Voicenet Communications, Inc. v. Pappert , 126 F. App'x 55 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
3-9-2005
Voicenet Comm Inc v. Atty Gen PA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2911
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No. 04-2911; Case No. 04-3339
VOICENET COMMUNICATIONS, INC., ON BEHALF OF ITSELF
AND ITS SUBSCRIBERS; OMNI TELECOM, INC., ON BEHALF OF ITSELF
AND ITS SUBSCRIBERS,
v.
GERALD J. PAPPERT, ATTORNEY GENERAL OF THE COMMONWEALTH OF
PENNSYLVANIA, IN HIS OFFICIAL CAPACITY; MICHELE L. DEERY, SPECIAL
AGENT OF THE OFFICE OF ATTORNEY GENERAL OF THE COMMONWEALTH
OF PENNSYLVANIA, IN HER INDIVIDUAL CAPACITY; G. MICHAEL GREEN,
DISTRICT ATTORNEY OF DELAWARE COUNTY, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES; DIANE E. GIBBONS, DISTRICT ATTORNEY OF BUCKS
COUNTY, IN HER INDIVIDUAL AND OFFICIAL CAPACITIES; MARTIN
MCDONOUGH, DETECTIVE, BUCKS COUNTY DISTRICT ATTORNEY’S OFFICE,
IN HIS INDIVIDUAL AND OFFICIAL CAPACTIES; THOMAS THIEL, DETECTIVE,
BUCKS COUNTY DISTRICT ATTORNEY’S OFFICE, IN HIS INDIVIDUAL AND
OFFICIAL CAPACITIES
Voicenet Communications, Inc.
Omni Telecom., Inc.,
Appellants
_______________
On appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Civ. No. 04-1318
District Judge: Hon. Mary A. McLaughlin
_______________
Argued January 19, 2005
_______________
Before: ALITO, McKEE, and SMITH, Circuit Judges
(Filed: March 9, 2005 )
___________________
Counsel: Richard A. Sprague
Mark B. Sheppard (Argued)
Sprague & Sprague
Suite 400, The Wellington
135 South 19th Street
Philadelphia, Pennsylvania 19103
Attorney for Appellants, Voicenet Communications, Inc., and Omni
Telecom, Inc.
Claudia M. Tesoro
Sue Ann Unger (Argued)
Calvin R. Koons
Office of Attorney General of Pennsylvania
21 South 12th Street, 3d Floor
Philadelphia, Pennsylvania 19107
Attorney for Appellees, Attorney General of Pennsylvania, Gerald J.
Pappert; Special Agent of the Office of Attorney General of Pennsylvania,
Michele L. Deery
Andrew B. Adair (Argued)
Holstein & Associates
One South Olive Street
Media, Pennsylvania 19063
Attorney for Appellee, District Attorney of Delaware County, Pennsylvania,
G. Michael Green
Frank A. Chernak (Argued)
Ballard Spahr Andrews & Ingersoll
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
Attorney for Appellee, District Attorney of Bucks County, Pennsylvania,
Diane E. Gibbons; Detective, Bucks County, Pennsylvania, Martin
McDonough; Detective, Bucks County, Pennsylvania, Thomas Thiel
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____________________
OPINION OF THE COURT
____________________
SMITH, Circuit Judge.
In this appeal, we consider whether the United States District Court for the Eastern
District of Pennsylvania abused its discretion in denying preliminary injunctive relief to
two affiliated technology companies providing access to articles and images on a section
of the Internet. In light of the parties’ statements at oral argument and written
submissions, we will affirm the judgment of the District Court.
I.
The District Court had jurisdiction under 28 U.S.C. § 1331. This Court has
jurisdiction over this appeal under 28 U.S.C. § 1292(a)(1), which provides jurisdiction
over interlocutory orders of federal district courts denying injunctions. We review a
district court’s denial of a preliminary injunction for abuse of discretion. Hohe v. Casey,
868 F.2d 69, 70 (3d Cir. 1989); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175
(3d Cir. 1990).
II.
Voicenet Communications, Inc. and Omni Telecom, Inc. (Voicenet/OTI) provide
access to articles and images posted on the Internet bulletin board system called “Usenet.”
The software Voicenet/OTI use to provide that access is called “Quikvue.” In late 2003,
upon receiving a complaint that Quikvue was being used to access child pornography, and
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successfully using the software to that effect, Commonwealth and county officials
secured and executed a search warrant for Voicenet/OTI’s facilities. The officials seized
numerous pieces of computer hardware that later allegedly were found to contain child
pornography.
In March 2004, Voicenet/OTI filed a complaint in the Eastern District of
Pennsylvania alleging violations of 42 U.S.C. §§ 1983 and 1985, and seeking an
injunction requiring the return of its equipment. Officials returned much of the hardware.
Voicenet/OTI persisted in their request for preliminary injunctive relief, however, seeking
return of the rest of their equipment – namely servers, called “arrays,” used to operate
Quikvue – and an order that Voicenet/OTI be afforded notice and an opportunity to be
heard before future seizures. Without such relief, Voicenet/OTI argued, their First
Amendment rights were chilled along with those of their subscribers and other Internet
Service Providers (ISPs). This, they claimed, constituted irreparable harm meriting an
injunction under Dombrowski v. Pfister, 380 U.S. 479 (1965).
On June 18, 2004, Voicenet/OTI sought judgment against themselves under
Federal Rule of Civil Procedure 58, a move which would then allow them to file an
appeal. On June 21, the District Court wrote to counsel “explaining that the Court was
planning to issue a decision by July 2 on [Voicenet/OTI’s] motion for a preliminary
injunction.” On July 6, Voicenet/OTI filed a notice of appeal (No. 04-2911) alleging that
the District Court’s failure to rule on their motion for a preliminary injunction constituted
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denial of that motion. On July 15, without an evidentiary hearing, the District Court
denied Voicenet/OTI’s motion for a preliminary injunction in a memorandum and issued
an order the next day. Voicenet/OTI appealed that denial on August 12 (No. 04-3339).
This Court consolidated Voicenet/OTI’s appeals on August 18, 2004.
In its July 16 memorandum, the District Court held that Voicenet/OTI failed to
show irreparable harm and denied preliminary relief without a hearing. Voicenet/OTI
appeal the denial of relief and the District Court’s refusal to hold a hearing.
C. District Court Decision
1. Order for Immediate Return or Replacement of Arrays
The District Court declined to order immediate return or replacement of the arrays
because Voicenet/OTI showed no risk of irreparable harm caused by deprivation of the
arrays. The Court noted that Voicenet/OTI admitted that they could replace the arrays for
$20,000.
2. Prohibition Against Appellees’ Accessing Subscriber Information
The District Court noted that the government officials “agreed not to access the
subscriber information without providing notice to the plaintiffs so that the plaintiffs can
seek an injunction against such access.” Consequently, the Court ruled, Voicenet/OTI
showed no irreparable harm to the subscribers they claimed to represent.
3. Injunction Requiring That Voicenet/OTI Must Be Afforded Notice and
an Opportunity To Be Heard Before Future Seizures
According to the District Court, under the rubric of Dombrowski, 380 U.S. at 487,
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Voicenet/OTI “contend that their First Amendment rights are chilled by several factors,
including the possibility of criminal prosecution and the uncertainty of whether they are
protected” by state and federal statutes. The Court ruled that, in the Third Circuit, “the
assertion of First Amendment rights does not automatically require a finding of
irreparable injury.” The Court explained that, instead, irreparable injury in the present
context is the “purposeful unconstitutional [government] suppression of speech” and
“direct penalization, as opposed to incidental inhibition, of First Amendment rights.”
Any harm in this case is speculative, the Court reasoned, because the unreplaceable
Quikvue equipment has been returned, and there is no “definite or continued threat of
either prosecution or future seizures of equipment.”
III.
The District Court did not abuse its discretion in denying Voicenet/OTI
preliminary injunctive relief because Voicenet/OTI did not make a “clear showing of
immediate, irreparable injury.” See Hohe, 868 F.2d at 72 (quoting ECRI v. McGraw-Hill,
Inc., 809 F.2d 223, 226 (3d Cir. 1987)). Moreover, none of Voicenet/OTI’s allegations of
injury involved disputed questions of fact, and thus a hearing was not required.
A. Order for Immediate Return or Replacement of Arrays
1. Preliminary relief
Voicenet/OTI make no clear showing of immediate irreparable injury as a result of
the officers’ failure to return the arrays. By their own admission, Voicenet/OTI can
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replace the arrays and restart Quikvue for $20,000. As “irreparable injury is suffered
where monetary damages are difficult to ascertain or are inadequate,” Hohe, 868 F.2d at
73, preliminary equitable relief is unnecessary. Moreover, Voicenet/OTI do not show a
chill on free expression caused by “direct penalization, as opposed to incidental
inhibition, of First Amendment rights . . . .” Id. at 72-73. The officals’ refusal to return
the arrays does not render Quikvue inoperative; that deprivation may be remedied with
money damages. As such, Voicenet/OTI’s First Amendment rights may be incidentally
inhibited, but they are not at risk of irreparable injury.
2. Hearing
Voicenet/OTI claims facts are in dispute, but its own letter estimating that the
arrays could be replaced for $20,000 belies this assertion. The District Court permissibly
declined to hold a hearing because Voicenet/OTI did “not present[] a colorable factual
basis to support the claim on the merits or the contention of irreparable harm.” Bradley,
910 F.2d at 1176.
B. Prohibition Against Appellees’ Accessing Subscriber Records
1. Preliminary Relief
Voicenet/OTI argue that their subscribers’ First Amendment rights are chilled by
the government’s promise not to view subscriber records, which reside on the seized
arrays. Voicenet/OTI contend that the records should be returned under ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996), aff’d, 521 U.S. 844 (1997), the special, three-judge
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court opinion enjoining enforcement of certain provisions of the Communications
Decency Act (CDA). In Reno, the panel granted the preliminary injunction because
plaintiffs were likely to prevail on the merits of their argument challenging the
constitutionality of portions of the CDA. The panel declined to assume that the
government would enforce the CDA “in a reasonable fashion that would avoid
prosecution for placing on the Internet works of serious literary or artistic merit.” Id. at
857. The panel explained that “the First Amendment should not be interpreted to require
us to entrust the protection it affords to the judgment of prosecutors.” Id.
This case does not resemble Reno. Here, the officers’ assurances are absolute;
they promise not to access subscriber records without notifying Voicenet/OTI, which may
then seek an injunction. Unlike Reno, no prosecutorial discretion remains. The District
Court thus did not abuse its discretion in accepting the officers’ assurance that they would
not misuse evidence seized under a valid warrant.1
2. Hearing
The District Court permissibly declined to hold a hearing on the subscriber records
issue because Voicenet/OTI did “not present[] a colorable factual basis to support the
claim on the merits or the contention of irreparable harm.” Bradley, 910 F.2d at 1176.
1
Voicenet/OTI claim that the federal Electronic Communications Privacy Act, 18
U.S.C. § 2703, et seq., “prohibits the Commonwealth from reviewing any private
subscriber information.” However, “[t]here is no violation of § 2703(a), (b), or (c) if
access is pursuant to a warrant, and the officials in this case had a valid warrant.” Guest
v. Leis, 255 F.3d 325, 339 (6th Cir. 2001).
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C. Injunction Requiring That Voicenet/OTI Be Afforded Notice and an
Opportunity to Be Heard Before Future Seizures
1. Preliminary Relief
The District Court concluded that there was no “definite or continued threat of
either prosecution or future seizures of equipment,” and therefore federal intervention
was unmerited. We agree with the District Court that “the assertion of First Amendment
rights does not automatically require a finding of irreparable injury,” and that
Voicenet/OTI made no clear showing of immediate or irreparable injury because “[t]here
has been no definite or continued threat of either prosecution or future seizures.”
Cases requiring an injunction typically involve repetitive, bad faith seizures or
express threats of such seizures. In Dombrowski v. Pfister, for example,
the plaintiffs offered to prove that the prosecutorial authorities threatened to
enforce statutes against the plaintiffs without any expectation of securing valid
convictions, that despite a summary vacation of search and arrest warrants by a
state judge for lack of probable cause the prosecutorial authorities were continuing
to threaten new indictments and prosecutions based on the evidence ordered
suppressed by the state judge, and that the prosecutorial authorities were engaging
in a plan of arrests, seizures, and threats of prosecution for the sole purpose of
harassing plaintiffs in order to discourage them from attempting to vindicate the
constitutional rights of black citizens.
Lewis v. Kugler, 446 F.2d 1343, 1349 (3d Cir. 1971) (describing Dombrowski).
Similarly, in Krahm v. Graham, state authorities filed over 100 criminal charges for the
sale of allegedly obscene books and magazines; 11 cases went to trial; and none resulted
in convictions. 461 F.2d 703, 705 (9th Cir. 1972). “[A]fter 6 findings of Not Guilty in a
2-week period, 14 new prosecutions were instituted.” Id. Thereafter, authorities
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launched an anti-pornography campaign “spearheaded by the mayor,” who was a
candidate for re-election several months later. Id. at 705-06. The Ninth Circuit held that
the plaintiffs’ First Amendment rights were violated by bad faith prosecutions, and
upheld the District Court’s injunction enjoining pending prosecutions.
Unlike the officials in Dombrowski and Krahm, it does not appear that the officials
in this appeal are invoking the criminal process “with no hope of ultimate success,” and
merely “to discourage [Voicenet/OTI’s] civil rights activities.” Officials have returned
Voicenet/OTI’s equipment, no charges have been filed, and no express threats of
prosecution have been made. As a result, the District Court did not commit an obvious
error in applying the law in declining to order an adversarial hearing before future
seizures. Therefore, we uphold the District Court’s denial of the injunction.
2. Hearing
“[A] decision [to deny a preliminary injunction] may be based on affidavits and
other documentary evidence if the facts are undisputed and the relevant factual issues are
resolved.” Bradley, 910 F.2d at 1176. Here, the relevant facts were undisputed; the
question for the District Court was whether a threat of immediate, irreparable
constitutional harm called for a preliminary injunction. A hearing was not required.
VI. Conclusion
For the foregoing reasons, the judgment of the District Court denying a
preliminary injunction will be upheld. There was no abuse of discretion, and a hearing
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was not required.
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