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Monday, December 7, 1998

ApolloMedia v. Reno
In the Supreme Court of the United States: Jurisdictional Statement

No. _________
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1998

_______________

APOLLOMEDIA CORPORATION, Appellant

v.

JANET RENO, Appellee

____________
On Appeal from the United States District Court for the Northern District of California

JURISDICTIONAL STATEMENT


William Bennett Turner
Rogers, Joseph, O'Donnell & Quinn
311 California Street, 10th Floor
San Francisco, California 94104
Telephone: (415) 956-2828

Counsel of Record

Michael Traynor
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111-3580
Telephone: (415) 693-2000

Attorneys for Appellant
ApolloMedia Corporation

QUESTION PRESENTED

A provision of the Communications Decency Act, 47 U.S.C.  223(a)(1)(A)(ii), makes it a felony to use a telecommunications device to communicate anything that is "obscene, lewd, lascivious, filthy or indecent, with intent to annoy, abuse, threaten, or harass another person." The question presented is whether the two-judge majority of the district court properly construed this provision as limited to "obscene" material as defined by Miller v. California, 413 U.S. 15 (1973), or whether the provision is facially unconstitutional because it punishes "indecent" speech as in Reno v. ACLU, 117 S. Ct. 2329 (1997).

TABLE OF CONTENTS

Page No.

QUESTION PRESENTED

OPINION BELOW

JURISDICTION

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT

A. Background
B. The District Court Decision

THE QUESTION IS SUBSTANTIAL

A. The district court's statutory interpretation does violence to the statutory text and context

1. Statutory text
2. Relationship to other terms of statute
3. Relationship to previously enacted laws
4. The cases said to compel the majority's interpretation
5. Origin and evolution of the statute
6. Legislative history

B. The statute as written is unconstitutional

CONCLUSION

 

OPINION BELOW

The opinion of the district court (App., infra, la-43a) is not yet reported.

JURISDICTION

The district court issued an order on September 23, 1998 (App. la-43a), denying appellant's motion for a preliminary injunction and dismissing the complaint. A notice of appeal to this Court (App. 44a) was filed on October 9, 1998. The Court's jurisdiction is invoked under 28 U.S.C.  1253, which provides:

Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.

Section 561 of the Communications Decency Act, Pub.L. 104-104, 110 Stat. 133 (1996), provides:

Expedited Review

(a) Three-Judge District Court Hearing.- Notwithstanding any other provision of law, any civil action challenging the constitutionality, on its face, of this title or any amendment made by this title, or any provision thereof, shall be heard by a district court of 3 judges convened pursuant to the provisions of section 2284 of title 28, United States Code.

(b) Appellate Review.-Notwithstanding any other provision of law, an interlocutory or final judgment, decree, or order of the court of 3 judges in an action under subsection (a) holding this title or an amendment made by this title, or any provision thereof, unconstitutional shall be reviewable as a matter of right by direct appeal to the Supreme Court. Any such appeal shall be filed not more than 20 days after entry of such judgment, decree, or order.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment to the Constitution of the United States provides, in relevant part: "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."

The Communications Decency Act, 47 U.S.C.  223(a)(1)(A)(ii) and 47 U.S.C.  223(a)(2), provides in relevant part:

(a) Whoever --

(1) in interstate or foreign communications --

(A) 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, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person;...or

(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.

STATEMENT

A. Background

  

Appellant ApolloMedia Corporation is a multimedia technology company located in San Francisco. App. 4a. Its business is entirely devoted to computer-mediated communications. It designs and constructs sites on the World Wide Web, and it implements Internet systems to deliver and manage information. ApolloMedia uses "telecommunications devices" (computers, modems and telephone lines)1/ to communicate "content" created by it and its clients and web site visitors. App. 4a-5a.

Appellant's web sites and some of its clients' web sites often communicate strong positions on public issues, using expression that may be considered "indecent" by some people in some communities. App. 5a. Its "annoy.com" web site (http://www.annoy.com) enables visitors to construct and send provocative email messages, anonymously, to various public officials and public figures, and transmits ApolloMedia's own and others' views on controversial matters. ApolloMedia communicates -- and "knowingly permits" its clients and visitors to its sites to communicate -- material that might be considered "indecent" in some communities.

Appellant brought this facial challenge to the constitutionality of 47 U.S.C.  223(a), filing its complaint and motion for preliminary injunction on January 30, 1997. App. 2a. On January 31, the district court entered an order finding that appellant'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.

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.

The government did not respond that the court had misread the statute as reaching "indecent" speech. Instead, the government requested and obtained extensions of time to answer the Complaint, not stating that it considered  223(a)(1)(A) limited to obscenity as defined by Miller v. California, 413 U.S. 15 (1973). On March 28, 1997, appellee Reno served an Answer to the allegations of the Complaint -- which deal only with "indecent" speech -- never suggesting that the statute is limited to obscenity. The Attorney General then requested that the case be held in abeyance pending this Court's decision in Reno v. ACLU, 117 S. Ct. 2329 (1997), a case in which, like this one, the plaintiffs challenged prohibitions of "indecent" online speech but not "obscene" speech.

In requesting delay pending the decision in Reno v. ACLU, the government repeatedly insisted, in a Stipulation and Order of April 4, 1997 (paras. 2, 3), on its power to prosecute appellant for violations -- explicitly for "indecent" communications -- of  223. As the district court noted, "the government has never relinquished its right to prosecute" ApolloMedia for "indecent" speech under  223(a)(1)(A). App. 10a. Nor did the government indicate "willingness to stipulate that ApolloMedia cannot be prosecuted under  223(a)(1)(A) to the extent that ApolloMedia engages in 'indecent' communication with an 'intent to annoy' the recipient." App. 10a, n.9.

After this Court decided Reno v. ACLU, the government filed its opposition to ApolloMedia's motion for a preliminary injunction, contending for the first time that  223(a) was limited to "obscene" material.

B. The District Court Decision

  

Upon appellant ApolloMedia's evidence that it uses "telecommunications devices" to engage in "indecent" communications with an "intent to annoy," and the government's insistence on its right to prosecute appellant for "indecent" communications, the district court found that appellant had standing to seek both declaratory and injunctive relief. App. 8a-14a.

The district court acknowledged that "Indecent speech which is not obscene falls within the protection of the First Amendment." App. 15a (maj. opin.); 36a (dissenting opin.). Attempting to construe the statute so as to avoid declaring it unconstitutional (id., 15a), the two-judge majority invoked four decisions, saying that Roth v. United States, 354 U.S. 476 (1957); Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962); Hamling v. United States, 418 U.S. 87 (1974); and United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), each limited a "string of words similar to that employed in  223(a)(1)(A)" to Miller obscenity. App. 18a, 21a.2/ Accordingly, the majority held that the meaning of  223(a)'s "string" of statutory prohibitions is "settled," and that, specifically, "indecent" means "obscene" as defined in Miller.

The district court majority said that the Court's decisions in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989), were distinguishable because they dealt with statutes designed to protect minors and were not, as  223(a) is, a "total ban" on "indecent" communications. App. 21a-23a.3/ Similarly, the majority concluded that "indecent" in  223(a)(1)(A) had a different meaning than "indecent" in both  223(a)(2) and  223(b), referring to the provisions involved in Reno v. ACLU and Sable Communications, because those provisions were intended to protect minors. App. 26a._ The majority also said that  223(a)(1)(A), construing it as limited to "obscene" matter, was not redundant of other federal obscenity statutes (18 U.S.C.  1462, 1465) because a "telecommunications device" as used in  223(a) is different from an "interactive computer service" as used in  1462, 1465. App. 31a.

Finally, the majority said that its construction of the statute did not render the "intent to annoy" provision surplusage because this provision made clear Congress's intent to ban the transmission of "obscene" materials only among "non-consenting adults." App. 34a. Accordingly, the majority concluded that  223(a)(1)(A) made criminal only "obscene" material and, since ApolloMedia did not challenge the prohibition of obscenity, its contention that the statute violates the First Amendment was rejected and its case dismissed. App. 35a.

Judge Illston dissented. App. 35a-43a._ She reasoned that "This is a criminal statute which applies to speech on the Internet, an international communication medium expected to have over 200 million users next year. Such a statute should mean exactly what it says, so that users will know what the rules are." App. 36a. Judge Illston concluded that this case should be governed by Reno v. ACLU, both in its treatment of "indecent" speech as different from "obscene" speech and in its determination that the criminal prohibition of "indecent" speech violates the First Amendment. App. 36a-39a, 42a-43a.

The majority's decision leaves ApolloMedia and other Internet users subject to prosecution for "indecent" communications anywhere outside the Northern District of California. ApolloMedia's communications are of course available to recipients in every state. Courts around the nation are free to disagree with the statutory interpretation rendered by two judges in one California district. At stake on this appeal is the right of appellant and all Internet users not to have to live under the uncertain cloud of a statute that on its face makes an "indecent" communication a felony.

THE QUESTION IS SUBSTANTIAL

The district court decided that under  223(a), "obscene, lewd, lascivious, filthy, or indecent" communications, with "intent to annoy, abuse, threaten, or harass another person," were limited to material deemed "obscene" under Miller v. California. In so construing the statute, the district court proceeded as if Congress had enacted the Communications "Obscenity" Act instead of the Communications Decency Act: its radical surgery deprived "indecent" of all significance in this statute.

The majority's creative exercise in statutory interpretation overrode the statutory text that Congress enacted. The majority also left behind disciplined methods of statutory interpretation, disregarding  223(a)'s context and relationship to the same "indecent" term in other provisions of the same statute, as well as its relationship to previously enacted laws. The district court's construction gave "indecent" in one provision of  223 different meaning than the same term has in two other provisions of the same statute. The court below disregarded the Congressional use of "indecent" in this very statute as construed in Reno v. ACLU and Sable Communications v. FCC, and this Court's construction of "indecent" in FCC v. Pacifica Foundation. The court misread the decisions said to have given "indecent" in other statutes a "settled" meaning of "obscene." The district court's construction rendered  223(a) redundant of other federal obscenity statutes. Finally, the court ignored the origin and history of  223(a) and the legislative history of the Communications Decency Act.

A. The district court's statutory interpretation does violence to the statutory text and context

  

1. Statutory text

  

The key statutory terms, "obscene" and "indecent," are not synonyms. As legal terms, they have recognized and quite different meanings. As the Court noted with regard to the other provisions of the Communications Decency Act, "As set forth by the statute, the restriction of 'obscene' material enjoys a textual manifestation separate from that for 'indecent' material . . ." Reno v. ACLU, 117 S. Ct. at 2350.

"Indecent" speech has been recognized as distinct from "obscene" materials at least since the FCC's "indecency" enforcement action considered in Pacifica Foundation v. FCC, 438 U.S. 726, 732 (1978); see Reno v. ACLU, 117 S. Ct. at 2345-46 (discussing the legal differences between obscene speech and indecent speech). In Denver Area Educational Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996), the Court discussed the regulation of "indecent" speech on cable television, expressly pointing out the differences from Miller obscenity (serious literary or other value and "nonprurient" purpose). 116 S. Ct. at 2389-90.4/ In National Endowment for the Arts v. Finley, 118 S. Ct. 2168 (1998), the Court maintained the distinction it has recognized in all recent cases between "indecent" and "obscene" speech, and it noted that Congress continues to make the same distinction. The Court referred to a separate provision of the NEA Act that denied federal funding for "obscenity," and the Court proceeded to consider the "indecency" provision as having independent significance. 118 S.Ct. at 2176. As all the cases recognize, "prurient appeal" and the lack of literary, political or other value are elements of obscenity. But speech may be deemed indecent if it does not conform to "accepted standards of morality" (Pacifica, 438 U.S. at 740-41), even if does not have prurient appeal and does have serious social value.5/

Further, the prohibitions in the statutory text of  223 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). Just as there was "no textual support" for the government's argument in ACLU that material with social value would not be deemed indecent (117 S. Ct. at 2349), there is no textual support for the district court's conclusion that indecent speech is limited to obscene material.

Reading  223 as the district court did robs all of the other terms of 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)).6/

 

2. Relationship to other terms of statute

  

There is more in the provision than the "string" referred to by the district court. Unlike the statutes in the cases relied on below,  223(a) does not apply unless the defendant has the "intent to annoy, abuse, threaten, or harass another person." But if the statute is limited to "obscene" communications, the intent to annoy requirement becomes surplusage: obscene communications can be proscribed regardless of such intent. Rendering such a crucial statutory provision superfluous also violates established rules of statutory construction. E.g., Bailey v. United States, supra, 116 S. Ct. at 506-07.7/

Section 223's several provisions treat obscenity and indecency as distinctly different categories of speech. Thus,  223(a)(1)(B) proscribes "obscene or indecent" communications to minors. The Court in Reno v. ACLU held that this "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."8/ 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 in No. 96-511, p. 43. It makes no sense 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. ( 223(a), by contrast, contains no safe harbor defenses.) This 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 makes no sense to ascribe different meaning to the term "indecent" in subsection (a)(1)(A) of  223 than to the very same term in subsection (b).

Still another provision of the Communications Decency Act maintains the Congressional distinction between obscene speech and indecent speech. Section 223(h)(1)(A) provides that the Act does not impose any new obligations on broadcast licensees or cable operators covered by other "obscenity and indecency" provisions. In other words, it is clear throughout the Act that Congress deliberately treated "indecent" speech as distinct from "obscene" speech.

 

3. Relationship to previously enacted laws

  

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. See, e.g., Freytag v. Commissioner, 501 U.S. 868, 877 (1991).9/

The district court did not suggest what legislative purpose is served by reading everything but "obscene" out of  223(a)(1)(A). Since it would render the provision superfluous, adding nothing to existing federal obscenity laws like 18 U.S.C.  1465, the district court's construction frustrates the manifest Congressional purpose to regulate "indecency" on the Internet through the Communications Decency Act.

 

4. The cases said to compel the majority's interpretation

 

None of the four cases on which the district court relied involved this statute,  223, and none of them involved the issue that the majority said is "settled" by the cases. In fact, none of them involved precisely the same "string" of statutory terms as in the law at issue here: the terms were slightly to significantly different from the terms of  223.10/ 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 hard core sexual 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 12 200-ft. Reels of whether the statutory terms had different meanings. 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.

FCC v. Pacifica Foundation is flatly inconsistent with the district court's treatment of these cases as "settling" the meaning of the various statutory terms. 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 asked the district court to do here -- this 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 district court. 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, or the meaning of the same term in  223(b) by Sable Communications. The four cases were decided before "indecent" was given a meaning distinct from "obscene" by the FCC, approved as a broadcast regulation in Pacifica and then used by Congress as a term of art with independent meaning in the provisions of  223 considered in Sable and ACLU v. Reno.

The four cases may still govern the statutes that they interpreted, but they do not, and could not, govern  223. Reno v. ACLU and Sable Communications do govern  223. Accordingly, "indecent" in  223 has not been determined to mean "obscene."

 

5. Origin and evolution of the statute

  

The statutory evolution of  223(a) also demonstrates that Congress did not intend to limit it to Miller obscenity. The statute was originally enacted five years before Miller. Nothing in the 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, 90th Cong., Feb. 27, 1968, reprinted in 1968 U.S. Code Congressional & Adm. News at 1915 (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 1916. Whatever else this may be, it is not Miller obscenity.

It is apparent that Congress meant to proscribe "obscene phone calls" in a colloquial sense, not technical Miller obscenity. That is, the statute dealt with "breather" calls and similar abusive conduct. The government has never before contended that  223 was limited to "obscene" speech. The cases in which lower courts upheld the predecessor of  223(a) did so because it was read to reach the conduct of making "harassing" telephone 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 963 (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. These "obscene phone call" cases dealt with "conduct and not protected speech." Thorne v. Bailey, supra, 846 F.2d at 243, 244 (statute "requires no inquiry into the content of the telephone conversation"); Gormley v. Director, Conn. State Dept. of Probation, 632 F.2d 938, 941 (2d Cir. 1980); United States v. Lampley, 573 F.2d 783 (3d Cir. 1978)(10-12 calls a week to married woman's home). The conduct of making repeated or "breather" calls was the offense, not the content of any communication.11/

When the Communications Decency Act broadened 223 beyond telephones to communications transmitted by computer, it restricted a medium that is significantly less intrusive than the telephone. A ringing telephone intrudes into private space and carries the ability to harass or annoy even if no content is communicated, especially when the calls are repeated or come in the middle of the night. But computer communications are silent and, importantly, they are read only if the recipient chooses to read them. Accordingly, the government interest in protecting individuals from abuse by telephone does not necessarily apply to content communicated by computer.

 

6. Legislative history

  

Congress did not enact the Communications "Obscenity" Act; it enacted the Communications Decency Act, and Congress was well aware of the difference. The legislative history does not disclose the slightest indication that  223(a)(1)(A) was limited to obscenity. To the contrary, the only references to this provision unequivocally show that this provision was intended to reach far beyond obscenity.

The only congressional report on the Communications Decency Act specifically adopts the broad FCC/ Pacifica/Sable definition of indecency. H.R. Rep. No. 104-458, at 188, reprinted in 1996 U.S. Code Congressional & Administrative News, at 201. The Conference Report expressly states that in the 1996 Act "the term 'indecency'...has the same meaning as established in" Pacifica and Sable. In Reno v. ACLU, the government told this 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 in No. 96-511, p. 44. 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.

The legislative debate shows the same understanding. 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. S8331.12/ 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),13/ 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.

In short, to the extent it is relevant, the legislative history does not support the district court's construction of  223(a).

 

B. The statute as written is unconstitutional

 

There is no conceivable government interest that could justify 223's content prohibition of "indecent" speech, especially indecent speech with intent to "annoy" people.14/ The government cannot even advance the interest in protecting children from exposure to "indecent" material -- the interest that it unsuccessfully urged to support the other provisions of the Act held unconstitutional in Reno v. ACLU. The provisions at issue here apply regardless of the age of the recipient, govern communications among adults. and have no safe harbor defenses.

The district court's conclusion that the statute is limited to speech that is "obscene" under Miller is erroneous. 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 because doing so 'involves a far more serious invasion of the legislative domain.'" 117 S. Ct. at 2351 (quoting United States v. Treasury Employees Union, 513 U.S. 454, 479, n.26 (1995)). The district court's statutory restructuring presents 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. 117 S. Ct. at 2351.15/

The government did not attempt in the district court to defend  223(a) as written. App. 41a, n.4. That is, it did not contend -- nor could it -- that "indecent" communications among adults can be made criminal. See Reno v. ACLU; Sable Communications v. FCC. Accordingly, because  223(a) does ban "indecent" communications, the Court should reverse the decision below and remand the case for the entry of appropriate equitable relief prohibiting enforcement of the statute except as to obscene material. Reno v. ACLU, 117 S.Ct. at 2350-51. Any other resolution leaves appellant and other Internet speakers subject to prosecution anywhere outside the Northern District of California. The district court's decision is not of course binding in any other federal district. It stands as merely a divided opinion in one California district. Courts around the nation are free to disagree with the majority's statutory interpretation.16/ The Attorney General has not notified Congress (under Pub.L. 96-132,  21(a)(2), 93 Stat. 1040, 1049 (1979)) that she will not prosecute anyone for "indecent" communications. Cf. New York State Bar Association v. Reno, 999 F.Supp. 710, 713 (N.D.N.Y. 1998) (Attorney General notified Congress that she would neither enforce statute nor defend its constitutionality; preliminary injunction nonetheless granted); Sanger v. Reno, 966 F.Supp. 151, 157 (E.D.N.Y. 1997). Moreover, she takes the position 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 Dept. of Justice Manual 4-8.700 (Aspen Law & Bus. 1997).17/ Nothing prohibits the government from prosecuting Internet users, including appellant, for "indecent" communications made or received in other districts, and appellant's communications are received in every state.  223(a) as written deserves not the creative judicial restructuring given by the majority below but forthright condemnation as unconstitutional.

CONCLUSION

Probable jurisdiction should be noted and the decision below should be reversed and remanded for the entry of appropriate equitable relief.

DATED: December 7, 1998

Respectfully submitted,

ROGERS, JOSEPH, O'DONNELL & QUINN

 

 

By __________________________________________

William Bennett Turner
311 California Street, 10th Floor
San Francisco, California 94104
(415) 956-2828

Counsel of Record

Michael Traynor
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, California 94111-3580
(415) 693-2000

Attorneys for Appellant
APOLLOMEDIA CORPORATION

 


FOOTNOTES

1. "Telecommunications devices" include telephones, computer modems and fax machines. See ACLU v. Reno, 929 F. Supp. 824, 828, n. 5 (E.D. Pa. 1996), aff'd, 117 S.Ct. 2329 (1997); see also App. 8a, n. 8.

2. All four decisions were rendered under other statutes long before this Court's decisions under this statute,  223, in Reno v. ACLU and Sable Communications, Inc. v. FCC, 492 U.S. 115 (1989).

3. The court was wrong concerning Sable. That case invalidated  223(b)'s "total ban" on "indecent" telephone communications. 492 U.S. at 127.

4. The FCC's regulatory test for "indecent" material, adopted by Congress in the several indecency provisions of  223, basically borrowed one-third of the Miller test for obscenity -- the "patently offensive" part. See Reno v. ACLU, 117 S. Ct. at 2345 ("one part of the three-prong Miller test"); Pacifica Foundation v. FCC, 438 U.S. at 732 (indecency is "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs . . ."); Denver Area, 116 S. Ct. at 2381 (same definition but for cable television); Information Providers Coalition v. FCC, 928 F.2d 866, 874 (9th Cir. 1991) (same definition but for the "telephone medium"). The definition omits the two other parts of the obscenity definition: the "prurient appeal" and no social value parts.

5. The distinction between "indecent" and "obscene" speech is important because, as in this case, "indecent" speech may have significant societal value. Justice Kennedy has explained: "In artistic or political settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying 'otherwise inexpressible emotions' . . . . Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power." Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374, 2415-16 (1996), quoting from Cohen v. California, 403 U.S. 15, 26 (1971).

6. It is well established that a "statute must, if possible, be construed in such fashion that every word has some operative effect." United States v. Nordic Village, 503 U.S. 30, 36 (1992)(emphasis added); Bowsher v. Merck & Co., 460 U.S. 824, 833 (1983). In Brogan v. United States, 118 S.Ct. 805 (1998), the Court held that 18 U.S.C.  1001 must be read literally and rejected an exception that had been recognized by several courts of appeals. The Court stated that "Courts may not create their own limits on legislation, no matter how alluring the policy arguments for doing so..." 118 S.Ct. at 811-12. The Court enforced the plain language of the statute despite the Department of Justice Manual calling for an exception, id. at 815 (Ginsburg, J. concurring), "rejecting a well-settled interpretation" by the lower courts, id. at 817 (Stevens, J. dissenting).

7. The district court majority held that its construction did not render the intent to annoy provision surplusage because, it said, the intent of Congress was to ban obscene materials only among "non-consenting" adults. App. 34a. The government can always avoid any such intent requirement by prosecuting computer transmission of obscenity under other federal obscenity statutes, like 18 U.S.C.  1465, that have no such intent requirement. See United States v. Thomas, 74 F.3d 701 (6th Cir.), cert. denied, 117 S.Ct. 74 (1996).

8. As Chief Judge Sloviter remarked in ACLU v. Reno,

The scope of the CDA is not confined to material that has a prurient interest or appeal, one of the hallmarks of obscenity, because Congress sought to reach farther. Nor did Congress include language that would define "patently offensive" or "indecent" to exclude material of serious value. It follows that to narrow the statute in the manner the government urges would be an impermissible exercise of our limited judicial function, which is to review the statute as written for its compliance with constitutional mandates.

929 F. Supp. 824, 855 (E.D. Pa. 1996).

9. The majority below said that the redundancy was not "complete" because  223(a) involves use of a "telecommunications device" while  1462 and 1465 involve use of an "interactive computer service." App. 31a. This makes no difference. The defendant in United States v. Thomas was convicted under  1465 for communicating obscene material by computer over telephone wires -- now a "telecommunications device" under  223(a). As construed by the court below, the statute adds nothing of substance to  1462 and 1465.

10. The "strings" in the four cases were as follows: The statute in Roth, 18 U.S.C.  1465, prohibited "obscene, lewd, lascivious, or filthy" books or other publications "of an indecent character." 354 U.S. at 479, n.1. Manual Enterprises and Hamling involved 18 U.S.C.  1461, which forbade mailing "obscene, lewd, lascivious, indecent, filthy or vile" matter. 370 U.S. at 479, n.1; 418 U.S. at 98, n.8. The statute in 12 200-ft. Reels, 19 U.S.C.  1305(a), prohibited importing "any obscene book . . . or other article which is obscene or immoral." 413 U.S. at 124.

11. If a law were construed "to prohibit any telephone call made 'with intent to annoy,'. . . it would patently violate the First Amendment." Gormley, supra, 632 F.2d at 944 (Mansfield, J., concurring).

12. Senator's Leahy's full point was made as follows:

. . . [T]he first part of the amendment from the Senator from Nebraska and the Senator from Indiana would make it a felony not only to send obscene messages to another person, but apply the same penalty to sending an e-mail message with indecent or filthy words that you hope will annoy another person.

For example, if someone sends you an annoying e-mail message and you respond with a filthy four letter word, you may land in jail for 2 years with $100,000 fine. If you picked up the phone and did the exact same thing, you are perfectly OK. But if you type it out and send it to the person electronically, no matter how annoyed you might be, tough.

I do not think under this amendment a computer user would be able to send a private or public e-mail message with the so-called seven dirty words. Who knows when a recipient would feel annoyed by seeing a four-letter word on-line?

 

13. United States v. Thomas, supra, 74 F.3d 701, is but one example of the use of 18 U.S.C.  1465 to prosecute transmission of obscenity by computer.

14. The "intent to annoy" provision compounds the unconstitutionality of the indecency prohibition of  223(a). Indeed, annoying conduct (not just speech) is constitutionally protected. In Coates v. City of Cincinnati, 402 U.S. 611 (1971), the Court held unconstitutional a law making it a crime to assemble "in a manner annoying" to other persons. The law was overbroad "because it authorizes the punishment of constitutionally protected conduct." 402 U.S. at 614. A First Amendment right cannot be restricted "simply because its exercise may be 'annoying' to some people." Id. at 615. In Cohen v. California, 403 U.S. 15 (1971), the Court invalidated a conviction based on the defendant's sporting a "Fuck the Draft" slogan on his jacket, worn to court in full view of all spectators, including children. The Court held that this expression was constitutionally protected even though highly "offensive" to most citizens.

Use of crude or indecent language to criticize public officials or public figures is especially protected. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Court held that the magazine's "patently offensive" fake ad accusing Rev. Falwell of having sex with his mother in an outhouse was constitutionally protected. 485 U.S. at 50. Even though the parody was "gross and repugnant in the eyes of most," and was found by a jury to be an "outrageous" and intentional infliction of emotional harm, it retained First Amendment protection. Accord, R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) (invalidating statute that prohibited cross burning that "arouses anger, alarm or resentment in others" because of race, religion, etc.); Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977) ("where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression"); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992) (speech cannot be burdened or banned "simply because it might offend a hostile mob"); New York Times v. Sullivan, 376 U.S. 254, 273 (1964) (neither falsity nor defamatory content deprives statements critical of public official of constitutional protection); Bridges v. California, 314 U.S. 252 (1941)("outrageous" telegram to Secretary of Labor complaining of judge's decision held protected). Speech does not lose protection because it might have "profound unsettling effects;" to be banned it must rise "far above public inconvenience, annoyance or unrest." Terminiello v. Chicago, 337 U.S. 1, 4 (1949)(emphasis added). The First Amendment "does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer." Erznoznik v. City of Jacksonville, 422 U.S. 205, 210 (1975). Following Coates, the Fifth Circuit struck down a statute prohibiting, inter alia, "indecent" telephone calls that intentionally "annoy" the recipient. Kramer v. Price, 712 F.2d 174, 177-78 (5th Cir. 1983), aff'd on other grounds on rehearing en banc, 723 F.2d 1164 (5th Cir. 1984).

15. See United States v. National Treasury Employees Union, supra; Virginia v. American Booksellers Ass'n, 484 U.S. 383, 387 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205, 216 n.15 (1975).

16. Cf. Kucharek v. Hanaway, 902 F.2d 513, 517 (7th Cir. 1990), cert. denied, 498 U.S. 1041 (1991), pointing out in an analogous situation that "If the district court had read [a state obscenity statute] so narrowly as to obviate all constitutional questions, it would still be possible for the state to prosecute people for violations of the statute as broadly construed, because the enforcement of the statute would not have been enjoined."

17. After the hearing below, the government submitted a memorandum, signed by John C. Keeney, Acting Assistant Attorney General, purporting to instruct United States Attorneys that  223(a) is limited to "obscene" communications. The Keeney memorandum, dated February 19, 1998, expresses Keeney's view that  223(a) deals only with "obscene remarks...albeit by telecommunications device." The government -- through Keeney -- attempted a similar gambit in ACLU v. Reno, 929 F.Supp. 824 (E.D. Pa. 1996), aff'd, 117 S.Ct. 2329 (1997), and in Shea v. Reno, 930 F.Supp. 916 (S.D.N.Y. 1996). The three-judge courts in both cases rejected the government's attempt to avoid findings that the other "indecency" provisions of the Communications Decency Act were unconstitutional. In Shea, defendant Reno submitted a letter from Keeney purporting to interpret the statute in a manner that would prevent criminal prosecutions. The court, however, noted that "the Government has nowhere represented that the articulation of the Department of Justice's position in the Keeney Letter would prevent any United States Attorney from arguing" a contrary position in a particular prosecution. 930 F.Supp. at 944. The Shea court noted that in the ACLU litigation, "where the Government was granted leave to file the Keeney Letter, the Government expressly conceded that the letter does not preclude a United States Attorney from taking a contrary position in particular litigation." Id. In addition, neither the statute's plain language "nor the Government's representations concerning that section can be read to suggest that individuals...need not fear prosecution (as distinct from ultimate criminal liability)." Id. (Emphasis by the court.) Similarly, in ACLU, the court found that the letter was not "consistent with the plain language of the Act," and the Keeney interpretation would not protect "speakers using the World Wide Web today, whom the Government has explicitly reserved its right to prosecute should the CDA ultimately be found constitutional." 929 F.Supp. at 878, n.20.

 
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