# Amicus Curiae Brief — Ashcroft v. American Civil Liberties Union

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0452%3A17

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 564

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0452%3A17. Public record. Not legal advice.