IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

VOICENET COMMUNICATIONS, : CIVIL ACTION

INC., et al. :

:

v. :

:

THOMAS W. CORBETT, JR., :

et al. : NO. 04-1318

MEMORANDUM AND ORDER

McLaughlin, J. September 13, 2010

This case concerns a search and seizure conducted on

the plaintiffs’ premises on January 21, 2004. The plaintiffs,

providers of various computer and Internet services, claim that

the defendant law enforcement officials violated various 1

constitutional and statutory rights in connection with the

seizure, pursuant to a search warrant, of their computer

equipment. 

The search arose out of an investigation into whether

evidence of child pornography could be found on the plaintiffs’

Quikvue internet service. Based upon a tip that child

The defendants are Attorney General Thomas W. Corbett, 1

Jr.; Special Agent Michele L. Deery; Bucks County Detectives

Martin McDonough and Thomas Thiel; Delaware County District

Attorney G. Michael Greene; and Bucks County District Attorney

Diane E. Gibbons. Detectives McDonough and Thiel, and District

Attorneys Green and Gibbons are named in their official and

individual capacities. Agent Deery is named in her individual

capacity only, and Attorney General Corbett is named in his

official capacity only.
pornography was available through Quikvue, the defendants

conducted an investigation that resulted in the search of the

plaintiffs’ property and the seizure of the plaintiffs’ Quikvuerelated computer equipment and documents. The plaintiffs allege

that the seizure of their materials violated the First, Fourth

and Fourteenth Amendments; the Communications Decency Act (the

“CDA”), 47 U.S.C. § 230; and the Commerce Clause of the United

States Constitution. 

The Court considers the parties’ four cross-motions for

summary judgment. Four issues arise out of those motions: (1) 2

whether the search and seizure of the plaintiffs’ property

violated their constitutional rights under the First, Fourth or

Fourteenth Amendments; (2) whether the defendant governmental

entities had a policy, practice or custom that resulted in a

violation of the plaintiffs’ First Amendment rights; (3) whether

the defendants’ actions were in violation of the commerce clause

of the United States Constitution; and (4) whether the plaintiffs

are entitled to injunctive or declaratory relief under the CDA.

The Court grants summary judgment for the defendants on

all of the plaintiffs’ claims. The Court finds that the

Those motions are (1) District Attorney Gibbons and 2

Detectives McDonough and Thiel’s motion for summary judgment (the

“Bucks County Defendants’ motion”); (2) Attorney General Corbett

and Agent Deery’s motion for summary judgment (the “OAG motion”);

(3) District Attorney Greene’s motion for summary judgment (the

“Greene motion”), and (4) the plaintiffs’ motion for summary

judgment (the “plaintiffs’ motion”). 

2
defendants’ search and seizure violated neither the First nor the

Fourth Amendment. Because the Court finds no constitutional

violations, the Court also finds for the defendants on the

plaintiffs’ Monell and commerce clause claims, both of which

depend upon the existence of a constitutional violation. 

Finally, the Court grants summary judgment for the defendants on

the plaintiffs’ claims for injunctive and declaratory relief

under the CDA, finding that such claims are either moot or would

require the Court to impermissibly enjoin a future criminal

proceeding.3

 

I. The Summary Judgment Record

In setting forth the summary judgment record, the Court

(1) describes the plaintiffs’ Quikvue service, and (2) discusses

the facts surrounding the defendants’ investigation, the issuance

and execution of the search warrant, and the seizure of the

plaintiffs’ materials.

The defendants also assert various immunity defenses, 3

including qualified and prosecutorial immunity. The Court does

not reach these arguments because it finds that no substantive

violations occurred. The Court also does not reach the

defendants’ argument that Voicenet lacks standing to bring this

suit.

3
A. Quikvue

Voicenet Communictions, Inc. (“Voicenet”) is a

technology company that provides, among other services, Internet

access. Omni Telecom, Inc. (“OTI”) also provides Internet access

and is a Voicenet customer. Voicenet and OTI combined their

services to create Quikvue, a subscriber-based service that

provides its customers with web access to the Usenet, an area of

the Internet that exists independently of the World-Wide-Web.

The Usenet is comprised of text, video, images,

software, or other files, all referred to as “articles.” Each

day, a large amount of Usenet articles are posted and dispersed

among separate Usenet newsgroups. The articles are disseminated

over the Usenet peer network, a network connecting computers

worldwide. A Usenet peer can automatically copy and store Usenet

content and make such content available both to other peers and

to its individual users or customers. 

Individual users access the Usenet by using a

“newsreader.” Newsreaders typically work by communicating with a

Usenet peer or peers to index selected articles or newsgroups. 

Newsreaders can function as standalone pieces of software or they

can be web-based.

Quikvue is a web-based Usenet newsreader. Quikvue

automatically compiled and stored Usenet articles on the

plaintiffs’ servers. For a fee, Quikvue subscribers could access

4
those articles through an interface provided on the World–WideWeb. As new articles were collected and stored, older articles

were automatically deleted from the plaintiffs’ servers.

On its website, Quikvue advertised itself as a place

for uncensored and unmonitored access to Usenet content. 

Quikvue’s homepage declared that it contained “millions of

uncensored[] pictures, movies, discussions and more.” It stated

that anyone “looking for uncensored photo[]s[,] movies[,] and

more” had “just hit the motherload,” promising “unlimited, full

access” to “an all-can-eat taste of ‘the Internet gone wild.’” 

It also emphasized user-privacy, stating that “[w]e respect your

privacy” and that “[w]e don’t track the types of files you view

or download or the categories you visit.” See Affidavit of

Probable Cause for Search Warrant (“Aff. of P.C.”) at 2-3,

attached as Ex. E to the Bucks County Defendants’ motion. 

The website also contained a disclaimer explaining that

Quikvue is “an extremely fast newsreader and compiler of pictures

and other multimedia internet content.” It warned that, because

of its speed and the fact that OTI and Quikvue did not control

the content accessed through Quikvue, “erotic or otherwise

offensive material and material not suitable for children and

teens under the 18 years of age may be presented . . . even if

not requested by the user.” It stated that the user “must decide

what is appropriate or legal to download.” Id.

5
B. The Investigation and Execution of the Search Warrant

In late 2003, defendant Agent Deery, an employee of the

Pennsylvania Office of the Attorney General (the “OAG”) assigned

to the Internet Crimes Against Children Task Force (the “ICAC”),4

received an anonymous tip that Quikvue was selling child

pornography. Based on this tip, Agent Deery began an 5

investigation into Quikvue. 

During the investigation, Agent Deery understood

Quikvue to be a service that provided its subscribers with an

easy way to access the Usenet. She also believed that Quikvue

“was pooling all of [the Usenet] information onto their servers

and categorizing it and making it easier for people to get to.” 

Deposition Testimony of Detective Michele Deery (“Deery Dep.”) at

40, attached as Ex. H to the plaintiffs’ motion.

 Using search terms that she knew to be regularly

associated with sexually explicit depictions of children, Agent

Deery confirmed that Quikvue users were able to use the service

to search for, find and download child pornography. Agent Deery

describes her investigation in the affidavit of probable cause. 

The Bucks County District Attorney’s Office, the 4

Delaware County District Attorney’s Office, and the OAG are all

part of the ICAC.

The individual behind the tip was later revealed to be 5

from WPVI Action News employee Mike Neilon. Agent Deery was

never informed as to the identity of Mr. Neilon’s source. 

6
Using an undercover credit card and email address,

Agent Deery signed up for a 3-day trial subscription to Quikvue. 

She then entered the search term “preteen.” Approximately 50

images were displayed. The images depicted preteen girls in the

nude, some of them in sexual poses. One of the images depicted a

young girl performing oral sex on what appeared to be an adult

male. Another depicted a preteen boy also performing oral sex on

what appeared to be an adult male. Aff. of P.C. at 3-4.

After the 3-day trial subscription expired, Agent Deery

used the same undercover credit card and email to purchase a

monthly subscription to Quikvue. With this subscription, Agent

Deery entered the search term “underage.” The search yielded

approximately 700 images. She described six of the images in

detail in the affidavit and also stated that “[a] significant

number of images located” depicted children under the age of 18,

mainly females, in various states of undress and engaged in

sexual acts with other children or adults. Id. at 4. Another

search, using the term “firsthair,” yielded approximately 1500

images. Agent Deery stated in the affidavit that “[a]gain a

significant amount of these pictures” depicted both boys and

girls under the age of 18 in various states of undress and/or

engaging in sexual acts with other children or adults. Id. at 4.

On December 2, 2003, Agent Deery downloaded 10-15

images from Quikvue’s website and simultaneously captured the IP

7
address of the location from which the images had been sent. 

Working with Detective McDonough, Agent Deery confirmed that the

computers hosting the images were on plaintiffs’ premises in

Ivyland, Pennsylvania. Agent Deery noted that, unlike other

peer-to-peer services that she had encountered in her previous

child pornography investigations, Quikvue appeared to store the

images on their servers, rather than merely facilitating a

transmission between two parties. 

Agent Deery sent some of the images that she discovered

to the National Center for Missing and Exploited Children (the

“NCMEC”). The center compared Agent Deery’s images to images in 6

their system and verified that 8 of the images were in their

database of known child pornography depicting abuse of real

children. 

7

Agent Deery accessed the Quikvue website again on

January 20, 2004. She conducted another search using the term

The NCMEC is a private, non-profit organization that 6

provides services for families and professionals in the

prevention of abducted, endangered and sexually exploited

children.

In an e-mail dated November 25, 2003, Keith Daniels, an 7

NCMEC employee, gave Agent Deery advice about conducting the

investigation. That email states, among other pieces of specific

advice, that “[o]ne concern I am having is with mens rea

(criminal intent).” He also states that he did not “really know

all of the ins and outs in this case” and was “fishing quite a

bit here.” Email from Keith Daniels dated November 25, 2003,

attached as Ex. C. to Plaintiffs’ Reply in Further Support of

Their Motion for Summary Judgment on Liability (“Pl.’s Reply

Br.”). 

8
“underage.” That search yielded 2803 images. Various images

from this search depicted females under the age of 18 exposing

their genitals and/or engaging in sexual acts with other children

or adults. 

After completing the investigation, Agent Deery and

Detective McDonough drafted the affidavit of probable cause. 

After briefly describing the relevant experience and expertise of

Agent Deery and Detective McDonough, the affidavit avers that

we believe that the crime of Sexual Abuse of Children,

Possession/Distribution of Child Pornography, a

violation of Pennsylvania Crime Code 18 PA CS Sexual

Abuse of Children 6312 C and D, and 18 PA CS A 7512

Criminal Use of a Communicaion Facility was/is being

committed by, Voicenet, OTI Productions, and Quikvue,

located at 17/and 21 and 23 Richard Rd, Ivyland

Pennslyvania. Furthermore, we believe that evidence of

the crimes relating Sexual Abuse of Children,

Possession/Distribution of Child Pornography, . . . and

. . . Criminal Use of a Communication Facility will be

located at the premises at 17 (Voicenet) and 21 (OTI

Productions) and 23 Richard Road.

Aff. of P.C. at 1. 

Along with the detailed description of the

investigation, the affidavit provides a description of how

computer systems operate and highlights the difficulties

attendant in locating and segregating evidence of a crime on a

computer system. The affidavit explained that, in order to

accurately retrieve and preserve any evidence of contraband

contained in the system, it is best to seize an entire computer

system and search it offsite. The affidavit also provided that,

9
according to the affiants’ experience, computers are utilized by

individuals who exploit children, including those who collect and

distribute child pornography. 

The affidavit requested permission to search

plaintiffs’ premises and to seize and transport the Quikvue

computer system back to a secure location for an offsite search. 

Attached to the affidavit was a list of items the defendants

sought permission to seize. In addition to computer hardware,

images of child pornography and anything relating to the

distribution, possession, receipt, purchase, sale, trade or

transmission of child pornography, the attachment also listed

records related to the plaintiffs’ business transactions and

subscriber information. Aff. of P.C., Attachment A. 

Non-defendant and Bucks County Assistant District

Attorney Robert Mancini, approved the search warrant. District

Justice H. Warren Hogeland signed the warrant on January 20,

2004. 

Defendants Agent Deery and Detectives McDonough and

Thiel, accompanied by uniformed officers and non-defendant

Special Agent Steven Arter, executed the warrant on the morning

of January 21, 2004. Brian Adelson, then Voicenet’s

Vice-President of Operations, and Rudy Kappra, Voicenet’s Vice

President of Development, assisted Agent Arter in finding the

Quikvue equipment. The Quikvue equipment was stored in a “server

10
room,” which contained approximately 150-200 pieces of equipment. 

Mr. Adelson identified a rack containing all of the Quikvue

equipment, which included a web server and two JET-STOR IDE RAID

arrays (the “RAID arrays”), which are large data storage devices

that contained the Quikvue content. 

The defendants seized the web server, the two RAID

arrays, and two additional servers, the Newsbin01 server, which

was necessary to read the content on the RAID arrays, and the

APPDB server, which contained the customer records. The 8

defendants also seized four “barrel keys” used to operate some of

the computers and a green folder labeled “Quikvue.” 

At some point during the search, defendant Delaware

County District Attorney Greene and defendant Bucks County

District Attorney Gibbons arrived on the premises. District

Attorneys Greene and Gibbons each made statements to a WPVI news

team, who had also arrived at some point during the search. 

9

Although it was the defendants’ intent to seize only 8

the two RAID arrays and the web server and to make copies of the

Newsbin01 server and the APPDB server, Mr. Adelson and Mr. Kapra

told Agent Arter to take the Newsbin01 server and the APPDB

server because they would not be needed without the other

equipment. 

On February 5, 2004, WPVI ran two stories featuring the 9

footage from the seizure that included the district attorneys’

statements. The broadcasts featured District Attorney Gibbons

saying that “[t]his is the most horrendous form of child abuse as

far as I’m concerned,” and District Attorney Green stating that

the seizure included “[k]nown images of children . . . known to

be child pornography.” WPVI News Broadcast of February 5, 2004,

attached as Ex. N. to the Plaintiffs’ Opposition to the Motion

for Summary Judgment of Defendants Diane E. Gibbons, Martin

11
II. Procedural History

The plaintiffs filed their complaint and a motion for a

temporary restraining order and a preliminary injunction on March

26, 2007. The motion sought, among other relief, the return of

the seized computer equipment. 

The Court held a conference with counsel on March 29,

2004, in which the plaintiffs agreed to withdraw their request

for a temporary restraining order. Upon the consent of the

parties, the Court held a hearing on the plaintiffs’ request for

a preliminary injunction on April 12, 2004. The argument focused

on issues of abstention and First Amendment issues.

 The Court held further conferences with counsel on

April 20 and 23, 2004. At those conferences, the Court expressed

its concern about possible First Amendment violations relating to

the defendants’ continued possession of the plaintiffs’ computer

equipment and urged the defendants to return the equipment. The

defendants’ agreed to the return. The defendants further agreed

that they would not access the plaintiffs’ subscriber information

without first notifying the plaintiffs. The Court also informed 10

McDonough and Thomas Thiel and to the Motion for Summary Judgment

of Defendants Thomas W. Corbett and Michelle Deery (“Pls.

Opp’n”). The following day, Agent Deery appeared on a different

WPVI broadcast.

The defendants seized subscriber information in both 10

paper and digital formats.

12
counsel that it believed that abstention was not appropriate

because there was no ongoing state proceeding at that time.

The defendants returned either originals or duplicates

of the web server, the Newsbin01 server, and the APPDB server. 

The defendants did not, however, return the RAID arrays. The

plaintiffs argued that this partial return of their equipment was

insufficient and revised their request for preliminary relief on

April 27, 2004. The revised request asked the Court to

determine, among other things, whether the defendants must

immediately return or replace the RAID arrays. 

On June 18, 2004, the plaintiffs moved for an immediate

entry of judgment on their motion for a preliminary injunction. 

In a letter dated June 21, 2004, the Court stated that it planned

to issue a ruling on the plaintiffs’ motion by July 2, 2004. On

July 2, 2004, however, the defendants submitted a letter to the

Court explaining that an investigating grand jury had been

convened in Bucks County and requested that the Court abstain

under the Younger abstention doctrine. The Court scheduled a

telephone conference to discuss the defendants’ motion to abstain

and its impact on the plaintiffs’ preliminary injunction request. 

On July 6, 2004, before such a conference was held, the

plaintiffs filed a Notice of Appeal with the United States Court

of Appeals for the Third Circuit, arguing that the delay in

13
ruling on their motion for a preliminary injunction constituted

an effective denial of that motion. 

The Court held a hearing to discuss abstention on July

13, 2004. At the hearing, the parties agreed that the Court

could not dismiss the entire case even if Younger applied,

because the plaintiffs sought money damages in addition to

injunctive and declaratory relief. The Court stated that it

would rule on the plaintiffs’ motion for a preliminary injunction

and the defendants’ motion to abstain. 

In a memorandum and order dated July 15, 2004, the

Court denied the plaintiffs’ request for a preliminary

injunction. See Voicenet Commc’ns, Inc. v. Pappert, No. 04-1318,

2004 WL 1732187 (E.D. Pa. July 15, 2004). The Court found that 11

any harm from the defendants’ continuing possession of the RAID

arrays was not irreparable. Because the plaintiffs had

represented that they could replace the RAID arrays for

approximately $20,000, the Court stated that they could be

compensated for such an expense if they succeeded on the merits. 

Id. at *4. The Court also denied the plaintiffs’ request that

the defendants be enjoined from accessing their subscriber

information. The defendants had previously agreed to notify the

plaintiffs before they accessed this information, which would

The plaintiffs originally named the acting state 11

attorney general at the time, Gerald J. Pappert, as a defendant. 

Attorney General Corbett replaced former Attorney General Pappert

as a defendant on January 27, 2006. 

14
give the plaintiffs an opportunity to seek an injunction if such

a situation arose. Id. Finally, after concluding that the

plaintiffs had not shown irreparable injury involving a chill on

their First Amendment rights, the Court denied the plaintiffs’

request for a declaration that they were entitled to notice and

an opportunity to be heard before any future seizures of their

servers. Id. at *4–*5. 

In a memorandum and order dated August 5, 2004, the

Court denied the defendants’ motion for abstention under Younger. 

After considering the language of the Pennsylvania Investigatory

Grand Jury Act, 42 Pa. Cons.Stat. § 4541, et seq., and the

actions of the grand jury itself, the Court found that, because

the supervising judge of the grand jury could not, and did not,

adjudicate the merits of the plaintiffs’ federal claims, the

investigating grand jury did not satisfy the requirements of

Younger. See Voicenet Commc’ns, Inc. v. Pappert, 2004 WL 1770388

at *6 (E.D. Pa. Aug. 5, 2004). The Court noted that no criminal

charges had been filed, and there was no indication whether

criminal charges would ever be filed against Voicenet or OTI.

The plaintiffs appealed the denial of their preliminary

injunction on August 12, 2004, and the United States Court of

Appeals for the Third Circuit consolidated that appeal with their

previous appeal. The Court of Appeals affirmed this Court’s

15
rulings on March 9, 2005. See Voicenet Commc’ns, Inc. v.

Pappert, 126 F. App’x. 55 (3d Cir. 2005).

The defendants jointly moved to dismiss counts II–VI of

the plaintiffs’ complaint on July 29, 2004. The Court granted 12

the defendants’ motion in part and denied it in part in a

memorandum and order dated August 30, 2006. See Voicenet

Commc’ns, Inc. v. Corbett, No. 04-1318, 2006 WL 2506318 (E.D. Pa.

Aug. 30, 2006). The Court granted the defendants’ motion to

dismiss the plaintiffs’ claims for violations of the Electronic

Communications Privacy Act and the plaintiffs’ due process 13

claims. The Court also granted the defendants’ motion to 14

dismiss the plaintiffs’ request for monetary damages under the

CDA. The Court found that the defendants were entitled to

qualified immunity on these damages claims because the

plaintiffs’ rights under the CDA were not clearly established at

the time of the events in question. The Court, however, denied

the defendants’ motion to dismiss the plaintiffs’ requests for

The plaintiffs voluntarily dismissed their claim of 12

civil rights conspiracy under 42 U.S.C. § 1985 (count VII). The

defendants did not move for dismissal of the plaintiffs’ First

Amendment claim or the plaintiffs’ Commerce Clause claim.

Pub. L. No. 99-508, 100 Stat. 1848 (1986) (codified as 13

amended in scattered sections of 18 U.S.C.).

The due process claims were based on alleged violations 14

of Pennsylvania’s Internet Child Pornography Law, 18 Pa. C.S.

§ 7621, et seq., and the Commonwealth Attorney’s Act, 71 Pa. C.S.

§ 732-101, et seq.

16
injunctive and declaratory relief under the CDA and their Fourth

Amendment claims. 

The parties then engaged in discovery. They filed the

four instant motions for summary judgment in October of 2008. 

The Court held oral argument on the parties’ motions on July 9,

2009. At oral argument, counsel for the Bucks County defendants

reported that there was no plan for any future investigation of

Voicenet or OTI, unless new information was presented. See

Transcript of July 9, 2009, Hearing at 7:20-9:21.

 The Court asked the defendants’ counsel about the

possible return of the plaintiffs’ RAID arrays. The defendants’

counsel stated that they would attempt to coordinate their

efforts to return the RAID arrays to the plaintiffs, “scrubbed”

of all data to ensure that they were free of contraband. Id. at

33:4-15; 42:19-44:24. The plaintiffs would then be able to use

the arrays for their original purpose of storing the constant

flow of Usenet articles. The scrubbed RAID arrays were returned

to the plaintiffs in September of 2009.15

On July 27, 2009, the Court placed the case in civil

suspense while the parties pursued settlement negotiations. The

parties were not able to settle their dispute, so the Court

herein decides the parties’ cross-motions for summary judgment.

Agent Arter returned the RAID storage arrays to the 15

custody of Bucks County on September 1, 2009. Detective Thiel

then returned the RAID arrays to Voicenet on September 28, 2009.

17
III. Analysis

In deciding the summary judgment motions, the Court 16

will first analyze the plaintiffs’ claims that the defendants

violated their rights under the Fourth and First Amendment. 

Finding that no constitutional violation occurred, the Court

grants summary judgment for the defendants on the plaintiffs’

constitutional claims and on the plaintiffs’ Monell and commerce

clause claims, because both of those claims are dependant upon

the plaintiffs’ allegations of constitutional violations. 

Finally, the Court analyzes the plaintiffs’ claims for injunctive

and declaratory relief under the CDA and grants summary judgment

for the defendants on those claims as well.

A. Constitutional Claims

The plaintiffs allege that the defendants violated the

Fourth Amendment by conducting an unreasonable search and seizure

of their property. The plaintiffs also allege that the

defendants violated their rights under the First Amendment by

Under Rule 56 of the Federal Rules of Civil Procedure, 16

a party moving for summary judgment must show that there is no

genuine issue as to any material fact and that judgment is

appropriate as a matter of law. Fed. R. Civ. P. 56(c). The

burdens of proof do not change in cases where a court is

considering cross-motions for summary judgment. Peters Twp. Sch.

Dist. v. Hartford Accident and Indem. Co., 833 F.2d 32, 34 (3d

Cir. 1987). 

18
failing to hold a prior adversary hearing to determine whether

the materials seized were protected speech. 

1. Fourth Amendment

The plaintiffs allege that the defendants’ search and

seizure of their property was unreasonable because: (1) the

defendants lacked probable cause to believe that the plaintiffs

had the mens rea required for the crimes alleged, (2) the

affidavit of probable cause misrepresented and omitted certain

material facts, and (3) the search warrant was unconstitutionally

overbroad. 

a. Probable Cause

In order to obtain a warrant properly, an officer must

submit an affidavit containing sufficient facts and circumstances

to enable a neutral magistrate to make an independent finding of

probable cause. United States v. Ventresca, 380 U.S. 102, 107-08

(1965). Probable cause is determined by a totality-of-thecircumstances analysis. Based upon the affidavit of probable

cause, the magistrate must be able to make “a practical,

common-sense decision whether, given all the circumstances set

forth in the affidavit before him, . . . there is a fair

probability that contraband or evidence of a crime will be found

19
in a particular place.” United States v. Vosburg, 602 F.3d 512,

526 (3d Cir. 2010). 

A court reviewing a warrant must pay “great deference”

to the magistrate’s determination of probable cause. Illinois v.

Gates, 462 U.S. 213, 236 (1983). A probable cause affidavit

“must be read in its entirety and in a common sense and

nontechnical manner.” United States v. Williams, 124 F.3d 411,

420 (3d Cir. 1997). The evidentiary standard for probable cause

is “significantly lower” than the standard required for

conviction of a crime and merely requires a “fair probability”

that a person committed the relevant crime. See United States v.

Wright, 409 F.3d 595, 602 (3d Cir. 2005) (quoting Adams v.

Williams, 407 U.S. 14, 149 (1972)); Wilson v. Russo, 212 F.3d

781, 789 (3d Cir. 2000). Probable cause, therefore, may be

“inferred by considering the type of crime, the nature of the

items sought, the suspect’s opportunity for concealment and

normal inferences about where a criminal might hide the

property.” Williams, 124 F.3d at 420 (quotations omitted). 

In the affidavit of probable cause, the affiants, Agent

Deery and Detective McDonough, state that it was their belief

that (1) the plaintiffs were committing violations of § 6312(c)

and (d) and § 7512 and (2) evidence of crimes relating to those

statutes would be located at the plaintiffs’ premises. The 17

The affidavit states that the affiants “believe that 17

the crime of Sexual Abuse of Children, Possession/Distribution of

20
plaintiffs argue that the defendants lacked probable cause to

believe that the plaintiffs met the mens rea requirement of

§ 6312, which requires that the suspect knowingly possess,

distribute, disseminate, display or exhibit child pornography.18

Although the plaintiffs concede that the individual elements of a

crime, including mens rea, may be inferred based upon a totality

of the circumstances, they argue that an objective view of the

circumstances does not lead to the conclusion that the defendants

had cause to believe that the plaintiffs had the required mens

rea. See, e.g., Pl.’s Opp’n at 25. 

The defendants argue that (1) the affidavit need not

establish probable cause that the plaintiffs had the required

mens rea, but, instead, merely needed to show probable cause that

evidence of a crime would be found on the plaintiffs’ computer

Child Pornography, [in violation of § 6312(c) and (d) and

§ 7512], was/is being committed by Voicenet, OTI Productions, and

Quikvue [at their premises].” Aff. of P.C. at 1. The affidavit

further states that it was the affiants’ belief “that evidence of

the crimes relating [to] Sexual Abuse of Children,

Possession/Distribution of Child Pornography, [in violation of §

6312(c) and (d) and § 7512], was/is being committed by Voicenet,

OTI Productions, and Quikvue will be located at the premises at

17 (Voicenet) and 21 (OTI Productions) and 23 Richard Road.”

Section 6312(c)’s elements include knowingly selling 18

distributing, disseminating, displaying or exhibiting to others,

or possessing for the above purposes any computer depiction or

other material depicting a child engaging in sexually explicit

conduct. Section 6312(d) contains three elements: (1) a

depiction of an actual child engaged in a prohibited sexual act

or simulation of such act, (2) the child is under 18, and (3) the

defendant must have possessed or controlled the depiction

knowingly.

21
servers; and (2) even if the affidavit does need to establish

probable cause of mens rea, the affidavit, read in its entirety

and considering the totality of the circumstances, establishes a

fair probability that the plaintiffs’ had the required mens rea

for a violation of § 6312. 

For their first argument, that mens rea did not need to

be established at all, the defendants rely on the Supreme Court

of the United States’ statement in Zurcher v. The Stanford Daily

that “[t]he critical element in a reasonable search is not that

the owner of the property is suspected of crime but that there is

reasonable cause to believe that the specific ‘things’ to be

searched for and seized are located on the property to which

entry is sought.” 436 U.S. 547, 558 (1978). In Zurcher, the

Supreme Court found that a search of a university newspaper’s

offices for potentially incriminating photographs did not violate

the Constitution, despite the fact that the officers did not have

cause to believe that any person at the newspaper itself was

guilty of a crime.

In this case, however, the probable cause affidavit

states that the affiants believed that the plaintiffs themselves

were committing violations of § 6312 and § 7512. Thus, the

magistrate must have been able to conclude that under the

totality of the circumstances there was a “fair probability” that

the plaintiffs knowingly possessed or distributed child

22
pornography and intentionally, knowingly, or recklessly used a

communication facility in the underlying felony. See 18 Pa.

Cons. Stat. §§ 6312(c),(d); 18 Pa. Cons. Stat. § 7512. See also

Comm. v. Moss, 852 A.2d 374, 381 (Pa. Super. Ct. 2004)

(discussing mens rea for § 7512). To support this conclusion,

probable cause does not require “the same type of specific

evidence of each element of the offense as would be needed to

support a conviction.” Wright v. City of Phila., 409 F.3d 595,

602 (3d Cir. 2005). 

The United States Court of Appeals for the Third

Circuit has found such probable cause to be established in two

scenarios involving computers. The Court of Appeals has found

that probable cause may be established by linking the possession

or distribution of child pornography to a particular Internet

Protocol Address (an “IP address”). See Vosburg, 602 F.3d at

512. In Vosburg, the defendant clicked a fake Internet link to

child pornography placed on a website known to traffic in child

pornography by a federal agent. The agent recorded the IP

address of the computer that attempted to access the link, traced

the IP address to the defendant’s house, and obtained a warrant

to seize the defendants’ computer hardware. Because IP addresses

are unique and because the attempts to access the link were

traced to the defendant’s IP address, the Court of Appeals found

that it was fairly probable that “instrumentalities or evidence”

23
of the crime of attempted possession of child pornography, such

as computers and computer equipment, would be found in Vosburgh’s

apartment. Id.

The Court of Appeals has also found that probable cause

may also be established through online account information, such

as membership in a Web-based email service or with a pornography

website. See, e.g., United States v. Shields, 458 F.3d 269, 279

(3d Cir. 2006). This scenario is most common when investigators

have discovered the membership list of a child pornography

website or email group, usually by serving a subpoena upon the

internet service provider that hosts the group or website. In

Shields, the Court of Appeals found that probable cause was

established by the defendants’ membership in on-line child

pornography group and the defendants’ “suggestive” email address

of “LittleLolitaLove@aol.com”. 

In both scenarios, the inference of intent could be

inferred through some act performed by the criminal suspect, such

as the act of attempting to download images of child pornography

through a specified IP address or the act of joining a child

pornography website or email group. The question here,

therefore, is whether, in the totality of the circumstances,

similar intent can be inferred from the facts alleged in the

affidavit of probable cause. Although there is no evidence of an

affirmative attempt to access child pornography like the one

24
performed in Vosburgh or to join an on-line group like the one in

Shields in these circumstances, there are facts that show that it

was at least reasonable for the affiants to believe that the

plaintiffs were aware that contraband such as child pornography

was being stored on their servers and accessed by their users. 

The affidavit states that Quikvue’s website emphasized

its lack of censorship, filtering or monitoring, its commitment

to maintaining subscriber privacy, and its promise of providing

an “all-you-can-eat taste of the ‘Internet gone wild.’” 

Furthermore, in response to user queries for pictures, the

plaintiffs’ website warned users that they “must decide what is

appropriate and or legal to download and whether or not you wish

to continue.” Aff. of P.C. at 2.

A reasonable magistrate could read these statements,

under the totality of the circumstances, as creating a fair

probablity that the plaintiffs knew that some sort of contraband

material would be accessible via Quikvue. Although none of the

website’s statements are necessarily suggestive of child

pornography per se, they do imply that the material accessed by

Quikvue users might be subject to “censorship” or “filtering”

elsewhere and that interested users would receive “unmonitored”

and private access to such materials through Quikvue. A

reasonable magistrate, therefore, could find that those

statements create a fair probability that evidence of the crime

25
of knowing possession or distribution of child pornography in

violation of § 6312, especially when coupled with the affiants’

detailed allegations that images of child pornography were traced

to the plaintiffs’ servers through an IP address.19

Finally, the plaintiffs argue that the defendants

should have used the various subpoena procedures available to

them in lieu of executing a search and seizure of their property. 

A subpoena seeking, for example, the plaintiffs’ subscriber lists

may have been an available option, but the question here is

whether the defendants complied with the law. The Court knows of

no legal requirement that the defendants issue a subpoena instead

executing an otherwise valid warrant in these circumstances.

b. Assertions and Ommissions

To challenge the truthfulness of factual statements

made in support of a probable cause affidavit, a plaintiff must

establish that (1) the police officer knowingly and deliberately,

or with reckless disregard for the truth, made false statements

or omissions that create a falsehood in applying for the warrant,

The Court notes that the standard it applies is not 19

whether such evidence would be sufficient to support conviction,

but merely whether a reasonable magistrate could conclude that

given the plaintiffs’ statements and policies, there is a fair

probability that the plaintiffs knew that their computer systems

contained images of child pornography. This reasoning would

likely not apply to an internet service provider that did not

market itself in such a way as to suggest knowledge of illegal

content on its servers.

26
and (2) that such statements or omissions are material, or

necessary, to the finding of probable cause. Wilson, 212 F.3d at

786-87. The plaintiffs allege that the affidavit in this case

contained one false assertion and several omissions. 

An assertion is made with a reckless disregard for the

truth when, “viewing all the evidence, the affiant must have

entertained serious doubts as to the truth of his statements or

had obvious reasons to doubt the accuracy of the information he

reported.” Id. at 788. The plaintiffs argue that the

affidavit’s assertion that the plaintiffs had violated § 6312 (c)

and (d) was false because Agent Deery’s later testimony

establishes that she had no reason to believe that the plaintiffs

knew that their computer servers contained child pornography. 

In view of all of the evidence, however, there is no

reason to conclude that Agent Deery entertained serious doubts as

to the truth of her statement that she had probable cause to

believe that the plaintiffs violated § 6312 (c) and (d). The

plaintiffs point solely to Agent Deery’s deposition testimony

that she did not know whether any individual at either Voicenet

or OCI knew that child pornography was contained on the Qukivue

servers. Deery Dep. at 111-12. Such testimony, however, does

not lead to the conclusion that Agent Deery knew that no

individual at Voicenet or OCI was aware that their servers

contained child pornography or even that she entertained serious

27
doubts as to whether an individual at Voicenet or OCI had such

knowledge.

In fact, Agent Deery also testified that the statements

on Quikvue’s website touting the fact that Quikvue delivered

uncensored material and promise not to monitor a user’s access

were “red flags” that led her to believe that the plaintiffs

“were clearly aware that if you’re using Usenet, you’re going to

get a whole lot of everything, including child pornography.” Id.

at 72:1-4. According to her testimony, such a statement “almost

tells me [the plaintiffs] knew” that child pornography was on

their servers. Id. at 72:4-5.

The plaintiffs also argue that the affidavit contained

the following material omissions: (1) that Quikvue contained

constitutionally protected images and articles; (2) that Quikvue

provided web access to the Usenet, not a separate newsreader; (3)

that the Usenet was an unmonitored network, and the plaintiffs

had no control over its content; and (4) that the images at issue

were not created or posted to the Usenet by the plaintiffs. 

20

The standard for deciding whether an omission is made

with a reckless disregard for the truth is determined by asking

whether the officer knew a fact and nevertheless withheld it from

the affidavit, even though “[a]ny reasonable person would have

The plaintiffs also allege that the affidavit omits the 20

fact that Agent Deery and Detective McDonough had no reason to

believe that the plaintiffs had knowledge of the images at issue. 

The Court has already addressed this argument.

28
known that this was the kind of thing the judge would wish to

know.” Wilson, 212 F.3d at 788. In order to determine the

materiality of any omissions, the Court must reconstruct the

relevant portions of the affidavit with the omissions included to

determine if probable cause still exists. Sherwood v. Mulvihill,

113 F.3d 396, 400 (3d Cir. 1997).

The plaintiffs argue that Agent Deery omitted from the

affidavit the fact that many images found in her searches were

legal, constitutionally-protected images. This information,

however, was not omitted from the affidavit. A reasonable

reading of the statements in the affidavit implies that only some

of the images contained on the plaintiffs’ servers were child

pornography. The affidavit states that, after a search of the

term “underage,” “a significant number of the images located”

were child pornography. In describing Agent Deery’s search of

the term “firsthair,” the affidavit again states that a

“significant amount” of the images returned were child

pornography. The phrases “a significant number” and “a

significant amount” necessarily imply that some of the images

were not child pornography. 

Nor were the facts that Usenet was an unmonitored

network and that the plaintiffs had no control over its content

omitted from the affidavit. The affidavit quoted Quikvue’s

disclaimer that specifically stated the nature of Usenet and that

29
the plaintiffs did not control the content posted on Usenet. 

Furthermore, a more detailed description of Usenet and its

relation to Quikvue would not be material. Even if such

information had been included in greater detail in the affidavit,

probable cause that child pornography would be found on the

Quikvue servers would still exist. 

A statement that the plaintiffs did not create or post

the images at issue is also immaterial. Neither § 6312 (c) nor

(d) requires that the criminal suspect create the images or place

them on the Internet. 

c. Overbreath

The particularity requirement of the Fourth Amendment

requires that every warrant "particularly describ[e]" two things:

"the place to be searched" and "the persons or things to be

seized." U.S. Const. Amend. IV; see United States v. Grubbs, 547

U.S. 90, 97 (2006). Where the materials sought to be seized may

be protected by the First Amendment, the requirements of the

Fourth Amendment must be applied with “scrupulous exactitude.” 

Zurcher, 436 U.S. at 564. In such circumstances, “the warrant

requirement should be administered to leave as little as possible

to the discretion or whim of the officer in the field.” Id. This

does not mean, however, that additional elements are added to the

normal warrant requirements when First Amendment interests may be

30
implicated by a search warrant. The properly administered

preconditions for a warrant, “probable cause, specificity with

respect to the place to be searched and the things to be seized,

and overall reasonableness,” are sufficient to protect a party’s

First Amendment rights. Id. at 565. 

The plaintiffs argue that the warrant issued in this

case was overbroad because it authorized the seizure of a large

number of constitutionally protected materials in addition to

child pornography. They rely upon the Court of Appeals’

nonprecedential decision in Lesoine v. County of Lackawanna, 77

F. App’x 74 (3d Cir. 2003), in support of their argument. In

that case, authorities had been alerted that the suspect, a

photographer, allegedly possessed child pornography in the form

of photographs taken of teenagers while they used an outdoor

shower at her summer home. The warrant that placed no

restrictions on the types of business or computer records that

could be seized and permitted the seizure of “business records,

pertaining to photography business. Computers and computer

equipment an records. Telephone logs or records.” Id. at 79. 

The Court of Appeals found that the warrant was impermissibly

overbroad because it “requested the seizure of lawfully possessed

material of no evidentiary value,” including photographs of

adults, business records and the plaintiff’s computer equipment. 

Id. at 79. 

31
In this case, however, the affidavit of probable cause

specifically establishes, in detail, how the plaintiffs’ computer

system would be of evidentiary value in the search for evidence

of child pornography. The affidavit, which was incorporated into

the warrant, states sufficient facts to establish probable cause

to believe that contraband would be found in the Quikvue computer

system. It limits the scope of the search to Quikvue’s business

records, subscriber information, any records pertaining to the

distribution or possession of child pornography, and any and all

visual depictions of minors engaged in sexually explicit conduct. 

It also provides that, based upon their training and experience,

the affiants knew that computers are utilized by individuals who

exploit children, including those who collect and distribute

child pornography. The warrant in this case, therefore, was

specific as to the place to be searched and the items to be

seized, left nothing to the “discretion” or “whim” of the

officers conducting the search and complied with the normal

preconditions for a warrant. 

The plaintiffs also argue that the warrant was

overbroad because it allowed the defendants to seize and keep

their equipment off-site. They argue that, instead, the

defendants should have seized only the contraband itself, by

segregating the contraband material on the plaintiff’s premises. 

Because of the difficulties inherent in finding, segregating and

32
preserving evidence of contraband on computer systems, however,

courts routinely allow the seizure of computer hardware to

conduct an off-site search. See, e.g., United States v. Hay, 231

F.3d 630, 634 (9th Cir. 2000); United States v. Upham, 168 F.3d

532, 535 (1st Cir. 1999); Guest v. Leis, 255 F.3d 325 (6th Cir.

2001). Although the United States Court of Appeals for the 21

Third Circuit has not directly addressed this issue, it has

permitted the seizure of computer hardware upon a showing of

probable cause that the hardware is the instrumentality or

evidence of a crime, such as the possession of child pornography. 

See, e.g., Vosburg, 602 F.3d at 527 (allowing the seizure of a

destroyed computer hard drive, key drive and external hard

drive). 

In this case, the affidavit throughly explains the

necessity of seizing the plaintiffs’ entire computer system to

accurately retrieve and preserve any evidence contained on that

system. It states that evidence may be accessible only when the

particular system is intact or that the evidence may be affected

or altered if copied onto a different system. It also explains

that evidence may be destroyed, deleted or hidden, and that the

process of finding such evidence is time-consuming and may

require a laboratory environment to be done effectively. Nor is

Some courts have found that a computer containing child 21

pornography is generally considered to be contraband, because it

is the repository of data that is contraband. See Hay, 231 F.3d

at 637 (9th Cir. 2000). 

33
there evidence that the officers went beyond the scope of the

warrant in executing the search. In fact, the officers seized

only five pieces of Quikvue equipment, out of approximately 150

to 200 pieces of equipment located in the plaintiffs’ facility.

2. First Amendment

Throughout this litigation, the Court has been mindful

of the First Amendment issues raised by the defendants’ possession

of the plaintiffs’ equipment. At a very early stage, the Court

worked with the parties to return the plaintiffs’ equipment and

allow them to resume their Quikvue service. While the parties

litigated the instant motions, the Court again worked with the

parties to have the last remaining pieces of plaintiffs’

equipment, the RAID arrays, returned. 

Now that the equipment has been returned, the

plaintiffs’ only remaining claim under the First Amendment is

that the defendants violated their First Amendment rights by

failing to hold a prior adversary hearing to determine whether

the materials seized were constitutionally-protected speech. In

support of this argument, the plaintiffs cite a line of Supreme

Court precedent that requires a magistrate to hold a hearing to

determine whether magazines, books or films are obscene and

should be removed from circulation before the magistrate issues a

34
warrant allowing for the seizure of such materials. The 22

plaintiffs argue that such a hearing was required before the

magistrate issued the warrant in this case.

The defendants, however, point to another line of

precedent, beginning with Heller v. New York, 413 U.S. 483

(1973), to support the proposition that the seizure of obscene

material for evidentiary purposes only requires a valid search

warrant, issued by a neutral magistrate after a finding of

probable cause. Heller involved the question of whether a

judicial officer could issue a valid warrant authorizing the

seizure of an obscene film as evidence in a prosecution against

the exhibitor without first conducting an adversary hearing on

the issue of obscenity. After viewing the allegedly obscene film

in the theater, the judge had signed several warrants, including

a search warrant for the seizure of the film. No one at the

theater was notified or consulted prior to the issuance of the

warrants. 

Distinguishing the case from the line of cases cited by

the plaintiffs, the Supreme Court stated in Heller that it “has

never held, or even implied, that there is an absolute First or

Fourteenth Amendment right to a prior adversary hearing

applicable to all cases where allegedly obscene material is

See, e.g., Fort Wayne Books, Inc. v. Indiana, 489 U.S. 22

46 (1989); A Quantity of Copies of Books v. Kansas, 378 U.S. 205

(1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963);

Marcus v. Search Warrants of Property, 367 U.S. 717 (1961). 

35
seized.” Heller, 413 U.S. at 488. The Supreme Court further

distinguished Heller by explaining that the cases requiring a

hearing all involved the seizure of large quantities of

materials, such as books, for the sole purpose of their

destruction or the absolute suppression of the materials

themselves. In Heller, only a single copy of the film was seized

for the purpose of preserving it as evidence in a criminal

proceeding. The Supreme Court held that “[i]f such a seizure is

pursuant to a warrant, issued after a determination of probable

cause by a neutral magistrate, and, following the seizure, a

prompt judicial determination of the obscenity issue in an

adversary proceeding is available at the request of any

interested party, the seizure is constitutionally permissible.” 

Id. at 492.

The standard articulated by the Supreme Court in Heller

applies to the defendants’ actions in this case. The purpose of

the seizure was not the destruction or suppression of the Quikvue

materials themselves. Instead, the materials were seized for the

purpose of preserving evidence of child pornography for a

possible criminal proceeding.

The plaintiffs argue, however, that Heller is

distinguishable from this case because, in Heller, the magistrate

had viewed the film itself prior to issuing the warrant and

therefore had personally determined the obscenity of thing to be

36
seized. They argue that such a “procedural safeguard” was also

necessary here.

This argument is unconvincing. The purpose of a prior

judicial determination of obscenity is to prevent the suppression

of materials in cases where the issue of obscenity is in

question. The obscenity of the materials seized in this case,

however, was never in question. 

The affidavit of probable cause provided detailed

descriptions of the child pornography found under Agent Deery’s

searches. The plaintiffs do not contest that such images of

child pornography are not constitutionally protected material or

that the probable cause affidavit established a fair probability

that such images could be found on their servers. Nor do the

defendants dispute that constitutionally protected materials also

existed on the plaintiffs’ servers at the time of the seizure. 

No further determination by the magistrate was necessary in this

case, and the plaintiffs have been unable to articulate what

further purpose would have been served by any such

determination.23

The plaintiffs argue that an opinion from a District 23

Court the Eastern District of Pennsylvania urges a different

result. See Ctr. for Democracy & Technology v. Pappert, 337 F.

Supp. 2d 606 (E.D. Pa. 2004) (“CDT”). CDT, however, dealt with a

Pennsylvania statute that required Internet Service Providers to

block access to images of child pornography. It did not address

the issue of a search and seizure of evidence of child

pornography and is inapplicable here.

37
The seizure in this case was constitutionally

permissible under the Heller standard. As already established,

the warrant was issued after a determination of probable cause by

a neutral magistrate. No further determination or procedure was

required.

B. Monell and the Commerce Clause

The plaintiffs bring claims against Attorneys General

Corbett, Green and Gibbons and Detective Thiel and McDonough in

their official capacity. A claim against a municipal officer in

his official capacity is considered a claim against the entity. 

Kentucky v. Graham, 473 U.S. 159, 166 (1985); Monell v. Dep’t of

Soc. Servs. of N.Y., 436 U.S. 658, 690 n.55 (1978).

Municipalities and other local government units are included

among those “persons” to whom § 1983 applies. See Monell, 436

U.S. at 690. To hold a municipality liable under § 1983,

however, a plaintiff must establish that a policy or custom of

the municipality caused the constitutional violation. Id. at

694. 

The plaintiffs’ policy or custom claims arise out of

the failure to hold a prior adversary hearing to determine

whether some of the items to be seized were constitutionally

protected. Because the Court has already determined that the 24

See, e.g., Pl. Opp’n at 21-22; Plaintiffs’ Opposition 24

to Defendant G. Michael Greene’s Motion for Summary Judgment at 8

38
failure to hold a hearing in these circumstances did not violate

the constitution, the Court grants summary judgment for all of

the defendants named in their official capacity.

The plaintiffs also allege a dormant commerce clause

violation arising out of the seizure of their computer equipment. 

They argue that the raid created an excessive burden on

interstate commerce because the raid harmed their customers’

access to Quikvue. At oral argument on the parties’ motions,

however, counsel for the plaintiffs conceded that the alleged

commerce clause violation depends upon the defendants having also

violated the Fourth Amendment. Transcript of July 9, 2009,

Hearing at 88:12-18. Because the Court has found that the

defendants have not violated the Fourth Amendment, the Court also

finds no corresponding violation of the commerce clause.

n.3. 

39
C. CDA

The plaintiffs request injunctive and declaratory

relief under the immunity provisions of the CDA. They seek a 25

declaration that (1) they fulfill the requirements for CDA

immunity and therefore cannot be subject to criminal prosecution

under § 6312 and (2) that the search and seizure violated their

constitutional rights because they satisfy the requirements for

CDA immunity. They also seek injunctive relief enjoining the

defendants from prosecuting the plaintiffs.26

Addressing the plaintiffs’ injunctive claims first, it

is well-established that a court may not enjoin the enforcement

of a criminal statute, regardless of whether the statute is

constitutional. Wooley v. Maynard, 430 U.S. 605, 711-12 (1977);

Stolt-Nielsen, S.A. v. United States, 442 F.3d 177, 183 (3d Cir.

2006). There is a limited exception to this general rule,

however, where the threat of prosecution has a chilling effect on

constitutional rights. Dombrowski v. Pfister, 380 U.S. 479,

486-87 (1965). The plaintiffs argue that they have suffered such

The CDA provides, in relevant part: “No provider or 25

user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another

information content provider.” 47 U.S.C. § 230(c)(1). The CDA

further provides: “No cause of action may be brought and no

liability may be imposed under any State or local law that is

inconsistent with this section.” 47 U.S.C. § 230(e)(3). 

The plaintiff’s request for the immediate return of the 26

seized items is now moot. All of the materials have been

returned.

40
a chill on their First Amendment rights based upon the search and

seizure conducted in 2004. 

The facts of this case do not fall within the limited

exception provided in Dombrowski. The chill in Dombrowski was

caused by several incidents, including arrest, search and

seizure, continued threats of prosecution, and repeated

pronouncements that the organization in question was subversive

and Communist. 380 U.S. at 487-88. As the Court previously

recognized when it denied the plaintiffs’ motion for a

preliminary injunction in this case, there has been no definite

or continued threat of either prosecution or future seizures of

equipment. Voicenet Communications, Inc. v. Pappert, 2004 WL

1732187 at *4 (E.D. Pa. July 15, 2004). The plaintiffs’

equipment has been seized only once. All of the plaintiffs’

equipment has been returned. No further seizures have occurred

in the six years after the initial seizure. Nor has there been a

continued threat of prosecution. In fact, the defendants have

affirmatively represented that no future prosecution is planned.

The Court also grants summary judgment for the

defendants on the plaintiffs’ requests for declaratory relief. A

court may decide an issue only if it presents a live case or

controversy. U.S. Const. art. III § 2; Armstrong World Indus. v.

Adams, 961 F.2d 405, 410 (3d Cir. 1992). This constitutional

provision stands as a direct prohibition on the issuance of

41
advisory opinions. The Declaratory Judgment Act does not relax

the “case and controversy” requirement. Travelers Ins. Co. v.

Obusek, 72 F.3d 1148, 1153 (3d Cir. 1995). 

The plaintiffs present no current case or controversy

for the Court to address. The plaintiffs have been unable to

articulate any justification for declaratory relief beyond the

same constitutional chilling argument used in their request for

an injunction. A declaration from the Court would be useful to

the plaintiffs only in the event of a future criminal prosecution

and would do nothing more than enjoin such a hypothetical future

criminal prosecution. Any ruling from this Court, therefore,

would be an impermissible advisory opinion.

An appropriate order follows separately.

42