Amicus Curiae Brief — Ashcroft v. American Civil Liberties Union

Sti on One

No. 00-1293

IN THE | CLERK

Supreme Court of the United States anol

JOHN ASHCROFT, ATTORNEY GENERAL

OF THE UNITED STATES,

Petitioner,

Vv.

AMERICAN CIVIL LIBERTIES UNION, ETAL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

BRIEF OF AMICI CURIAE

VOLUNTEER LAWYERS FOR THE ARTS AND

PEOPLE FOR THE AMERICAN WAY FOUNDATION

IN SUPPORT OF RESPONDENTS

ELLIOT M. MINCBERG CHARLES L. KERR

LAWRENCE S. OTTINGER JAMES E. HOUGH*

PEOPLE FOR THE AMERICAN JAMIE A. LEVITT

WAY FOUNDATION HILARY M. WILLIAMS

2000 M Street, N.W. ELEONORE F. DAILLY

Suite 400 MORRISON & FOERSTER LLP

Washington, D.C. 20036 1290 Avenue of the Americas

(202) 467-4999 New York, New York 10104

(212) 468-8000

Counsel for Amici Curiae

* Counsel of Record

i]

IBEST AVAILABLE COPY

QUESTION PRESENTED

Whether the Court of Appeals for the Third Circuit

committed clear error in concluding that the district court did

not abuse its discretion by granting a preliminary injunction

that bars enforcement, pending discovery and trial, of the

Child Online Protection Act (COPA), 47 U.S.C. § 231 et seq.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .........0:c:cscssesesesesesesscosesececesseseseees. i

TABLE OF CORTTIIGTS cccosessssesstsntsstnensunsiasaiannn ii

TABLE OF AUTHORITIES .00.0......ccccccesesesssssssossscececeseeeeee. iV

INTEREST OF AMICI CURIAE 00...0.cccccsesssecsssssssssseceeeseeeeess, l

SUMMARY OF ARGUMENT. .00.000.....ccececccsecsssscesecsseseceeeseeee, 2

PRICES .ncscocrcsssessesensiesisniapuinigeiaunian 3

A. Community Standards Differ Widely

In The Context Of Literature .0..........ccccccccesseceseoeeeeee. 4

B. Community Standards Differ Widely

In The Context Of Music ...........c.ceccosccesesesseseseseosesee. 7

C. Community Standards Differ Widely

In The Context Of Film and Television .................... 7

D. Community Standards Differ Widely

In The Context Of Theater ............cccccsccsccesseceoseceeeeee, 8

E. Community Standards Differ Widely

In The Context Of Fine Art ..0........cccccccocscossececseseseeee. 9

EE 10

I. The Third Circuit’s Decision Is Correct,

Given the Present State of the Record ......cccccccccceseos-..... 10

“ iii

TABLE OF CONTENTS — Continued

A. COPA’s Attempt To Ignore Differing

Community Standards To Define Proscribed

Material Renders The Statute Fatally Overbroad ....

B. COPA’s Alleged Reliance On A Hypothetical

National “Adult” Standard Is Equally Flawed ........

1. Reliance on a national adult standard

would require this Court to resume a

role it rejected in Miller .............ssssseeseeoreeonses

2. There is no consistent view among the

nations’ adults regarding which material

is harmful to MINOTS ..............cceeeeeeeseeeeereeeeeeneees

Il. COPA Is Not The Least Restrictive Means Of

Serving The Government’s Expressed Purpose ............

CONCLUSION .....ccccssccssssscsssssssessserensesensssssessscssnnsnsssnssennes

10

iv

TABLE OF AUTHORITIES

Page

CASES

ACLU v. Reno,

31 F. Supp. 2d 473 (E.D. Pa. 1999)

aff'd, 217 F.3d 162 (3d Cir. 2000) .2.......ccccccccecceeceeeeeeeee 18

A Quantity of Copies of Books v. Kansas,

a a 15 n.7

Aday v. New York,

Ce EN 15 n.7

American Libraries Ass'n v. Pataki,

969 F. Supp. 160 (S.D.N.Y. 1997) .......cccccccccccceeceeeee 12, 17

Avansino v. New York,

ET crcnisntrsiincninsisintnantinttmematatsiins 15 n.7

Bloss v. Dykema,

IE ctannnscenetaennitenisintianiinnniesinnaeis 15 n.7

Bloss v. Michigan,

ee ee icrcerrninasinntitiieiinentieriintess 15 n.7

Bookcase, Inc. v. Broderick,

TC 19 n.12

Books, Inc. v. United States,

Be > Sa ee crrnccermmmnenennionen 15 n.7

Burgin v. South Carolina,

TT 15 n.7

Cain v. Kentucky, x

es ee ictntrncennatiiiinntsininiinniincttemnaitii 15 n.7

Central Magazine Sales, Ltd. v. United States,

ee ee einteanateniininiibininnnliintiniaias sain 15 n.7

Vv

TABLE OF AUTHORITIES — Continued

Chance v. California,

SBD U.S. GD (19GB) ncccceccccescsessececccescccseccsosccsessscssssees 15 n.7

Childs v. Oregon,

41 U.S. 1606 CIDT1) .ncccccccsccsecsccccsscccccccccccsoscsssessoees 15 n.7

Cobert v. New York,

FEB U.S. 443 (1967) ..cccccecercccccescesececcscccsscecssccssscsesees 15 n.7

Conner v. City of Hammond,

BBD U.S. 4B (1967) ...-ccecceceesesceessecccscccesccccecssccsscssesees 15 n.7

Fabulous Associates, Inc. v. Pennsylvania

Public Utility Comm'n,

896 F.2d 780 (3rd Cir. 1990)..........ccccccerceeeseerseeeeeeenennenes 20

Felton v. City of Pensacola, :

FBO U.S. 340 (19GB) ...cceccereecceccseccesecccscccssrescseorersesees 15n.7

Friedman v. New York,

FBS U.S. 441 (1967) ....-ccecrecccveccessecscccsccccsccssscsecssenees 15 n.7

Hamling v. United States,

GIB UB. BT (1GP4) nnccecoccccecscscessccescseseccccccssesssssessscne 13, 14

Hartstein v. Missouri,

4O4 U.S. SOB (1971) ...ccecceocecseccrccscessscccreccscccsecsscssenes 15 n.7

Henry v. Louisiana,

992 U.S. GSS (19GB) ..icrecceccsnceccsocsccccscesscecscesesssssssees 15n.7

Hoyt v. Minnesota,

99D U.S. $24 (1970) .....0.cccecscesercevsscccsorcsseersenssersesoees 15 n.7

1M. Amusement Corp. v. Ohio,

FBO U.S. S73 (19GB) ....0cccceceseeecesccvscesseccreceseosssesssseees 15 n.7

Jacobellis v. Ohio,

37B U.S. 184 (1964) .....00c.cceccsorerssorcsseserersesesssseess 16 &n.8

Jenkins v. Georgia,

418 U.S. 153 (1974) .........ccceeeeees Sitcnnnieneittienedmnianata 160.9

vi

TABLE OF AUTHORITIES — Continued

Keney v. New York,

I ee nee 15 n.7

Maldonado v. Houstoun,

157 F.3d 179 (3d Cir. 1998),

cert. denied, 526 U.S. 1130 (1999) ........cccccccccecseecesceeeees 10

Mazes v. Ohio,

| See aes 15 n.7

Miller v. California,

ee 2, 11, 15-17

Paris Adult Theatre I v. Slaton,

ER LR LE eee NT 15, 16

Potomac News Co. v. United States,

RATERS: See ee CD 15 n.7

Ratner v. California,

| EN oe 15 n.7

Redrup v. New York,

rma oe 15

Reno v. ACLU, Z

ae ee 12

Robert-Arthur Management Corp. v. Tennessee,

| EE a eS 15 n.7

Roth v. United States,

a eND 7 ~

Sable Communications of California, Inc. v. FCC,

8 EEE ee 13, 14, 18 n.11

Schackman v. California,

EE aera 15 n.7

Sheperd v. New York,

Te crictnsnsncenemnesibiintantniiinnilitdiaitiass 15 n.7

vii

TABLE OF AUTHORITIES — Continued

United States v. Playboy Entertainment Group, Inc.,

$29 U.S. B03 (2000) .......c.ccccceersccsegerssccrsessesersesssssssessoonss 18

Walker v. Ohio, :

398 U.S. 434 (1970) ........ccccrcccsssossssereceeeessesssessnsens 15 n.

Wisconsin v. Stankus,

No. 95-2159-CR, 1997 Wisc. App. LEXIS 138

(Wisc. App. Feb. 13, 1997) .........-ccssersnsesnseseenneneenens 12 n.6

Wiener v. California, ,

404 U.S. 988 (1971) .......ceccccccsssscesrseeesesensenecsseransees 15 n.

STATUTES

Child Online Protection Act (COPA),

AT U.S.C. § 231 ef $0 ...csecceeevseeeeeeeeesenenees 11, 19, 20 n.13

OTHER AUTHORITIES

PLR. Rep. No. 105-775 at 28 (1998) ......-:-s-seseesneseeesneees 15, 17

Joe Humphrey, School Excises Explicit Play From

Textbooks, The Florida Times-Union, Dec. 2, 2000,

BR Bed ccccceccreccescecsccscnessnecessssvsscssnsossosonssssssesessseseesseseseeeeees 8

People For the American Way, Attacks on the

Freedom to Learn: 1995-96 Report (1996) ......-..-.+++ 4,5

People For the American Way Foundation, Hostile

Climate: Report on Anti-gay Activity (1998) .......-.-.--+++ 9

People For the American Way Foundation, Hostile

Climate: Report on Anti-gay Activity (1999) .....-.----+-+-0+ 7

INTEREST OF AMICI CURIAE'

Amicus Curiae Volunteer Lawyers for the Arts (“VLA”)

is a not-for-profit organization that provides legal assistance

to artists and non-profit artistic organizations. VLA and its

clients believe that the First Amendment protections enjoyed

by visual expression is as vital to the nation’s ability to

communicate on important issues as is verbal expression.

VLA also believes that a reversal of the preliminary

injunction entered below would chill its clients’ ability to

express themselves, to innovate, to exhibit their work, and to

distribute their work on the Internet in a manner sufficient to

provide a livelihood.

Amicus Curiae People For the American Way

Foundation (“People For’) is a nonpartisan, education-

oriented citizens’ organization established to promote and

protect civil and constitutional rights, including First

Amendment freedoms. Founded in 1980 by a group of

religious, civic and educational leaders devoted to our

nation's heritage of tolerance, pluralism and liberty, People

For now has over 500,000 members and supporters

nationwide. People For has represented parties and filed

amicus curiae briefs in important cases before the Supreme

Court and lower federal courts defending First Amendment

freedoms, including, in particular, cases concerning the

regulating Internet content for minors such as American

Library Ass'n v. United States Dep't of Justice (in which this

Court struck down the prior federal “Communications

Decency Act”). In addition, for many years People For

researched and published national reports on attempts to ban

' Written consent to the filing of this brief has been obtained from the

parties and is lodged herewith. Counsel fora party did not author this

brief in whole or in part. No person or entity other than the amici curiae,

its members, or its counsel made a monetary contribution to the

preparation and submission of this brief.

2

or restrict books and other materials in public schools which

demonstrated tremendous differences between and within

States as to the appropriateness of such materials for minors.

People For believes that, because of the general inability to

determine age or geography with respect to Internet

communications, COPA would impose a national, lowest

common denominator standard that would restrict and chill

the communication and receipt of valuable expression

relating to health, sex education, culture, and other matters

throughout the United States by adults as well as minors in

violation of fundamental First Amendment freedoms.

Amici therefore have a strong interest in providing the

Court with information relevant to, and with analysis of, the

crucial issue whether the preliminary injunction below was

erroneously entered.

oa SUMMARY OF ARGUMENT

1. The narrow question before this Court is whether the

Court of Appeals erred in its conclusion that the district court

did not commit clear error in granting the injunction below.

Far from committing clear error, the district court’s decision

is a prudent step preserving the status quo ante pending

development of a full factual record. On the present record,

the district court properly concluded that COPA’s reliance

on a mythical consensus community standard on the types of

material that should be considered as harmful to minors

renders COPA fatally overbroad. By incorporating a

supposed national consensus view on what is harmful to

minors, COPA threatens to “strangle[]” the existing diversity

of views on which material is permissible “by the absolutism

of imposed uniformity.” Miller v. California, 413 U.S. 15,

33 (1973). In addition, if COPA is construed to refer to a

national “adult” standard concerning material that should be

restricted, this Court will necessarily be forced to act as the

~—— ao

3

final arbiter of the precise contours of that hypothetical

national standard. This Court wisely rejected that role in

Miller with respect to material that should be considered

obscene, and should also reject that role with respect to

discerning whether material is harmful to minors.

2. On the present state of the record, it appears that an

Internet speaker cannot restrict access based on the

geographic locations of the listener. But even if such

geographic filtering were available, COPA could not pass

Constitutional muster because COPA cannot be found to be

the least restrictive method of protecting minors from

potentially harmful content on the Internet. Using existing

technology, parents can and should exercise discretion and

control over their children’s Internet use in a manner that

does not restrict the material available to other children,

other parents, or to adults in general.

FACTS

Our nation is composed of diverse communities that do

not share a consensus view on the types of artistic or other

materials that may be harmful to minors. For each area of

artistic endeavor, a range of opinions can be found | that

undermine any notion of consensus on either the “prurient”

or “offensive” nature of the expression itself, or whether,

even if prurient or offensive, it might nevertheless have

serious artistic value for minors. Indeed, adult opinion on

what types of material (artistic and otherwise) may be

harmful to minors is literally all over the map.

4

A. Community Standards Differ W In The

Context Of Literature. _

Between 1985 and 1996, People For the American Way”

produced annual reports of its extensive investigation and

research documenting hundreds of attempts to remove books

or other materials from public school curriculum and

libraries all across the country as inappropriate for minors.

(See, e.g., People For the American Way, Attacks on the

Freedom to Learn: 1995-96 Report (1996) (“1996 Freedom

to Learn Report”)).? The reports did not include attempts by

parents to prevent their children from reading any particular

material, but rather attempts by individuals to ban or restrict

what all minors would be able to read. These reports

consistently demonstrate not only that particular books and

materials were challenged in some communities as

inappropriate for minors and not in others, but also that

challenges to the exact same book or other material were

upheld by school boards or adult review committees in some

communities and struck down by similar groups in other

communities.

For example, during the 1994-95 school , @ schoo

board in Wimberley, Texas voted eunteeinate te a

award winning author Maya Angelou’s autobiographical

novel J Know Why The Caged Bird Sings from a ninth-grade

honors English class because of sexually explicit content and

references to rape and masturbation. The school board acted

in part based on a survey by the superintendent of ninth-

* This 501(c)(3) research and education-oriented organization is now

called People For the American Way Foundation and is one of the

amicus Organizations represented in this brief.

: These extensively documented reports provide evidence of a

consistent pattern for over a ten-year period of sharply differing

community standards as to what books and materials are deemed

appropriate by adults for minors under 17 years of age.

5

grade parents that indicated a majority favored removing this

best-selling book. (See 1996 Freedom to Learn Report at

207). Conversely, in October, 1995, a public school review

committee in Shawnee Mission, Kansas unanimously agreed

that the very same book was “appropriate for student in-class

instruction in grades eight through twelve,” although a parent

had objected that the book was “absolutely inappropriate for

secondary level students” stating that it contained

“pornographic and violent material . . . .” (See 1996 Freedom

to Learn Report at 144).

Similarly, Judy Blume’s books Are You There God? It’s

Me, Margaret and Forever, which contain frank discussions

of adolescent sexuality and are explicitly aimed at a teenage

audience, are featured on the American Library

Association’s list of The 100 Most Frequently Challenged

Books of 1990-1999 (the “ALA List”). (See

http://www.ala.org/alaorg/oif/top100.pdf). Nevertheless, Are

You There God? It's Me, Margaret was also included on the

New York Times list of Outstanding Books of the Year in

1970, the year it was first published, and in 1996, Ms. Blume

received the Margaret A. Edwards Award for Lifetime

Achievement from the American Library Association. Toni

Morrison, winner of the Nobel Prize for Literature, authored

three books have been frequently challenged and in some

cases restricted in various locations, at least in part for their

——sexual content. Yet all three of Ms. Morrison’s banned

books are also included in the California Department of

Education’s database of “Recommended Literature:

Kindergarten Through Grade Twelve” (the “CDE

Database”).* (See _http://www.cde.ca.gov/literaturelist/

litsearch.asp). In fact, a total of 37 books have the ironic

distinction of being featured on both the CDE

4 Beloved, Bluest Eye, and Song of Solomon, all by Toni Morrison, are

listed on both the ALA List and the CDE Database.

6 ie

“recommended reading” database and the ALA “banned

book” list.°

Aldous Huxley’s Brave New World was removed from a

high school library in Foley, Alabama after a parent

complained about the book’s references to orgies, self-

flagellation and the book’s contempt for religion, marriage

and the family. Brave New World ranks fifth on the Modern

Library “List of the Best English Language Novels of the

Twentieth Century,” as published by Random House (see

http://www.randomhouse.com/modernlibrary/100best/novels

-html), and also ranks 54th on the ALA List. J.D. Salinger’s

Catcher in the Rye is the tenth most banned book of the

1990s according to the ALA List, in part because of

objections to the use of profanity in the book and its

description of sexual situations. Yet Catcher in the Rye

remains required reading for incoming juniors at Farmington

High School in Farmington, Connecticut. (See

http://www.farmington.lib.ct.us/fhs2001.htm).

* The following books are featured on both the ALA List and CDE

Database: M. Angelou, /] Know Why the Caged Bird Sings; M. Twain,

The Adventures of Huckleberry Finn; J. Steinbeck, Of Mice and Men;

K. Paterson, Bridge to Terabithia; J.D. Salinger, Catcher in the Rye; L.

Lowry, The Giver, C. Collier and J.L. Collier, My Brother Sam is Dead;

B. Greene, Summer of My German Soldier, P.R. Naylor, Achingly Alice;

A. Walker, The Color Purple; K. Paterson, The Great Gilly Hopkins; M.

L’Engle, A Wrinkle in Time; L. Lowry, Anastasia Krupnik; J.C. George,

Julie of the Wolves; M. Mathabane, Kaffir Boy; T. Morrison, The Bluest

Eye; T. Morrison, Beloved; W.D. Myers, Fallen Angels; M. Atwood, The

Handmaid’s Tale; S.E. Hinton, The Outsiders; H. Lee, To Kill a

Mockingbird; R. Cormier, We All Fall Down; D. Keyes, Flowers for

Algernon; J.K. Rowling, Harry Potter and the Sorcerer's Stone, R. Dahl,

James and the Giant Peach, S. Silverstein, A Light in the Attic, A.

Huxley, Brave New World; J.L. Conly, Crazy Lady; L. Rodriguez,

Always Running; K. Vonnegut, Slaughterhouse Five; W. Golding, Lord

of the Flies; R. Wright, Native Son; M.D. Bauer, On My Honor, 1.

Allende, House of the Spirits; R.A. Anaya, Bless Me, Ultima; T.

Morrison, Song of Solomon; S. King, Christine.

7

B. Community Standards Differ Widely In The

Context Of Music.

A 1998 free high school concert tour by a popular folk-

rock duo, the Indigo Girls, provides a good example. The

Indigo Girls, who have performed together for over ten

years, have sold more than seven million albums worldwide

and have earned six “Grammy” nominations by the National

Academy of Arts and Sciences, including winning the 1989

Grammy Award for Best Contemporary Folk Group. In

1998, the group had scheduled several free concerts at high

schools across the southern United States to perform and

share their knowledge about songwriting and the music

industry. While they were welcomed without incident at

many high schools during this tour, officials at two

Tennessee high schools canceled the free concerts citing

alleged profanity in one song. In Columbia, South Carolina,

the principal at Irmo High School canceled the group’s

appearance after complaints by parents relating to the fact

that the two singers are gay and pressure from the school

board chair who claimed the group was promoting a

homosexual agenda. (See People For the American Way

Foundation, Hostile Climate: Report on Anti-gay Activity

(1999), at 199-200, 202.)

C. Community Standards Differ Widely In The

Context Of Film and Television.

Reactions to film and television fare no better. After the

American Family Association (“AFA”) launched a national

campaign against the film Showgirls (1995) — a film

released by Metro-Goldwyn-Mayer — claiming it was

“pornographic,” a theater company in Memphis, Tennessee

removed the film from two of its theaters in another state.

However, Circle 7, an independently owned and operated

theater in Bennington, Vermont, screened the film

notwithstanding the protests of the local chapter of the AFA.

The AFA launched a similar national campaign against

NYPD Blue, a critically-acclaimed dramatic series aired on

the American Broadcasting Corporation television network,

also claiming that the series was pornographic. In response,

22 business owners in Jonesboro, Arkansas pulled their local

advertisements scheduled to air during the program.

Similarly, school district officials in Coon Rapids,

Minnesota prohibited students from watching in class The

Piano, winner of the 1993 Academy of Motion Picture Arts

& Sciences award for Best Picture, after a parent complained

that the movie was inappropriate due to scenes of nudity and

violence.

_ D. Community Standards Differ Widely In The

Context Of Theater.

In the realm of live theater, members of the Christian

Coalition in Clearwater, Florida circulated a petition

condemning a theater for sponsoring Tony Kushner’s Angels

in America, the winner of seven Tony awards and the

Pulitzer Prize, claiming that the play’s “nudity, homosexual

themes and sexual situations [were] inappropriate.” Ruth

Eckerd Hall, a non-profit arts organization, had announced

its intended production in a brochure with a note stating that

“Angels in America is serious adult theater with profanity,

full nudity, gay themes and sexual situations. Not

recommended for children.” In December, 2000 in

Jacksonville, Florida, the same play was physically torn out

of dozens of textbooks at the Paxon School for Advanced

Studies, after a student’s parent complained about its

descriptions of sex. The play was not used in any classes,

but had been included in an anthology of plays distributed to

students. (See Joe Humphrey, School Excises Explicit Play

From Textbooks, The Florida Times-Union, Dec. 2, 2000, at

A-1).

9

Similarly, in Mecklenburg, North Carolina, county

commissioners voted to ban funding of art that shows

“perverted forms of sexuality” or that “seek to undermine

and deviate from the value and societal role of the traditional

American family,” in response to proposed productions of

Angels in America and Six Degrees of Separation, by Tony

Award-winner Tony Guare. The commissioners ultimately

cut $2.5 million from the city’s Arts and Science Council.

(See People For the American Way Foundation, Hostile

Climate: Report on Anti-gay Activity (1998), at 58).

E. Community Standards Differ Widely In The

Context Of Fine Art.

In 1996, an assistant high school principal in New Castle,

Delaware removed a student drawing entitled “Standing

Nude Female” from an art exhibit in the school, claiming its

depiction of nudity was inappropriate and potentially

offensive The artist, Stephen Halko, drew the work during a

ten-week figure-drawing course at the University of the Arts

in Philadelphia. The drawing won a National Scholastic

Award from the Delaware Department of Public Instruction,

the Art Educators of Delaware, Inc., and Delaware State

University, and was included in the exhibit on that basis.

A company administrator in Portland, Maine

ames oes my that contained nudity from a lobby

exhibit, claiming they were inappropriate and might offend

visitors. The paintings, by artist Carlo Pittore, who had been

invited to display his work in the lobby, depicted male and

female nudes in various poses. The same paintings had been

displayed in the past at other venues in the U.S. without

controversy.

In sum, in a country as large and diverse as the United

States, it is clear that no “reasonably constant” community

standard exists among adults that governs questions of taste,

10 -

tolerance and artistic expression. American adults do not

maintain any “reasonably constant” opinion of either the

offensiveness or ultimate value of works that have achieved

critical acclaim and wide popularity, let alone works at the

fringes of artistic expression that are more explicitly

intended to challenge, shock or criticize. As shown above,

no consensus exists regarding a “narrow band” of sexual

material that adults would agree is harmful to minors —

instead, such material is the subject of wide-ranging and

ongoing debate.

_

ARGUMENT

I. The Third Circuit’s Decision Is Correct, Given The

Present State Of The Record.

The government all but ignores the limited nature of

appellate review of a trial court’s decision to grant a

preliminary injunction. It is nevertheless clear that the Third

Circuit ruling must stand unless Petitioners can meet the high

burden of showing that an “abuse of discretion” occurred in

the “ultimate decision to grant ... the preliminary

injunction”. Maldonado v. Houstoun, 157 F.3d 179, 183 (3d

Cir. 1998), cert. denied, 526 U.S. 1130 (1999). Given the

limited factual record below, and given the great deference

wisely accorded to a district court’s judgment regarding

requests for preliminary injunctions, it is clear that no abuse

of discretion occurred.

A. COPA’s Attempt To Ignore Differing Community

Standards To Define Proscribed Material Renders

The Statute Fatally Overbroad.

In the first of COPA’s three-element definition of

material that is “harmful to minors,” Congress explicitly

calls upon contemporary community standards to define the

type of protected expression that is subject to COPA’s

1]

restrictions. 47 U.S.C. § 231(e)(6) (“[T]he average person,

applying contemporary community standards, would find,

taking the material as a whole and with respect to minors, is

designed to appeal to, or is designed to pander to, the

prurient interest.” (emphasis added)). The phrase

“contemporary community standards” is, of course, well

known to this Court, which struggled for many years to find

an acceptable definition of obscene material before finally

settling on a definition which rests on the application of the

varied local standards and mores that exist in the multitude

of communities around the nation. See Miller v. California,

413 U.S. 15 (1973).

In Miller, this Court flatly rejected the notion that

obscenity could be defined by referring to a hypothetical

national standard, holding instead that a jury must evaluate

accused material against the comtemporary standards of the

community in which the offending conduct took place. Jd. at

33-34. Miller's holding was pretiised on the unassailable

fact that the fifty states do mot share any single prevailing

community standard concerning material that is considered

obscene. Id. at 32. Indeed, the varying nature of community

standards was crucial to the Court’s decision that “[iJt is

neither realistic nor constitutionally sound to read the First

Amendment as requiring that the people of Maine or

Mississippi accept public depiction of conduct found

pa epee cet gti cage Id. at 32. The

Court recognized the “danger to free expression” from “the

use of ‘national’ standards” under which materials would be

“unavailable where they are acceptable [in a community].”

Id. at 32 n. 13. Since communities around the nation vary in

their “tastes and attitudes” Congress could not “strangle{)”

the existing diversity of views on which material is

permissible “by the absolutism of imposed uniformity.” Id.

at 33.

2

As the Third Circuit recognized, communications via the

Internet do not have a fixed, known geographic location.

App. 24a; See also American Libraries Ass'n v. Pataki, 969

F. Supp. 160, 169 (S.D.N.Y. 1997). Indeed, the beauty and

power of the Internet lies in the ability of virtually any

speaker to simultaneously address a global audience, and in

the ability of a user to access communications from virtually

any corner of the world. Thus, on the present state of the

record, the Third Circuit’s conclusion that no technology

exists to geographically restrict Web site access is clearly

correct. App. 29a.

Because present day technology does not permit an

Internet speaker to exclude listeners from specific

geographic locales, reliance on a community standard

element to define proscribed content would necessarily lead

to the most puritan view of what constitutes prohibited

speech. In Reno v. ACLU, 521 U.S. 844 (1997), the Court

recognized the absurdity (and, more importantly, the

unconstitutionality) of such an approach, noting that to apply

a community standard test in cyberspace would require every

Internet communication to abide by the standards of “the

community most likely to be offended by the message.” Jd.

at 877-78. ee ee ee ee

have to wonder if it faces prosecution based on display of

paintings depicting any nudity simply because a single

conservative American town might view any display of

nudity to be “lewd.”© The Barnes & Noble Web site —

www.bn.com — offers readers the opportunity to read

excerpts or entire chapters from select books and plays prior

to purchasing them (such as Maya Angelou’s | Know Why

the Caged Bird Sings and Aldous Huxley’s Brave New

* See Wisconsin v. Stankus, No. 95-2159-CR, 1997 Wisc. App. LEXIS

138 at *2-3 (Wisc. App. Feb. 13, 1997) (photograph of a woman with a

shirt open to the waist, displaying portion of breast but not displaying

nipple, falls within “harmful to minors” law).

13

World). As set out above, no consensus exists as to the

prurient or offensive nature of these relatively mainstream

works, and as a result, Web sites promoting their sale

through this sort of sampling might reasonably fear

prosecution under COPA because of offense taken by

particular local communities.

The government contends that COPA’s definition of

material that is harmful to minors is nothing more than a

faithful adoption of current First Amendment caselaw, and

that the Internet is not entitled to any greater First

Amendment solicitude than any other medium of

communication. But the cases they cite to support this

position are inapposite. For example, in Hamling v. United

States, 418 U.S. 87, 105 (1974), this Court held that

obscenity should not be judged based on a national standard

but should instead rely on a juror’s knowledge of the average

person’s views in his local community. Significantly, in

Hamling, the defendants could have chosen not to mail

unsolicited sexually explicit materials to some communities

while continuing to mail them to others, effectively limiting

their exposure to liability by avoiding those communities

with particularly restrictive standards. Similarly, in Sable

Communications of California, Inc. v. FCC, 492 U.S. 115

(1989), the Court specifically recognized that the Sable

telecommunications company was able to “tailor its

messages, on a selective basis, if it so chooses, to the

communities it chooses to serve.” This is precisely the type

of geographic selectivity that is not available to an Internet

speaker, as the decision below makes clear. App. 26a-27a.

Additionally, petitioner’s argument, relying on Hamling

and Sable, that it is acceptable to require a nationwide

business to conform to community standards throughout the

country as a cost of doing business is misplaced both

factually and legally with respect to the Internet. First, the

underlying premise that Internet speakers subject to COPA’s

14

prohibitions intend or “choose” to conduct a nationwide

business is simply wrong and is not supported by the current

record. To the contrary, many small and local Internet

operators who seek to make a profit communicate to a local

clientele through their Web sites and, because of the nature

of the Internet, simply cannot feasibly prevent their

communications from reaching a national and international

audience. This is true even where the operator sells nothing

on-line, but merely provides information to local clients

through the web and a forum for discussing products that are

sold entirely at a local community store. Since a fully

developed record would show that many Internet speakers do

not conduct nationwide businesses (as was the case in Sable

and Hamling), there is no basis for requiring local business

owners to comply with widely divergent community

standards throughout the country, particularly where they

would have who have little or no knowledge of such

standards. In addition, as discussed above, unlike sending

mail to a zip code or a telephone message to an area code, it

is not possible or feasible for the vast majority of Internet

speakers to control where their speech can be received or to

“tailor” their communications on a “selective basis.” As a

result, unlike the other federal statutes cited by the petitioner,

COPA would impermissibly impose a national, lowest

common denominator standard on a vast range of speakers,

and on communication and content that would be deemed

“acceptable” in many communities and was specifically

protected under Miller.

15

B. COPA’s Alleged Reliance On A Hypothetical

National “Adult” Standard Is Equally Flawed.

1. Reliance on a national adult standard would

require this Court to resume a role it rejected

in Miller.

Congress recognized that application of “community

standards” to the Internet was “controversial,” and

recommended that juries be instructed to refer to a

hypothetical national “adult” standard rather than to any

particular local geographic standard. H.R. Rep. No. 105-775

at 28 (1998). If COPA is construed to refer to a

hypothetical, national “adult” standard, however, this Court

will necessarily be placed in the position of being the final

arbiter of the precise contours of that hypothetical national

standard, a role it rejected in Miller.

In a line of decisions stretching from Roth v. United

States, 354 U.S. 476 (1957), to Miller v. California, 413 U.S.

15 (1973), no definition of obscenity was able to capture a

majority of this Court, and instead, the Court was forced to

review obscenity cases on an ad hoc basis. Beginning with

Redrup v. New York, 386 U.S. 767 (1967), the Court

embarked on a policy of summary review and per curiam

disposition of obscenity cases, disclosing nothing about its

rationales or even about the nature of the materials reviewed.

See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82 n. 8

(1973) (Brennan, J., dissenting). No fewer than thirty-one

cases followed the Redrup approach’, and, as a result, the

” Aside from the three cases reversed in Redrup, the 31 cases disposed

in this fashion are: Keney v. New York, 388 U.S. 440 (1967); Friedman v.

New York, 388 U.S. 441 (1967); Ratner v. California, 388 U.S. 442

(1967); Cobert v. New York, 388 U.S. 443 (1967); Sheperd v. New York,

388 U.S. 444 (1967); Avansino v. New York, 388 U.S. 446 (1967); Aday

v. New York, 388 U.S. 447 (1967); Books, Inc. v. United States, 388 U.S.

449 (1967); A Quantity of Copies of Books v. Kansas, 388 U.S. 452

16

lower courts (and, perhaps more importantly, all those who

desired to communicate on matters that might be considered

obscene) were deprived of any guidance as to material that

could be constitutionally restricted. See Paris Adult Theatre

I, 413 U.S. at 82.

Chief Justice Warren (joined by Justice Clark) and

Justice Black (joined by Justice Douglas) warned that the

Court was stepping beyond its proper role as an appellate

court. Chief Justice Warren expressly advocated a

deferential standard of appellate review in obscenity cases as

the only reasonable way of preventing the Court from sitting

as “the Super Censor of all the obscenity purveyed

throughout the Nation.” Jacobellis v. Ohio, 378 U.S. 184,

203 (1964) (Warren, C.J., dissenting).* In Miller, the Court

eventually found that the “Redrup procedure has cast us in

the role of an unreviewable board of censorship for the 50

States, subjectively judging each piece of material brought

before us,” 413 U.S. at 23 n.3, and expressly adopted a

deferential standard based on local community views.” To

(1967); Mazes v. Ohio, 388 U.S. 453 (1967); Schackman v. California,

388 U.S. 454 (1967); Potomac News Co. v. United States, 389 U.S. 47

(1967); Conner v. City of Hammond, 389 U.S. 48 (1967); Central

Magazine Sales, Lid. v. United States, 389 U.S. 50 (1967); Chance v.

California, 389 U.S. 89 (1967); .M. Amusement Corp. v. Ohio, 389 U.S.

573 (1968); Robert-Arthur Management Corp. v. Tennessee, 389 U.S.

578 (1968); Felton v. City of Pensacola, 390 U.S. 340 (1968); Henry v.

Louisiana, 392 U.S. 655 (1968); Cain v. Kentucky, 397 U.S. 319 (1970);

Bloss v. Dykema, 398 U.S. 278 (1970); Walker v. Ohio, 398 U.S. 434

(1970); Hoyt v. Minnesota, 399 U.S. 524 (1970); Childs v. Oregon, 401

U.S. 1006 (1971); Bloss v. Michigan, 402 U.S. 938 (1971); Burgin v.

South Carolina, 404 U.S. 809 (1971); Hartstein v. Missouri, 404 U.S.

988 (1971); Wiener v. California, 404 U.S. 988 (1971).

* The Court “is about the most inappropriate Supreme Board of

Censors that could be found”. Jacobeilis, 378 U.S. at 196 (Black, J.,

concurring).

* Contrary to the Government's contention, the Court did not stray

from its rejection of a uniform, national standard in Jenkins. In Jenkins,

17

construe COPA to require reference to a hypothetical

national adult standard would necessarily reinstate the

confusion and uncertainty of the pre-Miller years, and would

force this Court to resume the role of final arbiter of

acceptable communications.

2. There is no consistent view among the nations’

adults regarding which material is harmful to

minors.

According to the government and its amici, we live in a

nation where views are “reasonably constant among adults

... With respect to what is suitable for minors.” See

Petitioner’s Br. at 42-43 (citing H.R. Rep. No. 105-775, at 28

(1998)). This rosy view finds no support in the factual

record below,’® nor in readily accessible evidence drawn

from previous court decisions and reported conflicts over

various material deemed by some, but not by others, to be

harmful to minors. See, e.g., Miller, 413 U.S. at 30 (“[OJur

Nation is simply too big and too diverse for this Court to

reasonably expect that such standards could be articulated

for all 50 States in a single formulation.”); American

Libraries Ass’n v. Pataki, 969 F. Supp. 160, 182-83

(S.D.N.Y. 1997). Quite the contrary, the factual examples

set forth above show that no agreement exists even as to

relatively mainstream literature, music, film, television and

this Court simply found that a jury could be instructed to apply

“community standards without specifying what community”. Jenkins v.

Georgia, 418 U.S. 153, 157 (1974). Jenkins essentially recognized, in

conformity with Miller, that a juror may rely on her own community's

standards to define what a reasonable person may find offensive and need

not rely on an abstract community’s standard that would be specified by

the court. Id. Jenkins never stood for the proposition that a jury could be

instructed to follow a national hypothetical standard.

10 The Court of Appeals noted “we have before us no evidence to

suggest that adults everywhere in America would share the same

standards for determining what is harmful to minors.” App. 31a.

18

theater, and that works ranging from the prime-time

television drama NYPD Blue to the Pulitzer prize-winning

play Angels in America have been challenged as offensive

and unsuitable for minors in some communities, owing to

their sexual content.

II. COPA Is Not The Least Restrictive Means Of Serving

The Government’s Expressed Purpose.

COPA, like CDA, criminalizes the communication of

constitutionally protected non-obscene expression.'' As a

content-based regulation of protected speech, COPA is

presumptively invalid, and is subject to the highest level of

Constitutional scrutiny. COPA cannot be upheld unless the

government can show that it is the least restrictive alternative

available to achieve the compelling interest served by the

statute. See, e.g., United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803, 813 (2000). While protecting

minors from potentially harmful content on the Internet is

laudable goal, and is unquestionably a compelling

governmental interest, COPA fails to achieve that goal in a

narrowly tailored and constitutional manner, and,

accordingly, it cannot stand.

The government argues that COPA “is directed primarily

to commercial pornographers who already put most of their

material behind age verification screens,” and that “[t]he

principal effect of the Act is to require those commercial

pornographers to put their teasers behind age verification

screens as well.” Petitioner’s Br. at 21. Unfortunately,

COPA’s reach is much broader, as noted by the district

court. ACLU v. Reno, 31 F. Supp. 2d 473, 480 (E.D. Pa.

1999), aff'd, 217 F.3d 162 (3d Cir. 2000) (“There is nothing

'! “Sexual expression which is indecent but not obscene is protected by

the First Amendment.” Sable Communications of California, Inc. v.

FCC, 492 U.S. 115, 126 (1989).

19

in the text of the COPA . . . that limits its applicability to so-

called commercial pornographers.”) Instead, COPA applies

to “any communication for commercial purposes” on the

Internet that includes “any material thai is harmful to

minors.” 47 U.S.C. § 231(a)(1)-(3). Therefore, as set out

above, COPA broadly reaches on-line art galleries

specializing in nude or partially clothed portraiture or

displaying noted photographer Andres Serrano’s “A History

of Sex” series, or even on-line bookstores excerpting John

Cleland’s Fanny Hill.'? Indeed, the breadth of COPA’s

reach was acknowledged by the Department of Justice in its

‘sandid, pre-enactment assessment of the then draft COPA,

which noted that the “harmful to minors” standard is

“[aJmong the more confusing or troubling ambiguities” in

the statute. October 5, 1998, Letter from Department of

Justice Letter to Honorable Thomas Bliley, Chairman of

House Committee on Commerce (Plaintiffs’ Memorandum

of Law in Support of Temporary Restraining Order, Ex. A

at 4).

Most importantly, as the district court noted below, there

is evidence in the record that widely available filtering and

blocking technology is a less restrictive means of protecting

minors from potentially harmful content on the Internet.

(See App. 94a). Indeed, use of filtering and/or blocking

technology would shield minors from potentially harmful

content on foreign-hosted Web sites, a laudable achievement

that COPA cannot match. Thus, parents have the current

ability to protect their children from potentially harmful

content on the Internet, just as they have the ability to control

access to adult oriented material that they may choose to

bring into their homes. As the Third Circuit noted in a

closely analogous situation, “in this respect, the decision a

12 See Bookcase, Inc. v. Broderick, 18 N.Y.2d 71 (1966) (Fanny Hill

constitutes material that is ‘harmful to minors’).

20

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.’

Fabulous Associates, Inc. v. Pennsylvania Public Utility

Comm'n, 896 F.2d 780, 788 (3rd Cir. 1990) (striking down a

statute that required adults to obtain an access code before

listening to sexually explicit recorded telephone messages).

21

CONCLUSION

The district court did not abuse its discretion by entering

a preliminary injunction below, and on the present record

(which will necessarily be expanded and clarified after

discovery and trial are completed), the government appears

unlikely to meet its burden to show that COPA is sufficiently

narrowly tailored to survive the strict scrutiny required of

laws that burden protected expression.

Respectfully Submitted,

CHARLES L. KERR

JAMES E. HOUGH*

JAMIE A. LEVITT

HILARY M. WILLIAMS

ELEONORE F. DAILLY

MORRSION & FOERSTER LLP

1290 Avenue of the Americas

New York, New York 10104

(212) 468-8000

Counsel for Amici Curiae

* Counsel of Record

ELLIOT M. MINCBERG

LAWRENCE S. OTTINGER

PEOPLE FOR THE AMERICAN WAY

FOUNDATION

2000 M Street, N.W.

Suite 400

Washington, D.C. 20036

(202) 467-4999

Dated: September 20, 2001