The opinion of the court was delivered by: SIFTON
Plaintiffs bring this class action seeking a declaration that 18 U.S.C. § 1462(c) as amended by section 507 of the Communications Decency Act of 1996 ("the Act") is unconstitutional. They also seek an injunction barring its enforcement. The Act extends existing prohibitions on the transport of abortion-related information by common carrier or express services to cover the transmission of such information by interactive computer services. Plaintiffs are individuals and organizations who either use or intend to use interactive computer services to transmit or to receive information about abortions. They allege that the Act, which criminalizes commercial and non-commercial interstate speech and publications that contain information about where, how, from whom, or by what means an abortion may be obtained, violates the First Amendment.
The action names as defendant Attorney General Janet Reno in her official capacity as the chief legal official charged with enforcement of the Act. Plaintiffs also move pursuant to Rule 19(a) of the Federal Rules of Civil Procedure to join Representatives Henry Hyde and Newt Gingrich as defendants to the lawsuit.
The Attorney General moves to dismiss plaintiffs' complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure on the ground that it is not ripe for adjudication and does not present a justiciable case or controversy. She also opposes plaintiffs' motion for joinder, contending that the Representatives are immune from suit for actions taken in their official capacity and that, even if they are joined as defendants, plaintiffs' action must still be dismissed for lack of justiciability. For the reasons set forth below, plaintiffs' motion for joinder is denied and defendant's motion to dismiss the complaint for lack of subject matter jurisdiction is granted.
The following recitation of facts is taken from plaintiffs' pleadings and papers submitted by both sides on this motion. For the purposes of these motions, plaintiffs' version of the situation is assumed to be true where it differs from defendant's.
As noted, plaintiffs are persons and organizations who currently use or intend to use interactive computer services
to transmit or receive abortion-related information prohibited under the Act. Plaintiff Sanger is the current president of Planned Parenthood of New York City ("PPNYC"). Under his direction, PPNYC advertises in interstate commerce using both common carriers and interactive computer services concerning abortion services available at its offices. PPNYC is a New York nonprofit corporation that provides gynecological and reproductive services to women in the New York City metropolitan area, including abortion services. PPNYC also regularly uses interactive computer services to purchase medical and surgical equipment and drugs used in performing abortions.
Plaintiff National Abortion and Reproductive Rights Action League ("NARAL") is a nonprofit membership organization incorporated in the District of Columbia. NARAL currently uses express companies, common carriers, and interactive computer services to gather information about abortion methods. NARAL has also entered into a contract for the construction of a NARAL site on the World Wide Web for dissemination of information about abortions.
Plaintiff Feminist Majority Foundation ("FMF") is a nonprofit research and educational organization with the objective of increasing the empowerment of women. FMF uses interactive computer services to disseminate information about drugs, medicines, or other devices intended for use in producing abortions.
Plaintiff Medical Students for Choice ("MSFC") is a national organization founded by medical students concerned about the shortage of abortion practitioners, the lack of abortion education in medical schools, and the escalating violence against abortion providers. MSFC utilizes interactive computer services on the Internet and World Wide Web to provide or obtain information about abortions.
Plaintiff Rhonda Copelon is a professor of law at the City University of New York law school, located within this District, in Queens, New York. As part of her academic research, she receives by common carriers and interactive services in interstate and foreign commerce "cards, letters, circulars, books, advertisements or notices" about where, how, from whom, or by what means items designed, adapted, or intended to produce abortions may be obtained.
Plaintiff Adam Guasch-Melendez maintains a site on the World Wide Web that contains information about how, where, from whom, or by what means abortions may be obtained.
Plaintiff National Abortion Federation ("NAF") is a nonprofit professional association of abortion providers representing physicians, nurses, administrators, counselors, and other medical staff at abortion facilities throughout the United States. NAF regularly uses common carriers and express companies to obtain and receive information about abortions. NAF is also planning on "going on Internet within the next few months as an organization." Currently, one of NAF's staff members uses the Internet to transmit and receive information on behalf of NAF and many of NAF's members use the Internet regularly to exchange information on abortion practices.
On February 7, 1996, plaintiffs filed the complaint in this action challenging the constitutionality of the Act on the basis that it violates the right to freedom of speech and freedom of the press under the First Amendment to the U.S. Constitution.
Plaintiffs bring their complaint on behalf of all other individuals and organizations similarly situated and seek, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure, to represent a class of all individuals and organizations in the United States who use or seek to use express companies, common carriers, or interactive computer services to carry or receive information in interstate or foreign commerce about where and how to obtain abortions. Plaintiffs seek a declaration that the Act is unconstitutional and an injunction prohibiting enforcement of the Act pursuant to 28 U.S.C. §§ 2201, 2202, Rules 57 and 65 of the Federal Rules of Civil Procedure, and the "general legal and equitable powers of this Court."
In 1897, Congress passed 18 U.S.C. § 1462 ("§ 1462") which, inter alia, made it a felony to transport by common carrier or express service in interstate or foreign commerce items or products intended to induce abortion or information about obtaining such items or products. See Act of Feb. 8, 1897, ch. 127, 29 Stat. 512 (1897).
In the 99 years since its enactment, there have been no reported decisions reflecting the use of § 1462 to prosecute abortion-related speech. In 1981, after two district courts declared the abortion-related provisions of two similar criminal statutes unconstitutional,
see Atlanta Coop. News Project v. United States Postal Serv., 350 F. Supp. 234, 238-39 (N.D. Ga. 1972); Associated Students for Univ. of California at Riverside v. Attorney General, 368 F. Supp. 11, 21-24 (C.D. Cal. 1973), United States Attorney General Benjamin Civiletti sent a letter to Walter Mondale as President of the Senate stating his belief that the statutes were unconstitutional and announcing that his department would not prosecute persons violating those statutes.
See Letter from Benjamin R. Civiletti, U.S. Attorney General, to the Honorable Walter F. Mondale, President of the Senate (Jan. 13, 1981) (Ex. 1 attached to defendant's memorandum in support of her motion to dismiss).
The Attorney General left open the possibility that those statutes might be applied to commercial speech. Id. However, two years later, the Supreme Court held that 39 U.S.C. § 3001 could not be applied to commercial speech concerning contraception, at least where the speech was truthful and not misleading. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 77 L. Ed. 2d 469, 103 S. Ct. 2875 (1983). The Justice Department has since taken the position that the holding in Bolger applies to abortion-related speech, relying upon Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d 600, 95 S. Ct. 2222 (1975) (holding that commercial speech concerning abortion services was protected under the First Amendment). See Letter from Janet Reno, U.S. Attorney General, to the Honorable Albert Gore, Jr., President of the Senate (February 9, 1996).
On February 8, 1996, Congress amended § 1462 to extend its prohibitions of the transportation of obscene and abortion-related materials to cover transmission of such materials using interactive computer services. See The Communications Decency Act § 507, contained within Title V of the Telecommunications Act of 1996. The amended statute provides in pertinent part:
Whoever brings into the United States, or any place subject to the jurisdiction thereof, of knowingly uses any express company or other common carrier or other interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) for carriage in interstate or foreign commerce --
... (c) any drug, medicine, article, or thing designed, adapted, or intended for producing abortion, or for any indecent or immoral use; or any written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, how, or of whom, or by what means any of such mentioned articles, matters, or things may be obtained or made; or
Whoever knowingly takes or receives from such express company or other common carrier or interactive computer service (as defined in section 230(e)(2) of the Communications Act of 1934) any matter or thing the ...