                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                                           NOT PRECEDENTIAL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



                                         2
                                 ____________________

                                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

                                              3
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



                                              4
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,

                                              5
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



                                              6
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



                                               7
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).

                                              8
       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

                                              9
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



                                            10
was not required.




                    11
