Dec. IV"), and other CDC-developed AIDS educational materials, meet the standards set forth in the Revised Grant Terms.
Nevertheless, the Court finds that the CDC has failed to substantially clarify the disputed terms or provide sufficient guidance to AIDS educators or panel members. Despite the attempted clarifications, the "offensiveness" standard remains essentially undefined. To date, the CDC has made no affirmative statement as to what constitutes "offensive" materials, nor has it set forth a method by which to determine what materials will be deemed "offensive" under the Revised Grant Terms.
As such, plaintiffs are correct when they assert that the Revised Grant Terms provide no way of answering questions such as: Can educational material be offensive simply because it mentions homosexuality? Because it depicts an interracial couple? Can a proposed AIDS education project be offensive because it traps a captive audience, such as subway riders, and forces them to look at a condom? Does offensive apply to all descriptions of sexual behavior, graphic depictions of sexual behavior, or descriptions of unusual sexual behavior? Pl. Mem., at 34-35.
The addition of a sole example fails to provide the necessary clarification of the "offensiveness" standard.
Defendants are correct that examples may be used to add definiteness to a standard and avoid a vagueness determination. See e.g., Murphy v. Matheson, 742 F.2d 564, 572 (10th Cir. 1984) (list of examples provided sufficient definiteness to statute); United States v. Dyer, 750 F. Supp. 1278, 1298 (E.D. Va. 1990) (same). These cases, however, involved elaborate definitions, including numerous examples, of the prohibited conduct. The statute at issue in Murphy contained a long list of covered drug paraphernalia as well as a section devoted to what should be considered in determining whether an object is drug paraphernalia. Similarly, the statute in Dyer listed fifteen specific examples of drug paraphernalia.
By contrast, in this case a sole example is provided, and it is not particularly helpful. Although the Surgeon General's Report on Acquired Immune Deficiency Syndrome discusses such issues as homosexual relations, the use of condoms and oral and anal sex, it was written six years ago and discusses these issues in a clinical and sanitized manner. Moreover, whereas the Revised Grant Terms state that materials should not include "terms, descriptors, or displays which will be offensive . . .," the Report is merely an example of what is not offensive. Further, since the CDC has not indicated where within the range of acceptability this example falls, very little guidance is actually provided to AIDS educators and panel members. Unless other materials produced are exactly like the example, one has no idea whether they will comply with the standard.
Compounding the confusion is CDC's failure to provide guidance as to how a PRP is to determine whether terms, descriptors, or displays "will be offensive to a majority of the intended audience
or to a majority of adults outside the intended audience." Substituting the word "adults" for "persons" provides some clarification, but it does not significantly aid a PRP in determining what is offensive to millions of people. Nor does it clarify how a PRP is to carry out its function. Is a PRP to conduct an exhaustive poll on each set of materials submitted to determine whether they are offensive to a majority of adults outside the intended group? Even if this type of poll would be feasible, who is to be the target of the poll? Further, how should a local government's or local organization's PRP determine the opinion of a majority of adults in its city, county, state or nation.
This lack of guidance is especially troubling given that the Revised Grant Terms require PRP members to gauge the reactions of members of the public, see Big Mama Rag, Inc. v. United States, 203 U.S. App. D.C. 448, 631 F.2d 1030, 1037 (D.C. Cir. 1980) (the regulation's vagueness is especially apparent in that portion of the test expressly based on an individualistic - and therefore necessarily varying and unascertainable - standard: the reactions of members of the public), as well as engage in two levels of subjective analysis, i.e., PRP members have to form their own subjective opinions about the subjective opinions of a majority of other adults. Specifically, PRP members have to make a subjective determination as to what a majority of other adults will think offensive.
Finally, the addition of an "effectiveness" inquiry does not provide the Revised Grant Terms with a core meaning.
"Effectiveness" is similarly subjective and undefined, and the CDC proffers no guidance to PRPs as to how to assess "effectiveness." As such, there is no way to answer the following questions: Is effectiveness to be measured by how well a message is communicated? By the materials' impact on the rate of HIV infection? 9If so, how is that rate to be determined?) Or is effectiveness measured by the ability of the education materials to help individuals change their behaviors? Over the short term or the long term? Or is effectiveness to be judged by the degree to which the materials encourage sexual abstinence?
Moreover, under the Revised Grant Terms, "effectiveness" only comes into play as a factor for the PRP to consider if the materials communicate "an important HIV prevention message." However, again, there is no guidance as to what constitutes such a message, and the PRPs as well as AIDS educators are left in the dark as to which HIV prevention messages are important and which are unimportant. Further, although the Revised Grant Terms require a PRP to determine whether the potential "offensiveness" of educational materials is outweighed by the potential "effectiveness" of such materials, the CDC has offered no guidance as to how to balance these two subjective, undefined and seemingly incomparable terms against each other. As such, PRPs are forced to guess how "effective" materials must be to overcome a conclusion of "offensiveness."
Thus, despite defendants' attempted clarifications, the Court finds that no "core meaning" can be discerned from the Revised Grant Terms.
B. Overlap With Constitutional Standards
Defendants contend that the core meaning of the "offensiveness" standard has been defined not only by example contained in the Revised Grant Terms themselves,
but by reference to the obscenity standard. According to the defendants, since the "offensiveness" standard clearly encompasses legally "obscene" materials, the Revised Grant Terms contain a core meaning. The Court disagrees.
As the plaintiffs assert, a restriction that prohibited the funding of all "rude," "unpopular," "erotic," "annoying," "controversial," or "upsetting" materials would also likely encompass legally obscene materials. However, the fact that a broad, undefined, and vague term overlaps with a more specific, well-defined and constitutional prohibition, does not make the broader language constitutional. Because the obscenity standard is inherently narrower than the offensiveness criterion, there is a vast amount of material that could be developed that would be deemed offensive, but not obscene. As such, the Court finds that reference to the obscenity standard offers no real guidance or clarification to either AIDS educators or PRP members.
Moreover, the Court will not permit the defendants to rely on the judicially defined obscenity standard to provide the grant terms with core meaning, when they have chosen instead to impose a nebulous and undefined "offensiveness" standard. If defendants seek to rely on the constitutional obscenity standard, they should adopt it, as the plaintiffs have urged.
Such adoption would be consistent with the National Endowment for the Art's (NEA) decision to tailor its restrictions to the legal standard for obscenity. Under the terms of a recent settlement, the NEA will demand return of its funds from a grantee only if the grantee is convicted in a judicial proceeding of violating a criminal obscenity or child pornography statute. See New School for Social Research v. Frohmayer, No. 90 Civ. 3510 (LLS) (S.D.N.Y. Feb. 19, 1991) (settled by stipulation).
C. Implementation of the Revised Grant Terms
Defendants also argue that the a core meaning has been defined by implementation of the grant terms over the course of more than five years. This argument is unpersuasive as the defendants have never explained the content of the standard that has allegedly emerged from the implementation of the grant terms. Nor have the defendants collected or published the PRP decisions so that a concrete record would exist as to what constitutes "offensive" materials.
D. Applicable Caselaw
Defendants contend that plaintiffs have failed to cite any case in which a court has determined that the term "offensive" is per se unconstitutionally vague. Defendants also contend that there are a "host" of cases in which the term "offensive" has survived vagueness challenge, and according to defendants, these cases establish beyond peradventure that the term contains at least a core meaning. Def. Rep. Mem., at 64-65, n.78, n.79. The Court finds, however, that the applicable case law supports the opposite conclusion, namely, that the term "offensive" has no core meaning in the present context.
1. Use of the term "offensive
The defendants rely on three cases in support of their proposition that the term "offensive" is capable of constitutional application, i.e., that the term has a core meaning: Chaplinsky v. New Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 91942), Bethel School District No. 403 v. Fraser, 478 U.S. 675, 92 L. Ed. 2d 549, 106 S. Ct. 3159 91986), and FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026 91978). Defendants reliance on these cases, however, is misplaced.
In Chaplinsky, the appellant challenged, on vagueness grounds, a New Hampshire law which provided that "no person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . ." Id. at 569. The Supreme Court upheld the statute against First Amendment challenges as it had been narrowly construed by the New Hampshire state court to prohibit only "fighting words," i.e., those words which "have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed." Id. at 573. As such, the Supreme Court noted that "appellant need not . . . have been a prophet to understand what the statute condemned." Id. at 574 n.8.
On the strength of Chaplinsky, defendants argue that one core meaning of "offensive," namely "fighting words," is not unconstitutionally vague. Even if defendants are correct and Chaplinsky did establish that "offensive" has at least one constitutionally permissible core meaning, that is not the end of the analysis as it is not enough simply to establish that the term "offensive" has a core meaning in a wholly irrelevant context. Defendants have failed to explain what possible benefit the "fighting words" definition has in the case at bar. It is impossible to imagine how fighting words, which are limited to face-to-face direct personal insults, would ever come before a PRP for review. Thus, the core meaning established in Chaplinsky offers no guidance to PRP members or AIDS educators.
Moreover, defendants fail to recognize that in the present case, unlike in Chaplinsky, there is no relevant judicial interpretation of the CDC's grant terms. Nor has the CDC itself provided any specification or clarification of the term "offensive."
Similarly, Bethel and Pacifica fail to support the existence of a core meaning in this case. In Bethel, the Supreme Court held that the First Amendment did not prevent the School District from disciplining respondent for giving an "offensively lewd and indecent speech" at an assembly. Id. at 676. In Pacifica, the Court upheld a prohibition of a broadcast containing words conceded to be "vulgar," "offensive," and "shocking."
In these cases, however, there was no vagueness challenge to the term "offensive." Rather, the basic dispute in both cases was about whether plainly "offensive," see Bethel, 478 U.S. at 683, and undisputedly "offensive," see Pacifica, 438 U.S. at 747, language could be prohibited in certain well-defined situations. Thus, the Supreme Court neither focused on whether the term "offensive" had a core meaning, nor determined that the term was capable of constitutional application in a regulatory context. Moreover, in each of the above decisions the Court emphasized the narrow, particularized enforcement context. In Bethel, the Court acknowledged that it was dealing with a situation "where the speech is sexually explicit and the audience may include children." Id. at 684. In Pacifica, similarly, the Court made clear that it was concerned with "indecent" programming during hours when children were more likely to be in the audience. Id. at 748-50.
These cases are in sharp contrast to the instant case where the CDC has not limited its offense standard to sexually explicit depictions, or to situations involving exposure to children.
2. Communications cases
Defendants also seek support for the Revised Grant Terms in the FCC's "indecency" standard which was upheld in Dial Information Services Corp. of New York v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), Action for Children's Television v. FCC, 290 U.S. App. D.C. 4, 932 F.2d 1504 (D.C. Cir. 1991), and Information Providers' Coalition v. FCC, 928 F.2d 866 (9th Cir. 1991). In upholding the constitutionality of the term "indecent," however, these cases only serve to demonstrate the lack of core meaning of the "offensiveness" standard.
In Dial Information Services, the Court of Appeals for the Second Circuit reversed a district court ruling in American Information Enterprises, Inc. v. Thornburgh, 742 F. Supp. 1255 (S.D.N.Y. 1990). In American Information Enterprises, the district court had issued a preliminary injunction enjoining enforcement of a statute that prohibits providers of "indecent" telephone communications for commercial purposes from making their services available to persons under 18 years of age.
The district court held, as a matter of law, that the term "indecent" in the statute was void for vagueness. Although the government argued that Pacifica set forth a precise definition of "indecent"
which should be incorporated into the Helms Amendment to provide the necessary specificity, the district court found that because Pacifica implicated the broadcast medium, rather than the telephone medium, "it cannot be assumed that the Pacifica definition of 'indecent' applies here." American Information Enterprises, 742 F. Supp. at 1271. According to the district court, the FCC had simply reiterated the Pacifica definition, see In re Regulations Concerning Indecent Communications by Telephone, Gen. Dkt. No. 90-64, P12 (Report and Order, released June 29, 1990) ("Report and Order"), and was therefore merely "assuming" that the Pacifica definition would be "what courts will find 'indecent' to mean in [the] Helms Amendment." Id. at 1269. As such, the court would not apply the Pacifica definition to the telephone context. With the Pacifica definition not applicable, the district court determined that:
Without any additional specificity, the term "indecency" on its own is too vague to pass constitutional muster. The term indecency does not inherently contain within it a reference to specifically defined conduct, as does the term "obscenity." . . . Moreover, the term does not appear in the context of a specific definition of conduct . . . The statute and regulations only make a person of common intelligence aware that "offensive" communications are to be restricted. There must be notice of what constitutes such indecency or offensiveness, or else: there is not fair notice of what is restricted; the statute can be arbitrarily enforced; and protected expression could be deterred.
American Information Enterprises, 742 F. Supp. at 1271.
The Second Circuit reversed, however, holding that "indecent," as used in the Helms Amendment, has been defined clearly by the Federal Communication Commission ("FCC") pursuant to its statutory direction to prescribe by regulation procedures for preventing access to dial-a-porn by minors. Dial Information Services, Slip Op. at 11. In fact, the June 29, 1990 Report and Order released by the FCC specifically provided that:
In the dial-a-porn context, we believe it is appropriate to define indecency as the description or depiction of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the telephone medium.