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 Iver Avenue, #5, 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. 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 or configure "browser" software. To connect to any particular site on the World Wide Web, a user must know the Uniform Resource Locator ("URL") at the address for the site. 12. An individual wishing to provide information on the World Wide Web needs only to locate space on an available server--a computer directly connected to the Internet, often with high speed connections to the Internet. An individual wishing to provide information on the World Wide Web need not obtain the approval of the United States Government or any of its agencies. 13. The American Reporter is an electronic newspaper published on a daily basis. The American Reporter is distributed to subscribers by e-mail each day and is simultaneously published on the World Wide Web at http:\\www.newshare.com. The version published on the World Wide Web is available to any person in the world possessing the necessary Internet connection and browsing software. 14. The American Reporter is a general interest newspaper and publishes articles about politics, international affairs and economic, social and cultural issues. There are about 40 contributors of stories and editorials to the American Reporter, and several hundred subscribers, including about 25 newspapers, the Associated Press and other news services. 15. Subscribers who wish to download all stories in the American Reporter pay $125 per week. Readers who wish to receive the paper each day by e-mail and to be able to buy the one-time publication rights to stories in the American Reporter pay $100 per year or $10 per month. 16. On February 8, 1996, the American Reporter published an editorial on the Telecommunications Act of 1996. The editorial, which is attached as Exhibit 1, contained numerous terms that may constitute "indecent" language as defined by 502(2)(d)(1). The offending terms were repeated numerous times and may render the editorial indecent under the statute. 17. The editorial was distributed to all subscribers of the American Reporter via Internet e-mail and was also published on the World Wide Web at http:\\www.newshare.com. 18. Upon information and belief, citizens of the United States and the State of New York under the age of eighteen have had and continue to have access to this editorial. 19. By publishing the editorial, the American Reporter may have violated 502(2)(d) of the Telecommunications Act of 1996. Plaintiff, a= s editor, publisher and proprietor of the American Reporter faces a credible threat of enforcement and prosecution under 502(2)(d)(1). COUNT ONE 20. Plaintiffs repeat and reallege each and every factual allegation as set forth in paragraphs 1-19 above as if fully set forth herein. 21. The publication of the editorial may well be a violation of 502(2)(d) of the Act. 22. The publication of this same editorial in a traditional newspaper or magazine is neither unlawful nor illegal. 23. The distribution of this same editorial using the United States mail would not be illegal or unlawful. 24. There is no legal or constitutional basis for the distinction between traditional newspapers and newspapers distributed electronically. 25. The attached editorial represents speech protected by the First Amendment to the United States Constitution. Specifically, the editorial represents commentary on social and political issues of great concern. In addition, the publication of the editorial by the American Reporter represents an exercise of the right to a free press as guaranteed by the First Amendment. 26. Nonetheless, the Act, as written, and on its face, makes the publication of this editorial and its distribution over the Internet a crime, punishable by up to two years of imprisonment and/or a fine of up to $250,000. 27. The statute, as written and on its face, is unconstitutionally overbroad and impermissibly limits, abridges and regulates plaintiff's rights to free speech as secured by the First Amendment. 28. The statute, as written and on its face, is unconstitutionally overbroad and impermissibly limits, abridges and regulates the right to a free press as secured by the First Amendment. 29. The statute, as written and applied, has and will chill and inhibit plaintiff and many other citizens from exercising their right to engage in free, robust and non-obscene political discourse as guaranteed by the First Amendment to the United States Constitution. COUNT TWO 30. Plaintiff repeats and realleges each and every allegation as set forth in paragraphs 1-28, as if fully set forth herein. 31. Section 502(2)(d) is unconstitutionally vague in that it allows indecency to be decided on a subjective, community-by-community basis. 32. The vagueness of 502(2)(d) has and will chill the exercise of rights guaranteed by the First Amendment for plaintiff and many other citizens. COUNT THREE (Injunctive Relief) 33. Plaintiff repeats and realleges each and every allegation as set forth in paragraphs 1-32 above as if fully set forth herein. 34. The statute, as written, enforced and applied, subjects plaintiffs to substantial and severe criminal fines and penalties and incarceration. 35. If the enforcement of this statute is not enjoined, plaintiffs will suffer irreparable injury for which there is no adequate remedy at law. 36. Plaintiff is substantially likely to prevail on the merits of his claims that the statute is unconstitutional. 37. Because the statute is unconstitutional, both as written and applied, enjoining its enforcement will not inflict any legally cognizable injury on any person. 38. Enjoining the enforcement of this statute will serve the public interest. Prayer for Relief WHEREFORE, Plaintiff pray that this Court: (1) Declare Section 502(2)(d) of the Telecommunications Act of 1996 to be unconstitutionally overbroad; (2) Declare Section 502(2)(d) of the Telecommunications Act of 1996 to be unconstitutionally vague. (3) Preliminarily and permanently enjoin defendant from enforcing Section 502(2)(d) of the Telecommunications Act of 1996; and (4) Such other relief as may be just and appropriate, including an award of attorneys' fees and costs. Dated: New York, New York February 8, 1996 Respectfully submitted, ARENT FOX KINTNER PLOTKIN & KAHN 1050 Connecticut Avenue, N.W. Washington, D.C. 20036-5339 (202) 857-6000 -30-
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