UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
September 22, 1998
APOLLOMEDIA CORPORATION, Plaintiff,
JANET RENO, Defendant.
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.").
A. The Internet
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.
B. The Plaintiff
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 Judgment Act, codified at 28 U.S.C. § 2201, provides, in pertinent part:
In a case of actual controversy within its jurisdiction . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
28 U.S.C.A. § 2201(a) (West 1994).
Under 28 U.S.C. § 2001, ApolloMedia must demonstrate an independent basis of federal jurisdiction over the case. See Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S. Ct. 876, 879, 94 L. Ed. 1194 (1950). There is no question here that this Court possesses an independent basis for federal jurisdiction in the instant action, since ApolloMedia attacks the constitutionality of a federal statute. See 28 U.S.C. § 1331.
In addition, ApolloMedia must, pursuant to the language of the statute, demonstrate that an "actual controversy" exists. This statutory requirement codifies the constitutional principle that federal courts may exercise jurisdiction only over actual cases or controversies. See Steffel at 458, 94 S. Ct. at 1215. In ascertaining whether an "actual case or controversy" exists, "the basic inquiry is whether the 'conflicting contentions of the parties . . . present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.'" Babbitt, at 298, 99 S. Ct. at 2308 (quoting Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93, 65 S. Ct. 1483, 1487, 89 L. Ed. 2072 (1945)). The adverse legal interests must be of "sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Cas. Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941). See also Eureka Fed. Sav. and Loan v. American Cas. Co. of Reading, 873 F.2d 229, 231 (9th Cir. 1989) ("Thus, declaratory relief is appropriate (1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.") (internal quotation omitted).
To establish an actual case or controversy when challenging the constitutionality of a statute, a plaintiff "must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt at 298, 99 S. Ct. at 2308. See also Fordyce, 55 F.3d 436 at 440 ("In cases concerning the constitutionality of a state criminal statute, all that is required for an award of declaratory relief is that the plaintiff show a genuine threat of enforcement of a disputed state criminal statute.") (internal quotation omitted). As discussed above with respect to standing, ApolloMedia has demonstrated a "realistic danger of sustaining a direct injury" if § 223(a)(1)(A) and § 223(a)(2) are found to proscribe "indecent" communications made with an intent to "annoy." Accordingly, a claim for declaratory relief is properly raised by ApolloMedia.
C. Injunctive Relief
As stated, at the time of the hearing on the preliminary injunction, the parties agreed that consideration of the merits of the action should be consolidated with the hearing on the preliminary injunction. In ruling on a request for injunctive relief, the trial court considers the irreparable injury to the moving party and the inadequacy of legal remedy for such injury. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S. Ct. 1798, 1803, 72 L. Ed. 2d 91 (1982). With respect to permanent injunctions, however, the party seeking such relief need establish only that he has no adequate legal remedy. "Irreparable injury is required for preliminary injunctions, but once actual success on the merits has been established, 'a party is entitled to relief as a matter of law irrespective of the amount of irreparable injury which may be shown.'" Continental Airlines, Inc. v. Intra Brokers, Inc., 24 F.3d 1099, 1104 (9th Cir. 1994) (quoting Western Sys., Inc. v. Ulloa, 958 F.2d 864, 872 (9th Cir. 1992)). "[Irreparable injury] is only one basis for showing the inadequacy of the legal remedy." Id. (quoting Charles A. Wright & Arthur R. Miller, 11 Federal Practice & Procedure, § 2944 at 401 (1973)).
A showing of irreparable injury nevertheless is one way to establish the absence of an adequate legal remedy. See id. Moreover, there exists a strong presumption of irreparable injury in cases involving the infringement of First Amendment rights. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373-74, 96 S. Ct. 2673, 2690, 49 L. Ed. 2d 547 (1976) (citing New York Times Co. v. United States, 403 U.S. 713, 91 S. Ct. 2140, 29 L. Ed. 2d 822 (1971)). Thus, ApolloMedia would be entitled to a permanent injunction upon a showing that enforcement of the CDA provisions at issue here result in "a loss of First Amendment freedoms."
We begin our analysis mindful of the Supreme Court's admonition that, in assessing challenges to the constitutionality of a statute, courts should "first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 465-66, 109 S. Ct. 2558, 2572, 105 L. Ed. 2d 377 (1989) (quoting Crowell v. Benson, 285 U.S. 22, 62, 52 S. Ct. 285, 296, 76 L. Ed. 598 (1932)). See also Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. and Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 1397, 99 L. Ed. 2d 645 (1988) ("Where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress").
In opposing ApolloMedia's motion for preliminary injunction, the government contends that the statutory provisions in question only proscribe obscene speech. Indecent speech which is not obscene falls within the protection of the First Amendment. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 2836, 106 L. Ed. 2d 93 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment.".). On the other hand, the protection of the First Amendment does not extend to obscene speech. See Roth v. United States, 354 U.S. 476, 485, 77 S. Ct. 1304, 1309, 1 L. Ed. 2d 1498 (1957) ("Obscenity is not within the area of constitutionally protected speech.".).
1. Statutory Construction - 47 U.S.C. § 223(a)(1)(A)
"A court's objective when interpreting a federal statute is to ascertain the intent of Congress and to give effect to legislative will." Turner v. McMahon, 830 F.2d 1003, 1007 (9th Cir. 1987) (internal quotation omitted). In interpreting a statute, a court starts with its language. See Bailey v. United States, 516 U.S. 137, 144, 116 S. Ct. 501, 506, 133 L. Ed. 2d 472 (1995). If the language of the statute is unambiguous, the court should look no further in ascertaining its meaning. See United States v. Lewis, 67 F.3d 225, 228 (9th Cir. 1995). If the language of the statute is unclear, however, it is appropriate for the court to look to legislative history to ascertain its purpose. See id.; Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830-31 (9th Cir. 1996).
a. Language of 47 U.S.C. § 223(a)(1)(A)
As stated, in construing a statute, the court must start with its language. Baily, at 144, 116 S. Ct. at 506. It is an established rule of statutory construction, however, that when the Supreme Court's interpretation of statutory text is "longstanding" and "settled," "it is not only appropriate but also realistic to presume that Congress was thoroughly familiar with [the Court's] precedents . . . and that it expects its enactments to be interpreted in conformity with them." North Star Steel Co. v. Thomas, 515 U.S. 29, 34, 115 S. Ct. 1927, 1930, 132 L. Ed. 2d 27 (1995) (holding that Congress expected the courts to continue their "longstanding" and "settled" practice of borrowing statutes of limitation from analogous state laws in cases where a federal statute fails to specify a statute of limitation) (internal quotation omitted). See also Cannon v. University of Chicago, 441 U.S. 677, 696-97, 99 S. Ct. 1946, 1957-58, 60 L. Ed. 2d 560 (1979) (construing text of Title IX of Education Amendments Act of 1972 as creating private cause of action where courts had interpreted nearly identical language in Title VI as creating a private cause of action and noting, "it is always appropriate to assume that our elected representatives, like other citizens, know the law . . ."); S & M Inv. Co. v. Tahoe Reg'l Planning Agency, 911 F.2d 324, 326 (9th Cir. 1990) ("If the term at issue has a settled meaning, we must infer that the legislature meant to incorporate the established meaning, unless the statute dictates otherwise").
Section 223(a)(1)(A) subjects to prosecution those who use telecommunications devices to transmit communications which are "obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten or harass another person. . . ." In arguing that the meaning of this language is settled, the government relies on cases in which the Supreme Court has construed as referring solely to obscenity what the government characterizes as a "string of words" similar to that employed in § 223(a)(1)(A). The government argues that the Supreme Court's longstanding construction of the "strings of words" at issue in those cases applies equally to the "string of words" in § 223(a)(1)(A).
In a line of cases beginning with Roth, 354 U.S. at 476, 77 S. Ct. at 1304, the Supreme Court has read words, which are nearly identical to those employed in § 223(a)(1)(A), to refer solely to "obscenity." In Roth, the Supreme Court reviewed a conviction under 18 U.S.C. § 1461 which, at the time, imposed criminal penalties for the knowing use of the mails to transport every "obscene, lewd, lascivious or filthy book, pamphlet, picture, paper, letter, writing, print or other publication of an indecent character . . . ." Id. at 479 n. 1, 77 S. Ct. at 1306 n. 1.
The appellant in Roth argued that the statute was impermissibly vague in that it "[did] not provide reasonably ascertainable standards of guilt and therefore violated the constitutional requirements of due process." Id. at 491, 77 S. Ct. at 1312. The Court ruled that, in spite of the broad and imprecise range of terms used to describe prohibited speech, 18 U.S.C. § 1461, if "applied according to the proper standard for judging obscenity, [does] not offend constitutional safeguards against convictions based upon protected material . . . ." Id. at 492, 77 S. Ct. at 1313. The Court found, in effect, that in spite of the range of terms employed in the statute, 18 U.S.C. § 1461 only proscribes obscene speech.
The Supreme Court reaffirmed this construction of 18 U.S.C. § 1461 in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S. Ct. 1432, 8 L. Ed. 2d 639 (1962).
Addressing the meaning of the series of words used in the statute, the Court observed that, "while in common usage the words have different shades of meaning, the statute since its inception has been aimed at obnoxiously debasing portrayals of sex."
Id. at 482-83, 82 S. Ct. at 1434-35 (footnote omitted). The Court went on to hold that "the statute reaches only indecent material which, as now expressed in Roth v. United States, taken as a whole appeals to prurient interest." Id. at 484, 82 S. Ct. at 1435 (citations omitted).
Thereafter, in Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974), the Supreme Court rejected a vagueness challenge to 18 U.S.C. § 1461, ruling that the terms contained in the series of words were "limited to the sort of patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California [sic]." Id. at 114, 94 S. Ct. at 2906 (quotation omitted). Therefore, the proscription in 18 U.S.C. § 1461 reached only material that would be deemed obscenity pursuant to the Miller decision.
The government's argument is further supported by United States v. 12 200-ft. Reels of Super 8 MM. Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973), which involved a seizure of film under 19 U.S.C. § 1305(a). The Supreme Court, in strongly worded dicta, stated that if faced with a question as to the vagueness of the words "'obscene,' 'lewd,' 'lascivious', 'filthy,' 'indecent,' or 'immoral,' as used to describe regulated material in 19 U.S.C. § 1305(a)
and 18 U.S.C. § 1462
. . . [the Court is] prepared to construe such terms as limiting regulated material to patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California." Id. at 130 n.7, 93 S. Ct. at 2670 n.7.
These cases demonstrate that, in the context of print media and film, the Supreme Court has read statutory "strings of words" almost identical to that employed in § 223(a)(1)(A) to proscribe only material constituting obscenity within the meaning of Miller. There exist, however, cases decided subsequent to Hamling and relied upon by ApolloMedia, in which the Supreme Court has construed "indecent," as used in statutes other than 18 U.S.C. § 1461, to bear a distinct meaning, in spite of its coupling with "obscene."
In FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978), the Supreme Court ruled that under 18 U.S.C. § 1464,
Congress intended to restrict speech which is "indecent" as separate from "obscene." Pacifica argued that the Court had "construed the term 'indecent' in related statutes to mean 'obscene' as that term was defined in Miller." Pacifica, 438 U.S. 726 at 740, 98 S. Ct. at 3035. The Court rejected Pacifica's argument, holding that each term bore a separate meaning. The Court observed that the terms "are written in the disjunctive, implying that each has a separate meaning."
Id. at 739-40, 98 S. Ct. at 3035. The Court distinguished cases such as Hamling, where it had construed statutory language, including the term "indecent," to regulate only "obscenity." See id. at 740, 98 S. Ct. at 3035-36 ("In Hamling [sic] the Court agreed . . . that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California [sic] . . . the Court adopted a construction which assured the statute's constitutionality."). The Court noted that, while the history of § 1461 "revealed a primary concern with the prurient, the [Federal Communications] Commission has long interpreted § 1464 as encompassing more than the obscene." Id. at 741, 98 S. Ct. at 3036. Moreover, "the former statute deals primarily with printed matter enclosed in sealed envelopes and mailed from one individual to another; the latter deals with the content of public broadcasts." Id.
The Court went on to observe that "it is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means." Id. The Court concluded by stating that because the "First Amendment has a special meaning in the broadcast context . . . the presumption that Congress never intends to exceed constitutional limits, which supports Hamling's [sic] narrow reading of § 1461, does not support a comparable reading of § 1464." Id. at n. 17.
In Sable Communications, 492 U.S. at 115, 109 S. Ct. at 2829, the Supreme Court examined the "dial-a-porn" provisions contained in 47 U.S.C. § 223(b), which prohibited any "obscene or indecent" telephone communication "for commercial purposes to any person," and held the statute unconstitutional to the extent it sought to preclude communications that were indecent as opposed to obscene. Id. at 131, 109 S. Ct. at 2839. In Sable, however, it was uncontested that, in enacting § 223(b), Congress intended to distinguish between "obscene" and "indecent." The issue in Sable was not whether Congress had enacted a total ban on "indecent" communications, but whether such a restriction was justified in order to further a compelling government interest -- the protection of minors. Id. at 129-31, 109 S. Ct. at 2828-29.
No cases have been cited by the government or ApolloMedia in which a court has considered the meaning of the precise "string of words" found in § 223(a)(1)(A). A review of the above-referenced decisions, however, leads the Court to conclude that the subject language was intended to regulate only obscene communications. First, the "string of words" employed in § 223(a)(1)(A) more closely resembles in both length and syntax the "string of words" used in 18 U.S.C. § 1461, as interpreted in Roth, Manual Enterprises, and Hamling, than the words at issue in Pacifica and Sable. Moreover, that interpretation prevailed at the time that the predecessor statute to § 223(a)(1)(A), which employed the same "string of words" as employed in § 223(a)(1)(A), was enacted.
Finally, as the Pacifica Court noted, the Federal Communications Commission "has long interpreted § 1464 as encompassing more than the obscene." Pacifica, 438 U.S. at 741, 98 S. Ct. at 3036. There is no similar history of governmental regulation with respect to § 223(a)(1)(A).
b. Legislative History
Having concluded that the statutory language resolves the interpretive issue, the Court need look no further. Because both ApolloMedia and the government have addressed at length the statute's legislative history, however, the Court next turns to the legislative history as an additional tool of analysis. In doing so, the Court recognizes that "only the most extraordinary showing of contrary intentions" will justify an interpretation different from that dictated by the statutory language. See Garcia v. United States, 469 U.S. 70, 75, 105 S. Ct. 479, 482, 83 L. Ed. 2d 472 (1984).
When examining a statute's legislative history for an indication of congressional intent, "a congressional conference report is recognized as the most reliable evidence of congressional intent because it 'represents the final statement of the terms agreed to by both houses.'" 82 F.3d at 835 (quoting Dept. of Health and Welfare v. Block, 784 F.2d 895, 901 (9th Cir. 1986)).
Section 223(a) was promulgated in 1968, subsequent to the Supreme Court's decisions in Roth and Manual Enterprises. As discussed earlier, the legislation was intended 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. 90-1109, at 1915. There is no indication in the legislative history that the provision was intended to proscribe "indecent" speech that is not "obscene."
The conference report for the CDA contains little direct discussion of § 223(a)(1)(A), except to note that, "an intent requirement is added to section 223(a)(1)(A) that liability is incurred for 'obscene, lewd, lascivious, filthy, or indecent' communications with the intent to 'annoy, abuse, threaten, or harass another person.'" H.R. Rep. No. 104-458 at 187. The legislative record of the CDA does not state that Congress sought to change the nature of the speech proscribed by the provision.
There follows, however, a detailed discussion of the meaning that Congress attached to the term "indecent" in other provisions of the CDA. In 47 U.S.C. § 223(d)(1), which proscribes the transmission of "patently offensive" communications to recipients under eighteen years of age, it is clear that Congress intended to reach "indecent" programming that is not "obscene." The conference report discussion of this provision states that Congress intended in this provision to "codify the definition of indecency from FCC v. Pacifica Foundation. . . ." H.R. Rep. No. 104-458 at 187-88. In another section of the CDA, codified at 47 U.S.C. § 223(a)(1)(B), Congress proscribed any communication by means of a telecommunications device that is "obscene or indecent" which is directed at a minor.
In ascertaining congressional intent with respect to the use of specific terms in a statute, the court considers the way the term is used in other provisions of the statute. Presumptively, identical words used in different parts of the same act are intended to have the same meaning. United States Nat'l Bank of Oregon v. Independent Ins. Agents of Am., 508 U.S. 439, 460, 113 S. Ct. 2173, 2185, 124 L. Ed. 2d 402 (1993) (quotation omitted). See also S & M Inv. Co., 911 F.2d at 328 ("When the same word or phrase is used in different parts of a statute, we presume that the word or phrase has the same meaning throughout").
ApolloMedia notes that Congress employed the term "indecent" or words defined to mean the same thing as "indecency" in other parts of the CDA to bear a meaning distinct from "obscenity," and argues that "it would be absurd" to ascribe a different meaning to the term "indecent" as used in § 223(a)(1)(A) from the way the term is used in other parts of the CDA. ApolloMedia concludes that Congress must have intended that the word "indecent" in § 223(a)(1)(A) likewise bear a meaning distinct from "obscene."
While the conference report for the CDA discusses at length Congress' intent to limit "indecent" communications, it should be noted that these discussions of the meaning of the term "indecent" are limited to those parts of the report which address the perceived need to protect minors from harmful communications. There is no separate discussion of the meaning of "indecency" with respect to § 223(a)(1)(A)
and there is no indication that Congress intended that the term "indecent" should bear the same meaning in § 223(a)(1)(A) as in those provisions of the CDA dealing specifically with communications directed at minors.
It is true that during the CDA floor debates in the Senate, some senators expressed the view that § 223(a)(1)(A) would proscribe the transmission of "indecent" speech over the Internet, and that they were not disabused of that perception.
While conference reports "are entitled to greater weight than less formal indicia of Congressional intent such as floor debates," International Telephone and Telegraph Co. v. General Tel. & Elec. Corp., 518 F.2d 913, 921 (9th Cir. 1975), it is nevertheless the case that "the Supreme Court, far from approving the exclusion of less formal material, has repeatedly interpreted legislation by referring to statements made in floor debates and hearings." Id. Therefore, in ascertaining legislative intent, it is appropriate to consider statements made on the floor of the Senate while the CDA was being debated.
The Supreme Court, however, has "often cautioned against the danger, when interpreting a statute, of reliance upon the view of its legislative opponents." NLRB v. Fruit and Vegetable Packers and Warehousemen Local 760, 377 U.S. 58, 66, 84 S. Ct. 1063, 1068, 12 L. Ed. 2d 129 (1964). As that Court has noted, "in their zeal to defeat a bill, [legislative opponents] understandably tend to overstate its reach." Id. In the case of the present provision, a few senators opined that § 223(a)(1)(A) would proscribe merely "indecent" communications made with an intent to annoy. There is no indication, however, that the CDA's sponsors, or the legislature generally, shared this view, nor does the conference report reflect such an intent on Congress' part.
In determining Congress' intent with respect to any given statute, it also may be instructive to consider the history of related legislation. In addition to amending § 223(a)(1)(A), the CDA amended 18 U.S.C. § 1462 and 18 U.S.C. § 1465 to add "interactive computer services"
to the list of entities respectively referenced therein.
Both § 1462 and § 1465 employ a "string of words" nearly identical to the one contained in 18 U.S.C. § 1461 at the time that the Supreme Court ruled in Roth that the "string of words" in § 1461 proscribed only obscenity. See Roth, 354 U.S. at 492, 77 S. Ct. at 1313 ("obscene, lewd, lascivious or filthy book, pamphlet, picture, letter, writing, print or other publication of an indecent character. . . ."). Moreover, as noted earlier, in 12 200-ft. Reels, 413 U.S. 123 at 130, n.7, 93 S. Ct. 2665, n.7, 37 L. Ed. 2d 500, the Supreme Court stated, albeit in dicta, that it was "prepared to construe" the various terms in § 1462, including "indecent," to regulate the type of material defined as obscene in Miller v. California.
With respect to § 1462 and § 1465, the conference report for the CDA states that the amendments were intended to "simply clarify that the current obscenity statutes, in fact, do prohibit using a computer to import and receive the importation of, and transmission to sell or distribute, 'obscene ' material." H.R. Rep. 104-458 at 193 (emphasis added). The conference report makes clear that the CDA amendments were not intended to extend beyond obscenity the nature of speech proscribed by those two sections. Thus, the CDA's legislative history indicates that when Congress amended § 1462 and § 1465, it intended merely to update those provisions to address new technology. The same could be said of Congress' intent as to § 223(a)(1)(A). The conference report for the CDA with respect to § 223(a) states that the CDA "updates section 223(a) of the Communications Act by using the term 'telecommunications device' as a replacement for or in addition to telephone references in the present law." H.R. Rep. No. 104-458 at 187 (emphasis added).
ApolloMedia argues, however, that because § 1462 and § 1465 have been extended to criminalize obscene Internet communications, § 223(a)(1)(A), if limited in its scope to proscribing obscene speech, would be redundant with respect to such communications. The overlap, however, is by no means complete. The use of a "telecommunications device," as the term is used in § 223(a)(1)(A) is not the equivalent of the use of an "interactive computer service" under § 1462 and § 1465. See 47 U.S.C.A. § 223(h)(1)(B) (West Supp. 1997) ("For purposes of [§ 223 . . . the use of the term 'telecommunications device' in this section . . . does not include an interactive computer service.").
ApolloMedia also argues that the inclusion of an intent requirement in § 223(a)(1)(A) ("with intent to annoy, abuse, threaten, or harass another person") casts doubt on whether Congress intended the scope of § 223(a)(1)(A) to be limited to obscenity. It is a "settled rule that a statute must, if possible, be construed in such fashion that every word has some operative effect." United States v. Nordic Village, Inc., 503 U.S. 30, 35-36, 112 S. Ct. 1011, 1015, 117 L. Ed. 2d 181 (1995); see also Bailey, 516 U.S. at 145, 116 S. Ct. at 506 (stating that courts read statutes "with the assumption that Congress intended each of its terms to have meaning"). ApolloMedia argues that, since it has long been the rule that obscene speech enjoys no constitutional protection, the intent requirement contained in § 223(a)(1)(A) serves no purpose if the statute's scope is limited to obscenity.
The government responds that Congress may have added the intent requirement contained in § 223(a)(1)(A) to avoid the possibility that the statute might be read to unconstitutionally preclude voluntary receipt of obscene communications in one's home. While the Supreme Court has recognized a constitutional right to possess obscenity in one's own home, Stanley v. Georgia, 394 U.S. 557, 568, 89 S. Ct. 1243, 1249, 22 L. Ed. 2d 542 (1969), the Supreme Court has also held that this right does not imply a right to transport obscenity, even to a willing recipient for private use. See United States v. Reidel, 402 U.S. 351, 356, 91 S. Ct. 1410, 1412-13, 28 L. Ed. 2d 813 (1971) (holding in the context of a prosecution under 18 U.S.C. § 1461 that Stanley did not require the Supreme Court to "fashion or recognize a constitutional right in people . . . to distribute or sell obscene materials").
Since case law clearly establishes that Congress may proscribe outright the transmission of obscenity over the Internet, it cannot be assumed that Congress included the intent requirement in § 223(a)(1)(A) because of a perceived problem with the constitutionality of an outright ban on obscene Internet communication.
The CDA's legislative history, however, provides a different explanation for the inclusion of the intent requirement. In his section-by-section analysis of the CDA, Senator Exon stated:
Section 223(a) of the Communications Act is amended to modernize its application to new technologies and to codify Court and FCC interpretations that this section applies only to communications between non-consenting parties. This revision would make Section 223(a) Constitutional [sic] on its face. Section 223(a) would become the key federal telecommunications anti-harassment provision.
Cong. Rec. at S. 8091 (June 9, 1995) (emphasis added). This statement of the CDA's sponsor indicates that the purpose of adding an intent requirement was to recognize and ratify prior decisions holding that Congress intended the scope of the provision to be limited to communications between non-consenting parties.
For example, in Colahan v. New York Telephone Co., FCC Op. 84-76 (Mar. 7, 1984), the FCC ruled with respect to the predecessor of § 223(a)(1)(A) that, "the absence of any reference in the legislative history to obscene phone calls between consenting parties leads us to conclude that such messages simply were not within the ambit of Section 223's prohibition." Id. at P 16. See also, United States v. Carlin Communications, Inc., 815 F.2d 1367, 1372 (10th Cir. 1987) (citing Colahan and holding that § 223(a) does not proscribe obscene phone calls between consenting parties). It thus would appear that, in including an intent requirement in § 223(a)(1)(A), Congress intended no more than to acknowledge prior FCC and court decisions limiting the scope of § 223(a)(1)(A). Read in this light, the intent requirement in § 223(a)(1)(A) is not surplusage but rather clarifies Congress' intent that the statute proscribe only obscene communications between non-consenting adults.
In conclusion, it again bears stating that "federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and that when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid." Communications Workers of America v. Beck, 487 U.S. 735, 762, 108 S. Ct. 2641, 2657, 101 L. Ed. 2d 634 (1988). See also U.S. ex. rel. Madden v. General Dynamics Corp., 4 F.3d 827 (9th Cir. 1993) ("We recognize that we are obliged whenever 'fairly possible' to interpret a statute in a manner that renders it constitutionally valid"); Meinhold v. United States Dept. of Defense, 34 F.3d 1469, 1476 (9th Cir. 1994) ("When the constitutional validity of a statute or regulation is called into question, it is a cardinal rule that courts must first determine whether a construction is possible by which the constitutional problem may be avoided").
In the present case, the government has demonstrated that § 223(a)(1)(A) can be construed in such a manner as to render it constitutionally valid. As explained above, in light of prior case law and statutory history, it is "fairly possible" to read § 223(a)(1)(A) as applying only to "obscene" communications. So construed, the provision would clearly survive constitutional challenge.
ApolloMedia's request for preliminary and permanent injunctive relief and for a declaration that §§ 223(a)(1)(A)(ii) and (a)(2) violate the First Amendment is hereby DENIED.
IT IS SO ORDERED.
Dated: September 22, 1998.
Maxine M. Chesney
United States District Judge
Michael Daly Hawkins
United States Circuit Judge