THREE-JUDGE PANEL OPINION IN SHEA V. RENO
 Here is the full text of the 75-page decision by which a three-judge panel of the U.S.
District Court in New York on July 29 blocked enforcement by the government of the
Communications Decency Act, which had sought to invoke criminal penalties for
transmission of "indecent" material across the Internet. The decision came in a suit
brought by Joseph Shea, editor of The American Reporter the nation's first all-digital
daily. UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK (Submitted: June 13, 1996 / Decided: July 29, 1996) 96 Civ. Q976 7)LC)
JOE SHEA, on behalf of THE AMERICAN REPORTER, PlaintifF; v. JANET M.
RENO, ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Defendant. Before: CABRANES, Circuit Judge,*. SAND**. and COTE,*** District
Judges. The plaintiff, an editor, publisher, and part-owner of a newspaper distributed
exclusively through electronic means, brings this First Amendment challenge to S 223(d)
of the Communications Decency Act of 1996 ("CDA") criminalizing the use of
interactive computer services to display "patently offensive" sexually explicit material
such that it is *The Honorable Jose A. Cabranes of the United States Court of Appeals for
t he Second Circuit. **The Honorable Leonard B. Sand of the United States Distria Court
for the Southern District of New York ***The Honorable Denise Cote of the United
States District Court for the So uthern District of New York. available to persons under
the age of eighteen. The plaintiff seeks a preliminary injunction barring application of the
section. The three-judge panel, appointed pursuant to 28 U.S.C. ~ 2284, held that: (1)
plaintiff has not sustained his burden of demonstrating a likelihood of success on his
claim that ~ 223(d) is unconstitutionally vague, but that (2) the plaintiff has demonstrated
a likelihood of success on his claim that ~ 223(d) is unconstitutionally overbroad in that it
bans protected indecent communication between adults. On this second point, the court
concluded that most content providers' ability to comply with the requirements of the
affirmative defenses set out in the statute depends on the actions of third parties, such as
software manufacturers, whose cooperation is not required under the statute or otherwise
mandated. The technological impossibility of independent compliance with the
aff~rmative defenses renders S 223(d) unconstitutional as an overbroad prohibition on
constitutionally protected indecent speech between adults. RANDALL J. BOE, JAMES
K. STRONSKI, Jill R. Newman, Fabienne M. Clermont, Wayne H. Matelski, Arent Fox
Kintner Plotkin & Kahn, New York, New York, and Washington, D.C.), for the plaintiff
WILLIAM J. HOFFMAN, (Mary Jo White, United States Attorney, Marla Alhadeff,
John McEnany, Assistant United States Attorneys),for the defendant. (Cathleen A.
Cleaver, Family Research Counsel; Bruce A. Taylor, Janet M. LaRue, National Law
Center for Children and Families; Paul J. McGeady, Robert W. Peters, of counsel, for
amici cunae National Law Center for Children and Families, Family Research Council,
"Enough Is Enough!" Campaign, National Coalition for the Protection of Children &
Families, and Morality in Media.) MEMORANDUM AND ORDER JOSE A.
CABRANES, Circuit Judge: We address here the constitutionality of a provision of the
Communications Decency Act of 1996 ("CDA") with an undeniably worthy goal: to limit
the exposure of children to sexually explicit, though not legally obscene, materials
available "on line" - that is, capable of being displayed and ~accessed" by increasingly
common interactive computer services. 47 U.S.C. ~ 223(d), as added by the CDA on

[Blue Ribbon] [2736] TAYLOR/AFA/EIE AMICUS BRIEF IN SHEA V. RENO NYC
CASE Declan McCullagh Subject: Taylor/AFA/EiE amicus brief in Shea v. Reno NYC
case From: Declan McCullagh Date: Sat, 8 Jun 1996 11:26:30 -0700 (PDT) Message-id:
[The following document came from a Microsoft Word file supplied by Bruce Taylor.
Translation to text done by Declan McCullagh, declan@well.com. Any errors in
formatting are his.] In the United States District Court for the Southern District of New
York
________________________
Joe Shea, on behalf of ) The American Reporter, ) Plaintiff ) =09v. =09 ) Civil Action
No. 96 Civ. 0976 (DLC) =09 ) Janet Reno, Attorney General=09 ) of the United States of
America, ) Defendant )
_________________________
 MOTION FOR LEAVE TO FILE the attached BRIEF AMICUS CURIAE and
APPENDIX of the National Law Center for Children and Families, Family Research
Council, "Enough is Enough!" Campaign, National Coalition for the Protection of
Children & Families, and Morality in Media, as AMICI CURIAE IN SUPPORT OF
DEFENDANTS
__________________________
 =09Amici Curiae, the National Law Center for Children and Families, the Family
Research Council, et al., by and through their co-counsel for this matter, hereby move
this Honorable Court for an order permitting them to file a Brief Amicus Curiae in
support of the Defendant, the Honorable Janet M. Reno, Attorney General of the United
States. =09Consent of the Parties: Counsel for both parties before this Court, Mr. Randall
J. Boe, attorney for Plaintiff, and A.U.S.A. William J. Hoffman, attorney for Defendant,
have each granted consent to these amici for the filing of this Brief.n =09A similar
amicus brief was filed in ACLU v. Reno/ALA v. DOJ, E.D. Pa., see attached Order of
April 30, 1996. =09Co-counsel Bruce Taylor and Cathy Cleaver further request that this
motion also serve, if necessary, as a motion for their admission, pro hac vice, for the
purpose of filing the instant motion for leave and the amicus brief. Bruce A. Taylor has
the following admissions to practice: Supreme Courts of New York, Ohio, & Arizona;
U.S. Supreme Court; U.S. Courts of Appeals (2nd, 5th, 6th, 9th, D.C.); U.S. District
Courts (N.D. Ohio, D. Ariz.). Cathleen A. Cleaver has the following admissions to
practice: Supreme Court of Virginia; District of Columbia; U.S. Supreme Court; U.S.
Court of Appeals (4th Cir.); U.S. District Court (D.C.). =09These amici played a central
role in the development and passage of the Communications Decency Act of 1996 (the
=B3CDA=B2), having provided extensive advice to several Senators and Members of the
House of Representatives and engaging in a continual dialogue with Congressional staff,
industry representatives, special interest groups and advocates on both sides, media
reporters, the academic community, and the general public.*{1}=20 =09Co-counsel
Bruce Taylor and Cathy Cleaver also served in the unique role of having been invited by
the Honorable Senators James Exon and Dan Coats, the primary sponsors of the CDA, to
provide legal advice and counsel to those and other Senators, their staffs, to
Representatives and staff assistants in the House, and to the members of the joint
Committee of Conference from which the final CDA emerged. See, for example, Senator

FULL TEXT OF THE AMERICAN REPORTER CHALLENGE TO THE C.D.A.
__________________________________________
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
     -  - - - - - - - - - - - - - - - - - - - - - - - - - -X
     JOE SHEA, on behalf of :
 THE AMERICAN REPORTER, : Plaintiff, 96 Civ. : -against- COMPLAINT : JANET
M. RENO, ATTORNEY GENERAL OF THE : UNITED STATES OF AMERICA, :
Defendant. :
     -  - - - - - - - - - - - - - - - - - - - - - - - - - -X
     COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF For its complaint
     against defendant Janet M. Reno, plaintiff Joe Shea, hereby alleges as follows:
     JURISDICTION AND VENUE 1. This is an action seeking a declaratory judgment and
     injunctive relief under the Declaratory Judgments Act, 28 U.S.C. 2201 et seq. Plaintiff
     asks the court for a declaratory judgment that Section 502 of the Telecommunications
     Act of 1996, be declared unconstitutional because it infringes on the First Amendment
     right of free speech and the guarantee of a free press. Plaintiff also seeks preliminary and
     permanent injunctive relief barring enforcement of the statute. 2. This lawsuit arises
     from the abridgement of plaintiff's constitutional rights and this Court possesses
     jurisdiction over the action by virtue of 28 U.S.C. 1331. 3. Venue is properly laid in this
     Court pursuant to 28 U.S.C. 1391. 4. This suit is entitled to expedited review by a three-
     judge district court panel pursuant to Section 561(a) of the Telecommunications Act of
     1996 and 28 U.S.C. 2284. THE PARTIES 5. Plaintiff, Joe Shea, is a citizen of the State
     of California residing at 1812 Ivar Avenue, No. 55, Hollywood, California and is the
     editor-in-chief, publisher and part-owner of the American Reporter. The American
     Reporter is an electronic newspaper published and distributed on a daily basis over the
     Internet. The American Reporter is distributed to subscribers across the country via e-
     mail and is also made available over the World Wide Web at http:\\www.newshare.com.
     Upon information and belief, the American Reporter is available to and read by citizens
     of the State of New York. 6. Defendant Janet Reno is the Attorney General of the United
     States of America. BACKGROUND 7. On February 1, 1996, Congress passed the
     Telecommunications Act of 1996 (the "Act"). President Clinton signed the
     Telecommunications Act of 1996 into law on February 8, 1996. 8. Section 502(2)(d)(1)
     of the Act makes it unlawful and illegal to knowingly: "use[] an interactive computer
     service to display in a manner available to a person under 18 years of age, any comment,
     request, suggestion, proposal, image or other communication that in context, depicts, or
     describes, in terms patently offensive as measured by contemporary community
     standards, sexual or excretory activities or organs." 9. Each violation of Section 502 is
     punishable by up to two years of imprisonment and/or a fine of up to $250,000. 10. The
     Internet is a global network of private and public computers. The Internet is not
     regulated by the government of any nation or any other central governing body.
     Individuals wishing to connect to the Internet must obtain a connection. Internet
     connections are available from many schools, universities and commercial service
     providers.=20 Internet access is not regulated or provided to the general public by the
     United States government. Internet access through commercial online services is
     provided for a fee. 11. The World Wide Web is a graphical interface for portions of the
     Internet. An individual wishing to view information on the World Wide Web must install

Date: Fri, 16 Feb 1996 14:58:20 -0800 From: Joe Shea To: Multiple recipients of list
SPJ-L Subject: AR Not Covered By TRO Those of you who have followed our CDA suit
may be interested in this latest development. + by American Reporter Staff Hollywood,
Calif. 2/16/96 decision free TEMPORARY RESTRAINING ORDER DOES NOT
COVER THIS NEWSPAPER American Reporter Staff LOS ANGELES -- A Federal
judge has thrown a constitutional safety net over the Communications Decency Act, but it
missed The American Reporter. A statement issued yesterday by the paper was incorrect
in that respect. "We will continue to fight for vindication in the courts, and we expect to
find it following our hearing in the New York matter," AR editor Joe Shea said Friday
afternoon. According to American Reporter attorney Randall Boe, this paper is not
covered by the temporary restraining order issued yesterday by Philadelphia U.S. District
Court Judge Ronald Buckwalter. "The judge refused to enjoin (or restrain) enforcement
of the provision that would presumably apply to [the American Reporter]. The judge
found that the use of "indecent" in one section of the CDA was vague, but that the
definition in section 502(d)(2) -- was not vague. "This is why the ACLU should never
have asked for a TRO -- they have succeeded only in muddying the issues and creating a
little bad law for everyone else," Boe said. The American Reporter's complaint against
the CDA, filed in federal court in New York on Feb. 8, minutes after President Clinton
signed the telecom reform bill into law, will be heard by a separate three-judge panel in
New York. The digital daily published an article on the CDA by Texas Judge Steve
Russell on Feb. 8, both in its email and WWW editions, that contained graphic language
previously defined as indecent. The article contained the first so-called "four-letter
words" ever published by the paper, which began on the SPJ-L list on April 10, 1995. In
the latest action in Shea v. Reno, a brief prepared by Boe was filed today in New York,
and Federal Judge Denise Cote has given the government 30 days to answer it. The
American Reporter is represented by Arent, Fox, Kintner, Plotkin and Kahn, the
Washington-based law firm that also defended George Carlin in the famous "seven dirty
words" case. -30- * * * Best, Joe Shea Editor-in-Chief The American Reporter
joeshea@netcom.com http://www.newshare.com/Reporter/today.html