ApolloMedia v. Reno - Plaintiff's Supplemental Brief Regarding Reno v. ACLU

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

APOLLOMEDIA CORPORATION,

Plaintiff,

vs.

JANET RENO, Attorney General of
the United States,

Defendant.

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Case No. C 97-346 MMC

PLAINTIFF'S SUPPLEMENTAL
BRIEF REGARDING
RENO V. ACLU

(THREE JUDGE COURT--
hearing to be set by Court)

On June 26, 1997, the Supreme Court held unconstitutional on their face the provisions of the Communications Decency Act (CDA) that criminalize the use of computers to make "indecent" or "patently offensive" communications to minors. Reno v. ACLU, 521 U.S. ___, 97 C.D.O.S. 4998. The Court determined that the undefined, uncertain and overbroad "indecent" and "patently offensive" terms are unconstitutional, that the CDA is an impermissible content-based regulation of speech, that it "unquestionably silences some speakers whose messages would be entitled to constitutional protection," and that neither the governmental interest in protecting children nor the statutory "safe-harbor" defenses can justify the statute. 97 C.D.O.S. at 5002-03, 5004-05. The Court resoundingly affirmed the preliminary injunction against the CDA provisions. It did so at the behest of a variety of plaintiffs, none of whom had been threatened with prosecution but all of whom, as Internet speakers, necessarily were subject to the CDA's "obvious chilling effect on free speech." Id. at 5003.

Plaintiff ApolloMedia Corporation submits this supplemental brief^/ to demonstrate that the Supreme Court's decision applies a fortiori to the CDA provisions in this case, and that this Court should likewise grant a preliminary injunction against the provisions that make it a felony to send an "indecent" communication over the Internet with the intent to "annoy" someone.

1. The Court in ACLU rejected the government's argument that restricting "indecent" or "patently offensive" speech on the Internet was justified by the interest in protecting children from sexually explicit materials, and the Court held that the defenses designed to protect communications among adults did not save the statute. The CDA provisions in the instant case are even less defensible than those involved in ACLU. First, Section 223(a)(1)(A)(ii) has nothing to do with children -- there is no government interest in protecting children at stake in this case. Second, there are no safe harbor defenses applicable to Section 223(a)(1)(A)(ii); unlike the Reno provisions that attempted to preserve sexually explicit communications for adults, the provision here is a complete ban on "indecent" communications "with intent to annoy" another person.

2. Reno v. ACLU rejected the government's argument that the CDA should be construed so as to avoid a finding of unconstitutionality, refusing to "rewrite" the statute in order to save it. 97 C.D.O.S. at 5005. There is no basis for construing Section 223(a)(1)(A)(ii) to limit it to "obscene" communications or otherwise to confine its unconstitutional reach. See Plaintiff's Memorandum in Support of Motion for Preliminary Injunction at 9-13. The Court in ACLU expressly pointed out that the CDA distinguishes "obscene" speech, the prohibition of which was not challenged there or in the instant case,^/ from "indecent" speech: "As set forth by the statute, the restriction of 'obscene' material enjoys a textual manifestation separate from that for 'indecent' material, which we have held unconstitutional." 97 C.D.O.S. at 5005. In ACLU, as here, "The open-ended character of the CDA provides no guidance whatever for limiting its coverage." Id.

3. The Supreme Court did not find it necessary to reach the issue of whether the prohibition of "indecent" material was impermissibly vague for a criminal statute. But it was highly critical of the statute's vagueness: "Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment." Id. at 5002. The Court pointed out that the term "indecent" was undefined and there was uncertainty about the kinds of speech covered. As in the CDA provision in the instant case, "'Indecent' does not benefit from any textual embellishment at all." 97 C.D.O.S. at 5002 n.35.^/ "The vagueness of the CDA is a matter of special concern" because of the chilling effect on free speech and the serious impact of a criminal statute. "The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images." Id. at 5003. "As a practical matter, this increased deterrent effect, coupled with the 'risk of discriminatory enforcement' of vague regulations, poses greater First Amendment concerns" than civil restrictions. Id.

4. The CDA provisions in the instant case are more infirm for vagueness than those in Reno because they are compounded by the "annoy" provision. See Plaintiff's Memorandum in Support of Motion for Preliminary Injunction at 16-17. The Court in Reno v. ACLU cited favorably its statement in Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977), that "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." 97 C.D.O.S. at 5003. The Court also relied on Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992), where it held that speech cannot be burdened or banned "simply because it might offend a hostile mob." The instant criminal ban on merely "annoying" speech is invalid.

5. The Court rejected the government's argument that the CDA "is no more vague than the obscenity standard" of Miller v. California, 413 U.S. 15, 24 (1973). 97 C.D.O.S. at 5003. The Court found the government's argument "incorrect as a matter of fact" since the Miller standard "contains a critical requirement that is omitted from the CDA: that the proscribed material be 'specifically defined by the applicable state law.'" Id. The Court found that the government's "reasoning" was also "flawed" because, as plaintiff has urged in this case (Memo. in Support of Prelim. Inj. at 17-24), all three prongs of the Miller test are required in order to avoid impermissible vagueness.

6. One of the reasons the Court found the CDA unconstitutionally overbroad was that "The general, undefined terms 'indecent' and 'patently offensive' cover large amounts of nonpornographic material with serious educational or other value." 97 C.D.O.S. at 5002. In the instant case, large amounts of the speech on annoy.com may be considered "indecent" or "patently offensive" by some (principally by those who are subjectively "annoyed" by being criticized or caricatured), but it is speech with serious political, educational and social value.

7. If the government were to concoct some plausible interest other than shielding children from indecent material, Reno v. ACLU makes it plain that the CDA still would be unconstitutional. In ACLU, the government came up with a different, non-child-protective interest, that of fostering the growth of the Internet by ensuring that indecent content did not drive potential users away. The Court rejected the argument both because there was no factual basis for it (just as there is none here) and because:

Accordingly, Reno v. ACLU makes it crystal clear that the CDA provisions at issue in the instant case are unconstitutional and that a preliminary injunction enjoining their enforcement should be issued.