The opinion of the court was delivered by: CHESNEY; HAWKINS
ORDER DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION AND DISMISSING COMPLAINT
Plaintiff ApolloMedia Corporation ("ApolloMedia") seeks to enjoin enforcement of portions of the Communications Decency Act of 1996 ("CDA") codified at 47 U.S.C. § 223(a)(1)(A)(ii) and 47 U.S.C. § 223(a)(2) on the grounds that the subject provisions, to the extent that they prohibit "indecent" communications made "with an intent to annoy," are impermissibly overbroad and vague, and thus violate the First Amendment of the United States Constitution. ApolloMedia does not challenge the provisions to the extent they regulate "obscene" communications. Defendant Janet Reno, Attorney General of the United States, takes the position that the challenged provisions seek to regulate only "obscene" communications. The threshold issue presented to this Court is whether § 223(a)(1)(A)(ii) and § 223(a)(2) proscribe communications that are "indecent" as opposed to only those that are "obscene." Because we find the provisions regulate only "obscene" communications, the Court does not decide the issue of whether Congress may, under the circumstances addressed in the subject provisions, regulate "indecent" speech made with the "intent to annoy."
On January 30, 1997, ApolloMedia filed in the Federal District Court a complaint for declaratory and injunctive relief and a motion for preliminary injunction. Pursuant to 28 U.S.C. § 2284
and § 561(a) of the CDA
, a three-judge court was convened to hear the cause. Thereafter, hearing on the motion for preliminary injunction was stayed during the pendency in the Supreme Court of Reno v. ACLU, 521 U.S. 844, 138 L. Ed. 2d 874, 117 S. Ct. 2329 (1997), in which other provisions of the CDA were challenged on constitutional grounds.
The Supreme Court decided Reno v. ACLU on June 26, 1997, after which this Court set the motion for hearing on October 20, 1997.
At the October 20, 1997 hearing, the parties mutually consented to consolidation of the hearing on the preliminary injunction with the merits. See Fed. R. Civ. P. 65(a)(2) ("Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.").
ApolloMedia has requested, without objection by the government, that this Court take judicial notice of the first forty-eight findings of fact by the court in ACLU v. Reno, 929 F. Supp. 824, 830-38 (E.D. Pa. 1996), which contain a detailed description of the Internet's history, means of accessing the Internet, and methods of communication over the Internet.
ApolloMedia is a Delaware corporation founded in 1994 that has its principal place of business in San Francisco, California. ApolloMedia describes itself as a "multimedia technology company whose business is entirely devoted to computer-mediated communication." The company provides technology-related consulting services, licenses software programs for the management and delivery of information through telecommunications channels, and develops Internet technologies, including sites on the World Wide Web.
As an additional part of its business activities, ApolloMedia writes, develops and produces multimedia content for corporate, educational, and entertainment purposes using computers, modems, and telephone lines to communicate through the World Wide Web its own content and that of its clients and its website visitors. ApolloMedia maintains a website entitled "annoy.com" through which ApolloMedia and visitors to the website communicate strong views using expression that ApolloMedia asserts may be considered indecent in some communities.
ApolloMedia states that its "online databases contain some material of social or political value that is sexually explicit or uses vulgar language that some persons in some communities might consider 'indecent."' ApolloMedia also asserts that "its clients and its site visitors wish freely to be able to criticize public officials and public figures by using whatever language or imagery that seems to them appropriate to the occasion and, whenever they wish, to 'annoy' such persons by getting their attention, upsetting them and making them understand the depth of displeasure with their acts or political positions."
C. The Communications Decency Act of 1996
The challenged provisions of the CDA are part of a statute that was originally enacted in 1968, as an amendment to the Communications Act of 1934, to proscribe the use of telephones in the District of Columbia or in interstate or foreign communication to "make any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy or indecent." The purpose of the statute was to make "the use of a telephone (or the granting of such use) for the placing of obscene, abusive or harassing telephone calls . . . across State boundary lines or within the District of Columbia a federal crime . . . ." H.R. Rep. No. 90-1102 at 1915.
The telephone harassment provisions of 47 U.S.C. § 223 remained basically unchanged until passage of the CDA in 1996, when the provisions that are the subject of the current motion were promulgated.
By the amendments contained in the CDA, the statute was modified to substitute "telecommunications device"
for "telephone" and to expand its coverage to the "transmission of any comment, request, suggestion, proposal, image or other communication which is obscene, lewd, lascivious, filthy or indecent." (emphasis added). The CDA also added an intent requirement, providing that a transmission is proscribed by the statute only if made "with intent to annoy, abuse, threaten, or harass another person . . . ."
The government argues that ApolloMedia lacks standing because the scope of the subject provisions does not reach beyond obscene communications and ApolloMedia does not intend to engage in obscene communications.
The doctrine of standing is directed at ensuring that the plaintiff before the court "is a proper party to request an adjudication of a particular issue . . . ." Flast v. Cohen, 392 U.S. 83, 100, 88 S. Ct. 1942, 1952, 20 L. Ed. 2d 947 (1968). "At an irreducible minimum, [Article III of the Constitution] requires the party who invokes the court's authority to 'show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant . . . .'" Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982), (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66 (1979)). Moreover, it is required "that the injury 'fairly can be traced to the challenged action' and 'is likely to be redressed by a favorable decision."' Valley Forge, at 472, 102 S. Ct. at 758 (quoting Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S. Ct. 1917, 1924, 1925, 48 L. Ed. 2d 450 (1976)). It is insufficient for the plaintiff to allege abstract injury. Rather, the plaintiff must allege that he "has sustained or is immediately in danger of sustaining some direct injury as a result of the challenged statute or official conduct." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S. Ct. 669, 675, 38 L. Ed. 2d 674 (1974) (citation and internal quotation marks omitted).
"When contesting the constitutionality of a criminal statute, 'it is not necessary that [the plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge [the] statute that he claims deters the exercise of his constitutional rights.'" Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S. Ct. 2301, 2309, 60 L. Ed. 2d 895 (1979) (quoting Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 1216, 39 L. Ed. 2d 505 (1974)) (bracketed text in original). In order to demonstrate an "actual or threatened injury" in the context of a constitutional challenge to a criminal statute, the plaintiff must establish that he has an "intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and [that] there exists a credible threat of prosecution thereunder . . . ." Babbitt, at 298, 99 S. Ct. at 2309. Once this showing is made, the plaintiff is entitled to bring suit. See id.
ApolloMedia maintains that it seeks to use a "telecommunications device" to engage in "indecent" communications with an "intent to annoy" and that it also seeks to allow visitors to its websites, including annoy.com, to do likewise. During the course of this litigation, while arguing that the challenged provisions apply not to "indecent" communications but solely to obscenity, the government has never relinquished its right to prosecute ApolloMedia for the former under § 223(a)(1)(A) and § 223(a)(2).
That ApolloMedia's interpretation of the scope of the subject provisions ultimately may be found to be incorrect does not deprive it of standing to challenge their constitutionality. See Fordyce v. City of Seattle, 55 F.3d 436, 440 (9th Cir. 1995) (holding plaintiff had standing to challenge the constitutionality of a state statute as applied to conduct in which plaintiff intended to engage, where the state's highest court had not determined that the intended conduct fell outside the scope of the statute). ApolloMedia has demonstrated that it has standing to pursue the instant action.
B. The Declaratory Judgment Act
ApolloMedia has invoked the Declaratory Judgment Act in the instant action, seeking a declaratory judgment that § 223(a)(1)(A) and § 223(a)(2) are unconstitutional, facially and as applied. The propriety of declaratory relief is closely related to the issue of standing. The Declaratory ...