff's Supplemental Memorandum on the effect of Reno v. ACLU, and above, the Court should squarely address the issue, grant the motion for a preliminary injunction, and, at the very least, grant a declaratory judgment to the effect that § 223 cannot constitutionally be invoked to prosecute "indecent" communications.


DATED: October 14, 1997 Respectfully submitted,


By: ______________________________________

William Bennett Turner


By: ______________________________________

Michael Traynor

Attorneys for Plaintiff


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