Appendix — Ashcroft v. American Civil Liberties Union

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. FIL 2

03 218 AUG 20

No.

In the Supreme Court of the United States

JOHN ASHCROFT, ATTORNEY GENERAL OF THE

UNITED STATES, PETITIONER

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

BARBARA L. HERWIG

CHARLES W. SCARBOROUGH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Appendix A (opinion of the U.S. Court of

Appeals for the Third Circuit (Filed: Mar. 6,

Appendix B (opinion of the U.S. Court of

Appeals for the Third Circuit (Filed: June 22,

Appendix C (memorandum of the U.S. Dist. Ct.

E. D. Pa. (Filed: Feb. 1, 1999))

Appendix D (memorandum of the U.S. Dist.

Ct. E.D. Pa. (Filed: Nov. 23, 1998))

Appendix E (sur petition for panel rehearing

and petition for rehearing en banc (May 13,

Appendix F (Section 231 of Title 47 of the

United States Code)

Appendix G (Congressional Findings)

—— —— x — —

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1324

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY

Books, INc. D/B/A A DIFFERENT LIGHT BOOKSTORES;

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; POWELL’S BOOKSTORE;

RIOTGRRL; SALON INTERNET, INC.; WEST STOCK, INC.;

PLANETOUT CORPORATION

JOHN ASHCROFT, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES,

APPELLANT

Filed: March 6, 2003

Before: NYGAARD and MCKEE, Circuit Judges, and

GARTH, Senior Circuit Judge.

(la)

OPINION OF THE COURT

GARTH, Circuit Judge.

This case comes before us on vacatur and remand

from the Supreme Court’s decision in Ashcroft v.

ACLU, 535 U.S. 564, 122 S. Ct. 1700, 152 L. Ed.2d 771

(2002), in which the Court held that our decision

affirming the District Court’s grant of a preliminary

injunction against the enforcement of the Child Online

Protection Act (“COPA”)' could not be sustained

because “COPA’s reliance on community standards to

identify ‘material that is harmful to minors’ does not by

itself render the statute substantially overbroad for

purposes of the First Amendment.” Id. at 1713 (empha-

sis in original). Pursuant to the Supreme Court’s

instructions in Ashcroft, we have revisited the question

of COPA’s constitutionality in light of the concerns

expressed by the Supreme Court.

Our present review of the District Court’s decision

and the analysis on which that decision was based does

not change the result that we originally had reached,

albeit on a ground neither decided nor discussed by the

District Court. See ACLU v. Reno, 217 F.3d 162 (3d

Cir.2000) (“Reno III” ), vacated and remanded, 535

U.S. 564, 122 S. Ct. 1700, 152 L. Ed.2d 771 (2002). We

had affirmed the District Court’s judgment granting

the plaintiffs a preliminary injunction against the

enforcement of COPA because we had determined that

COPA’s reliance on “community standards” to identify

material “harmful to minors” could not meet the exact-

ing standards of the First Amendment. On remand

We attach the text of COPA as Appendix A.

—— — tis ts —

from the Supreme Court, with that Court's instruetion

to consider the other aspects of the District Court’s

analysis, we once again will affirm.

COPA, Pub. L. No. 105-277, 112 Stat. 2681 (1998)

(codified at 47 U.S.C. § 231), is Congress’s second

attempt to regulate pornography on the Internet. The

Supreme Court struck down Congress’s first endeavor,

the Communications Decency Act, (“CDA”), on First

Amendment grounds. See Reno v. ACLU, 521 U.S. 844,

117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (“Reno I”). To

place our COPA discussion in context, it is helpful to

understand its predecessor, the CDA, and the opinion

of the Supreme Court which held it to be unconsti-

tutional.

In Reno I, the Supreme Court analyzed the CDA,

which prohibited any person from posting material on

the Internet that would be considered either indecent

or obscene. See Reno I, 521 U.S. at 859, 117 S. Ct. 2329.

Like COPA, the CDA provided two affirmative de-

fenses to prosecution: (1) the use of a credit card or

other age verification system, and (2) any good faith

effort to restrict access by minors. See id. at 860, 117

S.Ct. 2329.

The Court, in a 7-2 decision, and speaking through

Justice Stevens, held that the CDA violated many

different facets of the First Amendment. The Court

held that the use of the term “indecent,” without

definition, to describe prohibited content was too vague

to withstand constitutional scrutiny.’ Justice Stevens

further determined that “[uJjnlike the regulations

upheld in Ginsberg and Pacifica, the scope of the CDA

is not limited to commercial speech or commercial

entities. . . . [Rather, i]ts open- ended prohibitions.

embrace all nonprofit entities and individuals posting

indecent messages or displaying them on their own

computers.” Id. at 877, 117 S. Ct. 2329.

In holding that “the breadth of the CDA’s coverage is

wholly unprecedented,” the Court continued by noting

that “the ‘community standards’ criterion as applied to

the Internet means that any communication available to

a nationwide audience will be judged by the standards

of the community most likely to be offended by the

message.” Id. at 877-78, 117 S. Ct. 2329.

The Court also discussed the constitutional propriety

of the credit card/age verification defenses authorized

by the CDA. Utilizing the District Court’s findings, the

Court held that such defenses would not be feasible for

2 In particular, the Court cited to discussions of society’s con-

cerns regarding prison rape and homosexuality—matters that

would have redeeming value, but were nonetheless prohibited by

the statute. See id. at 871, 117 S. Ct. 2329; see also id. at 877, 117

S.Ct. 2329 (“The general, undefined terms . cover large

amounts of non-pornographic material with serious educational or

other value.”).

Justice Stevens was referring to the Supreme Court’s de-

cisions in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20

L.Ed.2d 195 (1968), which upheld against a First Amendment chal-

lenge a statute prohibiting the sale to minors of materials deemed

harmful to them (in that case, “girlie” magazines), id. at 634, 88

S.Ct. 1274; and FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct.

3026, 57 L. Ed.2d 1073 (1978), which upheld under the First

Amendment the FCC’s authority to regulate certain broadcasts it

deemed indecent.

- 2+ 4 ˙ — — 7

most noncommercial Web publishers, and that even

with respect to commercial publishers, the technology

had yet to be proven effective in shielding minors from

harmful material. See id. at 881, 117 S. Ct. 2329. Asa

result, the Court determined that the CDA was not

narrowly tailored to the Government’s purported in-

terest, and “lacks the precision that the First Amend-

ment requires when a statute regulates the content of

speech.” Id. at 874, 117 S. Ct. 2329.

COPA, by contrast, represents an attempt by Con-

gress, having been informed by the concerns expressed

by the Supreme Court in Reno I, to cure the problems

identified by the Court when it had invalidated the

CDA. Thus, COPA is somewhat narrower in scope than

the CDA. COPA provides for civil and criminal penal-

ties for an individual who, or entity that,

knowingly and with knowledge of the character of

the material, in interstate or foreign commerce by

means of the World Wide Web, makes any com-

munication for commercial purposes that is avail-

able to any minor and that includes any material

that is harmful to minors.

47 U.S.C. S 231(a)(1) (emphasis added).

Unfortunately, the recited standard for liability in

COPA still contains a number of provisions that are

constitutionally infirm. True, COPA, in an effort to cir-

cumvent the fate of the CDA, expressly defines most of

these key terms. For instance, the phrase “by means of

the World Wide Web” is defined as the “placement of

material in a computer server-based file archive so that

it is publicly accessible, over the Internet, using hyper-

text transfer protocol or any successor protocol.” Id.

§ 231(e)(1).4 As a result, and as is detailed below,

COPA does not target all of the other methods of online

communication, such as e-mail, newsgroups, etc. that

make up what is colloquially known as the “Internet.”

See ACLU v. Reno, 31 F. Supp.2d 473, 482-83 (Finding

of Fact 1 7) (E.D.Pa.1999) (“Reno II“).

Further, only “commercial” publishers of content on

the World Wide Web can be found liable under COPA.

The statute defines “commercial purposes” as those

individuals or entities that are “engaged in the bus-

iness of making such communications.” 47 U.S.C.

§ 231(e)(2)(A). In turn, a person is “engaged in the

business” under COPA if that 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

4 HTTP, or HyperText Transfer Protocol, has been described

as follows: “Invisible to the user, HTTP is the actual protocol used

by the Web Server and the Client Browser to communicate over

the ‘wire.’ In short, [it is] the protocol used for moving documents

around the Internet.” NEWTON’S TELECOM DICTIONARY

335 (17th ed.2001).

Essential concepts that are part of HTTP include (as its name

implies) the idea that files can contain references to other files

whose selection will elicit additional transfer requests.

—

person's sole or principal business or source of

income).

Id. § 231(e)(2)(B) (emphasis added). Individuals or en-

tities therefore can be found liable under COPA if they

seek to make a profit from publishing material on the

World Wide Web—thus, individuals who place such

material on the World Wide Web solely as a hobby, or

for fun, or for other than commercial profiteering are

not in danger of either criminal or civil liability.

Furthermore, and of greater importance, is the

manner in which the statute defines the content of

prohibited material; that is, what type of material is

considered “harmful to minors.” The House Committee

Report that accompanied COPA explains that the

statute’s definition of the “harmful to minors” test

constitutes an attempt to fuse the standards upheld by

the Supreme Court in Ginsberg v. New York, 390 U.S.

629, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968), and Miller v.

California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419

(1973).“ See H.R. REP. No. 105-775, at 12-13 (1998).

® As stated earlier, see note 3, supra, Ginsberg upheld a New

York statute prohibiting the sale to persons under seventeen years

of age of material deemed to be obscene to minors, noting that “the

concept of obscenity . may vary according to the group to

whom the questionable material is directed.” Ginsberg, 390 U.S. at

636, 88 S. Ct. 1274 (quoting Bookcase, Inc. v. Broderick, 18 N. V. 2d

71, 271 N.Y.S.2d 947, 218 N.E.2d 668, 671 (1966)). Five years later,

the Supreme Court announced its decision in Miller, which ad-

vanced the familiar three-part test for determining obscenity:

(a) whether “the average person, applying contemporary

community standards” would find that the work, taken as a

whole, appeals to the prurient interest; (b) whether the work

In particular, whether material published on the

World Wide Web is “harmful to minors” is governed by

a three-part test, each prong of which must be satisfied

before one can be found liable under COPA:

(A) the average person, applying contemporary

community standards, would find, taking the mate-

rial as a whole and with respect to minors, is

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

the prurient interest;

(B) depicts, describes, or represents, in a manner

patently offensive with respect to minors, an actual

or simulated sexual act or sexual contact, an actual

or simulated normal or perverted sexual act, or a

lewd exhibition of the genitals or post-pubescent

female breast; and

political, or scientific value for minors.

47 U.S.C. § 231(e)(6).°

This definition follows a formulation similar to that

which the Supreme Court articulated in Miller. Impor-

tantly, however, whereas Miller applied such standards

depicts or describes, in a patently offensive way, sexual con-

duct specifically defined by the applicable state law; and (c)

whether the work, taken as a whole, lacks serious literary,

artistic, political, or scientific value.

Miller, 413 U.S. at 24, 93 S. Ct. 2607 (internal citations and quota-

tion omitted).

6 The statute also provides that material is “harmful to minors”

if it is “obscene.” 47 U.S.C. § 231(e)(6). That part of the definition

of material harmful to minors is not at issue here.

„eee

4K te

as related to the average adult, the “harmful to minors”

test applies them with respect to minors.

COPA, as earlier noted, also provides a putative

defendant with affirmative defenses. If an individual or

entity “has restricted access by minors to material that

is harmful to minors” through the use of a “credit card,

debit account, adult access code, or adult personal

identification number ... a digital certificate that verifies

age . . or by any other reasonable measures that are

feasible under available technology,” the individual will

not be liable if a minor should access this restricted

material. Id. § 231(c)(1). The defense also applies if an

individual or entity attempts “in good faith to imple-

ment a defense” listed above. Jd. § 231(c)(2).

On Oetober 22, 1998, the day after President Clinton

signed COPA into law, the American Civil Liberties

Union, as well as a number of individuals and entities

that publish information on the World Wide Web (col-

lectively, the “plaintiffs” or “ACLU”), brought an

action in the United States District Court for the

Eastern District of Pennsylvania, challenging the con-

stitutionality of the Act. After five days of testimony,

the District Court rendered sixty-eight separate find-

ings of fact concerning the Internet and COPA’s impact

on speech activity. See Reno II, 31 F. Supp.2d at 481-92

(Findings of Fact 11 0-67). These findings were de-

tailed in our original opinion. See Reno III, 217 F.3d at

168-69. We recite only those relevant findings in this

opinion when we discuss and analyze the constitutional-

ity of COPA. These findings bind us in this appeal

7 Under COPA, a minor is defined as one under age seventeen.

See 47 U.S.C. § 231(e)(7).

10a

unless found to be clearly erroneous. See Lackawanna

County Dist. Attorney v. Coss, 532 U.S. 394, 406, 121 S.

Ct. 1567, 149 L. Ed 2d 608 (2001). None of the parties

dispute the accuracy of the findings, and as we recited

in Reno III, 217 F.3d at 170, “none of the parties

dispute the District Court’s findings (including those

describing the Internet and Web), nor are any chal-

lenged as clearly erroneous.”

The District Court granted the plaintiffs’ motion for a

preliminary injunction against the enforcement of

COPA on the grounds that COPA is likely to be found

unconstitutional on its face for violating the First

Amendment rights of adults. Reno II, 31 F. Supp.2d at

495. In so doing, the District Court applied the famil-

iar four-part test in connection with the issuance of a

preliminary injunction. See Allegheny Energy, Inc. v.

DE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) (explaining

that a preliminary injunction is appropriate where the

movant can show (1) a likelihood of success on the

merits; (2) irreparable harm without the injunction; (3)

a balance of harms in the movant’s favor; and (4) the

injunction is in the public interest).

In evaluating the likelihood of the plaintiffs’ success,

the District Court first determined that COPA, as a

content-based restriction on protected speech (in this

case, nonobscene sexual expression), violated the strict

scrutiny test. More specifically, it found that although

COPA addressed a compelling governmental interest in

8 The plaintiffs, however, did not limit their argument before

the District Court to the facial invalidity of COPA with regard to

adults. They also argued that COPA was facially invalid for vio-

lating the First Amendment rights of minors, and that COPA was

unconstitutionally vague in violation of the First and Fifth

Amendments. See Reno II, 31 F. Supp. 2d at 478-79.

22 11 ee ee ee

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protecting minors from harmful materiai online, it was

not narrowly tailored to serve that interest, nor did it

provide the least restrictive means of advancing that

interest. See Reno II, 31 F. Supp.2d at 493 (citing Sabie

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

126, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989)).

The District Court then addressed the remaining

prongs of the preliminary injunction standard, con-

cluding that a failure to enjoin enforcement of COPA

would result in irreparable harm, that the balance of

harms favored the plaintiffs because the Government

does not have “an interest in the enforcement of an

unconstitutional law,” and that the public interest was

“not served by the enforcement of an unconstitutional

law. Indeed, [held the District Court] . the

interest of the public is served by preservation of the

status quo until such time that this Court may ulti-

mately rule on the merits of plaintiffs’ claims at trial.”

Reno II, 31 F. Supp.2d at 498.

As a result, the District Court held that the plaintiffs

had satisfied the requirements for a preliminary injunc-

tion which enjoined the enforcement of COPA.

We affirmed the District Court’s holding, but on

different grounds.“ See Reno III. We held that the

reference to “community standards” in the definition of

“material that is harmful to minors” resulted in an over-

broad statute. Because the Internet cannot, through

modern technology, be restricted geographically, we

In so doing, however, we also addressed the four preliminary

injunction factors and held that the plaintiffs had met their burden

as to each of the four factors. See Reno III. 217 F.3d at 180-81.

12a

held that the “community standards” language sub-

jected Internet providers in even the most tolerant

communities to the decency standards of the most

puritanical.

As a result, we held that even if we were to assign a

narrow meaning to the language of the statute or even

if we would sever or delete a portion of the statute that

is unconstitutional, we could not remedy the over-

breadth problems created by the community standards

language. Hence, we affirmed the District Court’s pre-

liminary injunction. See id. at 179-81.

The Supreme Court vacated our judgment and

remanded the case for further proceedings. The major-

ity opinion, consisting of Parts I, II, and IV of the prin-

cipal opinion authored by Justice Thomas, was joined

by Chief Justice Rehnquist and Justices O’Connor,

Scalia, and Breyer. It addressed the “narrow question

whether the Child Online Protection Act’s . . . use of

‘community standards’ to identify ‘material that is

harmful to minors’ violates the First Amendment.”

Ashcroft, 122 S. Ct. at 1703.

After reviewing its decision in Reno I and the two

prior decisions in this case, the Supreme Court referred

to the “contemporary community standards” language

from Miller, as representative of the primary concern

in evaluating restrictions on speech: “to be certain that

. [material] will be judged by its impact on an

average person, rather than a particularly susceptible

or sensitive person-or indeed a totally insensitive one.”

Miller, 413 U.S. at 33, 93 S. Ct. 2607.

Te ee 0 ee ee

13a

As a result, the Court merely held “that COPA’s

reliance on community standards to identify ‘material

that is harmful to minors’ does not by itself render the

statute substantially overbroad for purposes of the

First Amendment.” Ashcroft, 122 S. Ct. at 1713 (em-

phasis in original). The Court was careful, however, not

to “express any view as to whether . . the statute is

unconstitutionally vague, or whether the District Court

correctly concluded that the statute likely will not

survive strict scrutiny analysis once adjudication of the

case is completed below.” Jd. The Court did not vacate

the District Court’s preliminary injunction. Jd. at 1713-

14.

In addition to the limited Opinion of the Court, the

Ashcroft Court issued a number of other opinions

authored and joined by other Justices, each of which is

instructive to us on remand.

For example, Part III-B of Justice Thomas’ opinion

was joined only by Chief Justice Rehnquist and Justices

O’Connor and Scalia. That portion of Justice Thomas’

opinion explained that we relied too heavily on the

Reno I Court’s criticism that “the community stan-

dards’ criterion [in the CDA] as applied to the Internet

means that any communication available to a nation-

wide audience will be judged by the standards of the

community most likely to be offended by the message,”

Ashcroft, 122 S. Ct. at 1709 (opinion of Thomas, J.)

(quoting Reno I, 521 U.S. at 877-78, 117 S. Ct. 2329),

particularly in light of the fact that COPA was drafted

to cover a smaller category of communication than the

CDA—namely, communication that appeals to the

prurient interest and lacks “serious literary, artistic,

political or scientific value to minors.” 47 U.S.C.

§ 231(e)(6)(C).

l4a

Moreover, Parts III-A, III-C, and III-D of Justice

Thomas’ opinion were joined only by Chief Justice

Rehnquist and Justice Scalia. Those Parts explained

that the consideration of community standards was not

invalid simply because providers of material on the

Internet are unable to limit the availability of their

speech on a geographic basis. He instead pointed out

that jurors in different communities are likely to apply

their own sensibilities to any consideration of commun-

ity standards, even national ones. Justice Thomas then

concluded that no meaningful distinction existed be-

tween the instant case and prior Supreme Court

decisions upholding the use of a community standards

test with respect to speech transmitted by phone or

mail, see Sable (phone); Hamling v. United States, 418 -

U.S. 87, 94 S. Ct. 2887, 41 L. Ed.2d 590 (1974) (mail),

stating that speakers bear the burden of determining

their audience, and that those who find themselves

disadvantaged by the fact that Internet communi-

cations cannot be limited geographically can simply

choose a different, more controllable, medium for their

communication. See Ashcroft, 122 S. Ct. at 1711-12

(opinion of Thomas, J.).

Justice O’Connor filed an opinion concurring in part

and in the judgment. Although she agreed that COPA

is not overbroad solely because of its reliance on

community standards, she acknowledged the possibility

that “the use of local community standards will cause

problems for regulation of obscenity on the Internet ...

in future cases.” Jd. at 1714 (O’Connor, J., concurring).

She also disagreed with Justice Thomas’ argument in

Parts III-C and III-D that the Internet may be treated

the same as telephone or mail communications:

Given Internet speakers’ inability to control the geo-

15a

graphic location of their audience, expecting them to

bear the burden of controlling the recipients of their

speech . . may be entirely too much to ask.” Id. Asa

result, Justice O’Connor advocated the adoption of a

national standard for regulating Internet obscenity.

She noted that Supreme Court precedents do not forbid

such a result, and argued that such a standard would be

no more difficult or unrealistic to implement than the

standard created for the entire state of California in

Miller. Id. at 1715.

Justice Breyer filed an opinion concurring in part and

in the judgment in which he argued that “Congress

intended the statutory word ‘community’ to refer to the

Nation’s adult community taken as a whole.” Id.

(Breyer, J., concurring). This standard would serve the

purpose, argued Justice Breyer, of avoiding the difficult

question of constitutionality under the First Amend-

ment while experiencing no more “regional variation”

than is “inherent in a system that draws jurors from a

local geographic area.” Id. at 1716.

Justice Kennedy filed an opinion concurring in the

judgment, in which he was joined by Justices Souter

and Ginsburg. Although Justice Kennedy agreed with

us that a community standards factor when applied to

the Internet is a greater burden on speech than when

applied to the mails or to telephones, he did not agree

that the extent of that burden could be ascertained

without analyzing the scope of COPA’s other pro-

visions. See id. at 1719-20 (Kennedy, J., concurring).

More specifically, Justice Kennedy felt that we should

consider the effect of the provisions limiting COPA’s

scope to speech used for commercial purposes and to

speech that is harmful to minors when taken “as a

whole.” See id. at 1720-21. Only after these provisions

l6a

are analyzed, argued Justice Kennedy, can the true

effect of varying community standards be evaluated,

and the question of overbreadth be properly addressed.

Finally, Justice Stevens authored a dissenting

opinion, in which he reiterated our concerns expressed

in Reno III that COPA’s community standards factor

was itself sufficient to render the statute constitution-

ally overbroad because communication on the Internet

(unlike that through the mails or telephones) may not

be restricted geographically. This fact, Justice Stevens

claimed, was sufficient to invalidate COPA, particularly

in light of the fact that many of the “limiting provisions”

(i.e., the prurient interest, the patently offensive and

the serious value prongs of the statute) mentioned by

Justices Thomas and Kennedy apply only to minors,

thereby burdening protected material which should be

available to adults. See id. at 1726-27 (Stevens, J.,

dissenting).

Accordingly, on remand, we must again review the

District Court’s grant of a preliminary injunction in

favor of the plaintiffs. This time, however, we must do

so in light of the Supreme Court’s mandate that the

community standards language is not by itself a suffi-

cient ground for holding COPA constitutionally over-

broad. This direction requires an independent analysis

of the issues addressed by the District Court in its

original opinion. To assist us in this task, we asked the

parties for additional submissions addressed to the

opinion of the Supreme Court and to authorities filed

subsequent to that opinion and since we last addressed

COPA in Reno III.

17a

Il.

As mentioned above, in order to grant a motion for a

preliminary injunction, a district court must address

the following four factors:

(1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether the

movant will be irreparably harmed by denial of the

relief; (3) whether granting preliminary relief will

result in even greater harm to the nonmoving party;

and (4) whether granting the preliminary relief will

be in the public interest.

Allegheny Energy, 171 F.3d at 158 (citing ACLU v.

Black Horse Pike Reg Bd. of Educ., 84 F.3d 1471, 1477

n. 2 (3d Cir. 1996) (en banc)). We review the District

Court’s grant of a preliminary injunction in favor of the

ACLU to determine “whether the court abused its dis-

cretion, committed an obvious error in applying the law,

or made a clear mistake in considering the proof.” In re

Assets of Martin, 1 F.3d 1351, 1357 (3d Cir.1993) (citing

Philadelphia Marine Trade Ass’n v. Local 1291, 909

F.2d 754, 756 (3d Cir.1990), cert. denied, 498 U.S. 1083,

111 S. Ct. 953, 112 L. Ed.2d 1041 (1991)). ”

The most significant and, indeed, the dispositive

prong of the preliminary injunction analysis in the

instant appeal is whether the plaintiffs bore their

burden of establishing that they had a reasonable pro-

1% We have jurisdiction pursuant to the Supreme Court’s order

remanding the case to us for further proceedings. See Ashcroft,

122 S.Ct. at 1714. The plaintiffs have standing to sue because they

could all reasonably fear prosecution under COPA, as their Web

sites contained material that could be considered harmful to

minors under the statute. Reno III, 217 F.3d at 171 (citing Reno II.

31 F .Supp.2d at 479).

18a

bability of succeeding on the merits—that is, whether

COPA runs afoul of the First Amendment to the

United States Constitution.

We hold that the District Court did not abuse its

discretion in granting the preliminary injunction, nor

did it err in ruling that the plaintiffs had a probability of

prevailing on the merits of their claim inasmuch as

COPA cannot survive strict scrutiny. By sustaining

that holding, as we do, we would not then be obliged to

answer the question of whether COPA is overly broad

or vague. However, in order to “touch all bases” on this

remand, we will nevertheless address the overbreadth

doctrine with respect to COPA and the related doctrine

of vagueness. See infra Part II.B.” In doing so, we

hold that COPA is similarly deficient in that aspect as

well.

In addition to being the only portion of the preliminary in-

junction standard addressed by the Supreme Court in its majority

opinion or by the parties in their briefs before this Court, the

probability of success prong is the only one about which any real

debate exists.

In our earlier opinion in this case, we made clear that “Web

publishers would most assuredly suffer irreparable harm” under

COPA, that preliminary injunctive relief will not result in greater

harm to the Government, as “COPA’s threatened constraint on

constitutionally protected free speech far outweighs the damage

that would be imposed by our failure to affirm this preliminary

injunction,” and that-preliminary injunctive relief is in the public

interest because “ ‘neither the Government nor the public gen-

erally can claim an interest in the enforcement of an unconsti-

tutional law. Reno III, 217 F.3d at 180-81 (citation omitted).

2 We note that much of our overbreadth analysis overlaps with

much of the strict scrutiny analysis we discuss below.

19a

A. Strict Scrutiny

We turn first, however, to the question of whether

COPA may withstand strict scrutiny. Strict scrutiny

requires that a statute (1) serve a compelling govern-

mental interest; (2) be narrowly tailored to achieve that

interest; and (3) be the least restrictive means of

advancing that interest. Sable, 492 U.S. at 126, 109 S.

Ct. 2829.

1. Compelling Interest

The Supreme Court has held that “there is a com-

pelling interest in protecting the physical and psycho-

logical well-being of minors.” Id. (citing Ginsberg, 390

U.S. at 639-40, 88 S.Ct. 1274). The parties agree that

the Government’s stated interest in protecting minors

from harmful material online is compelling. This being

so, we proceed to the next question of whether COPA is

narrowly tailored to meet that interest.

2. Narrowly Tailored

We hold that the following provisions of COPA are

not narrowly tailored to achieve the Government’s com-

pelling interest in protecting minors from harmful

material and therefore fail the strict scrutiny test: (a)

the definition of “material that is harmful to minors,”

which includes the concept of taking “as a whole”

material designed to appeal to the “prurient interest” of

minors; and material which (when judged as a whole)

lacks “serious literary” or other “value” for minors; (b)

the definition of “commercial purposes,” which limits

the reach of the statute to persons “engaged in the

business” (broadly defined) of making communications

of material that is harmful to minors; and (c) the

“affirmative defenses” available to publishers, which

20a

require the technological screening of users for the

purpose of age verification.

(a) “Material Harmful to Minors”

We address first the provision defining “material

harmful to minors.“ Because COPA’s definition of

harmful material is explicitly focused on minors, it

automatically impacts non-obscene, sexually suggestive

speech that is otherwise protected for adults.“ The

remaining constitutional question, then, is whether the

definition’s subsets of “prurient interest” and lacking

“serious . value for minors” are sufficiently nar-

rowly tailored to satisfy strict scrutiny in light of the

statute’s stated purpose. We address each of these

subsets.

COPA limits its targeted material to that which is

designed to appeal to the “prurient interest” of minors.

It leaves that judgment, however, to “the average per-

son, applying contemporary community standards” and

“taking the material as a whole.”

As discussed in our initial opinion on the matter,

when contemporary community standards are applied

to the Internet, which does not permit speakers or

exhibitors to limit their speech or exhibits geo-

graphically, the statute effectively limits the range of

permissible material under the statute to that which is

deemed acceptable only by the most puritanical

13 We note that the text of the statute reads “material that is

harmful to minors.” 47 U.S.C. § 231(e)(6) (emphasis added). For

purposes of brevity, we often refer to this phrase as “material

harmful to minors.”

14 Obscene materials are not protected under the First Amend-

ment. See, e. g., Ashcroft, 122 S. Ct. at 1704 (“[OJbscene speech en-

joys no First Amendment protection.”).

21a

communities. This limitation by definition burdens

speech otherwise protected under the First Amend-

ment for adults as well as for minors living in more

tolerant settings. See Reno III, 217 F.3d at 173-80.

This burden becomes even more troublesome when

those evaluating questionable material consider it “as

a whole” in judging its appeal to minors’ prurient in-

terests. As Justice Kennedy suggested in his

concurring opinion, it is “essential to answer the vexing

question of what it means to evaluate Internet material

‘as a whole,’ when everything on the Web is connected

to everything else.” Ashcroft, 122 S. Ct. at 1721

(internal citation omitted). We agree with Justice

Kennedy’s suggestion, and consider this issue here.

While COPA does not define what is intended to be

judge “as a whole,” the plain language of COPA’s

“harmful material” definition describes such material as

“any communication, picture, image file, article, re-

cording, writing, or other matter of any kind” that sat-

isfies the three prongs of the “material harmful to

minors” test: prurient interest, patently offensive, and

serious value. 47 U.S.C. § 231(e)(6) (emphasis added).

In light of the particularity and specificity of Congress’s

language, Congress had to mean that each individual

communication, picture, image, exhibit, etc. be deemed

“a whole” by itself in determining whether it appeals to

the prurient interests of minors, because that is the

unmistakable manner in which the statute is drawn.

The taken “as a whole” language is crucial because

the First Amendment requires the consideration of

context. As Justice Kennedy observed in his con-

curring opinion in Ashcroft, the application of the con-

stitutional taken “as a whole” requirement is compli-

cated in the Internet context: “It is unclear whether

22a

what is to be judged as a whole is a single image on a

Web page, a whole Web page, an entire multipage Web

site, or an interlocking set of Web sites.” Ashcroft, 122

S. Ct. at 1717. As the Supreme Court has recently

noted:

[It is] an essential First Amendment rule [that t]he

artistic merit of a work does not depend on the

presence of a single explicit scene. . . . Under

Miller, the First Amendment requires that re-

deeming value be judged by considering the work as

a whole. Where the scene is part of the narrative,

the work itself does not for this reason become

obscene, even though the scene in isolation might be

offensive.

Ashcroft v. Free Speech Coalition, 535 US. 234, 122 S.

Ct. 1389, 1401, 152 L. Ed.2d 403 (2002) (citation

omitted).

Yet, here the plain meaning of COPA’s text man-

dates evaluation of an exhibit on the Internet in isola-

tion, rather than in context. As such, COPA’s taken “as

a whole” definition surely fails to meet the strictures of

the First Amendment.

By limiting the material to individual expressions,

rather than to an expanded context, we would be hard-

pressed to hold that COPA was narrowly tailored to

achieve its designed purpose. For example, one sexual

image, which COPA may proscribe as harmful material,

might not be deemed to appeal to the prurient interest

of minors if it were to be viewed in the context of an en-

tire collection of Renaissance artwork. However,

evaluating just that one image or picture or writing by

itself rules out a context which may have alleviated its

prurient appeal. As a result, individual communications

23a

that may be a integral part of an entirely non-prurient

presentation may be held to violate COPA, despite the

fact that a completely different result would obtain if

the entire context in which the picture or communi-

cation was evaluated “as a whole.”

Because we view such a statute, construed as its own

text unquestionably requires, as pertaining only to

single individual exhibits, COPA endangers a wide

range of communications, exhibits, and speakers whose

messages do not comport with the type of harmful

materials legitimately targeted under COPA, i. e.,

material that is obscene as to minors. See Ginsberg, 390

U.S. at 639-43, 88 S. Ct. 1274. Accordingly, while

COPA penalizes publishers for making available

improper material for minors, at the same time it im-

permissibly burdens a wide range of speech and

exhibits otherwise protected for adults. Thus, in our

opinion, the Act, which proscribes publication of

material harmful to minors, is not narrowly tailored to

serve the Government’s stated purpose in protecting

minors from such material.

Lastly, COPA’s definition of “material that is harmful

to minors” only permits regulation of speech that when

“taken as a whole, lacks serious literary, artistic, po-

litical, or scientific value for minors.” 47 U.S.C.

§ 231(e)(6)(C) (emphasis added). COPA defines the

term minor as “any person under 17 [seventeen] years

of age.” Id. § 231(e)(7)." The statute does not limit the

15 The term minor appears in both the “prurient interest” and

“patently offensive” prongs of COPA’s “material that is harmful to

minors” definition. See statutory text supra Part I.B.2. The pro-

blems with the definition of minor which we identify in this section

are applicable to both these two prongs. As such, these prongs are

also constitutionally infirm on that ground.

24a

term minor in any way, and indeed, in its briefing, the

Government, in complete disregard of the text, con-

tends that minor means a “normal, older adolescent.”

Orig. Gov't Br. at 32; Gov’t Br. on Remand at 27-28;

Gov’t Reply Br. on Remand at 4-5.

We need not suggest how the statute’s targeted

population could be more narrowly defined, because

even the Government does not argue, as it could not,

that materials that have “serious literary, artistic,

political or scientific value” for a sixteen-year-old would

have the same value for a minor who is three years old.

Nor does any party argue, despite Congress’s having

targeted and included all minors seventeen or under,

that pre-adolescent minors (i.e., ages two, three, four,

etc.) could be patently offended by a “normal or per-

verted sexual act” or have their “prurient interest”

aroused by a “post-pubescent female breast,” or by be-

ing exposed to whatever other material may be de-

signed to appeal to prurient interests.

The term “minor,” as Congress has drafted it, thus

applies in a literal sense to an infant, a five- year old, or

a person just shy of age seventeen. In abiding by this

definition, Web publishers who seek to determine

whether their Web sites will run afoul of COPA cannot

tell which of these “minors” should be considered in

deciding the particular content of their Internet post-

ings. Instead, they must guess at which minor should be

considered in determining whether the content of their

Web site has serious . . value for [those] minors.”

47 U.S.C. § 231(e)(6)(C). Likewise, if they try to comply

with COPA’s “harmful to minors” definition, they must

guess at the potential audience of minors and their ages

so that the publishers can refrain from posting material

that will trigger the prurient interest, or be patently

25a

offensive with respect to those minors who may be

deemed to have such interests.

The Government has argued that “minors” should be

read to apply only to normal, older adolescents. We

realize as a pragmatic matter that some pre- adolescent

minors may, by definition, be incapable of possessing a

prurient interest. It is not clear, however, that the

Government’s proffered definition meets Congress’s

intended meaning for the term “minor” with respect to

the “patently offensive” and “serious value” prongs.

Furthermore, Congress has identified as objects of its

concern children who cannot be described as “older”

adolescents:

Moreover, because of sophisticated, yet easy to use

navigating software, minors who can read and type

are capable of conducting Web searches as easily as

operating a television remote. While a four-year old

may not be as capable as a thirteen year old, given

the right tools (e.g., a child trackball and browser

software) each has the ability to ‘surf the Net and

will likely be exposed to harmful material.

H.R. REP. No. 105-775, at 9-10 (emphasis added).

Moreover, the statute, if meant to pertain only to

normal, older adolescents (as the Government claims it

does), does not by its own definition restrict its appli-

cation to older adolescents, although we assume that

Congress could have defined that universe in that

manner.

Because the plain meaning of the statute’s text is

evident, we decline to rewrite Congress’s definition of

minor.“ We would note, however, that even if we

16 The Government has cited cases from two other Circuits in

support of its proffered narrowing construction of “minor.” We do

26a

not find these analyses helpful. In American Booksellers v. Webb,

919 F.2d 1493 (11th Cir.1990), cert. denied, 500 U.S. 942, 111 S. Ct.

2237, 114 L. Ed.2d 479 (1991), the Eleventh Circuit upheld a

Georgia law restricting the display of material “harmful to minors”

in light of the fact that the use of blinder racks would satisfy the

statute’s requirement. Jd. at 1508-09. In analyzing the “harmfu! to

minors” test contained in that statute, the Eleventh Circuit inter-

preted the Supreme Court’s opinion in Pope v. Illinois, 481 U.S.

497, 107 S. Ct. 1918, 95 L.Ed.2d 439 (1987), to “teach{ ] that if any

reasonable minor, including a seventeen-year-old, would find

serious value, the material is not ‘harmful to minors.’” American

Booksellers, 919 F. 2d at 1504- 05.

We do not think that Pope leads to the conclusions that the

Eleventh Circuit drew. In Pope, the Court explained that, under

the “serious value” prong of the Miller test for obscenity, “The

proper inquiry is not whether an ordinary member of any given

community would find serious literary, artistic, political, or scien-

tific value in allegedly obscene material, but whether a reasonable

person would find such value in the material, taken as a whole.”

Pope, 481 U.S. at 500-01, 107 S. Ct. 1918 (emphasis added). It does

seem logical that if Pope requires a reasonable person standard for

the “serious value” prong of the Miller test, then an analogous

“serious value for minors” prong of a “harmful to minors” test

would look to the value for a “reasonable minor.” It does not

follow, however, that the “reasonable minor” must be judged by

reference to minors at the upper end of the spectrum of ages

encompassed in the term “minor,” unless the statute is drawn in

that particular manner. We are not persuaded that COPA can be

read and enforced that way.

The Fourth Circuit’s opinion in American Booksellers Ass n v.

Virginia, 882 F. 2d 125 (4th Cir.1989), cert. denied, 494 U.S. 1056,

110 S. Ct. 1525, 108 L.Ed.2d 764 (1990), is likewise inapplicable.

That case dealt with the interpretation of a Virginia statute pro-

hibiting the display of sexually explicit materials to “juveniles [less

than eighteen years of age], Id. at 127 (citing Va. Code § 18.2-

390(6)(c) (1982 & Supp. 1987)). The Fourth Circuit adopted the

Virginia Supreme Court’s interpretation of the state sta ute: “The

Virginia Court then concluded that the [“serious value”) standard

{of the Virginia statute] should be applied 2s it affects a ‘legitimate

27a

accepted the Government’s argument, the term

“minors” would not be tailored narrowly enough to

satisfy strict scrutiny.

Regardless of what the lower end of the range of

relevant minors is, Web publishers would face great un-

certainty in deciding what minor could be exposed to its

publication, so that a publisher could predict, and guard

against, potential liability. Even if the statutory mean-

ing of “minor” were limited to minors between the ages

of thirteen and seventeen, Web publishers would still

face too much uncertitude as to the nature of material

that COPA proscribes.

We do not suggest how Congress could have tailored

its statute—that is not our function. We do no more

than conclude that the use of the term “minors” in all

minority of normal, older adolescents.’” Id. (citing Commonwealth

v. American Booksellers Ass n, 236 Va. 168, 372 S.E.2d 618, 624

(1988)). Of course, the Virginia Supreme Court’s interpretation of

the state statute (a question that had been certified to the Virginia

Court by the Supreme Court, see Virginia v. American Book-

sellers Ass n, 484 U.S. 383, 108 S. Ct. 636, 98 L.Ed.2d 782 (1988)), is

not binding on our interpretation of COPA. Hence, there is no

reason to adopt or be persuaded by the statutory construction of

the Virginia Suprem< Court in our construction of COPA.

The Fourth Circuit has recently certified to the Virginia

Supreme Court two questions relating to the scope of a 1999

amendment to the Virginia statute at issue in American Book-

sellers Ass n v. Virginia. See PSINet, Inc. v. Chapman, 317 F.3d

413 (4th Cir.2003) (citing Va.Code § 18.2- 391, 1999 Va. Act ch.

936). Subsequent to oral argument, the Government submitted a

letter pursuant to Federal Rule of Appellate Procedure 28(j) call-

ing to our attention this order pertaining to the constitutionality of

the 1999 amendment, which extends the regulation of sexually

explicit material deemed “harmful to juveniles” to the Internet

context. For the reasons we have identified, the Fourth Circuit’s

certification order has no bearing on our interpretation of COPA.

28a

three prongs of the statute’s definition of “material

harmful to minors” is not narrowly drawn to achieve

the statute’s purpose—it is not defended by the

Government in the exact terms of the statute, and does

not lend itself to a commonsense meaning when con-

sideration is given to the fact that minors range in age

from infants to seventeen years. Therefore, even if we

were to accept the narrowing construction that

the Government proposes—and we do not—COPA’s

definition of the term “minor,” viewed in conjunction

with the “material harmful to minors” test, is not

tailored narrowly enough to satisfy the First Amend-

ment’s requirements.

(b) “Commercial Purposes”

COPA’s purported limitation of liability to persons

making communications “for commercial purposes”

does not narrow the reach of COPA sufficiently. In-

stead, COPA’s definitions subject too wide a range of

Web publishers to potential liability. As the District

Court observed, “There is nothing in the text of COPA

. that limits its applicability to so-called commercial

pornographers only.” Reno II, 31 F. Supp.2d at 480.

Indeed, as we read COPA, it extends to any Web

publisher who makes any communication “for com-

mercial purposes.” 47 U.S.C. § 231(a)(1).

The statute includes within “commercial purposes”

any Web publisher who meets COPA’s broad definition

of being “engaged in the business” of making such

communications. Id. § 231(e)(2)(A). The definition of

“engaged in the business” applies to any person whose

communication “includes any material that is harmful

to minors” and who “devotes tine . to such

activities, as a regular course of such person’s trade or

29a

business, with the objective of earning a profit,” if that

person “knowingly causes [or solicits] the material that

is harmful to minors to be posted on the World Wide

Web.” Id. § 231(e)(2)(B) (emphasis added).

Based on this broad definition of “engaged in the

business,” we read COPA to apply to Web publishers

who have posted any material that is “harmful to

minors” on their Web sites, even if they do not make a

profit from such material itself or do not post such

material as the principal part of their business. Under

the plain language of COPA, a Web publisher will be

subjected to liability if even a small part of his or her

Web site displays material “harmful to minors.”””

Moreover, the definition of “commercial purposes”

further expands COPA’s reach beyond those enter-

prises that sell services or goods to consumers, in-

cluding those persons who sell advertising space on

their otherwise noncommercial Web sites. See Reno II.

31 F. Supp.2d at 487 (Finding of Fact J 33). Thus, the

“engaged in the business” definition would encompass

both the commercial pornographer who profits from his

or her online traffic, as well as the Web publisher who

provides free content on his or her Web site and seeks

advertising revenue, perhaps only to defray the cost of

maintaining the Web site.” See also Ashcroft, 122 S.

* As we have explained earlier, see Part II. A 2(a), supra,

COPA's definition of material refers to any singie “communication,

picture, image, graphic image file, article, recording, writing, or

other matter of any kind.” 47 U.S.C. § 231(e)6).

We do not here confront the question of statutory inter-

pretation whether the term “profit,” in the context of COPA’s

definition of “engaged in the business,” includes only those Web

publishers seeking to earn economic profits or also includes non-

profit organizations or charities that seek to obtain revenue or

30a

Ct. at 1721 (Kennedy, J., concurring) (“Indeed, the plain

text of the Act does not limit its scope to pornography

that is offered for sale; it seems to apply even to speech

provided for free, so long as the speaker merely hopes

to profit as an indirect result.”). The latter model is a

common phenomenon on the Internet. See Reno II, 31

F. Supp.2d at 484 (Findings of Fact I 23, 30). This ex-

pansive definition of “engaged in the business” there-

fore includes a large number of Web publishers. In-

deed, the District Court in its findings of fact cited to

testimony that approximately one-third of the 3.5

million global Web sites (existing at that time) are

“commercial,” or intendled] to make a profit.” Id. at

486 (Finding of Fact 1 27).

Contrary to our reading and understanding of COPA,

the Government contends that COPA’s definition of

“engaged in the business” limits liability to those per-

sons who publish material that is harmful to minors “as

a regular course of such person’s business or trade,” 47

U.S.C. § 231(e)(2)(B), claiming that this qualification

limits the coverage of COPA. Based on this language,

the Government argues that “COPA by its terms

contributions—though not economic profits—from their Web sites.

As one amicus brief notes, Congress did not exempt non-profit

organizations as designated under the Internal Revenue Code. See

Br. of Amici Curiae American Society of Journalists and Authors

et al. at 6-7. If the term “profit,” (and therefore the term “engaged

in the business”) includes Web publishers that are non-profit or-

ganizations, the scope of persons covered by COPA would be

greatly expanded. Because of the large number of commercial

entities that maintain Web sites (as found by the District Court),

the scope of COPA, regardless of whether it covers non-profits, is

in any event far broader than the core of commercial porno-

graphers and the like that the Government has argued that COPA

is intended tc target.

3la

covers only those ‘harmful to minors’ communications

that are made by a person as a normal part of his or her

for-profit business.” Gov’t Br. on Remand at 36

(internal quotation marks added). Indeed, the Govern-

ment contends that COPA “covers only those communi-

cations that have a substantial connection to the

regular online marketing of material that is harraful to

minors.” Id. at 36-37 (emphasis added).

We do not find the Government’s argument per-

suasive. COPA’s use of the phrase “regular course”

does not narrow the scope of speech covered because it

does not place any limitations on the amount, or the

proportion, of a Web publisher’s posted content that

constitutes such material. Thus, even if posted material

that is harmful to minors constitutes only a very small,

or even infinitesimal, part of a publisher’s entire Web

site, the publisher may still be subject to liability. For

example, if a Web site whose content deals primarily

with medical information, but also “regularly” publishes

a bi-weekly column devoted to sexual matters which

could be deemed “harmful to minors,” the publisher

might well be subject to criminal liability under COPA.

Although such a Web site primarily publishes medical

information that is not “harmful to minors,” the bi-

weekly column, according to the Government’s reading

of COPA, would be a publication in “regular course.”

In sum, while the “commercial purposes” limitation

makes the reach of COPA less broad than its pre-

decessor, inasmuch as the Communications Decency

Act (CDA) was not limited to commercial entities, see

Reno I, 521 U.S. at 877, 117 S. Ct. 2329, COPA’s defini-

tion of “commercial purposes” nevertheless imposes

content restrictions on a substantial number of “com-

mercial,” non- obscene speakers in violation of the First

32a

Amendment. We are satisfied that COPA is not nar-

rowly tailored to proscribe commercial pornographers

and their ilk, as the Government contends, but instead

prohibits a wide range of protected expression.

The Government argues that COPA’s burdens are

limited and reasonable, and points to COPA’s affirma-

tive defenses in support of the statute’s constitutional-

ity. We examine whether the affirmative defenses in

COPA serve to tailor the statute narrowly, as the

Government asserts.

COPA’s affirmative defenses shield Web publishers

from liability under the statute if they, in good faith,

restrict access to material deemed harmful to minors.

COPA provides as follows:

It is an affirmative defense to prosecution under this

section that 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

feasible under available technology.

47 U.S.C. § 231(c)(1).”

9 The District Court found, and the Government does not argue

otherwise, that the “digital certificate” and “other reasonable mea-

sures” are not effective or feasible: “The parties’ expert witnesses

33a

The District Court held that COPA’s affirmative

defenses burdened otherwise protected adult speech in

a way that prevented the statute from surviving strict

scrutiny. In determining that the application of these

defenses would unduly burden protected adult speech,

the District Court concluded that

Evidence presented to this Court is likely to estab-

lish at trial that 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 and that the loss of users of such

material may affect the speakers’ economic ability to

provide such communications. The plaintiffs are

likely to establish at trial that under COPA, Web

site operators and 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. Further, 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.

I conclude that based on the evidence presented to

agree that at this time, while it is technologically possible, there is

no certificate authority that will issue a digital certificate that

verifies a users age. . he plaintiffs presented testimony that

there are no other reasonable alternatives that are technologically

feasible at this time to verify age online. . . . The defendant did

not present evidence to the contrary.” Reno II, 31 F. Supp.2d at

487-88 (Finding of Fact 1 37) (emphasis added) (internal citations

omitted).

34a

date, the plaintiffs have established a substantial

likelihood that they will be able to show that COPA

imposes a burden on speech that is protected for

adults.

Reno II, 31 F .Supp.2d at 495 (citations omitted).

The Government maintains that the District Court

overstated the burdens on protected speech created by

utilization of COPA’s affirmative defenses. The record

and our own limited standard of review, however, belie

that claim.

First, the actual effect on users as a result of COPA’s

affirmative defenses, which the Government minimizes,

was determined by the District Court in its factual

findings, after hearing testimony from both parties.

Both the expert offered by the plaintiffs and one of the

experts proffered by the Government testified that

users could be deterred from accessing the plaintiffs’

Web sites as a result of COPA’s affirmative defenses.

The plaintiffs’ expert went on to testify that “economic

harm . . would result from loss of traffic.” Id. at 491

(Finding of Fact 1 61).

Although the Government presented its own expert

who testified that “COPA would not impose an unrea-

sonable economic burden . . . on the seven Web sites

of the plaintiffs,” the District Court, in exercising its

fact-finding function, determined that “plaintiffs have

shown that they are likely to convince the Court that

implementing the affirmative defenses in COPA will

cause most Web sites to lose some adult users to the

portions of the sites that are behind screens.” Id. at 492

(Findings of Fact J 61-62). We cannot say, nor has the

Government claimed, that the District Court’s factual

determination is clearly erroneous.

35a

COPA’s restrictions on speech, as the District Court

has found and as we agree, are not, as the Government

has argued, analogous to the incidental restrictions

caused by slow response times, broken links, or poor

site design that “already inhibit a users

experience.” Orig. Gov’t Br. at 42 (citation omitted);

Gov’t Br. on Remand at 40-41 (citation omitted). Re-

quiring a user to pay a fee for use of an adult verifi-

cation service or to enter personal information prior to

accessing certain material consiitutes a much more

severe burden on speech than any technical difficulties,

which are often repairable and cause only minor delays.

We agree with the District Court’s determination

that COPA will likely deter many adults from accessing

restricted content, because many Web users are simply

unwilling to provide identification information in order

to gain access to content, especially where the informa-

tion they wish to access is sensitive or controversial.”

People may fear to transmit their personal information,

and may also fear that their personal, identifying

information will be collected and stored in the records

The Government’s argument to the contrary is not per-

suasive. Its reliance on the success of online publishers such as

The Wall Street Journal, as well as online merchants such as

Amazon.com, is misplaced. The Government noted that those

publishers’ and merchants’ Web sites require persons to provide

personal information. See Gov’t Br. on Remand at 11. Such sites,

however, are not analogous to Internet sites that provide speech

that is protected for adults that might nonetheless be harmful to

minors. As the District Court noted in its findings of fact, certain

of the plaintiffs testified that their Web sites contain controversial

or sensitive information that adult readers would be deterred from

obtaining if they were required to register or otherwise identify

themselves. See Reno II, 31 F. Supp.2d at 485-86 (Findings of Fact

11 25-26).

36a

of various Web sites or providers of adult identification

numbers.“

The Supreme Court has disapproved of content-

based restrictions that require recipients to identify

themselves affirmatively before being granted access to

disfavored speech, because such restrictions can have

an impermissible chilling effect on those would-be reci-

pients.”

Second, the affirmative defenses do not provide the

Web publishers with assurances of freedom from prose-

21 The Government asserts that 47 U.S.C. § 231(d)(1), which

limits the disclosure of “any information collected for the purposes

of restricting access” to material harmful to minors without prior

written consent (subject to exceptions), constitute “substantial

privacy protections.” Gov’t Br. on Remand at 41. But the statue

does not appear to impose any penalties on those who fail to com-

ply with the privacy protection in § 231(d)(1). Furthermore, the

existence of the statutory privacy protection does not negate the

likelihood that adults will be chilled in accessing speech protected

for them; adults may reasonably fear that their information will be

disclosed, this provision notwithstanding.

2 See, e.g., Lamont v. Postmaster General, 381 U.S. 301, 85 S.

Ct. 1493, 14 L.Ed.2d 398 (1965) (holding that federal statute re-

quiring Postmaster to halt delivery of communist propaganda

unless affirmatively requested by addressee violated First Amend-

ment); Denver Area Educ. Telecomms. Consortium v. FCC, 518

U.S. 727, 732-33, 116 S.Ct. 2374, 185 L.Ed.2d 888 (1996) (holding

unconstitutional a federal law requiring cable operators to allow

access to sexually explicit programming only to those subscribers

who request access to the programming in advance and in writing).

Cf. American Library Ass n v. United States, 201 F. Supp.2d 401,

406 (E.D.Pa.) (three- judge court) (holding as unconstitutional

federal statute that conditions receipt of federal funds by public

libraries on use of filtering software because, inter alia, provision

requiring adults to request library to disable filters to access

protected speech imposed too great a burden), prob. juris. noted,

— US. — -, 123 S. Ct. 551, 154 L. Ed.2d 424 (2002).

37a

cution. As the Supreme Court noted in Free Speech

Coalition, “The Government raises serious consti-

tutional difficulties by seeking to impose on the defen-

dant the burden of proving his speech is not unlawful.”

Free Speech Coalition, 122 S. Ct. at 1404. Although the

criminal penalties under the federal statute concerning

virtual child pornography, at issue in Free Speech

Coalition, were more ‘severe than the penalties under

COPA, the logic is applicable: “An affirmative defense

applies only after prosecution has begun, and the

speaker must himself prove . . that his conduct falls

within the affirmative defense.” Jd.

Lastly, none of the display-restriction cases relied on

by the Government are apposite here, as each involved

the use of blinder racks to shield minors from viewing

harmful material on display. Orig. Gov’t Br. at 43-44;

Gov’t Br. on Remand at 44-45; Gov’t Reply Br. on

Remand at 13-14.” The use of “blinder racks,” or some

25 See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir.1996)

(upholding statute banning sale of material harmful to minors in

unsupervised sidewalk vending machines), cert. denied, 520 U.S.

1117, 117 S.Ct. 1249, 137 L.Ed.2d 330 (1997); Webb, 919 F.2d 1493

(11th Cir.1990) (upholding statute making it unlawful to “exhibit,

expose, or display in public at newsstands or any other business or

commercial establishment or at any other public place frequented

by minors” material harmful to them); Upper Midwest Booksellers

Ass n v. City of Minneapolis, 780 F. 2d 1389 (8th Cir. 1985) (up-

holding an ordinance requiring an opaque cover on and the sealing

of any material deemed harmful to minors and displayed for

commercial purposes); M.S. News Co. v. Casado, 721 F.2d 1281

(10th Cir.1983) (upholding a blinder rack ordinance); Davis-Kidd

Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn.1993) (up-

holding statute restricting the display for sale of material harmful

to minors “anywhere minors are lawfully admitted”); American

Booksellers Ass n v. Rendell, 332 Pa. Super. 537, 481 A.2d 919

38a

analogous device, does not create the same deterrent

effect on adults as would COPA’s credit card or adult

verification screens. Blinder racks do not require

adults to compromise their anonymity in their viewing

of material harmful to minors, nor do they create any

financial burden on the user. Moreover, they do not

burden the speech contained in the targeted publi-

cations any more than is absolutely necessary to shield

minors from its content. We cannot say the same with

respect to COPA’s affirmative defenses.

The effect of the affirmative defenses, as they burden

“material harmful to minors” which is constitutionally

protected for adults, is to drive this protected speech

from the marketplace of ideas on the Internet. This

type of regulation is prohibited under the First Amend-

ment. As the Supreme Court has recently said,

Speech within the rights of adults to hear may not be

silenced completely in an attempt to shield children

from it.” Free Speech Coalition, 122 S. Ct. at 1402

(citation omitted). COPA, though less broad than the

CDA, “effectively resembles [a] ban,” on adults’ access

to protected speech; the chilling effect occasioned by

the affirmative defenses results in the “unnecessarily

broad suppression of speech addressed to adults.”

Reno I, 521 U.S. at 875, 117 S. Ct. 2329.

3. Least Restrictive Means

As we have just explained, COPA is not narrowly

tailored and as such fails strict scrutiny. We are also

satisfied that COPA does not employ the “least re-

strictive means” to effect the Government’s compelling

interest in protecting minors.

(1984) (upholding statute prohibiting display of sexually explicit

materials where minors could see them).

39a

The Supreme Court has stated that “[i]f a less re-

strictive alternative would serve the Government’s

purpose, the legislature must use that alternative.”

United States v. Playboy Entertainment Group, 529

U.S. 803, 813, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000);

see also Reno I, 521 U.S. at 874, 117 S. Ct. 2329 ([The

CDA’s Internet indecency provisions’) 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”); Sable,

492 US. at 126, 109 S. Ct. 2829.

The District Court determined, based on its findings

of fact, that COPA would be of limited effectiveness in

achieving its aim. See Reno II, 31 F.Supp.2d at 496

(COPA has “problems . . . with efficaciously meeting

its goal.”). To reach that conclusion, the District Court

relied on its findings that (1) under COPA children may

still be able to access material deemed harmful to them

on “foreign Web sites, non-commercial sites, and

via protocols other than http,” id. at 496; see also id. at

482-84, 492 (Findings of Fact { 7-8, 19-20, 66); and (2)

that children may be able to obtain credit cards—

either their parents’ or their own—legitimately and so

circumvent the screening contemplated by COPA’s

= defenses. See id. at 489 (Finding of Fact

48).

We first examine the alternative of blocking and

filtering technology. The District Court described this

technology as follows:

[B]locking or filtering software may be used to block

Web sites and other content on the Internet that is

inappropriate for minors. Such technology may be

downloaded and installed on a user’s home computer

at a price of approximately $40.00. Alternatively, it

40a

may operate on the user’s ISP [ (Internet Service

Provider) ]. Blocking technology can be used to

block access by minors to whole sites or pages

within a site.

Id. at 492 (Finding of Fact 1 65).“ The District Court

concluded that blocking and filtering technology,

although imperfect, “may be at least as successful as

COPA would be in restricting minors’ access to harmful

material online without imposing the burden on con-

* The Report of the House Committee on Commerce, prepared

in support of COPA, provides a more detailed discussion of this

technology:

In general, blocking or filtering software programs work in

conjunction with Internet browsers such as Netscape Navi-

gator and Microsoft’s Internet Explorer, and are either in-

stalled directly onto individual computers or onto a host server

used with a network of computers. Blocking or filtering

software could also be installed at the site of the Internet

access provider. Software to block access to websites has

existed for many years.

In order to block Internet sites, a software vendor identifies

categories of material to be restricted and then configures the

software to block sites containing those categories of speech.

Some software blocking vendors employ individuals who

browse the Internet for sites to block, while others use

automated searching tools to identify which sites to block.

New products are constantly being developed, however, that

could improve the effectiveness of the blocking software. For

example, at least one product has been designed that is capable

of analyzing the content being retrieved by the computer. By

analyzing the content, rather than a predefined list of sites, the

product is capable of screening inappropriate material from

chat rooms, e-mail, attached documents, search engines, and

web browsers. Such products will help parents and educators

reduce a minor’s exposure to sexually explicit material.

H.R. REP. No. 105-775, at 19.

4la

stitutionally protected speech that COPA imposes on

adult users.” Jd. at 497. Indeed, the District Court

found that blocking and filtering technology, if installed

by parents, would shield minors from harmful Internet

communication occurring within a broader range of

venues than that covered by COPA: “Blocking and

filtering software will block minors from accessing

harmful to minors materials posted on foreign Web

sites, non-profit Web sites, and newsgroups, chat, and

other materials that utilize a protocol other than

HTTP.” Id. at 492 (Finding of Fact J 65).

The Government, however, argues that filtering

software is not a viable means of protecting children

from harmful material online because it is not nearly as

effective as COPA at protecting minors. The Govern-

ment offers the following three reasons for this

conclusion: (1) filtering software is voluntary—it trans-

fers the burden of protecting children from the source

of the harmful material, i.e., the Web publishers, to the

potential victims and their parents; (2) filtering soft-

ware is often both over- and underinclusive of targeted

material; and (3) it is more effective to screen material

“prior to it being sent or posted to minors” on the

Internet. See Gov’t Br. on Remand at 47.

% We see no need for sustained discussion of the Government’s

third argument. The Government’s assertion that it is more

effective to screen material before it is posted on the Internet, is

no answer at all. First, we cannot say that the blocking and

filtering technology is sufficiently less effective than COPA such

that the technology could not be considered as an alternative for

purposes of the least restrictive means analysis. Second, to the ex-

tent that the Government relies on pre- screening as the rationale

for claiming that COPA is more effective, the argument proves too

much. It is of course true that Web publishers’ self- censorship

will reduce the potential for communication of material harmful to

42a

The Government makes much of the notion that the

voluntary use of blocking and filtering software places

an onus on parents. /d. (noting “the concern that the

expense of purchasing and updating such software

programs might ‘discourage adults or schools from

using them.’”) (quoting H.R.REP. No. 105-775, at 19-

20).

But the Supreme Court has effectively answered this

contention. The Court stated in Playboy, “A court

should not assume a plausible, less restrictive alterna-

tive would be ineffective; and a court should not pre-

sume parents, given full information, will fail to act.”

Playboy, 529 U.S. at 805, 120 S. Ct. 1878. The Playboy

Court held unconstitutional a federal statutory pro-

vision that required cable operators who provide chan-

nels primarily dedicated to sexually-oriented program-

ming to scramble or block those channels completely, or

to “time channel” their transmission, i.e., limit their

availability to hours between 10 p.m. and 6 a.m., when,

in Congress’s view, children are unlikely to be viewing

television. By this provision Congress sought to pre-

vent children’s exposure to content contained on such

channels as a result of “signal bleed.“

The Court determined that this provision constituted

a “significant restriction of [protected] communication

between speakers and willing adult listeners.” Id. at

812, 120 S. Ct. 1878. The Court held that this provision

failed strict scrutiny because Congress had available to

it an effective, less restrictive means of achieving its

minors, but the cost results in an intolerable chilling effect. See

Part II.A.2(c), supra.

26 “Signal bleed” refers to a phenomenon whereby scrambled

programming becomes visible or audible from time to time. Play-

boy, 529 U.S. at 807, 120 S. Ct. 1878.

43a

ends. In particular, Congress had provided for an “opt-

out” provision whereby a cable subscriber could re-

quest the cable company to scramble fully or block

completely the receipt of sexually explicit channels.

The Court explained that the voluntary nature of the

“opt-out” provision rendered it less restrictive: “It is

no response that voluntary blocking requires a con-

sumer to take action, or may be inconvenient, or may

not go perfectly every time.” Jd. at 824, 120 S. Ct. 1878.

Instead, the Court explained that reliance upon “in-

formed and empowered parents,” id. at 825, 120 S. Ct.

1878, was the preferable alternative:

The regulatory alternative of a publicized [“opt-out”

provision], which has . . the choice of an effective

blocking system, would provide parents the

information needed to engage in active supervision.

The government has not shown that this

alternative, a regime of added communication and

support, would be insufficient to secure its objec-

tive, or that any overriding harm justifies its inter-

vention.

Id. at 825-26, 120 S. Ct. 1878.

In Fabulous Associates Inc. v. Pennsylvania Public

Utility Commission, 896 F.2d 780 (3d Cir. 1990), we

had held unconstitutional a Pennsylvania law that re-

quired adults to obtain nine-digit access codes in order

to listen to dial-a-porn messages on their telephones.

We held that the statute was not the least restrictive

means of achieving the state’s interest in protecting

minors from such messages because it required a loss of

anonymity on the part of adults. Although we

recognized that pre-blocking would not protect minors

in homes where adult residents had unblocked the lines,

we held that the “responsibility for making such choices

44a

between individually accessing such speech and pro-

tecting minor dependents from that speech] is where

our society has traditionally placed it—on the shoulders

of the parent.” Id. at 788 (citing Bolger v. Youngs Drug

Prods. Corp., 463 U.S. 60, 73-74, 103 S. Ct. 2875, 77

L.Ed.2d 469 (1983)).

As with the “opt-out” alternative available in Play-

boy, which would allow parents to block sexually-

oriented cable channels effectively, and as with the

blocking alternative described in Fabulous Associates,

here filtering software is a less restrictive alternative

that can allow parents some measure of control over

their children’s access to speech that parents consider

inappropriate.”

The Government also argues that the blocking and

filtering software is not as effective as COPA in that it

is both over- and underinclusive. To be sure, blocking

and filtering software may sometimes block too little

and sometimes block too much Internet speech. As the

District Court found, blocking and filtering technology

is not perfect in that “some Web sites that may be

deemed inappropriate for minors may not be blocked

while some Web sites that are not inappropriate for

minors may be blocked.” Reno II, 31 F.Supp.2d at 492

(Finding of Fact { 66). The District Court found, how-

ever, that no evidence had been presented “as to the

percentage of time that blocking and filtering tech-

nology is over- or underinclusive.” Jd. Moreover, the

District Court, as noted above, determined that block-

ing and filtering software could be at least as effective

We recognize that parents may face financial costs in pur-

chasing such software. See Reno II. 31 F Supp.2d at 492 (Finding

of Fact 1 65) (“Such technology may be downloaded and installed

on a user’s home computer at a price of approximately $40.00.”).

45a

as COPA, because COPA does not reach “foreign Web

sites, noncommercial sites, and . . . [materials avail-

able online] via protocols other than http.” Reno II, 31

F. Supp. 2d at 496.”

A three - judge court has recently held that a federal

law requiring the use of filtering and blocking software

on computers at libraries that received federal funding

violates the First Amendment. See American Library

Ass n v. United States, 201 F. Supp.2d 401, 406 (E. D.

Pa.) (three-judge court), prob. juris. noted, —- U.S.

——, 123 S. Ct. 551, 154 L. Ed.2d 424 (2002). This

decision does not compel a different result here. In that

case, the American Library court noted that blocking

and filtering technology overblocks and underblocks

Internet content.” That decision, however, is distin-

The District Court's findings of fact on which the above con-

clusions are based are not clearly erroneous. As we recited earlier,

the Government did not, and does not, contend that the findings

are clearly erroneous. See Reno III. 217 F.3d at 170. It follows

that both COPA and blocking and filtering technology are over-

and underinclusive in differing ways, and we agree with the

District Court's conclusion that as a result, such technology may be

at least as effective as COPA.

For further discussion of COPA’s overinclusiveness, see our

discussion of overbreadth, infra.

As the American Library court explained:

Although [blocking and filtering software] programs are some-

what effective in blocking large quantities of pornography,

they are blunt instruments that not only “underblock,” i. e., fail

to block access to substantial amounts of content that the

library boards wish to exclude, but also, central to this liti-

gation, “overblock,” i.e., block access to large quantities of

material that library boards do not wish to exclude and that is

constitutionally protected.

American Library, 201 F.Supp.2d at 406.

46a

guishable because, whereas the Act at issue in

American Library involved Government-mandated use

of blocking and filtering software, here we only con-

sider the voluntary use of such software by parents

who have chosen to use this means to protect their

children. We also note that, in American Library, the

Government sought to defend the legislation at issue by

reference to the statute’s “disabling provision,” which

required adults to identify themselves to librarians in

order to disable the filtering software on library com-

puters, and thus gain unfettered access to the wide

range of speech on the Internet. The court held that

this “disabling provision” created a chilling effect on

adult library patrons’ access to protected speech,” just

In addition, we recognize that a report approved by the gov-

erning board of the National Research Council, by a committee

chaired by the Honorable Dick Thornburgh, four years after

COPA was enacted (2002), similarly concluded that:

Filters are capable of blocking inappropriate sexually explicit

material at a high level of effectiveness—if a high rate of over-

blocking is also acceptable. Thus, filters are a reasonable

choice for risk-averse parents or custodians (e.g., teachers)

who place a very high priority on preventing exposure to such

material and who are willing to accept the consequences of

such overblocking.

COMMITTEE TO STUDY TOOLS AND STRATEGIES FOR PROTECTING

KIDS FROM PORNOGRAPHY. NATIONAL RESEARCH COUNCIL,

YOUTH, PORNOGRAPHY AND THE INTERNET § 12.1.8 (Dick Thorn-

burgh & Herbert S. Lin eds., 2002), available at http:/;vww.nap.

edu/html/youth_internet/ (last visited Feb. 6, 2003).

See American Library, 201 F.Supp.2d at 486 (“By requiring

library patrons affirmatively to request permission to access cer-

tain speech singled out on the basis of its content, [the federal law

at issue) will deter patrons from requesting that a library disable

filters to allow the patron to access speech that is constitutionally

protected, yet sensitive in nature.”).

47a

as we have determined that COPA’s affirmative de-

fenses, by requiring the use of a credit card or adult

identification number, similarly place an impermissible

burden on adult users.

We agree with the District Court that the various

blocking and filtering techniques which that Court

discussed may be substantially less restrictive than

COPA in achieving COPA’s objective of preventing a

minor’s access to harmful material. We are influenced

further in this conclusion by our reading of the Report

of the House Committee on Commerce, which had

advocated the enactment of COPA. See H.R. REP. No.

105-775 (1998). That Report described a number of

techniques and/or alternatives to be used in conjunction

with blocking and filtering software, although the

techniques were not adopted at that time. In each in-

stance, these techniques would appear to constitute a

less restrictive alternative than COPA’s prescriptions.

Moreover, we are at least four years beyond the tech-

nology then considered by the Committee, and as we

had initially observed, “in light of rapidly developing

technological advances, what may now be impossible to

regulate constitutionally may, in the not-too-distant

future, become feasible.” Reno III, 217 F.3d at 166.

Because the techniques and/or alternatives con-

sidered by the Committee (i.e., “tagging,” “domain

name zoning,” etc.), see H.R. REP. No. 105-775, at 16-20,

were not addressed either by the parties or the District

Court, we do not rely upon them here. We do no more

than draw attention to the fact that other possibly less

restrictive alternatives existed when COPA was

enacted and more undoubtedly will be available in the

48a

future—many of which might well be a less restrictive

alternative to COPA.”

The existence of less restrictive alternatives renders

COPA unconstitutional under strict scrutiny. As the

Supreme Court has said:

“Precision of regulation must be the touchstone in

an area so closely touching our most precious

freedoms.” If the State has open to it a less drastic

way of satisfying its legitimate interests, it may not

choose a legislative scheme that broadly stifles the

exercise of fundamental personal liberties . . and

the benefit gained must outweigh the loss of consti-

tutionally protected rights.

Elrod v. Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 49 L.

Ed.2d 547 (1976) (quoting Kusper v. Pontikes, 414 U.S.

51, 59, 94 S. Ct. 303, 38 L. Ed.2d 260 (1973)).

* * * * * *

31 Indeed, as the National Research Council’s report noted:

[The problem of protecting children from inappropriate

material and experiences on the Internet is complex. . . .

The effectiveness of technology—based on tools and social and

educational strategies in practice, should be examined and

characterized. Chapter 12 [of this Report) discussed one

aspect of evaluating the performance of filters, based on a

“head-to-head” comparison of how filters performed in block-

ing inappropriate materials. But protection of children is a

holistic enterprise that must account for the totality of their

Internet experience—which suggests the need for a examina-

tion of all of the tools in all of the venues in which children use

the Internet.

YOUTH, PORNOGRAPHY AND THE INTERNET, supra note 29, at

§ 14.6.

49a

. In sum, the District Court did not abuse its discretion

in granting the plaintiffs a preliminary injunction on the

grounds that COPA, in failing to satisfy strict scrutiny,

had no probability of success on the merits. COPA is

clearly a content-based restriction on speech. Although

it does purport to serve a compelling governmental

interest, it is not narrowly tailored, and thus fails strict

scrutiny. COPA also fails strict scrutiny because it

does not use the least restrictive means to achieve its

ends. The breadth of the “harmful to minors” and

“commercial purposes” text of COPA, especially in light

of applying community standards to a global medium

and the burdens on speech created by the statute’s

affirmative defenses, as well as the fact that Congress

could have, but failed to employ the least restrictive

means to accomplish its legitimate goal, persuade us

that the District Court did not abuse its discretion in

preliminarily enjoining the enforcement of COPA.

B. Overbreadth

Though the Supreme Court held in Ashcroft that

COPA’s reliance on community standards did not alone

render the statute overbroad, the Court specifically de-

clined to “express any view as to whether COPA suf-

fers from substantial overbreadth for other reasons [or]

whether the statute is unconstitutionally vague,” in-

stead explaining that “prudence dictates allowing the

Court of Appeals to first examine these difficult issues.”

Ashcroft, 122 S. Ct. at 1713. In this Part, therefore, we

discuss whether COPA is substantially overbroad, and

hold that it is.”

*The Supreme Court has explained that it has “traditionally

viewed vagueness and overbreadth as logically related and similar

doctrines.” Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 108 S. Ct.

50a

In Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct.

2908, 37 L. Ed.2d 830 (1973), the Supreme Court ruled

that a statute that burdens otherwise protected speech

is facially invalid if that burden is not only real, but

“substantial as well, judged in relation to the statute’s

plainly legitimate sweep.” Id. at 615, 93 S. Ct. 2908. As

the Court has recently stated, “The overbreadth doc-

trine prohibits the Government from banning unpro-

tected speech if a substantial amount of protected

speech is prohibited or chilled in the process.” Free

Speech Coalition, 122 S. Ct. at 1404.“

Our analysis of whether COPA is overbroad is akin to

the portion of the strict scrutiny analysis we have

conducted in which we concluded that COPA is not

1855, 75 L.Ed.2d 903 (1983) (citing Keyishian v. Board of Regents,

385 U.S. 589, 609, 87 S. Ct. 675, 17 L.Ed.2d 629 (1967); NAACP v.

Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). We

consider an aspect of the statute that we consider vague in note 37,

infra.

33 In assessing facial challenges of overbreadth, as we do here,

the courts have “altered [their] tradicional rules of standing to

permit—in the First Amendment area—’attacks on overly broad

statutes with no requirement that the person making the attack

demonstrate that his own conduct could not be regulated by a

statute drawn with the requisite narrow specificity.’” Broadrick,

413 U.S. at 612, 93 S. Ct. 2908 (quoting Dombrowski v. Pfister, 380

U.S. 479, 486, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965)). This exception

to traditional rules of standing “is deemed necessary because per-

sons whose expression is constitutionally protected may well

refrain from exercising their right for fear of criminal sanctions

provided by a statute susceptible of application to protected ex-

pression.” Los Angeles Police Dept. v. United Reporting Pub.

Corp., 528 U.S. 32, 38, 120 S. Ct. 483, 145 L.Ed.2d 451 (1999)

(quoting Gooding v. Wilson, 405 U.S. 518, 520-521, 92 S. Ct. 1103,

31 L. Ed.2d 408 (1972)). The District Court held that the plaintiffs

had standing. See Reno II, 31 F.Supp.2d at 479. We agree. See

Reno III, 217 F.3d at 171.

51a

narrowly tailored. Overbreadth analysis—like the

question whether a statute is narrowly tailored to

serve a compelling governmental interest—examines

whether a statute encroaches upon speech in a consti-

tutionally overinclusive manner.

We conclude that the statute is substantially over-

broad in that it places significant burdens on Web

publishers’ communication of speech that is consti-

tutionally protected as to adults and adults’ ability to

access such speech. In so doing, COPA encroaches

upon a significant amount of protected speech beyond

that which the Government may target constitutionally

in preventing children’s exposure to material that is

obscene for minors. See Ginsberg, 390 U.S. at 639-43, 88

S. Ct. 1274; see also, e.g., Sable, 492 U.S. at 126, 109 8.

Ct. 2829; Erznoznik v. City of Jacksonville, 422 U.S.

205, 212-14, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975).

1. “Materia! Harmful to Minors”

First, COPA’s definition of “material harmful to

minors” impermissibly places at risk a wide spectrum of

speech that is constitutionally protected. As we have

discussed in our strict scrutiny analysis, two of the

three prongs of the “harmful to minors” test—the

“serious value” and “prurient interest” prongs— con-

tain requirements that material be “taken as a whole.”

See 47 U.S.C. § 231(e)(6)(C). We have earlier explained

that the First Amendment requires the consideration of

context. COPA’s text, however, as we have interpreted

it, see Part II. A. (a), supra, calls for evaluation of “any

material” on the Web in isolation. Such evaluation in

isolation results in significant overinclusiveness. Thus,

an isolated item located somewhere on a Web site that

meets the “harmful to minors” definition can subject

52a

the publisher of the site to liability under COPA, even

though the entire Web page (or Web site) that provides

the context for the item would be constitutionally

protected for adults (and indeed, may be protected as to

minors).

An examination of the claims of certain amici curiae

that COPA threatens their speech illustrates this pro-

blem. For example, amicus California Museum of

Photography/University of California at Riverside,

maintains a Web site that, among other things, displays

artwork from the museum’s collection. The Web site

contains a page that introduces the “photographers”

section of the Web site. See California Museum of

Photography/University of California at Riverside,

UCR/CMP Photographers, at http://www.cmp.ucr.edu/

photos/photographers.html (last visited Feb. 6, 2003).

This Web page contains several photographs, each

which serves as a link to that museum’s on-line exhibit

on a particular photographer. One of these photo-

graphs on the introductory page, by Lucien Clergue,

links to the museum’s exhibit of his work. This photo-

graph is of a naked woman whose “post-pubescent

female breast,” 47 U.S.C. § 231(e)(6)(B), is exposed.

Viewing this photograph “as a whole,” but without

reference to the surrounding context, as per COPA’s

definition of “material,” the photograph arguably meets

the definition of “harmful to minors.” Yet, this same

photograph, when treated in context as a component of

the entire Web page, cannot be said to be “harmful to

minors.” In the context of the Web page, which dis-

The Web site page can be reached by accessing the museum’s

main Web page at http:/hvww.cmp.ucr.edu and then by clicking on

a link marked “photographers.”

53a

plays several art exhibits, none of which are even

arguably “harmful to minors,” the Clergue photograph

and its surroundings would have “serious [artistic]

value.” Of course, it would also be protected speech as

to adults.“

As another example, amicus Safer Sex Institute

publishes a Web site that contains sexual health and

educational materials. On one page of this Web site is a

textual description of how to use a condom with accom-

panying graphic drawings. See Safer Sex Institute,

safersex / a journal of safer sex, http://safersex.org/

condoms/how.to.use/ (last visited Feb. 6, 2003). The

page lists six steps for properly using a condom. Next

to this text are four drawings that detail how to place a

condom on the penis and how to remove it after sex.

Three of these drawings each “exhibit[ ] . . . the geni-

tals.” 47 U.S.C. § 231(e)(6)(B). An evaluation of any of

these three drawings alone, all of which depict an erect

% Another such example is noted in the American Society of

Journalists’ amicus brief. See Br. of Amici Curiae American

Society of Journalists and Authors et al. at 23 n. 19. The American

Society points to the work of photographer Paul Outerbridge as

displayed on the J. Paul Getty Museum Web site. The Web site

includes a Web page featuring a discussion of Outerbridge and

containing three small photographs, one of which is entitled Wo-

man with Meat Packer’s Gloves.” See J. Paul Getty Museum, Paul

Outerbridge (Getty Museum), http://www.getty.edu/art/collections

[bi0/a1971-1.html (last visited Feb. 6, 2003). The museum

describes this photograph as a (“disturbing image of a [naked]

woman piercing her own breast and abdomen with the sharp tips

of meat packer’s gloves.”). This photograph in isolation arguably

meets COPA’s “harmful to minors” definition. When viewed in the

context of the Web page discussing the artist and displaying his

other art work, however, this image, as a component of the Web

page in its entirety, does not meet the “harmful to minors”

54a

penis “as a whole,” might lead to the conclusion that

they fit the “harmful to minors” standard. Yet, these

same drawings, viewed in the larger context of the Web

page, which provides instruction on the proper use of a

condom, is protected speech as to adults.” We also note

that the same Web page provides links to other

information within the same Web site of potential

importance to adults (and possibly certain minors)

regarding safe sex.

As these examples illustrate—and they are but a few

of the very many produced by the plaintiffs and the

amici—the burden that COPA would impose on

harmless material accompanying such single images

causes COPA to be substantially overinclusive.

2. “Minor”

As we have earlier explained, the term “minor”

appears in all three prongs of the statute’s modified-for-

minors Miller test. COPA’s definition of a “minor” as

any person under the age of seventeen serves to place

at risk too wide a range of speech that is protected for

adults. The type of material that might be considered

harmful to a younger minor is vastly different—and

encompasses a much greater universe of speech—than

material that is harmful to a minor just shy of seven-

teen years old.

Thus, for example, sex education materials may have

“serious value” for, and not be “patently offensive” as

to, sixteen-year-olds. The same material, however,

might well be considered “patently offensive” as to, and

3% Indeed, though we do not reach this issue, we note that this

speech may not even be obscene as to minors, at least as to older

minors, because it arguably has “serious value” for them.

55a

without “serious value” for, children aged, say, ten to

thirteen, and thus meet COPA’s standard for material

harmful to minors.

Because COPA’s definition of “minor” therefore

broadens the reach of “material that is harmful to

minors” under the statute to encompass a vast array of

speech that is clearly protected for adults—and indeed,

may not be obscene as to older minors—the definition

renders COPA significantly overinclusive.”

We also consider the use of the term “minor,” as incorporated

in COPA’s definition of “material that is harmful to minors,” to be

impermissibly vague. A statute is void for vagueness if it “forbids

— the doing of an act in terms so vague that [persons] of common

intelligence must necessarily guess at its meaning and differ as to

its application.” Connally v. General Constr. Co., 269 U.S. 385, 391,

46 S.Ct. 126, 70 L.Ed. 322 (1926). “(S}tandards of permissible statu-

tory vagueness are strict in the area of free expression. . . The

objectionable quality of vagueness and overbreadth does not de-

pend upon absence of fair notice to a criminally accused or upon

unchanneled delegation of legislative powers, but upon the danger

of tolerating, in the area of First Amendment freedoms, the exis-

tence of a penal statute susceptible of sweeping and improper

application.” Button, 371 U.S. at 432-33, 83 S. Ct. 328. See also

Reno I, 521 U.S. at 871-72, 117 S. Ct. 2329 (because the CDA was

“a content-based regulation of speech,” its “vagueness . . .

raise[d] special First Amendment concerns because of its obvious

chilling effect on free speech”). COPA’s definition of “minor”

includes all children under the age of seventeen, as we have noted.

Because the statute’s definition of minor is all-inclusive, and

provides no age “floor,” a Web publisher will be forced to guess at

the bottom end of the range of ages to which the statute applies.

The fearful Web publisher therefore will be forced to assume, and

conform his conduct to, the youngest minor to whom the statute

conceivably could apply. We cannot say whether such a minor

would be five years of age, three years, or even two months.

Because we do not think a Web publisher will be able to make such

a determination either, we do not think that they have fair notice

56a

3. “Commercial Purposes”

COPA’s purported limitation of liability to persons

making communications “for commercial purposes”

does not narrow the sweep of COPA sufficiently. In-

stead, the definition subjects too wide a range of Web

publishers to potential liability. As we have explained,

under the plain language of COPA, a Web publisher

will be subjected to liability due to the fact that even a

small part of his or her Web site has material “harmful

to minors.” Furthermore, because the statute does not

require that a Web publisher seek profit as a sole or

primary objective, COPA can reach otherwise non-com-

mercial Web sites that obtain revenue through ad-

vertising. We have explored this subject in greater

detail in the strict scrutiny section of this opinion. The

conclusion we reach there is every bit as relevant here.

4. Affirmative Defenses

The affirmative defenses do not save the statute from

sweeping too broadly. First, the affirmative defenses, if

employed by Web publishers, will result in a chilling

effect upon adults who seek to view, and have a right to

access, constitutionally protected speech. Compliance

with COPA’s affirmative defenses requires that Web

publishers place obstacles in the way of adults seeking

to obtain material that may be considered harmful to

minors under the statute. As the District Court found,

these barriers, which would require adults to identify

of what conduct would subject them to criminal sanctions under

COPA. As a result of this vagueness, Web publishers will be de-

terred from engaging in a wide range of constitutionally protected

speech. The chilling effect caused by this vagueness offends the

Constitution.

57a

themselves as a precondition to accessing disfavored

speech, are likely to deter many adults from accessing

that speech.

Second, the affirmative defenses impose a burden on

Web publishers, and as such, do not alleviate the chil-

ling effect that COPA has on their speech. Web pub-

lishers will be forced to take into account the chilling

effect that COPA’s affirmative defenses have on adult

Web users. Consequently, COPA will cause Web

publishers to recoil from engaging in such expression at

all, rather than availing themselves of the affirmative

defenses. Additionally, the financial costs of imple-

menting the barriers necessary for compliance with

COPA may further deter some Web publishers from

posting protected speech on their Web sites.

Moreover, because the affirmative defenses are not

included as elements of the statute, Web publishers are

saddled with the substantial burden of proving that

their “conduct falls within the affirmative defense.”

Free Speech Coalition, 122 S. Ct. at 1404.

Thus, the affirmative defenses do not cure nor

diminish the broad sweep of COPA sufficiently.

5. “Community Standards”

As the Supreme Court has now explained, com-

munity standards by itself did not suffice to render

COPA substantially overbroad. Justice Kennedy’s

concurring opinion, however, explained that community

standards, in conjunction with other provisions of the

statute, might render the statute substantially over-

broad. See Ashcroft, 122 S.Ct. at 1720 (Kennedy, J.,

concurring) (“We cannot know whether variation in

community standards renders the Act substantially

58a

overbroad without first assessing the extent of the

speech covered and the variations in community stan-

dards with respect to that speech.”).

As we have just discussed earlier, the expansive

definitions of “material harmful to minors” and “for

commercial purposes,” as well as the burdensome affir-

mative defenses, likely render the statute substantially

overbroad. COPA's application of “community stan-

dards” exacerbates these constitutional problems in

that it further widens the spectrum of protected speech

that COPA affects. As we said in our original decision,

“COPA essentially requires that every Web publisher

subject to the statute abide by the most restrictive and

conservative state’s community standards in order to

avoid criminal liability.“ Reno III, 217 F.3d at 166; see

also Ashcroft, 122 S. Ct. at 1719 (Kennedy, J., con-

curring) (“if an eavesdropper in a more traditional,

rural community chooses to listen in, there is nothing

the publisher can do. As a practical matter, COPA

makes the eavesdropper the arbiter of propriety on the

Web.”).

The “community standards” requirement, when

viewed in conjunction with the other provisions of the

statute—the “materia! harmful to minors” provision

and the “commercial ” provisions, as well as

the affirmative defenses—adds to the already wide

range of speech swept in by COPA. Because the

community standards inquiry further broadens the

scope of speech covered by the statute, the limitations

that COPA purports to place on its own reach are that

much more ineffective.

59a

6. Unavailability of Narrowing Construction

Before concluding that a statute is overbroad, we are

required to assess whether it is subject to “a narrowing

construction that would make it constitutional.” Vir-

ginia v. American Booksellers Ass n, 484 U.S. 383, 397,

108 S. Ct. 636, 98 L.Ed.2d 782 (1988). We may impose

such a narrowing construction, however, “only if it is

readily susceptible to such a construction,” Reno J, 521

U.S. at 884, 117 S. Ct. 2329, because courts “will not

rewrite a. . law to conform it to constitutional

requirements.” American Booksellers, 484 U.S. at 397,

108 S.Ct. 636. As the Supreme Court once noted, “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, 23 L. Ed. 563 (1875).

We originally declined to redraw COPA when we

held that the “contemporary community standards”

rendered the statute overbroad; we certainly decline to

perform even more radical surgery here. In order to

satisfy the constitutional prerequisites consistent with

our holding today, we would be required, inter alia, to

redraw the text of “commercial purposes” and redraw

the meaning of “minors” and what is “harmful to

minors,” including the reach of “contemporary com-

munity standards.” We would also be required to

redraw a new set of affirmative defenses. Any attempt

to resuscitate this statute would constitute a “serious

invasion of the legislative domain.” United States v.

60a

National Treasury Employees Union, 513 U.S. 454, 479

n. 26, 115 S. Ct. 1003, 130 L.Ed.2d 964 (1995).

* * * * * *

Accordingly, we hold that the plaintiffs will more

probably prove at trial that COPA is substantially

overbroad, and therefore, we will affirm the District

Court on this independent ground as well.

III.

This appeal concerns the issuance of a preliminary

injunetion pending the resolution of the merits of the

case. Because the ACLU will likely succeed on the

merits in establishing that COPA is unconstitutional

because it fails strict scrutiny and is overbroad, we will

affirm the issuance of a preliminary injunction.

APPENDIX A

CHILD ONLINE PROTECTION ACT

47 U.S.C. § 231

Restriction of access by minors to materials com-

mercially distributed by means of world wide web that

are harmful to minors

(a) Requirement to restrict access

(1) Prohibited conduct

Whoever knowingly and with knowledge = the

character of the material, in interstate or foreign

commerce by means of the World Wide Web, makes

any communication for commercial purposes that is

available to any minor and that includes any material

6la

that is harmful to minors shall be fined not more than

$50,000, imprisoned not more than 6 months, or both.

(2) Intentional violations

In addition to the penalties under paragraph (1),

whoever intentionally violates such paragraph shall be

subject to a fine of not more than $50,000 for each

violation. For purposes of this paragraph, each day of

violation shall constitute a separate violation.

(3) Civil penalty

In addition to the penalties under paragraphs (i) and

(2), whoever violates paragraph (1) shall be subject to a

civil penalty of not more than $50,000 for each violation.

For purposes of this paragraph, each day of violation

shall constitute a separate violation.

(b) Inapplicability of carriers and other service

providers

For purposes of subsection (a), a person shall not be

considered to make any communication for commercial

purposes to the extent that such person is-

(1) a telecommunications carrier engaged in

the provision of a telecommunications service;

(2) a person engaged in the business of pro-

viding an Internet access service;

(3) a person engaged in the business of pro-

viding an Internet information location tool; or

(4) similarly engaged in the transmission,

storage, retrieval, hosting, formatting, or transla-

tion (or any combination thereof) of a communica-

tion made by another person, without selection or

62a

alteration of the content of the communication,

except that such person’s deletion of a particular

communication or material made by another person

in a manner consistent with subsection (c) or section

230 shall not constitute such selection or alteration

of the content of the communication.

(1) Defense

It is an affirmative defense to prosecution under

this section that 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

feasible under available technology.

(2) Protection for use of defenses

No cause of action may be brought in any court or

administrative agency ? zainst any person on account

of any activity that is not in violation of any law pun-

ishable by criminal or civil penalty, and that the

person has taken in good faith to implement a defense

authorized under this subsection or otherwise to re-

strict or prevent the transmission of, or access to, a

communication specified in this section.

(d) Privacy protection requirements

63a

(1) -Disclosure of information limited

A person making a communication described in

subsection (a)

(A) shall not disclose any information collected

for the purposes of restricting access to such

communications to individuals 17 years of age or older

without the prior written or electronic consent of—

(i) the individual concerned, if the individual is

an adult; or

(ii) the individual's parent or guardian, if the

individual is under 17 years of age; and

(B) shall take such actions as are necessary to

prevent unauthorized access to such information by a

person other than the person making such com-

munication and the recipient of such communication.

(2) Exceptions

A person making a communication described in

subsection (a) may disclose such information if the

disclosure is—

(A) necessary to make the communication or

conduct a legitimate business activity related to

making the communication; or

(B) made pursuant to a court order

authorizing such disclosure.

(e) Definitions

For purposes of this subsection, the following

definitions shall apply:

(1) By means of the world wide web

64a

The term “by means of the World Wide Web”

means by placement of material in a computer

server-based file archive so that it is publicly

accessible, over the Internet, using hypertext

transfer protocol or any successor protocol.

(2) Commercial purposes; engaged in the business

(A) Commercial purposes

A person shall be considered to make a com-

munication for commercial purposes only if such

person is engaged in the business of making such

communications.

(B) Engaged in the business

The term “engaged in the business” means 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). A person

may be considered to be engaged in the business

of making, by means of the World Wide Web,

communications for commercial purposes that

include material that is harmful to minors, only if

the person knowingly causes the material that is

harmful to minors to be posted on the World Wide

Web or knowingly solicits such material to be

posted on the World Wide Web.

(3) Internet

The term “Internet” means the combination of

computer facilities and electromagnetic transmission

media, and related equipment and software

— — * world-wide network of

puter networks that employ the Transmissi

Control Protocol/Internet Protocol or any —

protocol to transmit information.

(4) Internet access service

The term Internet access service“ means a

service that enables users to access content

information, electronic mail, or other services offered

over the Internet, and may also include access to

proprietary content, information, and other services

as part of a package of services offered to consumers.

Such term does not include telecommunications

services.

(5) Internet information location tool

The term “Internet information location tool”

means a service that refers or links users to an online

— on the World Wide Web. Such term includes

lrectories, indices, references, pointe

— p rs, and

(6) Material that is harmful to minors

The term “material that is harmful to minors”

means any communication, picture, image, graphic

image file, article, recording, writing, or other matter

of any kind that is obscene or that—

(A) the average person, applying contem-

porary community standards, would find, taking

the material as a whole and with respect to

66a

minors, is designed to appeal to, or is designed to

pander to, the prurient interest,

(B) depicts, describes, or represents, in a

manner patently offensive with respect to minors,

an actual or simulated sexual act or sexual contact,

an actual or simulated normal or perverted sexual

act, or a lewd exhibition of the genitals or post-

pubescent female breast; and

artistic, political, or scientific value for minors.

(7) Minor

The term “minor” means any person under 17

years of age.

67a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-1324

AMERICAN CIVIL LIBERTIES UNION;

ANDROGYNY BOORS, INC. D/B/A A DIFFERENT

LIGHT BOOKSTORES; "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;

POWELL’ 8 BOOKSTORE: RIOTGRRL;

SALON INTERNET, INC.; WEST STOCK, INC.;

PLANETOUT CORPORATION

Vv.

JANET RENO, IN HER OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE UNITED STATES,

APPELLANT

[Argued: Nov. 4, 1999

Opinion filed: June 22, 2000]

Before: NYGAARD, MCKEE Circuit Judges and

GARTH, Senior Circuit Judge

68a

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal “presents a conflict between one of

aii anak cherished rights—freedom of

expression—and one of the government 8 most pro-

found obligations the protection of minors. —

can Booksellers v. Webb, 919 F.2d 1493, 1495 (11th ir.

1990). The government challenges the District — 8

issuance of a preliminary injunetion which prevents the

enforcement of the Child Online Protection Act, Pub. :

No. 105-277, 112 Stat. 2681 (1998) (codified at 47 US.

§ 231) (“COPA”), enacted in October of 1998. At issue

is COPA’s constitutionality, a statute designed to

protect minors from “harmful material measured ny

“contemporary community standards —

posted on the World Wide Web (“W eb”) for commercia

purposes.’

ill affirm the District Court’s grant of a pre-

14 —ů because we are confident that the

ACLU’s attack on COPA’s constitutionality is likely to

succeed on the merits. Because material posted on the

Web is accessible by all Internet users worldwide, and

because current technology does not permit a Web

publisher to restrict access to its site based on the geo-

. e District Court exercised subject matter jurisdiction

wai to the general federal question statute, 28 =

§ 1331. This court exercises appellate jurisdiction pursuant |

28 U.S.C. § 1292(a)(1), which provides a court of appeals — —

diction over appeals from “[iJnterlocutory orders of the istri

courts of the United States . . granting, continuing, modifying,

refusing, or dissolving injunctions . . * except where a direet

review may be had in the Supreme Court.

69a

graphic locale of each particular Internet user, COPA

essentially requires that every Web publisher subject

to the statute abide by the most restrictive and con-

servative state’s community standards in order to avoid

criminal liability. Thus, because the standard by which

COPA gauges whether material is “harmful to minors”

is based on identifying “contemporary community stan-

dards,” the inability of Web publishers to restrict

access to their Web sites based on the geographic locale

of the site visitor, in and of itself, imposes an imper-

missible burden on constitutionally protected First

Amendment speech.

In affirming the District Court, we are forced to rec-

ognize that, at present, due to technological limitations,

there may be no other means by which harmful

material on the Web may be constitutionally restricted,

although, in light of rapidly developing technological

advances, what may now be impossible to regulate

constitutionally may, in the not-too-distant future,

become feasible.

I. BACKGROUND

COPA was enacted into law on October 21, 1998.

Commercial Web publishers subject to the statute that

distribute material that is harmful to minors are re-

quired under COPA to ensure that minors do not access

the harmful material on their Web site. COPA is

Congress’s second attempt to regulate the dissemina-

tion to minors of indecent material on the Web/

Internet. The Supreme Court had earlier, on First

Amendment grounds, struck down Congress’s first

endeavor, the Communications Decency Act, (“CDA”)

which it passed as part of the Telecommunications Act

70a

8. 844, 117 S. Ct.

f 1996.2 See Reno v. ACLU, 521 U. 4,

2829 138 L. Ed.2d 874 (1997) (“Reno IT ). To —

understand the current challenge to COPA, it is neces

sary for us to briefly examine the CDA.

A. CDA

DA prohibited Internet users from using the

4 to — material that, 8 =

temporary community standards, would be —

patently offensive to minors under the age of eig —

See Reno II, 521 U.S. at 859-60, 117 S. Ct. 2329. In

2 For ease of reference the various applicable — me

referred to as follows: ACLU v. Reno, 929 F. Supp. 4 —

n a 2 — “Reno

844, 117 S. Ct. 2329, 138 L. 4 (1997),

2 down the CDA as — — — —

. Supp.2d 473 (E. D. Pa. 1999), herei ifter

—— appeal addressing eo tutionality of COPA). 8

3 The Communications Decency Act, 47 U.S.C. §

provides that:

Whoever— |

i) in interstate or foreign communications know-

ingly—” | ;

“(A) uses an interactive computer service to send a

specific person or persons under 18 years of age, or”

» uses any interactive computer service to display in “

aan — te a person under 18 years of 5 any —

ment, request, suggestion, proposal, image, or — r —

cation that, in context, depicts or describes, in — pa

offensive as measured by contemporary community —

sexual or excretory activities or organs, regardless — eo

the user of such service placed the call or initia

communication; or

71a

restrieting Internet users, the CDA provided two af-

firmative defenses to prosecution; (1) the use of a credit

card or other age verification system, and (2) any good

faith effort to restrict access by minors. See id. at 860,

117 S. Ct. 2329. In holding that the CDA violated the

First Amendment, the Supreme Court explained that

without defining key terms the statute was urconsti-

tutionally vague. Moreover, the Court noted that the

breadth of the CDA was “wholly unprecedented” in

that, for example, it was “not limited to commercial

speech or commercial entities . . but rather] [iJts

open-ended prohibitions embrace all nonprofit entities

and individuals posting indecent messages or displaying

them on their own computers.” Id. at 877, 117 S. Ct.

2329.

Further, the Court explained that, as applied to the

Internet, a community standards criterion would effec-

tively mean that because all Internet communication is

made available to a worldwide audience, the content of

the conveyed message will be judged by the standards

of the community most likely to be offended by the

content. See id. at 877-78. Finally, with respect to the

affirmative defenses authorized by the CDA, the Court

concluded that such defenses would not be economically

feasible for most noncommercial Web publishers, and

that even with respect to commercial publishers, the

technology had yet to be proven effective in shielding

“(2) knowingly permits any telecommunications facility

under such person’s control to be used for an activity

prohibited by paragraph (1) with the intent that it be used for

such activity”

“shall be fined under Title 18, or imprisoned not more than

two years, or both.”

72a

i 881. As a

minors from harmful material. See id. at 88

result, the Court held that the CDA was not tailored so

narrowly as to achieve the government's compelling

interest in protecting ninors, and that it lacked the

precision that the First Amendment requires when a

id. at 874.

statute regulates the content of speech. See id.

See also United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803, 120 8. Ct. 1878, 146 L.Ed.2d

865 (U.S. 2000).

B. COPA

“address[ |

COPA, the present statute, attempts to sl

the specific concerns raised by the Supreme Court —

invalidating the CDA. H.R. REP. No. 105-775 at

(1998); See S.R. REP. No. 105-225, at 2 (1998). COPA

prohibits an individual or entity from:

knowingly and with knowledge of the character o

the moe A in interstate or foreign commerce by

means of the World Wide Web, makling any =

munication for commercial purposes that is availabl

to any minor and that includes any material that is

harmful to minors. f

its

47 U.S.C. S 231(a)(1) (emphasis added). As part of!

attempt to cure the constitutional defects found in the

CDA, Congress sought to define most of COPA's key

terms. COPA attempts, for example, to restrict its

scope to material on the Web rather than on the Inter-

net as a whole: to target only those Web com-

0 COPA defines the clause by means of the World Wide Web”

as the “placement of material in a computer server-baseu file

archive so that it is publicly accessible, over the Internet, ——

hypertext transfer protocol or any successor protocol. 47 .

§ 231(e)(1).

73a

munications made for “commercial purposes“; and to

limit its scope to only that material deemed “harmful to

minors.”

Under COPA, whether material published on the

Web is “harmful to minors” is governed by a three-part

test, each of which must be found before liability can

attach:

(A) the 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;

® COPA defines the clause “commercial purposes” as those

individuals or entities that are “engaged in the business of making

such communications.” 47 U.S.C. § 231(e)(2)(A). In turn, COPA

defines a person “engaged in the business” as one

who makes a communication, or offers to make a communi-

cation, 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).

Id. § Sieg).

In the House Report that accompanied the bill that even-

tually became COPA, this “harmful to minors” test attempts to

conform to the standards identified by the Supreme Court in

Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L.Ed.2d 195

(1968), as modified by Miller v. California, 413 U.S. 15, 98 S. Ct.

2607, 37 L.Ed.2d 419 (1973) in identifying “patently offensive”

material. See H.R. REP. NO. 105-775, at 13 (1998).

74a

(B) depicts, describes, or represents, in a manner

patently offensive with respect to minors, an actual

or simulated sexual act or sexual contact, an actual

or simulated normal or perverted sexual act, or a

lewd exhibition of the genitals or post-pubescent

female breast; and

artistic, political, or scientific value for minors.

47 U.S.C. § 231(e)(6) (emphasis added) The parties

conceded at oral argument that this “contemporary

community standards” test applies to those com-

munities within the United States, and not to foreign

communities. Therefore, the more liberal community

standards of Amsterdam or the more restrictive com-

munity standards of Tehran would not impact upon the

analysis of whether material is “harmful to minors”

under COPA.

COPA also provides Web publishers subject to the

statute with affirmative defenses. If a Web publisher

“has restricted access by minors to material that is

harmful to minors” through the use of a “credit card,

debit account, adult access code, or adult personal

identification number . . . a digital certificate that

verifies age or by any other reasonable measures

that are feasible under available technology,” then no

liability will attach to the Web publisher even if a minor

should nevertheless gain access to restricted material

Under COPA, a minor is defined as one under age seven-

teen. See 47 U.S.C. § 231(eX7).

75a

under COPA. 47 U.S.C. § 231(c)(1).2. COPA violators

face both criminal (maximum fines of $50,000 and a

— prison term of six months, or both) and civil

. —

— —＋ uP to $50,000 for each day of violation)

C. Overview of the Internet and the World Wide Web

In recent years use of the Internet and the Web has

become increasingly common in mainstream society.

Nevertheless, because the unique character of these

new electronic media significantly affect our opinion

today, we briefly review their relevant elements.“

The Internet is a decentralized, self-maintai

networking system that links computers and —

networks around the world, and is capable of quickly

transmitting communications. See American Libraries

Ass'n v. Pataki, 969 F. Supp. 160, 164 (S. D. N. v. 1997);

ACLU v. Reno, 31 F. Supp. 24 473, 481 (E.D. Pa. 1999)

( Reno HT”). Even though the Internet appears to be a

“single, integrated system” from a user’s perspective

in fact no single organization or entity controls the

Internet. ACLU v. Reno, 929 F. Supp. 824, 838 (E. D

Pa. 1996) (“Reno I”); Reno III, 31 F. Supp.2d at 484. As

® The defense also applies if an individual i

é : tity attempts

“in good faith to implement a defense” listed 4 ab

See ense above. See id.

An individual found to have intentionally vi

iv violated COPA also

faces an additional fine of not more than $50

* * f

„ See 47 U.S.C. § 231(a)(2). 3

For more thorough descriptions of the Internet and

the Web

Hy e.g., Reno I, 929 F. Supp. 824, 830-45; Reno II, 521 U.S. 844, 117

Ct. 2329, 138 L.Ed.2d 874; American Libraries Ass’n u Pataki

969 F. Supp. 160, 164-67 (S.D.N.Y. 1997); Hearst Corp. v. Gold.

berger, 1997 WL 97097 *1 (S.D.N.Y. Feb. 26, 1997) (citing cases).

76a

a result, there is no “centralized point from which

individual Web sites or services can be blocked from

the Web.” Jd. Although estimates are difficult because

of the Internet’s rapid growth, it was recently esti-

mated that the Internet connects over 159 countries

and more than 109 million users. See ACLU v.

Johnson, 194 F.3d 1149, 1153 (10th Cir. 1999).

The World Wide Web is a publishing forum con-

sisting of millions of individual “Web sites” each

containing information such as text, images, illustra-

tions, video, animation or sounds provided by that site’s

creator. See American Libraries, 969 F. Supp. at 166.

Some of these Web sites contain sexually explicit

material. See Reno III, 31 F. Supp.2d at 484. As a

publishing forum, the Web is the best known method of

communicating information online. See id. Information

is said to be published on the Web as soon as it is made

available to others by connecting the publisher’s com-

puter to the Internet. See Reno I, 929 F. Supp. at 844;

Reno III, 31 F. Supp.2d at 483. Each site is connected

to the Internet by means of certain protocols that

permit “the information to become part of a single body

of knowledge accessible by all Web visitors.” American

Libraries, 969 F. Supp. at 166; Reno III, 31 F. Supp.2d

at 483." As a part of this unified body of knowledge,

1 A user who wishes to access the Web resources employs a

“browser.” Browser software—such as Netscape Navigator,

Mosaic, or Internet Explorer—enables the user to display, print,

and download documents that are formatted in the standard Web

formatting language. See American Libraries, 969 F. Supp. at 166.

The Web “uses a ‘hypertext’ formatting language called hypertext

markup language (HTML), and programs that ‘browse’ the Web

can display HTML documents containing text, images, sound,

animation and moving video stored in many other formats

77a

Web pages are all linked together so that the Internet

user can freely move from one Web page to another by

“clicking” ona “link.” See id. Because the Internet has

an “international, geographically-borderless nature,“

with the proper software every Web site is accessible

to all other Internet users worldwide. See American

Libraries, 969 F. Supp. at 166; Reno J. 929 F. Supp. at

837; Reno III, 31 F. Supp.2d at 483-84. Indeed, the

Internet “negates geometry . . . it is fundamentally

and profoundly anti-spatial. You cannot say where it is

or describe its memorable shape and proportions or tell

a stranger how to get there. But you can find things in

it without knowing where they are. The [ Internet] is

ambient—nowhere in particular and everywhere at

— Doe v. Roe, 191 Ariz. 313, 955 P. 2d 951, 956

It is essential to note that under current technol

Web publishers cannot prevent [their site’s] —

from entering any geographic community.“ Reno III,

31 F. Supp.2d at 484. As such, Web publishers cannot

prevent Internet users in certain geographic locales

from accessing their site; and in fact the Web publisher

will not even know the geographic location of visitors to

its site. See American Libraries, 969 F. Supp. at 171.

Similarly, a Web publisher cannot modify the content of

its site so as to restrict different geographic commun-

les to access of only certain portions of their site.

(Hyperlinks) allow information to be accessed and o i

rganized in

very flexible ways, and allow individuals to locate and efficiently

view related information even if the information is stored on

numerous computers all around the world.” R

5 =o eno III, 31

2 People v. Barrows, 177 Misc.2d 712

ar. 18 , 729, 677 N. Y. S. 2d 672

78a

Thus, once published on the Web, existing technology

does not permit the published material to be restricted

to particular states or jurisdictions.

D. Procedural History

On October 22, 1998, the day after COPA was

enacted, the American Civil Liberties Union (“ACLU”)

brought the present action in the United States District

Court for the Eastern District of Pennsylvania, chal-

lenging COPA’s constitutionality and seeking to enjoin

its enforcement.” After granting a temporary re-

straining order against enforcement of the law on

November 20, 1998, the District Court held extensive

evidentiary hearings which, on February 1, 1999, re-

sulted in the entry of a preliminary injunction pre-

venting the government from enforcing COPA.

E. District Court’s Findings of Fact

After five days of testimony, the District Court

rendered sixty-seven separate findings of fact con-

cerning the Internet, the Web, and COPA’s impact on

speech activity in this relatively-new medium. See

Reno III, 31 F. Supp.2d at 482-92. It bears noting that

none of the parties dispute the District Court’s findings

(including those describing the Internet and the Web),

nor are any challenged as clearly erroneous. Thus, we

accept these findings.

The District Court first rendered findings concerning

the physical medium known as the Internet, which it

18 Other parties joined the ACLU in asserting the unconsti-

tutionality of COPA. For ease of reference, we will refer to all

party-plaintiffs as “ACLU” throughout this opinion.

79a

recognized consisted of many different m

ys only one of which is the — Wise

pay! See Reno III. 31 F. Supp. 2d at 482-83. It found

lolnee a provider posts its content on the Internet

and chooses to make it available to all, it generall

cannot prevent that content from entering an 4

graphical community.” Id. 9

The Court then made findings as to the co

0 sts

— COPA imposes on Web publishers and on —

7 ults who seek access to sites covered by COPA. See

— III, 31 F. Supp. 2d at 482-492. As observed earlier

the statute provides for a limited number of defense ö

for Web publishers. See 47 U.S.C. § 231( e).“ The Court

found that as a technological matter the only affir-

mative defenses presently available are the imple-

— of eredit card or age verification systems

: cause there is no currently functional digital certi-

cate or other reasonable means to verify age. S

Reno III, 31 F. Supp. 2d at 487 m

With respect to the credit e

ard option, th

found that the cost to Web publishers could 14 —

1 The statute provides:

— — ——— defense to prosecution under this section

e de endant, in good faith, has restricted access b

minors to material that is harmful to minors— N

(A) by requiring use of a credit i

card, debit account, ad

access code, or adult personal identification number, *

(B) by accepting a digital certificate that verifies age; or

under available 1 measures that are feasible

See 47 U.S.C. § 231(c).

80a

$300 to “thousands of dollars” (exclusive of transaction

fees incurred from each verification). Id. at 488. These

costs were also exclusive, according to the court, of the

labor and energy that would be required of the Web

publisher to implement such a system. Id. This labor

and energy would include reorganizing a particular

Web site to ensure that material considered “harmful to

minors” could only be accessed after passing through a

credit card or other age verification system. See id. at

490. With this in mind, the court found, for example,

that textual material that consisted primarily of non-

sexual material, but also included some content that

was “harmful to minors” would also be subject to such

age verification systems. See id.

As for age verification systems, the District Court’s

findings were more optimistic. The court found that a

Web publisher “can sign up for free with Adult Check

(one company providing such a service] to accept Adult

Check PINs, and a Web site operator can earn com-

missions of up to 50% to 60% of the fees generated by

their] users.” Id. at 489. The District Court also

downplayed the cost (both in price and in energy) that

would be incurred by the individual seeking to access

“harmful to minors” material on the Web, finding that

an Adult Check password could be easily purchased for

only $16.95. See id. at 490." The same burdens con-

cerning the reorganization of a particular Web site

mentioned above would, of course, equally apply to a

Web publisher that elected to utilize a PIN number for

age verification.

15 It now seems that those with a valid credit card who wish to

acquire an adult PIN may do so without cost using a Web service

such as www.freecheck.com.

8la

. Either system, according to the Distri

impose significant residual or — any

Web publishers. Most importantly, both credit —

and age verification systems require an individual

— to access material otherwise permissible to

— — be reveal personal statistics. Because many

— choose not to reveal these personal details

ose otherwise frequently visited Web sites will ex.

perience “a loss of traffic.” Jd. at 491. This loss of

traffic, in turn, would inflict “economic harm” upon the

particular Web site, thus increasing the burden th

COPA imposes. Id. J 61. r

wae the District Court considered whether volun-

27 — — filtering software was a less

i . yw to achieve th ’

— „ 1 of protecting — — l

erial on the Web. The court found that “

— may be downloaded and installed on a —

“po computer at a price of approximately $40.00.” Jd

— 1 65. The court, however, acknowledged that

ch software “is not perfect” as it is both over and

under inclusive in the bread i

blocks and filters. See id. 1 * 1.

16 We question, however, th i

. , the effectiveness of acti

—— — to supervise or block harmful — —

— ag ware. We are of the view that such actions do —

— ae ae we do not consider this to be a

err e means for the government to achieve i

pelling interest. See also n. 24 supra. But see United —

Playboy Entertainment Grou

146 L. Ed 2d 865 (2000). P, Inc. 529 U.S. 803, 120 S. Ct. 1878,

82a

E. District Court’s Conclusions of Law

Initially, the government moved the District Court to

dismiss the ACLU’s action insofar as the individuals

and entities that it purported to represent were not in

danger of prosecution under COPA and therefore

lacked standing. In particular, the government asserted

that the material placed on plaintiffs’ Web sites was not

“harmful to minors” and that each of the plaintiffs were

not “engaged in the business” of posting such material

for “commercial purposes.” See supra note 13.

The District Court interpreted COPA to impose

liability on those Web publishers who profited from

Web sites that contained some, even though not all,

material that was harmful to minors. See Reno III, 31

F. Supp.2d at 480. The court therefore concluded that

the plaintiffs could reasonably fear prosecution because

their Web sites contained material “that is sexual in

nature.” Id.

Having established plaintiffs’ standing — an analysis

with which we agree the District Court began its

First Amendment analysis by stating that insofar as

COPA prohibits Web publishers from posting material

that is “harmful to minors,” it constitutes a content-

based restriction on speech that “is presumptively

invalid and is subject to strict scrutiny.” Id. at 493

(citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112

S. Ct. 2538, 120 L.Ed.2d 305 (1992); Sable Comm. of

Calif. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 106

L.Ed.2d 93 (1989)) See also United States v. Playboy

Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct.

17 See Reno III, 31 F. Supp.2d at 479.

83a

1878, 146 L.Ed.2d 865 (2000). Pursuant to this strict

scrutiny analysis, the District Court held that COPA

placed too large a burden on protected expression. In

particular, the court found that the high economic costs

that Web publishers would incur in implementing

an age verification system would cause them to cease

publishing such material, and further, that the difficult

in accurately shielding harmful material from —

— lead Web publishers to censor more material

lan necessary. See id. at 494-95. Moreover, the

District Court believed that because of the need to use

age verification systems, adults would be deterred from

— 2 these sites, and that the resulting loss of Web

t fic would affect the Web publishers’ abilities to

continue providing such communications in the future.

The court then considered whethe

could establish that COPA was 3 —

and most narrowly tailored means to achieve its

1 objeetive. See Reno III, 31 F. Supp. 2d at

The government contends that COPA meets this

test because COPA does not“ ‘ban . . . the distri-

bution or display of material harmful to minors [but]

— requires the sellers of such material to recast

—4 message so that they are not readily available to

— — Appellant’s Brief at 27 (quoting H.R. REP.

— 5 at 6 (1998)). The court concluded, however,

: even if COPA were enforced, children would still

e able to access numerous foreign Web sites

— harmful material; that some minors legiti-

— y possess credit cards—thus defeating the effec-

: ness of this affirmative defense in restricting access

1 that COPA prohibits a “sweeping category

form of content” instead of limiting its coverage to

pictures, images and graphic image files—most often

84a

utilized by the adult industry as “teasers” Reno III, 31

F. Supp.2d at 497; and that parental blocking and

filtering technology would likely be as effective as

COPA while imposing fewer constitutional burdens on

free speech. Therefore, the District Court concluded

that COPA was not the least restrictive means for the

government to achieve its compelling objective of

protecting minors from harmful material. Id. at 492.

As a result, the court held that the ACLU had shown a

substantial likelihood of succeeding on the merits in

establishing COPA’s unconstitutionality.

In concluding its analysis, the District Court held

that losing First Amendment freedoms, even if only for

a moment, constitutes irreparable harm. See id. (citing

Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989)). And,

in balancing the interests at stake for issuing a pre-

liminary injunction, the District Court concluded that

the scale tipped in favor of the ACLU, as the govern-

ment lacks an interest in enforcing an unconstitutional

law. See id. (citing ACLU v. Reno, 929 F. Supp. 824,

849 (E. D. Pa. 1996)). Because the ACLU met its burden

for a preliminary injunction, the District Court granted

its petition.

Il. ANALYSIS

In determining whether a preliminary injunction is

warranted, we must consider:

(1) whether the movant has shown a reasonable

probability of success on the merits; (2) whether the

movant will be irreparably harmed by denial of the

relief; (3) whether granting preliminary relief will

result in even greater harm to the nonmoving

85a

party; and (4) whether granting th imi

relief will be in the public — eee

ney yy Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158

(3d Cir. 1999) (citing ACLU v. Black Horse Pike

Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir

1996) (en banc)). We review a district court’s grant of a

preliminary injunction according to a three-part stan-

dard. Legal conclusions are reviewed de novo, findings

of fact are reviewed for clear error, and the “ultimate

decision to grant or deny the preliminary injunction” is

reviewed for abuse of discretion. See Maldonado v

Houstoun, 157 F.3d 179, 183 (3d Cir. 1998), cert. denied,

526 U.S. 1130, 119 S. Ct. 1802, 143 L.Ed.2d 1007 (1999).

A. Reasonable probability of success on the merits

We begin our analysis by considerin

alys g what, for thi

case, is the most significant prong of the —

injunction test—whether the ACLU met its burden of

—— a reasonable probability of succeeding on

7 4 * — proving that COPA trenches upon the

— ndment to the United States Constitution.

— lally, we note that the District Court correctly

— that as a content-based restriction on

— 0 COPA is “both presumptively invalid and sub-

to strict scrutiny analysis.” See Reno III, 31 F

upp.2d at 493. As in all areas of constitutional strict

— jurisprudence, the government must establish

t the challenged statute is narrowly tailored to meet

+ compelling state interest, and that it seeks to protect

— in a manner that is the least restrictive of

4 — — See, e. g., Schaumburg v. Citizens for

re — nutronment, 444 U.S. 620, 637, 100 S. Ct. 826

Ed. 2d 73 (1980); Sable Comm of Calif. v. FCC, 492

86a

109 S. Ct. 2829 (1989).“ These principles

— — tte again in the Supreme 1 — 8

most recent opinion, United States v. Playboy En —

tainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, —

L. Ed. 2d 865 (2000), where the Court, concerned —

the “bleeding” of cable transmissions, held § 505 — e

Telecommunications Act of 1996 unconstitutional as

violative of the First Amendment.

t has a com-

It is undisputed that the governmen

pelling interest in protecting children from —

that is harmful to them, even if not obscene by ad t

standards. See Reno III, 31 F. Supp. 2d at 495 (eiting

, ; f

8 The Su reme Court has recognized that each medium o

expression — permit special justifications for re 3

Southeastern Promotions, Ltd. v. Conrad, 420 USS. — > -

81 r 2 — 371 (1969); FCC v.

FCC, 395 U.S. 367, 89 S. Ct. ‘ . — * —

Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L. 0

— 4 For example, broadcast media, due to the — 9 —

extensive government regulation, its invasive ———

scareity of available frequencies at its —— — —

heightened regulation. See, e. g., Turner Broadcasting — —

v. FCC, 512 U.S. 622, 637-38, 114 8. Ct. 2445, 129 L. oo

(1994); Sable Communications of Cal., Inc. v. FCC, — 1—

128, 109 S. Ct. 2829, 106 L. Ed. 2d 93 (1989). See also Aon ae

v. Playboy Entertainment Group, Inc., 529 US. ‘ —

1878. 146 L. Ed. 2d 865 (2000). However, the Supreme Court 2 —

— recognized that these same elements, which hea —

heightened regulation of Oy eat US. 844, 66, 117 S.Ct. 2829,

. See Reno v. ‘ . 844, 868, Ct.

is caso CT. The b. b. nen Doan eral

j ion. or e

— of — 2 hn See id. at 869-70, 1178. — 7

me Court held that there is no

— asta First Amendment scrutiny that should be

parm to this [cyberspace] medium.” Id. at 870, 117 S. Ct. 2329.

87a

Sable, 492 U.S. at 126, 109 S. Ct. 2829 (1989); Ginsberg

v. New York, 390 U.S. 629, 639-40, 88 S. Ct. 1274, 20

L.Ed.2d 195 (1968)). At issue is whether, in achieving

this compelling objective, Congress has articulated a

constitutionally permissible means to achieve its

objective without curtailing the protected free speech

rights of adults. See Reno III, 31 F. Supp.2d at 492

(citing Sable, 492 U.S. at 127, 109 S. Ct. 2829; Butler v.

Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 1 L.Ed.2d

412 (1957)). As we have observed, the District Court

found that it had not—holding that COPA was not

likely to succeed in surviving strict scrutiny analysis.

We base our particular determination of COPA’s

likely unconstitutionality, however, on COPA’s reliance

on “contemporary community standards” in the context

of the electronic medium of the Web to identify mate-

rial that is harmful to minors. The overbreadth of

COPA’s definition of “harmful to minors” applying a

“contemporary community standards” clause—al-

though virtually ignored by the parties and the amicus

in their respective briefs but raised by us at oral

argument—so concerns us that we are persuaded that

this aspect of COPA, without reference to its other

provisions, must lead inexorably to a holding of a likeli-

hood of unconstitutionality of the entire COPA statute.

Hence we base our opinion entirely on the basis of the

likely unconstitutionality of this clause, even though the

District Court relied on numerous other grounds.”

* As a result, we do not find it necessary to address the

District Court’s analysis of the definition of “commercial pur-

poses”; whether the breadth of the forms of content covered

by COPA could have been more narrowly tailored; whether the

affirmative defenses impose too great a burden on Web publishers

or whether those affirmative defenses should have been included

88a

i i OPA, Congress

As previously noted, in passing C ;

. to resolve all of the problems raised by the

‘udged by the standards of the community most

meaty — be otlended by the message. Reno I new

US. at 877-78, 117 S. Ct. 2329. We are not — —

that the Supreme Court's concern with — —

community standards” criterion has been sufficiently

remedied by Congress in COPA.

Previously, in addressing the mailing of ——

sexually explicit material in violation of a C 5

obscenity statute, the Supreme Court held t —

fact - finder must determine whether ‘the — = :

son, applying contemporary community — —

would find the work taken as a whole, [to appeal 2

prurient interest.” Miller v. California, 413 U.S. 15, 24,

i itself; whether COPA’s inclusion of

pew ee — civil —— was excessive; whether COPA is

designed to include communications made in chat rooms, —

groups and links to other Web sites; whether the ——

entitled to so restriet communications when children — ee

to be able to access foreign Web sites and other n anculd mean in

that is harmful to them; what taken “as a whole —

the context of the Web and the Internet, or whether = —

failure to distinguish between material that is harmful to a y

old versus a sixteen year old is — — 8

recognize that in focusing on 5 ry ¢ ,

onium ” aspect of COPA we are affirming the — — —

ruling on a ground other than that emphasized — e

Court. See PAAC v. Rizzo, 502 F. 2d 306, 308 n. 1 (1974).

89a

93 S. Ct. 2607, 37 L.Ed.2d 419 (1973) (quoting Kois v.

Wisconsin, 408 U.S. 229, 230, 92 S. Ct. 2245, 33 L.Ed.2d

312 (1972)). In response to the Supreme Court’s

criticism of the CDA, Congress incorporated into COPA

this Miller test, explaining that in so doing COPA now

“conforms to the standards identified in Ginsberg, as

modified by the Supreme Court in Miller v. California,

413 U.S. 15, 93 S. Ci. 2607, 37 L.Ed.2d 419 (1973).“ H.R.

REP. No. 105-775 at 13 (1998); 47 U.S.C. § 231(e)(6)(A).

Even in so doing, Congress remained cognizant of the

fact that “the application of community standards in the

context of the Web is controversial.” H.R. REP. No.

107-775, at 28. Nevertheless, in defending the consti-

tutionality of COPA’s use of the Miller test, the govern-

ment insists that “there is nothing dispositive about the

fact that [in COPA] commercial distribution of such

(harmful) materials occurs through an online, rather

than a brick and mortar outlet.” See Reply Brief at 18

n. 3.

Despite the government's assertion, “[e]ach medium

of expression ‘must be assessed for First Amendment

purposes by standards suited to it, for each may

present its own problems.“ Reno III, 31 F. Supp.2d at

495 (quoting Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 557, 95 S. Ct. 1239, 43 L.Ed.2d 448 (1975)).

See also United States v. Playboy Entertainment

Group, Inc., 529 U.S. 803, at ——, 120 S. Ct. 1878, 1887,

146 L.Ed.2d 865, at (2000). In considering “the

unique factors that affect communication in the new and

technology-laden medium of the Web,” we are con-

vinced that there are crucial differences between a

“brick and mortar outlet” and the online Web that

dramatically affect a First Amendment analysis. Id.

90a

Unlike a “brick and mortar outlet” with a specific

geographic locale, and unlike the voluntary physical

mailing of material from one geographic location to

another, as in Miller, the uncontroverted facts indicate

that the Web is not geographically constrained. See

Reno III, 31 F. Supp.2d at 482-92; American Libraries,

969 F. Supp. at 169 (geography, however, is a virtually

meaningless construct on the Internet”). Indeed, and of

extreme significance, is the fact, as found by the

District Court, that Web publishers are without any

Current technology prevents Web publishers from

circumventing particular jurisdictions or limiting their

site’s content “from entering any [specific] geographic

community.” Reno III, 31 F. Supp.2d at 484. This key

difference necessarily affects our analysis in attempting

to define what contemporary community standards

should or could mean in a medium without geographic

boundaries.

In expressing its concern over the wholly unpre-

cedented broad coverage of the CDA’s scope, the

Supreme Court has already noted that because of the

peculiar geography-free nature of cyberspace, a “com-

munity standards” test would essentially require every

Web communication to abide by the most restrictive

community’s standards. See Reno II, 521 U.S. at 877-

78, 117 S. Ct. 2329. Similarly, to avoid liability under

COPA, affected Web publishers would either need to

severely censor their publications or implement an age

or credit card verification system whereby any material

91a

= — — be deemed harmful by the most puritan of

— — ies in any state is shielded behind such a

— — = Shielding such vast amounts of

— — nd verification systems would prevent

— — material by any adult seventeen or

1 e necessary age verification credentials.

— . . pen completely bar access to those

— all minors under seventeen even if the

rial would not otherwise have been deemed harm-

ful“ to them i ˖

ties. n their respective geographic communi-

The government argues that subjecti

N r etin —

—— to varying community —— is hep —

onally problematic or, for that matter, unusual The

ga — — there are numerous cases —

r ave already subjected th

. — —

conduct occ

— the Supreme Court has stated chat 3

— — allegedly obscene materials may be subjected

— as —— standards in the various federal

wer cts into which they transmit the material

— 41 oes not render a federal statute unconsti-

—— — of the failure of the application of

— onal standards of obscenity.” Hamling v

United States, 418 U.S. 87, 106, 94 & Ct. 2887 41

— new ( 1974). Similarly, the government cites to

— —— cases in which the Supreme Court has

— even if the audience is comprised of different

munities with different local standards” the —

W — —— material “ultimately bears

plying with the ibiti

obscene messages” under each —— —

92a

standard. Sable Comm. of California v. F.C.C., 492

U.S. 115, 125-26, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989).

These cases, however, are easily distinguished from

the present case. In each of those cases, the defendants

had the ability to control the distribution of contro-

versial material with respect to the geographic com-

munities into which they released it. Therefore, the

defendants could limit their exposure to liability by

avoiding those communities with particularly restric-

tive standards, while continuing to provide the

controversial material in more liberal-minded communi-

ties. For example, the pornographer in Hamling could

have chosen not to mail unsolicited sexually explicit

material to certain communities while continuing to

mail them to others. Similarly, the telephone porno-

graphers (“dial-a-porn”) in Sable could have screened

their incoming calls and then only accepted a call if its

point of origination was from a community with stan-

dards of decency that were not offended by the content

of their pornographic telephone messages.”

By contrast, Web publishers have no such compar-

able control. Web publishers cannot restrict access to

their site based on the geographic locale of the Internet

user visiting their site. In fact, “an Internet user

cannot foreclose access to . . . work from certain

states or send differing versions of . . . com-

2 The Sable court found that: “Sable is free to tailor its mes-

sages, on a selective basis, if it so chooses, to the communities it

chooses to serve. While Sable may be forced to incur some costs in

developing and implementing a system for screening the locale of

incoming calls, there is no constitutional impediment to enacting a

law that may imposes such costs on a medium electing to provide

these messages.” Sable 492 U.S. at 125-26, 109 S. Ct. 2829.

93a

munication(s] to different jurisdictions . . . The Inter-

= user has no ability to bypass any particular state.”

merican Libraries Ass’n v. Pataki, 969 F. Supp 160

(S.D.N -Y. 1997). As a result, unlike telephone or postal

mail — Wee publishers of material that

= harmful to minors must “comply with the regu-

ation imposed by the State with the most stringent

ges or [entirely] forego Internet communication of

the message that might or might not subject [th

publisher] to prosecution.” Jd. .

To minimize this distinction between We

and all other forms of communication A gpm

material that is harmful to minors, the government

cites — one Sixth Circuit ease presently the only case

in wh ch a court has applied a “community standards”

— — the context of the electronic medium. See

. —s States v. Thomas, 74 F.3d 701 (6th Cir. 1996).

e 1 homas court determined that whether the

— on the defendant's eleetronie bulletin board is

— — be judged by the standards of each

ual community wherein the disputed material

was received, even if the standards in each of the

recipient communities varied one from the next, and

— if the material was acceptable in the community

from which it was sent. See id. at 711. Despite the

a medium” in which electronic bulletin boards

9 — is inapposite inasmuch as electronic

— boards, just as telephones, regular mail and

other brick and mortar outlets, are very different

creatures from that of the Web as a whole. Thomas

— recognized this difference, and by limiting its

0 ding accordingly, completely undercuts the govern-

ment's argument, stating explicitly that:

94a

Defendants and Amicus Curiae appearing on their

behalf argue that the computer technology used

here requires a new definition of community, i. e.,

one that is based on the proad- ranging connections

among people in cyberspace rather than the geo-

graphie locale of the federal judieial distriet of the

criminal trial. . . - Therefore, they contend . . .

bulletin board publishers] will be forced to censor

their material so as not to run afoul of the standards

of the community with the most restrictive stan-

dards. Defendants’ First Amendment issue, how-

ever, is not implicated by the facts of this case. This

is not a situation where the bulletin board operator

had no knowledge or control over the jurisdictions

where materials were distributed for downloading

or printing. Access to the Defendants’ [bulletin

board] was limited. Membership was necessary and

applications were submitted and screened before

passwords were issued and materials were distri-

buted. Thus, Defendants had in place methods to

limit user access in jurisdictions where the risk of a

finding of obscenity was greater than in California

» * If Defendants did not wish to subject

themselves to liability in jurisdictions with less

tolerant standards for determining obscenity, they

could have refused to give passwords to members in

those districts, thus precluding the risk of liability.

Thus, under the

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