2005 Decisions

Opinions of the United

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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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

_______________
2

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
3

____________________

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
4

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
5

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,
6

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
7

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
 Voicenet/OTI claim that the federal Electronic Communications Privacy Act, 18 1

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

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.
9

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
10

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
11

was not required.