intrusion into how adults speak to one another.
We conclude, first, that the plaintiff has not sustained his burden of demonstrating a likelihood of success on his claim that § 223(d) is unconstitutionally vague. The definition of material regulated by this section is a familiar one, repeatedly upheld against vagueness challenges in a line of jurisprudence concerning television and radio broadcasting, cable programming, and commercial telephone services. We do, however, conclude that the plaintiff has demonstrated a likelihood of success on his overbreadth claim, that § 223(d) would serve as a ban on constitutionally protected indecent communication between adults. The Government concedes that strict scrutiny is appropriately applied to this claim and that § 223(d) would, on its own, act as an unconstitutional total ban on indecent communication, protected and unprotected alike, but argues that two affirmative defenses set out in § 223(e)(5) serve to shield adults engaging in constitutionally protected indecent communication from criminal liability.
The evidentiary record in this case compels the conclusion that, given the current state of technology, most adult content providers wishing to engage in constitutionally protected indecent speech will be unable to avail themselves of these affirmative defenses. Only a limited subset of on-line content providers, commercial providers on the World Wide Web, can avail themselves of the defense set out in § 223(e)(5)(B), leaving both non-commercial providers of Web content and content providers using all other modes of on-line communication unprotected. The evidence further demonstrates that content providers' ability to comply with the terms of the second defense--the so-called good-faith defense--depends on the actions of third parties, such as software manufacturers, whose cooperation is not required under the CDA or otherwise mandated. There is no feasible means, with our current technology, for someone to provide indecent content on line with any certainty that even his best efforts at shielding the material from minors will be "effective," as the language of the good-faith defense requires.
Because neither of the affirmative defenses set out in § 223(e)(5) can, with our current technology, effectively protect adult content providers wishing to engage in constitutionally protected indecent communication, we reach the inescapable conclusion that § 223(d) will serve to chill protected speech. We therefore find that the plaintiff has demonstrated a likelihood of success on the merits of his claim that § 223(d) is unconstitutionally overbroad.
We are mindful of our obligation to construe a federal statute to avoid constitutional problems if it is possible to do so, but we are equally mindful of the limits of the judicial power under our Constitution and we decline the Government's invitation to perform radical surgery on a statute dealing with a difficult problem in a rapidly changing area of technology; in sum, we respectfully decline the invitation to legislate from the bench.
In setting aside the challenged provisions, we do not question the legitimacy of the government's interest in safeguarding children from exposure to certain materials available on line nor suggest that other legislation on another day, carefully tailored to technological realities, may not pass constitutional muster. We also do not consider, nor attempt to delineate, the range of circumstances, if any, in which Congress could now or in the future constitutionally impose content-based restrictions upon communications in the developing medium we explore here.
Plaintiff Joe Shea is the editor-in-chief, part-owner, and publisher of the American Reporter, a daily newspaper distributed solely by electronic means. On February 8, 1996, following the signing of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, the American Reporter published an editorial, (Complaint, Ex. 1) criticizing Title V of the Act, known as the Communications Decency Act of 1996 ("CDA"). The editorial contained language arguably falling within the scope of a provision of the CDA criminalizing the transmission or display of certain content in a manner available to minors: