IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY BOOKS, INC. d/b/a A DIFFERENT LIGHT BOOK STORES; AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION; ARTNET WORLDWIDE CORPORATION; BLACKSTRIPE; ADDAZI INC., d/b/a CONDOMANIA; ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC PRIVACY INFORMATION CENTER; FREE SPEECH MEDIA; INTERNET CONTENT COALITION; OBGYN.NET; PHILADELPHIA GAY NEWS; PLANETOUT CORPORATION; POWELL'S BOOKSTORE; RIOTGRRL; SALON INTERNET, INC.; WEST STOCK, INC.,
Plaintiffs-Appellees,
v.
JANET RENO, in her official capacity as ATTORNEY GENERAL OF THE UNITED STATES,
Defendant-Appellant.
Case No. 99-1324
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIABRIEF OF PLAINTIFFS-APPELLEES
Of Counsel to American Civil Liberties Union Foundation:
Ann Beeson
Christopher A. Hansen
American Civil Liberties Union Foundation
125 Broad Street, 18th floor
New York, NY 10004
Stefan Presser
ACLU of Pennsylvania
125 South Ninth Street, Suite 701
Philadelphia, PA 19107
David L. Sobel
Electronic Privacy Information Center
666 Pennsylvania Ave. SE, Suite 301
Washington, DC 20003
Shari Steele
Electronic Frontier Foundation
6999 Barry's Hill Road
Bryans Road, MD 20616
Catherine E. Palmer
Latham & Watkins
885 Third Avenue
New York, NY 10022
STATEMENT OF THE ISSUE
Whether a federal criminal law that suppresses a large amount of speech on the World Wide Web that adults are entitled to communicate and receive violates the First Amendment.
INTRODUCTION
Defendant appeals from a preliminary injunction barring enforcement of the Child Online Protection Act ("COPA"), which is Congress' second attempt to impose severe criminal sanctions on the display of constitutionally protected, non-obscene materials on the Internet.1 The first attempt, the Communications Decency Act ("CDA"), was rejected by all nine justices of the Supreme Court in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), aff'g, 929 F. Supp. 824 (E.D. Pa. 1996) ("ACLU I"). Recognizing that the Internet is a powerful "new marketplace of ideas" and "vast democratic for[um]" that is "dramatic[ally] expand[ing]" in the absence of government regulation, the Supreme Court imposed the highest level of constitutional scrutiny on content-based infringements of Internet speech. ACLU I, 521 U.S. at 870.
Before COPA was enacted, defendant wrote a seven-page letter to Congress outlining "serious concerns" about the bill and explaining why it "would likely be challenged on constitutional grounds." See Letter Dated October 5, 1998 from Department of Justice to Honorable Thomas Bliley, Chairman of House Committee on Commerce, at 1, 3 ("DOJ Letter") (Pls. Memorandum of Law in Support of TRO, Exhibit A). Congress passed COPA despite defendant's warnings, and despite the Supreme Court's strong precedent against content-based Internet regulations in ACLU I. COPA's constitutional flaws are ultimately identical to the flaws that led the Supreme Court to strike down CDA. Though COPA, like CDA, purports to restrict the availability of materials to minors, the district court correctly held that COPA effectively would restrict adults from communicating and receiving expression that the First Amendment clearly protects. Because COPA's criminal penalties threaten to suppress the speech of plaintiffs and millions of other speakers and users of the World Wide Web ("the Web"), plaintiffs ask this Court to affirm the judgment of the district court granting a preliminary injunction against enforcement of COPA.
STATEMENT OF THE CASE
COPA was signed into law on October 21, 1998. The next day, plaintiffs filed this suit alleging that COPA violated the First and Fifth Amendments to the Constitution and seeking injunctive relief from its enforcement. The district court heard six days of testimony and a day of argument, and considered numerous affidavits and extensive documentary evidence submitted by both sides.2 American Civil Liberties Union v. Reno, 31 F. Supp.2d 473, 477, 485, ¶24 & n.5 (E.D. Pa. 1999) ("ACLU II"). On February 1, 1999, the district court issued a preliminary injunction against enforcement of COPA, holding that plaintiffs were likely to succeed on their claim that COPA violates the First Amendment because it "imposes a burden on speech that is protected for adults," id. at 495, and because defendant could not prove that COPA is the "least restrictive means available to achieve the goal of restricting the access of minors to [harmful to minors] material," id. at 497.3
The district court supported its holding with extensive findings of fact, some of which were derived from a joint stipulation submitted by the parties. See id. at 481-92. Those findings, which defendant does not seriously dispute, describe the nature of communication and commercial activity on the Web, plaintiffs and their speech, COPA's effect on Web traffic, the burden and costs of implementing COPA's affirmative defenses, and the availability of less restrictive alternatives that enable parents (rather than defendant) to decide what their children should see.
STATEMENT OF FACTS
A. The Reach Of COPA: Plaintiffs And Their Speech
Plaintiffs represent a diverse range of individuals, entities, and organizations who range from cutting edge online magazines to long-established booksellers and large media. All plaintiffs use the Web to provide information on a variety of subjects, including sexually oriented issues that they fear could be construed as "harmful to minors." ACLU II, 31 F. Supp.2d at 484-85, ¶¶21, 24-26. Plaintiffs and their users post, read, and respond to content including resources on visual art and poetry; resources designed for gays and lesbians; information about obstetrics, gynecology, and sexual health; information about books and photographs; and online magazines. Id. at 484, ¶21. Several plaintiffs host Web-based discussion groups and chat rooms that allow readers to converse on various subjects. Id. at 484, ¶22. No plaintiff is a pornographer. Like the vast majority of speakers on the Web, plaintiffs provide virtually all of their online information for free. Id. at 484, ¶23. Nevertheless, all plaintiffs are engaged in speech "for commercial purposes" as defined in COPA because they all communicate with the objective of making a profit. Id. at 487, ¶33; 47 U.S.C.A. §231(e)(2)(B) (West Supp. 1999).
Several plaintiffs provided live testimony during the hearings. Salon Internet, Inc. (Salon Magazine) is a leading general interest online magazine featuring articles on current events, the arts, politics, the media, and sexuality. Joint Appendix ("J.A.") 139-40 (Talbot Testimony). Salon publishes a regular column entitled "Sexpert Opinion" by author and sex therapist Susie Bright. See generally J.A. 617-41 (Pls. PI Exhs.). Salon also hosts a very popular set of discussion groups called "Table Talk," to which three thousand messages are posted each day. J.A. 147-49 (Talbot Testimony). Salon archives its content, and its Web site contains tens of thousands of pages published over the last three years. J.A. 145, 147.
A Different Light Bookstore operates bookstores in three major cities, and maintains a comprehensive Web site with information about books of interest to the gay and lesbian community. J.A. 106-07, 601-16 (Laurila Testimony, Pls. PI Exhs.). Among other content, A Different Light's Web site includes reviews of books about sadomasochism and fetishism, and stories such as "Shame on Me," an autobiographical account of a young man's experience with masturbation. J.A. 106-07, 601-16.
Mitchell Tepper, a member of ACLU, owns and operates the Sexual Health Network Web site out of his home in Connecticut. The Sexual Health Network provides easy access to information about sexuality geared toward individuals with disabilities. The site includes information on how disabled persons can experience sexual pleasure, including articles on erectile dysfunction, the use of sex toys, and sexual surrogacy as a form of sexual therapy. ACLU II, 31 F. Supp.2d at 485, ¶25; J.A. 670-88 (Pls. PI Exhs.). The site also includes interactive components, such as a forum called "Love Bites" in which readers can ask experts questions about sexuality and a bulletin board where users can post comments. J.A. 672-85.
Internet Content Coalition is a nonprofit professional association that includes many well-known and high-profile providers of original content for the Web, including the New York Times, Reuter's, CBS News Media, MSNBC, CNET, and ZDNet. CNET, whose Vice President testified at the hearing, provides news and other content on various topics, including articles about sexually explicit video games and the online pornography industry. J.A. 642-651 (Pls. PI Exhs.).
PlanetOut is a Web site that acts as an online community for gay, lesbian, bisexual and transgendered people. The site includes, among other things, a bulletin board and chat rooms where users can discuss lesbian sexuality and post personal ads and where teenagers who live in remote locations can discuss their sexual orientation. J.A. 661-69 (Pls. PI Exhs.). PlanetOut also contains travel information, news, and entertainment listings of interest to the lesbian and gay community. J.A. 655-60 (Pls. PI Exhs.). The site is a valuable resource for "closeted" people who do not voluntarily disclose their sexual orientation due to fear of the reaction of others. ACLU II, 31 F. Supp.2d at 485, ¶26.4
B. The Challenged Statute
COPA imposes severe criminal and civil penalties on persons who knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, make[] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors . . . .
47 U.S.C.A. §231(a)(1)-(3).
COPA defines "commercial purposes" as being "engaged in the business of making such communications." 47 U.S.C.A. §231(e)(2)(A). COPA then defines "engaged in the business" as meaning
that the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). 47 U.S.C.A. §231(e)(2)(B).
Section 231(c)(1) of COPA provides an affirmative defense to prosecution if the defendant, "in good faith, has restricted access by minors to material that is harmful to minors -- (A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number; (B) by accepting a digital certificate that verifies age; or (C) by any other reasonable measures that are feasible under available technology." 47 U.S.C.A. §231(c)(1); see also §231(b).
C. The Internet And The Web
1. Growth Of The Internet And The Web The Internet is a decentralized, global medium of communications that links people, institutions, corporations and governments around the world. ACLU I, 929 F. Supp. at 831; ACLU II, 31 F. Supp.2d at 481, ¶0. The Internet's growth in recent years has been extraordinary. As of July 1998, more than 36.7 million host computers were connected to the Internet; approximately 70.2 million people of all ages use the Internet in the United States alone. ACLU II, 31 F. Supp.2d at 481-82, ¶1.
The Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions. Id. at 482, ¶3. Individuals can access all content on the global Internet through an online service or Internet Service Provider for a modest monthly fee, and many individuals gain access at no charge through schools, employers, libraries, and community networks. Id. ¶4-6. Most Internet users are provided with a username, password and e-mail address that allow them to log on and access content on the Internet, and to communicate with other users. Many usernames are pseudonyms or pen names that provide users with a distinct online identity that helps preserve the anonymity that users are unwilling to relinquish in order to gain access to the Web. J.A. 227 (Hoffman Testimony). Given the low entry barriers to the Internet, it is no surprise that "content on the Internet is as diverse as human thought." ACLU II, 31 F. Supp.2d. at 482, ¶3.
2. Communicating And Exchanging Information Over The Web The Web is currently the primary method of information distribution and retrieval on the Internet. Id. at 483, ¶10. The Web uses a standard format (hypertext transfer protocol or "HTTP") that allows Internet users to post and access documents on the Web containing text, images, sound, animation and moving video. Web documents can include links that are short sections of text or image referring to another Web document located elsewhere on the same Web site or on an entirely different computer that is connected to the Internet from elsewhere in the world. Id. at 483, ¶¶11, 14. Once a provider posts content on the Web, she "cannot prevent that content from entering any geographic community." Id. at 484, ¶18.
The Web contains a variety of interactive features, including chat rooms, discussion groups, and e-mail. Id. at 483, ¶9. Many Web sites incorporate these interactive features to increase traffic to their sites. Id. at 487, ¶35; J.A. 221 (Hoffman Testimony). As David Talbot, CEO of Salon, testified, the interactivity of the Web "is one of the most unique features of the new medium . . . . [I]t's the ability for the reader to argue back with the editors, to exchange their own views, to create their own content." J.A. 148.
3. Breadth Of Speech "For Commercial Purposes" On The Web Available To Users For Free The growth of commercial activity on the Web has been explosive. ACLU I, 31 F. Supp.2d at 486, ¶¶27-28. Currently, approximately one third of the 3.5 million sites on the Web are commercial, i.e., they "intend to make a profit." Id. at 486, ¶27. A variety of business models operate on the Web. By far, the most popular business model is the advertiser supported or sponsored model, "in which nothing is for sale, content is provided for free, and advertising on the site is the source of all revenue." Id. at 486-87, ¶¶30, 31; J.A. 207 (Hoffman Testimony). The fee based or subscription model, in which users are charged a fee before accessing content, is the least popular. ACLU II, 31 F. Supp.2d at 486, ¶31.
Most Web businesses are not yet making a profit. J.A. 214-15 (Hoffman Testimony). Web businesses are valued according to "the number of customers they believe the Web site is able to attract and retain over time, or 'traffic.'" ACLU II, 31 F. Supp.2d at 487, ¶34; J.A. 216-20 (Hoffman Testimony). Traffic is "the most critical factor for determining success or potential for success on a Web site." ACLU II, 31 F. Supp.2d at 487. Because "[t]he best way to stimulate user traffic on a Web site is to offer some content for free to users . . . . virtually all Web sites offer at least some free content." Id. The "vast majority of information . . . on the Web . . . is provided to users for free." Id. at 484, ¶23.
4. Impact Of Mandatory Registration On The Web COPA provides three affirmative defenses: (1) requiring the use of a credit card, debit account, adult access code, or adult personal identification number; (2) accepting a digital certificate that verifies age; or (3) any other reasonable measures feasible under available technology. The district court recognized that "[t]here is no certificate authority that will issue a digital certificate that verifies a user's age." Id. at 487, ¶37. Defendant put on no evidence of "other reasonable measures" available to restrict access to minors. Id. Thus, the evidence showed that the only technology currently available for compliance with COPA is online credit cards and adult access codes. Either option would require users to register and provide a credit card or other proof of identity before gaining access to restricted content. Id.
Web users are reluctant to provide personal information to Web sites "unless they are at the end of an online shopping experience and prepared to make a purchase." Id. at 487, ¶36. Web sites that have required registration or payment before granting access "have not been successful." Id. Professor Donna Hoffman, an expert on Web-based commerce and consumer behavior, gave uncontroverted testimony based on studies and observations of online behavior showing that "consumers on the Web do not like the invasion of privacy from entering personal information." Id.
Plaintiffs also testified that any mandatory registration would drive away their users. According to Mitch Tepper, users of the Sexual Health Network would not want to disclose personal information revealing their identity. Id. at 485, ¶25. Tepper, who is a sexuality educator and researcher, testified that persons who access the Sexual Health Network "have already been too embarrassed or ashamed to ask even their doctor. I think if they come across this barrier to access, that they are just not going to take the next step and put their name and credit card information in." J.A. 344. PlanetOut allows users to register voluntarily to receive free benefits, and "less than 10% of the users to [the] site have registered." ACLU II, 31 F. Supp.2d at 485-86, ¶26. Tom Rielly of PlanetOut testified that "the traffic to a competitor's site which had placed its entire content behind a credit card wall and charged users $10 per month only grew to 10,000 total [members]." Id.; J.A. 368. By contrast, PlanetOut has 350,000 members and over two million total users have accessed the PlanetOut Web site. J.A. 354-55, 368; see also J.A. 110-11, 134-35 (Laurila Testimony).
David Talbot, CEO of Salon Magazine, testified that Salon Magazine does not charge for a subscription because "the people who use the Web are not inclined to pay for it." J.A. 144. As Mr. Talbot explained,
One of our competitors, Slate Magazine, which is owned and operated by Microsoft, launched originally as a free site like Salon did, but about a year ago decided to go to a [subscription] model with disastrous results for their circulation. Their circulation plummeted overnight from . . . over 150,000 individual users each month to about 20 to 30,000 . . . . That wouldn't be enough circulation to sustain Salon's business because advertisers expect you to have a certain circulation level before they'll do business with you. And, that typically is at least over 100,000 per month.
J.A. 144.
5. Additional Burdens Of Implementing COPA's Affirmative Defenses a. Web-Based Chat Rooms And Bulletin Boards Defendant's own expert agreed that "the only way to comply with COPA regarding potentially harmful-to-minors materials in chat rooms and bulletin boards is to require that a credit card screen or adult verification be placed before granting access to all users (adults and minors) to such fora, or to implement a full-time monitor on the site to read all content before it is posted." ACLU II, 31 F. Supp.2d at 491, ¶58. The content in Web-based interactive fora is inherently dynamic, and "there is no method by which the creators of those fora could block access by minors to harmful-to-minors materials and still allow unblocked access to the remaining content for adults and minors, even if most of the content in the fora was not harmful to minors." Id.
b. Adult Access Codes There are about twenty-five services on the Web that will provide adult access codes to Web users in order to access a variety of adult Web sites. Id. at 489, ¶¶48, 52; J.A. 401 (Farmer Testimony). No standards govern the operation of these services, and content providers cannot ensure their security or reliability. J.A. 386-87 (Farmer Testimony). To obtain an adult access code, a user must provide identification information and pay a fee to the adult access service, normally by providing a credit card number online. ACLU II, 31 F. Supp.2d at 490, ¶51. Plaintiffs testified that their users would not choose to register for an adult access code, but would instead forgo accessing restricted content. J.A. 330-31, 344, 367-68, 370 (Barr, Tepper, Rielly Testimony).
A content provider that contracts with an adult access service is provided a script that must be placed in front of every restricted page. ACLU II, 31 F. Supp.2d at 489, ¶49. To avoid requiring users to re-enter their passwords repeatedly, the content provider would have to obtain and utilize additional software tools enabling it to place all restricted material in one directory behind the adult verification screen. J.A. 467-78 (Alsarraf Testimony). Without the use of these additional tools, any user could successfully "attempt[] an end-run around the screen" and go directly to a site that was meant to be restricted. ACLU II, 31 F. Supp.2d at 490, ¶53.
c. Credit Card Verification To utilize COPA's credit card defense, a content provider "would need to undertake several steps."5 Id. at 488, ¶41. The steps include "(1) setting up a merchant account, (2) retaining the services of an authorized Internet-based credit card clearinghouse, (3) inserting common gateway interface, or CGI, scripts into the Web site to process the user information, (4) possibly rearranging the content on the Web site, (5) storing credit card numbers or passwords in a database, and (6) obtaining a secure server to transmit the credit card numbers." Id. The start-up costs range from "$300 . . . to thousands of dollars. . . ." Id. at 488, ¶42.
A normal credit card transaction involves an "authorize only" transaction, which determines whether the card is valid, and a "funds capture" transaction, which charges an amount to the user's credit card. Id. at 488, ¶45. The government was unable to prove that credit card verification services "will authorize or verify a credit card number in the absence of a subsequent funds capture transaction." Id. at 489, ¶45. Without such a service, a content provider would have to charge the user's credit card for accessing the content. J.A. 126, 129 (Laurila Testimony). Even if this service were available, the credit card company would charge the content provider $0.15 to $0.25 per authorization. ACLU II, 31 F. Supp.2d at 489, ¶45. Such per-authorization fees would allow users hostile to certain content to drive up costs to the provider by repeatedly accessing restricted content, J.A. 133 (Laurila Testimony).
Finally, because some minors "may legitimately possess a valid credit or debit card," they would have access to restricted content despite credit card verification. ACLU II, 31 F. Supp.2d at 489, ¶48.
d. Burdens Of Web Redesign COPA's credit card and adult access defenses would also require speakers to redesign their Web sites in order to restrict only their harmful to minors content. The district court found that the technological requirements for implementing credit card or adult access code verification to comply with COPA could be substantial -- depending on the amount of content on a Web site, the amount of content that may be harmful to minors, the degree to which a Web site is organized into files and directories, the degree to which harmful-to-minors material is currently segregated into a particular file or directory, and the level of expertise of the Web site operator. Id. at 488, ¶¶39, 56. COPA would require some Web sites to reorganize and redesign literally millions of files. J.A. 158-59 (Talbot Testimony).
A content provider also would have to reorganize individual files and pages in order to restrict only content that could be harmful to minors. ACLU II, 31 F. Supp.2d at 490, ¶54. Even a single page of Web content could have some content prohibited under COPA and some that was not. "Text is more difficult to segregate than images, and thus if a written article contains only portions that are potentially harmful to minors, those portions cannot be hidden behind age verification screens without hiding the whole article or segregating those portions to another page." Id. at 490, ¶55.
6. User-Based Filtering Programs And Other Available Alternatives At least forty percent of Web content originates abroad, and may be accessed by minors as easily as content that originates locally. Id. at 484, ¶20. COPA cannot restrict this content, and also does not restrict the wide range of harmful-to-minors materials provided noncommercially on the Web, and through non-Web protocols on the Internet such as newsgroups and non-Web chat rooms. Conversely, as defendant's expert conceded, user-based blocking software can effectively block these materials, in addition to blocking Web-based commercial materials. Id. at 492, ¶65. User-based blocking software can also block other categories of material that parents may deem inappropriate, such as violence or hate speech. J.A. 314 (Magid Testimony). To establish these controls, parents may either purchase software for their home computers or choose an Internet Service Provider or online service such as America Online that offers parental software controls. ACLU II, 31 F. Supp.2d at 492, ¶65; J.A. 309 (Magid Testimony). These services also may provide tracking and monitoring software to determine which resources a child has accessed, and offer access to children-only discussion groups that are closely monitored by adults. J.A. 162-63 (TRO Memorandum).
STANDARD OF REVIEW
The district court's issuance of a preliminary injunction against COPA should stand unless defendant can prove an "abuse of discretion." Maldonado v. Houston, 157 F.3d 179, 183 (3d Cir. 1998), cert. denied, 119 S. Ct. 1802 (1999); ACLU of N.J. v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1476 (3d Cir. 1996) (en banc). Legal conclusions are reviewed de novo, and findings of fact are reviewed for clear error.6 Maldonado, 157 F. 3d at 183.
SUMMARY OF ARGUMENT
Like CDA, which the Supreme Court struck down in ACLU I, COPA threatens protected speech with civil and criminal sanctions, and effectively suppresses a large amount of speech that adults have a constitutional right to communicate and receive on the Web. COPA's criminal penalties apply to millions of commercial content providers whose communications on the Web "include[] any material that is harmful to minors" -- even a single description or image on a Web page. COPA's plain language covers a vast range of written, visual and audio materials that are freely provided to Web users and have value for adults though they may be considered "harmful to minors." Plaintiffs' threatened speech includes, for example, Andres Serrano photographs, sexually explicit poetry, interactive chats assisting disabled persons in experiencing sexual pleasure, a humorous column on slang names for genitals, and an online radio show for gays and lesbians called "Dr. Ruthless." J.A. 606-07, 634-37, 656, 672-79, 709-13 (Pls. Decl. Exhs.). Ignoring the statute's plain language as well the substantial record of impacted speech developed in the lower court, defendant argues that the district court wrongly analyzed COPA's breadth to suggest that plaintiffs do not have standing. There is simply no way to construe COPA narrowly, however, to avoid its constitutional flaws.
COPA's credit card and adult access code defenses do nothing to narrow the statute's tremendous burden on protected speech. First, the evidence showed that Web-based discussion groups and chat rooms are vital interactive fora that contribute to the popularity of the Web. There is no way to utilize COPA's defenses in these discussions without requiring all participants to provide a credit card or adult code before they enter the forum -- even to participate in discussions that contain a wide range of speech not covered by the statute. Second, because Web users are unable or unwilling to provide identifying information to access content, COPA will prevent or deter most adults from accessing any restricted content. Third, the Supreme Court has held that it is unconstitutional to require adults to register before accessing protected speech. Finally, the defenses impose substantial financial burdens on content providers and users that would effectively drive this protected speech off the Web entirely.
COPA must also be invalidated because it is an ineffective method for addressing defendant's asserted interest in protecting children; it will do nothing to protect minors from harmful-to-minors materials on foreign Web sites, non-commercial sites, and non-Web-based online speech. There are numerous less restrictive and more effective alternatives to COPA, including user-based filtering software, that parents may use if they wish to restrict what their children view.
For all of these reasons, the district court's issuance of a preliminary injunction against enforcement of COPA should be affirmed.
ARGUMENT
I. COPA'S DEFECTS ARE IDENTICAL TO THE DEFECTS
THE SUPREME COURT FOUND CONSTITUTIONALLY
FATAL IN THE COMMUNICATIONS DECENCY ACT.COPA's ultimate constitutional flaws are identical to the flaws that led the Supreme Court to strike down CDA in ACLU I. While there are slight differences between the two laws, these differences are insignificant when compared to the fundamental and fatal constitutional defect of both laws: "In order to deny minors access to potentially harmful speech," COPA -- like CDA -- "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another." ACLU I, 521 U.S. at 874; see ACLU II, 31 F. Supp.2d at 495. In passing both CDA and COPA, Congress made it a crime for adults to communicate expression that is clearly protected by the Constitution.
Both acts are criminal statutes, which pose a very strong risk that they "may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images." ACLU I, 521 U.S. at 872; see ACLU II, 31 F. Supp.2d at 497. Both apply to speech that is constitutionally protected for adults.7 Both effectively prevent adults from accessing speech because there is no "effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults." ACLU I, 521 U.S. at 876; see also ACLU II, 31 F. Supp.2d at 497; ACLU v. Johnson, 4 F. Supp.2d 1029, 1032 (D.N.M. 1998) (invalidating state online harmful-to-minors statute). In addition, because both laws rely on "community standards," both allow "any communication available to a nation-wide audience [to] be judged by the standards of the community most likely to be offended by the message." ACLU I, 521 U.S. at 877-78.
As a content-based regulation of protected speech, COPA -- like CDA -- is presumptively invalid. R.A.V. v. St. Paul, 505 U.S. 377, 391 (1992). Content-based regulations of speech will be upheld only if they are justified by a compelling governmental interest and are "narrowly tailored" to effectuate that interest. In concluding that strict scrutiny applies to content-based bans that threaten the democratizing and speech-enhancing qualities of the Internet, the Supreme Court held that there was "no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium." ACLU I, 521 U.S. at 870; see also id. at 874 ("Th[e] burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.").8
There are only two differences between COPA and CDA. As held by the district court, and discussed more fully below, neither distinction overcomes the presumption that such content-based bans on protected speech violate the First Amendment. See ACLU II, 31 F. Supp.2d at 493; ACLU I, 521 U.S. at 885; R.A.V. v. St. Paul, 505 U.S. at 391. First, the category of non-obscene speech prohibited by COPA is arguably narrower than the category criminalized by CDA.9 That distinction is irrelevant because both "indecent" material and harmful-to-minors materials are unquestionably protected for adults. Fabulous Assoc. v. Pennsylvania Pub. Util. Comm'n., 896 F.2d 780, 788 (3d Cir. 1990), aff'g 693 F. Supp 332 (E.D.Pa. 1988); ACLU v. Johnson, 4 F. Supp.2d 1029; American Libraries Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). As the record shows, there is a wide range of material available for free on the Web that is appropriate for adults but may be considered "harmful to minors." See infra at 4-6. Even under the guise of protecting children, defendant may not suppress constitutionally protected speech, because to do so would "'burn the house to roast the pig.'" ACLU I, 521 U.S. at 882 (quoting Sable, 492 U.S. at 127); see also Butler v. Michigan, 352 U.S. 380, 383 (1957).10
Second, COPA purports to restrict only speech provided on the Web "for commercial purposes," whereas CDA applied to speakers regardless of commercial intent. In fact, however, COPA explicitly bans a wide range of protected expression that is provided for free on the Web by individuals and organizations hoping to make a profit. Just as CDA suppressed a "large amount of speech that adults have a constitutional right to receive," ACLU I, 521 U.S. at 874, COPA impacts millions of readers who will be prevented from accessing protected speech if the injunction is not affirmed.
II. COPA SUPPRESSES A WIDE RANGE OF "HARMFUL TO MINORS"
MATERIALS, INCLUDING THOSE OF PLAINTIFFS, THAT ADULTS
ARE CONSTITUTIONALLY ENTITLED TO COMMUNICATE.A. The District Court Correctly Analyzed COPA's
"Harmful To Minors" Standard.Defendant argues that the district court misinterpreted the breadth of speech affected by COPA. Specifically, defendant claims that the district court "labored under the erroneous conclusion that the statute covered all materials that were 'sexual in nature,' rather than the narrow subset of materials that are 'harmful to minors' as defined by COPA." Def.Br. at 35-36. This argument is completely untenable in the face of the record of this case and an accurate reading of the district court's opinion.
The opinion below shows that the district court understood and correctly analyzed the breadth of speech affected by COPA's "harmful to minors" standard:
The plaintiffs contend that such sexual material could be considered "harmful to minors" by some communities. The plaintiffs offer an interpretation of the statute which is not unreasonable, and if their interpretation of COPA's definition of "harmful to minors" and its application to their content is correct, they could potentially face prosecution for that content on their Web sites.
ACLU II, 31 F. Supp.2d at 480-81.11
In addition, defendant raised and fully argued her claim that plaintiffs' speech could not be considered "harmful to minors" in her motion to dismiss before the district court. In response, plaintiffs offered numerous specific examples of content for which they feared prosecution under COPA's three-pronged definition of "harmful to minors." See infra at 486. Plaintiffs never argued that they could be liable under COPA for communicating speech that is merely "sexual in nature." Given the thorough briefing and argument from both parties, it is inconceivable that the district court's rulings were based on an interpretation that COPA prohibits all material that is "sexual in nature," as defendant now claims.
B. Plaintiffs Clearly Have Standing To Challenge COPA Under
Well-Established Rules In First Amendment Cases.The district court correctly held that plaintiffs have standing to challenge COPA. In a case similar to this one, Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 384 (1988), the Supreme Court considered whether booksellers and membership organizations had standing to challenge a state "harmful to minors" law. The statute made it a crime to "display" materials that were harmful to minors for commercial purposes so that "juveniles [could] examine and peruse" them. Id. at 383. Noting that it was "not troubled by the pre-enforcement nature of this suit," id. at 393, the Supreme Court applied well-accepted rules in First Amendment facial challenges and held that plaintiffs had standing to challenge the statute.12 Plaintiffs in this case, like the booksellers, alleged "an actual and well-founded fear that the law will be enforced against them," relying on numerous examples of their threatened speech. Id. at 393.13 Standing rules are relaxed in First Amendment facial challenges because, as the Supreme Court has explained, statutes drawn too broadly "'create an impermissible risk of suppression of ideas.'" New York State Club Ass'n, Inc., v. City of New York, 487 U.S. 1, 11 (1988) (quoting Taxpayers for Vincent, 466 U.S. at 798).14 Additionally, plaintiffs have standing "'not because their own rights to free expression are violated, but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.'" American Booksellers Ass'n, 484 U.S. at 392-93 (quoting Munson, 467 U.S. at 956-57).
C. COPA Threatens A Wide Range Of "Harmful To Minors"
Materials, Including Those Communicated By Plaintiffs.
Although defendant claims COPA should be construed to restrict only "commercial pornography," plaintiffs have no reason to believe they will not face criminal prosecution or civil penalties for their sexually explicit speech that fits squarely within COPA's plain language. The district court reviewed numerous examples of plaintiffs' speech and determined that plaintiffs had a reasonable fear of prosecution for communicating "harmful to minors" materials. See ACLU II, 31 F. Supp.2d at 480-81.
At the hearing, Norman Laurila of A Different Light Bookstores testified about a short story on his Web site in which the author describes his first experience of masturbation. J.A. 609-12. David Talbot of Salon Magazine described a number of stories that appear on the Salon Web site graphically discussing sex. J.A. 617-41 (Pls. PI Exhs.). For instance, columnist Susie Bright describes her own sexual experiences including subjects such as anally penetrating her boyfriend, and having sex outdoors, J.A. 617-26. Readers also engage in discussions about sexuality on Salon's interactive "Table Talk." J.A. 638-41. Additionally, Thomas Rielly of PlanetOut testified that PlanetOut contains sexually themed material including archives of an Internet radio show called "Dr. Ruthless" that discusses topics such as anal sex and masturbation. J.A. 652-60 (Pls. PI Exhs.). PlanetOut also includes a bulletin board and chat rooms where users post personal ads and discuss topics that include sex. J.A. 661-69.
ACLU member Mitchell Tepper of the Sexual Health Network testified that he feared prosecution under COPA because his Web site is almost exclusively sexual in nature. ACLU II, 31 F. Supp.2d at 485, ¶25; J.A. 670-88. Tepper's Web site contains information and interactive features about sex aimed at individuals with disabilities, covering a wide range of topics from information on the use of sex toys to sexual surrogacy to advice on how a large man and a small woman can position themselves comfortably for intercourse, J.A. 340, 673, 681-85 (Tepper Testimony and Pls. PI Exhs.).
Additional plaintiffs submitted declarations containing numerous examples of material from their Web sites that they fear could be considered "harmful to minors" under COPA. ArtNet's Web site has many sexually-themed works including photographs from Andres Serrano's series "A History of Sex." J.A. 710-13; see also Pls. Decl. N (Groman) Exhibits 10, 13. RiotGrrl has submitted several articles and interactive discussions that describe sexual acts. J.A. 737-50. For instance, one article explicitly describes the first time the author performed oral sex. J.A. 745-46. Patricia Nell Warren, an ACLU member, submitted several examples from her Web site discussing gay and lesbian issues, including a graphic account of a fifteen-year-old who was date-raped when she was thirteen. J.A. 728-36. OBGYN.net provides a variety of information on the Web about women's health issues, birth control, sexual satisfaction, and sexually transmitted diseases. J.A. 716-27. BlackStripe's Web site, a resource for same-gender-loving individuals of African decent, also contains some material of a frank sexual nature. For instance, James Earl Hardy's article Black-on-Black Love: It Ain't A 'Revolutionary Act' opens by asking "How do you challenge the white cock you're sucking?" J.A. 753-57.
Defendant claims that sexually explicit gay and lesbian material will not be the subject of prosecution under COPA. Def.Br. at 34-35 n.12. However, plaintiffs' fears are more than supported by their knowledge that the public has much less tolerance for homosexual sexual material than heterosexual sexual material.15 Moreover, plaintiffs and other Internet speakers reasonably fear prosecution under COPA because state laws have been applied to less graphic speech than theirs. See, e.g., State v. Vachon, 306 A.2d 781, 784 (N.H. 1973) (holding that the sale of a button with the slogan "Copulation Not Masturbation" was obscene as to minors under Ginsberg), rev'd on other grounds, 414 U.S. 478 (1974); Wisconsin v. Stankus, No. 95-2159-CR, 1997 Wisc. App. LEXIS 138, at *2-3 (Wisc. App. Feb. 13, 1997) (upholding conviction for exposing a child to harmful material by displaying a photograph of "a woman with a shirt and jacket open to the waist, without exposing her nipples."); Bookcase Inc. v. Broderick, 18 N.Y.2d 71, 73, 218 N.E.2d 668, 670, 271 N.Y.S.2d 2d 947, 949 (Fanny Hill falls within scope of "harmful to minors" law), rev'd on other grounds, 414 U.S. 454 (1966); American Library Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (plaintiffs communicating broad range of valuable speech had standing because of credible fear of prosecution under harmful-to-minors statute).
Defendant also claims plaintiffs will be protected by the value prong of the "harmful to minors" standard. Def.Br. 32. However, COPA's value prong purports to protect only material that would have "serious literary, artistic, political, or scientific value for minors." 47 U.S.C.A. §231(e)(6) (emphasis added). Because COPA would protect only speech that jurors believed had value for minors, plaintiffs legitimately fear prosecution for material that has value for adults, but may not be considered to have value for minors. For instance, many people may find that stories like Salon's article about women having anal sex with their lovers lacks value for minors. See J.A. 617- 621 (Pls. PI Exhs.). Further, COPA imposes civil penalties where a majority of a jury finds, by a mere preponderance of the evidence, that speech lacks value for minors. 47 U.S.C.A. §231(a)(3).16
III. UNDER COPA'S PLAIN LANGUAGE ALL PLAINTIFFS ARE
ENGAGED IN THE BUSINESS OF MAKING COMMUNICATIONS THAT
INCLUDE MATERIAL THAT MAY BE HARMFUL TO MINORS.A. The District Court Correctly Interpreted COPA's
Definition Of "Engaged In The Business."Defendant wrongly argues that the district court misconstrued COPA "by losing sight of COPA's commercial purposes requirement," Def.Br. at 38, and "effectively ignored" the statute's explicit language, id. at 37. In fact, the district court addressed and correctly interpreted the statute's "commercial purposes" language. On its face, COPA applies to any Web site that, in the regular course of business, communicates any speech that "includes any material that is harmful to minors." 47 U.S.C.A. §231(e)(2)(B). The court held:
There is nothing in the text of COPA . . . that limits its applicability to so-called commercial pornographers only; indeed, the text of COPA imposes liability on a speaker who knowingly makes any communication for commercial purposes "that includes any material that is harmful to minors," and defines a speaker that is engaged in the business is one who makes a communication "that includes any material that is harmful to minors. . . as a regular course of such person's trade or business (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).". . . Because COPA applies to communications which include, but are not necessarily wholly comprised of material that is harmful to minors, it logically follows, that it would apply to any Web site that contains only some harmful to minors material.
ACLU II, 31 F. Supp.2d at 480 (emphasis added and some in original text). Thus, after considering COPA's definition of "for commercial purposes," the district court reached the only conclusion supported by the statute's language. COPA, on its face, subjects a speaker to civil and criminal penalties if, as a regular course of business, she communicates any material -- even a single description or one image on a Web page -- that is "harmful to minors."
B. Defendant's Interpretation Of COPA Ignores The
Plain Language Of The Statute.Notwithstanding the unambiguous language of the statute, defendant argues that the district court's reading of the statute is "skewed." Def.Br. at 38. First, defendant wrongly relies on the statute's legislative history to argue that COPA applies only to "commercial pornographers," id. at 24 --25, even though the phrase never appears in COPA. Legislative history cannot compel an interpretation that contradicts the plain meaning of the statute. The fact that COPA expressly covers "written" materials demonstrates that COPA was not intended to cover only commercial pornographers. 47 U.S.C.A. §231(e)(6). In addition, Congress specifically inserted the phrase "includes any material" three times into the statute's definitions. See 47 U.S.C.A. §231(a)(1); §231(e)(2)(B) (twice). Defendant's interpretation would deny any meaning to that phrase. As a basic rule of statutory interpretation, courts should avoid an interpretation of a statute that renders certain words meaningless. 73 Am. Jur. 2d Statutes §151 ("[T]he legislative history of a statute may not compel a construction at variance with its plain words "); see also Gustafson v. Alloyd Co., 513 U.S. 561, 574 (1995) ("First, the Court will avoid a reading which renders some words altogether redundant."); Kuehner v. Irving Trust Co., 299 U.S. 445, 449 (1937).
Second, defendant attempts to distract the Court from COPA's plain language by proposing a new definition of "regular course of business."17 Defendant has been inconsistent in her interpretation of "regular" or "regularly"; her latest brief argues that "regular course of business" should be read as "usual" or "normal" course of business. See Def.Br. at 38 (COPA does not apply "if the posting of harmful to minors communications are not a usual part a person's business"; COPA "covers those harmful to minors communications that are made by a person as a normal part of his or her for-profit business."). However, neither "usual" nor "normal" appears anywhere in the statute. In addition, defendant fails to clarify what she means by these terms. These substituted terms could indicate that, to be covered by COPA, (1) the speaker must consistently offer prohibited material over time on its site to be covered by COPA, or (2) a considerable percentage of the speaker's material must be "harmful to minors." Either interpretation is directly inconsistent with COPA's plain language, which applies to any speaker that "includes any material that is harmful to minors."18 47 U.S.C.A. §231(a)(1); §231(e)(2)(B) (emphasis added).
C. Even Under Defendant's Interpretation Of COPA, All Plaintiffs
Are Engaged In The Business Of Making Communications
That Include Material That May Be Harmful To Minors.Even under any one of defendant's inconsistent interpretations of COPA, plaintiffs and many other speakers on the Web would risk prosecution. First, defendant has never contested that plaintiffs are communicating with the objective of making a profit and, thus, that plaintiffs are communicating for commercial purposes. Indeed, all plaintiffs have established ".com" as opposed to ".org" sites. Some plaintiffs sell space on their Web sites to advertisers or members, while other plaintiffs promote and sell products over the Web, J.A. 143, 180, 353 (Talbot, Rielly Testimony; Joint Stipulations). Even defendant's own expert witness agrees that COPA covers speakers who sell space on their Web sites to advertisers, as well as to speakers who promote and sell merchandise over the Web. Def. PI Exh. 199 at ¶22.
Second, all plaintiffs would satisfy a "consistently offers" interpretation of "regular course of business." A number of plaintiffs host ongoing interactive chat discussions that customarily involve sexual content. Because these plaintiffs regularly solicit content that could elicit harmful-to-minors communications, they "usually" make harmful-to-minors communications on their Web sites. Specifically, Salon provides a discussion group called Table Talk in which users exchange ideas that often are sexually explicit in nature. J.A. at 147 (Talbot Testimony). Similarly, PlanetOut's Web site always contains chat rooms devoted to sexuality. J.A. 359-61 (Rielly Testimony). In addition, some plaintiffs regularly offer sexually explicit columns. For example, RiotGrrl devotes regular columns to candid discussions about sex and provides a chat room, called InteractRiot, in which visitors to the site regularly exchange ideas about sexuality and often use sexually explicit language. J.A. 737-48, 751-52 (Douglass Decl. Exhs.).
In addition, all or nearly all plaintiffs provide archived material on their sites and therefore "usually" offer harmful-to-minors communications. For example, ArtNet.com archives all content and thus will always contain such material as Andres Serrano's "A History of Sex (The Kiss)," J.A. 713, and Ashley Bickerton's "Rosie and the General," J.A. 715. Similarly, RiotGrrl archives all material and is therefore always communicating such stories as "Oh Those Frat Boys," J.A. 737, and "Cock of the Walk," J.A. 741 (Pls. Decl. Exhs.). Additionally, both Salon's and CNET's archives of news stories contain "The Starr Report," which is rife with sexually explicit language. See Pls. PI Exhs. 31, 43. Accordingly, even if the Court were to accept defendant's definition of engaged in the business, all plaintiffs (and all sites that archive material) would risk prosecution under COPA.
Third, some plaintiffs would meet even an "amount" interpretation of "regular," i.e., that a considerable percentage of their material is prohibited.19 Because the very mission of a number of plaintiffs is to provide content about sexuality, a considerable portion of their speech could constitute prohibited materials. For example, much of the information on OBGYN.net explicitly describes and depicts women's breasts and vaginas. J.A. 716-18 (Pls. Decl. Exhs.). In much the same way, Condomania regularly communicates graphic descriptions of safer sex. J.A. 696-702 (Pls. Decl. Exhs.). Additionally, the Sexual Health Network, in its discussions about sex for people with disabilities, regularly posts sexually explicit content. J.A. 683 (Pls. PI Exh.). See also Pls. Decl. S (Segal) at ¶19; Pls. Decl. V (Tarver) at Exh. 3-7.
IV. COPA CANNOT BE CONSTRUED NARROWLY TO
AVOID ITS CONSTITUTIONAL DEFECTS.
Defendant essentially argues that the district court should have rewritten COPA's language to exclude speech such as plaintiffs'. The district court correctly declined to perform such radical surgery. Similarly, in striking down CDA, the Supreme Court specifically held that a narrowing construction would be improper. As the Court explained, courts should decline to "'draw one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn.'" ACLU I, 521 U.S. at 884 (quoting United States v. National Treasury Employees Union, 513 U.S. 454, 479 n.26).20 Just as CDA could not be fixed, COPA cannot be rewritten to "'conform it to constitutional requirements.'" ACLU I, 521 U.S. at 884-85 (quoting American Booksellers Ass'n, 484 U.S. at 397).
For example, to resolve the breadth of COPA's coverage of commercial speech, this Court would have to strike out a phrase -- "includes any material that is harmful to minors" -- that appears three times in the statute. See supra at 28-30. In addition, because "harmful to minors" materials are by definition protected for adults, and because all content on the Web is available to adults and minors, there is no way to construe COPA narrowly to avoid the unconstitutional suppression of speech to adults. To attempt such a major rewriting of the statute would constitute a "'serious invasion of the legislative domain.'" ACLU I, 521 U.S. at 884 (quoting National Treasury, 513 U.S. 454, 479 n.26(1996).
V. BECAUSE COPA FAILS STRICT SCRUTINY, THE DISTRICT
COURT CORRECTLY ENJOINED ITS ENFORCEMENT.A. COPA Is Not Narrowly Tailored Because Its Defenses Pose
Tremendous Burdens On Online Speakers And Users That
Will Suppress Protected Speech.As the district court correctly held, "[a] statute which has the effect of deterring speech, even if not totally suppressing speech, is a restraint on free expression." 31 F. Supp.2d at 493 (citing Fabulous, 896 F.2d at 785). In determining COPA's burden on protected speech, "it is necessary to take into consideration the unique factors that affect communication in the new and technology-laden medium of the Web." ACLU II, 31 F. Supp.2d at 495; ACLU I, 521 U.S. at 868-69; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975). The Web was created as a medium in which users could seamlessly and freely flow from one site to another without interruption, and in which they could access all content freely, anonymously and privately. See supra at 7-9. Because of the open nature of the Web, "any barrier that Web site operators and content providers construct to bar access to even some of the content on their sites to minors will be a barrier that adults must cross as well." ACLU II, 31 F. Supp.2d at 495.
The only defenses available under COPA are credit card verification and adult access codes. See supra at 10-15. The district court correctly found that use of these defenses would unconstitutionally burden the protected speech of adults, because the defenses would restrict speech not even covered by the statute, require users to register and pay before accessing protected speech, prevent or deter users from accessing restricted speech, and cause speakers to self-censor due to economic disincentives and the threat of criminal penalties.
1. COPA Would Require Web-Based Interactive
Chat Rooms And Discussion Groups To Restrict
Speech That Is Not Even Covered By The Statute.The evidence showed that Web-based chat rooms and discussion groups are vitally important features that contribute to the popularity of many commercial Web sites. J.A. 148-49, 358-59 (Talbot, Rielly Testimony). They are some of the "vast democratic fora of the Internet," providing Web users with equal access and an equal voice. ACLU I, 521 U.S. at 868. Hundreds of thousands of people have communicated with each other on plaintiffs' sites alone, which represent only a miniscule portion of the discussions occurring at any given moment on the Web. Yet COPA would require that users of all interactive fora provide a credit card or adult access code before entering the discussion -- even discussions that contain a wide range of speech that is not harmful to minors. As the district court held, "the uncontroverted evidence showed that there is no way to restrict the access of minors to harmful materials in chat rooms and discussion groups, which the plaintiffs assert draw traffic to their sites, without screening all users before accessing any content, even that which is not harmful to minors, or editing all content before it is posted to exclude material that is harmful to minors. This has the effect of burdening speech in these fora that is not covered by the statute." ACLU II, 31 F. Supp.2d at 495 (citation omitted). COPA would thus halt the great majority of all online discussions on commercial Web sites, and the "worldwide conversation" that is the Internet would be greatly diluted as a result. See ACLU I, 929 F. Supp. at 883. There is no purer an example of "burning up the house to roast the pig." See ACLU I, 521 U.S. at 882; Butler, 352 U.S. at 383.
2. Any Mandatory Registration Will Unconstitutionally Prevent
Or Deter Web Users From Accessing Protected Speech.
The district court also correctly invalidated COPA because "the implementation of credit card or adult verification screens in front of material that is harmful to minors may deter users from accessing such materials." ACLU II, 31 F. Supp.2d at 495. The uncontroverted evidence from plaintiffs and experts established that COPA will prevent or deter Web users from accessing a wide range of protected speech. The record showed that there is no technology available to enable credit card verification for speakers on the Web who publish through commercial online services such as America Online and Prodigy Internet, J.A. 392 (Farmer Testimony), which collectively have over 18 million subscribers. For these speakers, the credit card defense is no defense at all. See ACLU I, 521 U.S. at 881-82; ACLU I, 929 F. Supp at 854. In addition, COPA will prevent all adults who do not have credit cards from accessing harmful-to-minors materials on the Web. For these adults, COPA operates as a complete ban on their ability to access protected speech.
COPA will deter most adults (even those with credit cards) from accessing restricted content, because Web users are simply unwilling to provide identifying information in order to gain access to content. See supra at 10-11. Web users who wish to access sensitive or controversial information are even less likely to register to receive it. See supra at 10-11. The use of credit card or adult access code verification may also require users to pay a fee, further increasing COPA's deterrent effects. J.A. 396 (Farmer Testimony). Finally, the evidence showed that plaintiffs' users would be deterred by adult access code services that cater to the pornography industry, and would not want to affiliate with such services in order to gain access to plaintiffs' and similar "harmful to minors" materials. J.A. 156 (Talbot Testimony).
Thus, the court held that while the financial cost to content providers of implementing COPA's defenses contributes to COPA's burden on speech, a speaker's ability to afford the defenses is not the "dispositive" question under the First Amendment. ACLU II, 31 F. Supp.2d at 494-95. Rather, as the district court correctly held, the "relevant inquiry is determining the burden imposed on the protected speech regulated by COPA, not the pressure placed on the pocketbooks or bottom lines of the plaintiffs." Id. at 495. The district court concluded that COPA failed strict scrutiny "not because of the risk of driving certain commercial Web sites out of business, but [because of] the risk of driving this particular type of protected speech from the marketplace of ideas."Id.21
In Fabulous, this Court noted that "the First Amendment protects against governmental 'inhibition as well as prohibition.' An identification requirement exerts an inhibitory effect." 896 F.2d at 785 (citations omitted). The Court thus invalidated a statute that required adults to obtain an access code before they could gain access to sexually explicit recorded telephone messages, because it "impose[d] a burden on the exercise of the callers' First Amendment rights and chill[ed] the message services' protected speech." Id. at 787.
Similarly, in Denver Area Educational Telecommunications Consortium, the Supreme Court struck down a statutory requirement that viewers provide written notice to cable operators to obtain access to certain sexually oriented programs because the requirement "restrict[s] viewing by subscribers who fear for their reputations should the operator, advertently or inadvertently, disclose the list of those who wish to watch the . . . channel." 518 U.S. at 754. In considering the precursor to COPA, the Supreme Court found that the credit card and adult access code requirements of CDA would also unconstitutionally inhibit adult Web browsers. ACLU I, 521 U.S. at 857 n.23 ("There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password.").
To utilize either COPA's adult access code or credit card defense, Web providers would have to require all of their users to provide identifying information before accessing protected speech, perhaps to an untrusted third-party Web site. J.A. 379 (Farmer Testimony). Plaintiffs testified that their customers would simply forgo accessing their material entirely if forced to apply for an adult access code, provide a credit card number, or pay for content. J.A. 330-31, 344, 367-68, 370 (Barr, Rielly, Tepper Testimony). The quantity and range of speech burdened by COPA is vastly greater than the phone messages affected in Fabulous or the cable programs at issue in Denver Area, and thus COPA's registration requirements are clearly unconstitutional.
3. COPA Unconstitutionally Forces Speakers To Choose
Between Severe Criminal Penalties And The Substantial
Financial Burdens Imposed By The Defenses.COPA threatens any speaker on the Web who displays any material that is "harmful to minors" with severe criminal and civil sanctions. COPA's criminal penalties will have a strong chilling effect even on those speakers who may have the ability to implement a defense. The defenses are affirmative defenses only, and "in no way shield[] a content provider from prosecution." Shea v. Reno, 930 F. Supp. 916, 944 (S.D.N.Y. 1996), aff'd, 521 U.S. 1113 (1997) (striking down the federal CDA). Speakers who want to communicate "harmful to minors" materials to adults are forced by COPA into the Hobson's choice of risking prosecution or implementing costly defenses. As the district court held, the result instead is certain to be widespread self-censorship.
Most significantly, since content providers know that most users will not register to gain access to restricted speech, "the loss of users of such material may affect the speakers' economic ability to provide such communications." ACLU II, 31 F. Supp.2d at 495. Content providers depend on drawing a high level of traffic to their site to attract and retain advertisers and other investors. J.A. 144, 221 (Talbot, Hoffman Testimony). Many content providers would not bother to shoulder the burdens of setting up age verification systems that few if any users would utilize, and that would cause a drastic decrease in traffic. J.A. 331 (Barr Testimony). Instead, "content providers may feel an economic disincentive to engage in communications that are or may be considered to be harmful to minors and thus, may self-censor the content of their sites." ACLU II, 31 F. Supp.2d at 495; see supra at 10-15.
In addition, the evidence established that content providers who institute credit card verification would incur substantial start-up and per-transaction costs. J.A. 382-383 (Farmer Testimony); supra at 13-14. Content providers may have to charge the user's card to allow access to content, as defendant was unable to prove that credit card companies will verify a credit card in the absence of a commercial transaction. J.A. 497 (Alsarraf Testimony); supra at 13-14. If a content provider used third-party adult verification through adult access codes, users would also be required to pay a fee to access material that speakers wish to make available for free. J.A. 440 (Alsarraf Testimony).
The Supreme Court has routinely struck down economic burdens on the exercise of protected speech. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 217 (1975), the Court invalidated a statute requiring theater owners, to avoid prosecution, either to "restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable." This Court similarly struck down a statute requiring adults to purchase extra equipment before they could access "harmful to minors" phone communications because "the First Amendment is not available 'merely to those who can pay their own way.'" Fabulous, 896 F.2d at 787 (quoting Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943)).
As the Supreme Court has held, "[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech." Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 115 (1991). The government's ability to use financial regulation to impose content-based burdens on speech "raises the specter that defendant may effectively drive certain ideas or viewpoints from the marketplace." Id. at 116. In striking down CDA in ACLU I, the Supreme Court held that the prohibitively high economic burden of age verification "must inevitably curtail a significant amount of adult communication on the Internet." 521 U.S. at 877. Similarly, COPA's unconstitutional financial burdens on speakers and users require affirmance of the district court's injunction against enforcement.
B. COPA's Burden On Speech Fails Strict Scrutiny. Defendant and amici do not argue that COPA imposes no burden on speech. See Def.Br. at 44; Congressional Amici at 2. Rather, they argue that COPA's burdens are "reasonable." Of course, as defendant is aware, the relevant First Amendment test is not whether COPA is "reasonable" but rather whether defendant can overcome the presumption of unconstitutionality by proving that COPA is a narrowly tailored means of achieving a compelling government interest. As illustrated above, given the tremendous burdens COPA imposes on the protected speech of adults, COPA is far from narrowly tailored and thus clearly fails this strict constitutional scrutiny. Yet defendant asserts that "[i]n this case, the burdens the statute imposes are no different in kind or degree from the display requirements that many states impose on commercially available material deemed harmful to minors, which have been repeatedly upheld as valid, even though they similarly impose reasonable constraints on adult access to such material." Def.Br. at 42-43. COPA's burden on speech, however, is far greater than in any of the cases cited by defendant, see Def.Br. at 43, in which courts considered the constitutionality of statutes that limited the display of harmful-to-minors materials in bookstores and vending machines.
First, none of the blinder rack cases deal with the unique problems presented by regulation of harmful-to-minors materials on the Internet. ACLU II, 31 F. Supp.2d at 473; ACLU I, 521 U.S. at 877. Defendant notably ignores the growing number of cases that have held that state harmful-to-minors display laws enacted to govern the Internet violate the Constitution. See Cyberspace Communications, 1999 WL 557225; ACLU v. Johnson, 4 F. Supp.2d 1029; Pataki, 969 F. Supp. 160. COPA regulates far more than just commercial book and magazine sellers; it covers all of the millions of speakers on the Web who communicate with the intention of making a profit, including plaintiffs who are small business entrepreneurs, self-employed graduate students, and women working out of their homes. See supra at 27-32.
Second, defendant ignores Fabulous, the only case that is controlling precedent in this Circuit that considered the constitutionality of a harmful-to-minors statute. In Fabulous, this Court struck down, as too burdensome on adult speech rights, a statute that required adult access codes in order to receive phone communications that were harmful to minors. See supra at 20, 35-38.
Third, unlike COPA, none of the blinder rack statutes requires adults to pay for speech that would otherwise have been accessible for free and to relinquish their anonymity in order to access those materials. See, e.g., M.S. News Co. v. Casado, 721 F.2d 1281, 1288-89 (10th Cir. 1983) (requiring that harmful-to-minors materials be kept behind blinder racks that cover the lower two-thirds of the material, but that allow adults to browse the materials freely); Upper Midwest Booksellers Ass'n v. Minneapolis, 780 F.2d 1389, 1395 (8th Cir. 1985) (requiring opaque covers and sealing of harmful-to-minors materials); Crawford v. Lungren, 96 F.3d 380, 388 (9th Cir. 1996) (prohibiting sale in newsracks). In addition, the Crawford court made no findings like those of the district court in this case, which held that COPA's burdens were likely to deter adult users from accessing protected speech and to cause publishers to "self-censor the content of their sites," and that there were less restrictive alternatives. See ACLU II, 31 F. Supp.2d at 495, 497.
Finally, many courts have narrowly construed even the offline versions of harmful-to-minors display laws to avoid the constitutional problems they impose on speech for adults and older minors. See, e.g., Webb, 919 F.2d at 1504-05, 1508-09 (narrowly construing law to apply only to material that lacks value for a seventeen-year-old and to require only blinder racks that cover the lower two-thirds of the material); American Booksellers Ass'n, Inc. v. Rendell, 481 A.2d 919, 938-39 (Pa. 1984) (construing statute to allow open shelving of harmful to minors books and to prohibit only displays that "direct[ed] attention" to such materials); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993) (restricting statute to only those materials that lack value for a seventeen year old); Virginia v. American Booksellers Ass'n, Inc., 372 S.E.2d 618, 625 (Va. 1988) (limiting statute's reach to cases where bookstore owners knowingly allowed minors to peruse harmful materials).
Although the Supreme Court has never decided the constitutionality of an offline harmful-to-minors display statute, defendant conspicuously ignores the only case in which the Supreme Court provided guidance on the issue. In American Booksellers Ass'n, plaintiffs contended that the Virginia display statute required drastic and expensive compliance measures that burdened adult speech; defendant argued that bookseller compliance required only the existence of a policy forbidding minors from accessing the materials and prohibiting such conduct when observed, but in which the bookseller took no other action to restrict book display to adults. 484 U.S. 383. The Court declined to decide the merits, but instead certified two questions to the Virginia Supreme Court. Id. at 394. The Court asked for an interpretation of both the breadth of speech covered by the statute and of the compliance measures that would be considered sufficient. Id. The Court said that "the nature of the First Amendment 'spillover' burden to adults would be dramatically altered" depending on the answer to the questions.22 Id. In the present case, the evidence shows that COPA's burden on speech to both content providers and users is much greater than the minimal burden proposed by the defendant in American Booksellers. Rather, as discussed above, COPA's tremendous burdens on speech are far more similar to the burdens imposed by the constitutionally-invalid CDA.
C. COPA Is An Ineffective Method For Achieving The
Government's Interest, And Less Restrictive, More
Effective, Alternatives Are Available To Parents.COPA also fails the strict constitutional scrutiny applied to content-based bans on speech for yet another reason: it is a strikingly ineffective method for addressing defendant's asserted interest. Under strict (and even intermediate) scrutiny, a law "may not be sustained if it provides only ineffective or remote support for defendant's purpose." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 564 (1980). Defendant bears the burden of showing that its scheme will in fact alleviate the alleged "harms in a direct and material way." Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 624 (1994). Here, the district court correctly found that defendant did not meet this burden. Justice Scalia wrote in Florida Star v. B.J.F. that "a law cannot be regarded as . . . justifying a restriction upon truthful speech, when it leaves appreciable damage to [defendant's] supposedly vital interest unprohibited." 491 U.S. 524, 541-42 (1989) (Scalia, J., concurring).
As the district court explained, under COPA "minors may be able to gain access to harmful-to-minors material on foreign Web sites, non-commercial sites, and online via protocols other than http." ACLU II, 31 F. Supp.2d at 496. In addition, "minors may be able to legitimately possess a credit or debit card and access harmful to minors materials." Id. These flaws "demonstrate[] the problems this statute has with efficaciously meeting its goal." Id.; see also ACLU I, 929 F. Supp. at 848, ¶117, 882-83; Pataki, 969 F. Supp. at 178.23
Moreover, the court correctly held that COPA is not the least restrictive means of achieving defendant's asserted interest. See ACLU II, 31 F. Supp.2d at 496-97; Sable, 492 U.S. at 126 ("It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends."). The record showed that many alternative means are more effective at assisting parents in limiting minors' access to certain material if desired. See supra at 15. Commercial online services like America Online and Prodigy Internet provide features to prevent children from accessing chat rooms and to block access to Web sites and discussion groups based on keywords, subject matter, or specific discussion groups. J.A. 309 (Magid Testimony). Online users can also purchase special software applications, known as user-based blocking programs, that block access to certain resources, prevent children from giving personal information to strangers by e-mail or in chat rooms, and keep a log of all online activity that occurs on the home computer. J.A. 309. User-based blocking programs are not perfect, both because they fail to screen all inappropriate material and because they block valuable Web sites. However, a voluntary decision by concerned parents to use these products for their children constitutes a far less restrictive alternative than COPA's imposition of criminal penalties for protected speech among adults. See ACLU I, 521 U.S. at 879. As this Court found in Fabulous, "[i]n this respect, the decision a parent must make is comparable to whether to leave sexually explicit books on the shelf or subscribe to adult magazines. No constitutional principle is implicated. The responsibility for making such choices is where our society has traditionally placed it -- on the shoulders of the parent." 896 F.2d at 788.24
Blocking software is also more effective than COPA because it blocks "foreign sites and content on other protocols," as well as material from amateur or non-commercial Web sites. ACLU II, 31 F. Supp.2d at 497. Thus, the district court rightly held that "blocking or filtering technology may be at least as successful as COPA would be in restricting minors' access to harmful material online without imposing the burden on constitutionally protected speech that COPA imposes on adult users or Web site operators." Id. The use of such software is notably less restrictive than COPA's criminal ban. See ACLU I, 521 U.S. at 879; Denver Area, 518 U.S. at 759-760 (informational requirements and user-based blocking are more narrowly tailored than speaker-based schemes as a means of limiting minors' access to indecent material on cable television). Of course, defendant also can address her interest by vigorously enforcing other criminal statutes, such as obscenity and child pornography laws.
CONCLUSION
For the reasons stated above, plaintiffs respectfully request that this Court affirm the district court's decision granting a preliminary injunction against enforcement of 47 U.S.C.A. §231.
Respectfully submitted,
______________________________
Ann Beeson
Christopher A. Hansen
American Civil Liberties Union Foundation
125 Broad Street, 18th Floor
New York, NY 10004
(212) 549-2500
Stefan Presser
ACLU of Pennsylvania
125 South Ninth Street, Suite 701
Philadelphia, PA 19107
(215) 592-1513 ext. 216David L. Sobel
Electronic Privacy Information Center
666 Pennsylvania Ave. SE, Suite 301
Washington, D.C. 20003
(202) 544-9240Shari Steele
Electronic Frontier Foundation
6999 Barry's Hill Road
Bryans Road, MD 20616
(301) 283-2773
ATTORNEYS FOR ALL PLAINTIFFS
Catherine E. Palmer
Christopher R. Harris
Michele M. Pyle
Douglas A. Griffin
Katherine M. Bolger
Latham & Watkins
885 Third Avenue, Suite 1000
New York, NY 10022v (212) 906-1200
Of Counsel to American Civil Liberties Union Foundation on behalf of plaintiffs American Civil Liberties Union, Androgyny Books, Inc. d/b/a A Different Light Bookstores, Artnet Worldwide Corporation, BlackStripe, Adazzi, Inc. d/b/a Condomania, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Speech Media, OBGYN.net, Philadelphia Gay News, Planetout Corporation, Powell's Bookstore, RiotGrrl, Salon Internet, Inc. and West Stock, Inc.
NOTES:1 COPA was enacted as Pub. L. No. 105-277, §1403, 112 Stat. 2681-736 (1998), codified at 47 U.S.C.A. §231. Plaintiffs do not challenge COPA's provision pertaining to obscenity. BACK
2 The court heard a day of testimony on plaintiffs' motion for a temporary restraining order, which the court granted on November 19, 1998. BACK
3 Plaintiffs also argued below that COPA is unconstitutionally vague because it fails to define the relevant community that would establish the standard for what is "harmful to minors" on the global Web, and because the phrase "considered as a whole" in the serious value prong of the "harmful to minors" standard is hopelessly vague when applied to online communications consisting of thousands of linked documents, images and texts. Because the district court struck down the statute on other grounds, it did not reach plaintiffs' vagueness claim. BACK
4 Other plaintiffs include Condomania, a leading online seller of condoms and distributor of safer-sex related materials; ArtNet, the leading online vendor of fine art on the Web; Free Speech Media, which promotes extensive independent audio and video content on the Web; OBGYN.net, a comprehensive international online resource on obstetrics and gynecology; Powell's Bookstore, a large new and used bookstore with a Web site containing information on over one million books; Electronic Frontier Foundation; Electronic Privacy Information Center; RiotGrrl, a popular "Webzine" that advocates positive empowerment for women; WestStock, an online seller of stock photographic images; BlackStripe, a Web-based resource for gay and lesbian individuals of African descent; American Booksellers Foundation for Free Expression, an organization that includes some on-line bookstores; and Philadelphia Gay News, which operates a Web site. See ACLU II, 31 F. Supp.2d at 485 n.5; see generally exhibits, J.A. 696-757 (Pls. Decl. Exhs.). BACK
5 Defendant improperly relies on congressional findings about COPA, rather than the factual record in this case, to support several arguments in her brief. For example, defendant argues that COPA's credit card defense is not burdensome because Congress explained that "credit card verification is commonly used today." Def.Br. at 25. As detailed below, the district court findings regarding the burden of COPA's defenses are significantly more specific than Congress' cursory conclusions, and also rely on testimony from defendant's own expert witness. BACK
6 Defendant wrongly suggests that the Court has a duty in this case "to conduct an independent examination of the record as whole." Def.Br. at 16. Although the Supreme Court has held that an independent review of the facts is appropriate where necessary to assure that free speech rights have not been unduly abridged, Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 510-11 (1984), that rule does not afford "special protection for the government's claim that it has been wrongly prevented from restricting speech." Planned Parenthood Ass'n v. Chicago Transit Auth., 767 F.2d 1225, 1229 (7th Cir. 1985). BACK
7 See ACLU I, 521 U.S. at 874 ("'Sexual expression which is . . . not obscene is protected by the First Amendment'") (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); Carey v. Population Servs. Int'l, 431 U.S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression."); Fabulous Assocs. v. Pennsylvania Pub. Util. Comm'n, 693 F. Supp. 332, 335 (E.D. Pa. 1988) ("[I]t is not enough that the variable standard may be constitutional as applied to minors, since it is being applied as a restriction on adults' access to protected speech."), aff'd, 896 F.2d 780 (3d Cir. 1990). BACK
8 See also Sable, 492 U.S. at 126 (applying strict scrutiny to invalidate indecency ban on telephone communications, and holding that the government may effectuate even a compelling interest only "by narrowly drawn regulations designed to serve those interests without necessarily interfering with First Amendment freedoms"); Fabulous, 896 F.2d at 788 (applying strict scrutiny to strike down "harmful to minors" restrictions in telephone communications because of unconstitutional burden on adult rights). BACK
9 CDA's "indecency" standard applied to all "patently offensive" content. COPA's "harmful to minors" standard attempts to track the standard applied in Ginsberg v. New York, 390 U.S. 629 (1968) (upholding variable obscenity test for direct sale of material deemed "harmful to minors"), as modified by the Supreme Court's most recent definition of obscenity in Miller v. California, 413 U.S. 15 (1973). Cf. American Booksellers v. Webb, 919 F.2d 1493, 1501 (11th Cir. 1990) (noting that Ginsberg did not address the "difficulties which arise when the government's protection of minors burdens (even indirectly) adults' access to material protected as to them"). BACK
10 COPA is unconstitutional on its face because in all its applications it suppresses protected speech. See Secretary of State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 965 n.13. Alternatively, even if COPA could be constitutionally applied to some speakers (and it cannot), COPA would be invalid because it is substantially overbroad. See Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984). BACK
11 There are numerous other references to the "harmful to minors" standard in the district court's opinion. See ACLU II, 31 F. Supp.2d at 479 ("the defendant argues that the definition of 'harmful to minors' material does not apply to any of the material on plaintiffs' Web sites, and that the statute only targets commercial pornographers"); id. at 480 ("The defendant argues that the plaintiffs lack standing because the material on their Web site is not harmful to minors."). BACK
12 The Court need only find that some, or even just one, of plaintiffs has standing to challenge COPA on its face. Department of Labor v. Triplett, 494 U.S. 715, 719 (1990) ("Since the committee has standing, we need not inquire whether the Department does as well") (citing Bowsher v. Synar, 478 U.S. 714, 721 (1986)). BACK
13 See also American Libraries Ass'n v. Pataki, 969 F. Supp. 160; ACLU v. Johnson, 4 F. Supp. 1029; Cyberspace Communications, Inc. v. Engler, No. 99-CV-73150, 1999 WL 557725 (E.D. Mich. July 29, 1999). BACK
14 See also Forsyth County v. Nationalist Movement, 505 U.S. 123, 129 (1992); Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Munson, 467 U.S. at 967-68 (citing Village of Schaumberg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)). BACK
15 See 10 U.S.C.A. §654(a)(15) (West 1998) ("Don't ask, don't tell" policy states that "[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability."); 28 U.S.C.A. §1738C (West Supp. 1999) (Defense of Marriage Act) (allows states to refuse to recognize other states' laws allowing same sex couples to marry); Bowers v. Hardwick, 478 U.S. 186 (1986) (state's police power allows states to outlaw consensual homosexual sodomy).BACK
16 Plaintiffs also argued below that COPA unconstitutionally restricts speech that is protected for older minors. The statute fails to distinguish between speech that lacks value for a six-year-old versus a sixteen-year-old. Therefore, COPA will prohibit teenagers from accessing material that is protected as to them because it is patently offensive and lacks value for young children. The district court did not reach this claim.BACK
17 Defendant has advanced quite a few definitions of "regular course of business." Compare Def.Br. at 38 with Defendant's Brief in Support of Motion to Dismiss at 38 (COPA does not apply to "occasional" communications) and 40 (COPA does not apply if person only "devote[s] some modicum of time" to prohibited communications) with TRO Transcript at 150:10-13 (arguing that Salon is not "engaged in the business" because only "a very small part" of its communications are harmful to minors). BACK
18 Defendant wrongly suggests that a particular plaintiff's own view of the purpose or mission of its Web site is somehow decisive or even relevant in determining whether plaintiff is "engaged in the business" of making communications "for commercial purposes" covered by COPA. See Def.Br. at 35 (quoting Comp. at 33, 116). COPA would obviously be rendered completely meaningless if any speaker on the Web - even a "commercial pornography" site - could avoid prosecution simply by proclaiming that the purpose of its site is "artistic."BACK
19 The statute by its terms rejects an interpretation of "regular" that means majority. 47 U.S.C.A. §231(e)(2)(B).BACK
20 "It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders and leave it to the courts to step inside and say who could be rightfully detained and who should be set at large. This would, to some extent, substitute the Judicial for the Legislative Department of the Government." United States v. Reese, 92 U.S. 214, 221 (1876).BACK
21 Consistent with this conclusion, the Supreme Court has repeatedly invalidated on First Amendment grounds statutes that would deter individuals from receiving protected information. See Lamont v. Postmaster General, 381 U.S. 301, 307 (1965) (invalidating on First Amendment grounds a statute requiring that individuals request certain mail in writing, holding the statute would have "a deterrent effect"); see also Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 754 (1996) (holding that statute blocking certain cable channels and requiring users to request that those channels be unblocked unconstitutionally burdened subscribers access to information); Martin v. Struthers, 319 U.S. 141, 148 (1943) (holding that statute prohibiting door-to-door distribution of information violated First Amendment rights of "those desiring to receive it").BACK
22 To avoid the statute's constitutional problems, the Virginia Supreme Court narrowly construed the compliance measures of the statute as defendants had proposed, and further construed the statute to apply only to material that lacked value for a seventeen-year-old. See American Booksellers Ass'n, Inc. v. Virginia, 882 F.2d 125 (4th Cir. 1989). Of course, unlike the statute at issue in that case, there is no way to save COPA's numerous flaws through a narrowing construction. See supra at 32-33.BACK
23 Defendant herself recognized these flaws in a letter sent to Congress before COPA passed: "Such a diversion [of law enforcement resources] would be particularly ill-advised in light of the uncertainty concerning whether the COPA would have a material effect in limiting minors' access to harmful materials. There are thousands of newsgroups and Internet relay chat channels on which anyone can access pornography; and children would still be able to obtain ready access to pornography from a myriad of overseas web sites." DOJ Letter at 3.BACK
24 Congress itself recognized the usefulness of parental controls through another provision enacted along with COPA, and not challenged here, that requires Internet service providers to "notify [all new customers] that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors." 47 U.S.C.A. §230(d).BACK
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