Opposition Brief — Ashcroft v. American Civil Liberties Union

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03-218 oki 1 U Zu

IN THE

Supreme Court of the United States

> SS ~~

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES.

Petitioner,

AMERICAN CIVIL LIBERTIES UNION, ET AL..

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

ALEXANDRA A.E. SHAPIRO ANN E. BEESON

CHRISTOPHER R. HARRIS Counsel of Record

MICHELE M. PYLE CHRISTO."HER A. HANSEN

NIA CROSS STEVEN R. SHAPIRO

LATHAM & WATKINS LLP AMERICAN CIVIL LIBERTIES

885 Third Avenue UNION FOUNDATION

New York, New York 10022 125 Broad Street, 18th Floor

Of Counsel to American Civil New York, New York 10004

Liberties Foundation Sraran Panseen

LEE TIEN AMERICAN CIVIL LIBERTIES

ELECTRONIC FRONTIER UNION OF PENNSYLVANIA

FOUNDATION 125 South 9th Street, Suite 701

454 Shotwell Street Philadelphia, Pennsylvania 19107

San Francisco, California 94110 DAVID L. SOBEL

ELECTRONIC PRIVACY

INFORMATION CENTER

1718 Connecticut Ave. NW

Washington, D.C. 20009

Counsel for Respondents

QUESTION PRESENTED

Whether the Court of Appeals correctly held that the

criminal and civil provisions of the Child Online Protection

Act, 47 U.S.C. § 231, violate the First Amendment by

suppressing a large amount of speech on the World Wide

Web that adults are entitled to communicate and receive.

PARTIES TO THE PROCEEDING

The petitioner in this case is John Ashcroft, A

General of the United States. The respondents a Pesenenn

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; OBGYN.net:

Philadelphia Gay News; PlanetOut Corporation; Powell’s

Bookstore; Riotgrrl; Salon Media Group, Inc.; and West

Stock, Inc., now known as ImageState North America, Inc.

The plaintiff Internet Content Coalition is no longer in

existence.

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|

CORPORATE DISCLOSURE STATEMENT

In accordance with United States Supreme Court

Rule 29.6, respondents make the following disclosures:

(1) The parent corporation of respondent ArtNet

Worldwide Corporation is ArtNet AG.

(2) Approximately 30% of the stock of respondent

OBGYN.net is owned by MediOne, Inc., an affiliate of

Medison Co., Ltd.

(3) The parent corporation of respondent

Philadelphia Gay News is Masco Communications.

(4) PlanetOut Corporation now exists as part of

PlanetOut Partners USA, Inc., which is a subsidiary of

PlanetOut Partners, Inc. JP Morgan Partners and affiliated

entities of JP Morgan Partners together hold more than 10%

of the shares issued and outstanding of PlanetOut Partners,

Inc. AOL Time Warner Inc., which had been listed as a

major shareholder in prior stages of this litigation, does not

hold more than 10% of the shares issued and outstanding of

PlanetOut Corporation or PlanetOut Partners, Inc.

(5) The parent corporation of respondent West

Stock, Inc., which has been renamed ImageState North

America, Inc., is ImageState, PLC.

(6) Respondent Salon Internet Inc. is now known as

Salon Media Group, Inc.

(7) Respondent Internet Content Coalition no longer

exists.

il

(8) Respondent Riotgrrl hosts a Web site that is no

longer operating.

(9) The following respondents do not have parent

companies, nor do any publicly held companies own ten

percent or more of their stock: Addazi Inc. d/b/a/

Condomania, American Booksellers Foundation for Free

Expression, American Civil Liberties Union, Androgyny

Books, Inc. db/a/ A Different Light Book Stores,

Blackstripe, Electronic Frontier Foundation, Electronic

Privacy Information Center, Free Speech Media, Powell’s

Bookstore, RiotGrrl, and Salon Media Group, Inc.

iv

TABLE OF CONTENTS

| Page

QUESTION PRESENTED .............0.-c.c-scsesserscensercessonsessesesseess i

PARTIES TO THE PROCEEDING ...............cccccceceseeeeeeeeees il

CORPORATE DISCLOSURE STATEMENT ................... ili

TABLE OF CONTENTS ..........c.ecceccssessersersecceesessesesssesssesees Vv

TABLE OF AUTHORITIEG..............2.-.2.:eeeeeeeeeeee ees vill

STATEMENT OF THE CASE. ...........2...:20eeeeeeeeeeeeees |

A. The District Court’s Decision and Factual Findings... 2

1. Plaintiffs and Their Speech Affected By

En 3

2. The Impact of COPA On Communication On

a 4

3. User-Based Filtering Programs.................-+++- v4

B. The Court of Appeals’ Initial Opinion ....................+-. 8

C. This Court’s Prior Ruling .................ccsceseeeeeeeeeeeeeeees 8

D. The Court of Appeals’ Ruling On Remand................ 9

SUMMARY OF ARGUMENT .............cccccecceeseeseeeeneeeneees 10

Vv

ARGUMENT

THIS CASE DOES NOT MERIT REVIEW BECAUSE

THE DECISION BELOW APPLIES THIS COURT’S

WELL-ESTABLISED RULE THAT CONGRESS MAY

NOT CRIMINALIZE SPEECH PROTECTED FOR

ADULTS IN AN EFFORT TO PROTECT MINORS ....... 12

A. COPA Criminalizes A Wide Range Of Speech That

Is Constitutionally Protected For Adults................. 12

B. COPA Cannot Be Saved By Radical Surgery That

Would Alter Its Plain Language..........................-.+- 16

C. COPA’s Affirmative Defenses Do Not Save The

Statute, Because They Will Prevent Or Deter Adult

Web Users From Accessing A Wide Range of

NE rencccensemensssemensnmenmenmnienenenemene 18

1. COPA’s Affirmative Defenses Do Not Protect

Speakers From Prosecution for Communicating

Et crreneosiecnennsetinennnneneniintinineenmiiesites 19

2. COPA Would Require Web-Based Interactive

Chat Rooms To Restrict Speech Not Even

ee 20

3. Mandatory Registration Will Unconstitutionally

Prevent Or Deter Web Users From Accessing

ee entasttercntinnsensnnnsassmmeissiinnermunitiens 21

4. COPA’s Burdens Are Far Greater Than Those

Imposed By State Harmful-to-Minors Display

ccna india eileen ine ae 24

D. COPA Is An Ineffective Means For Achieving The

Government’s Compelling Interest, and Less

Restrictive Alternatives Are Available ...................

CONCLUSION

vii

TABLE OF AUTHORITIES

Page(s)

CASES

American Booksellers Found. for Free Expression v. Dean,

202 F. Supp. 2d 300 (D. Vt. 2002), aff'd in part, No. 02 Civ.

7785, 2003 WL 22016812 (2d Cir. Aug, 27, 2003) ......... 25

American Civil Liberties Union v. Johnson,

4 F. Supp. 2d 1029 (D.N.M. 1998), aff'd, 194 F. 3d 1149

cael 25

American Civil Liberties Union v. Napolitano,

No. Civ. 00-505 TUC ACM (D. Anz. June 14, 2002)...... 25

American Civil Liberties Union v. Reno,

929 F. Supp. $24 (E.D. Pa. 1996). ...ccccocesrcccscceseecsesossssesssees 20

American Library Ass'n v. Pataki,

969 F. Supp. 160 (S.D.N.Y. 1997).....ccccccceccovcccccccseces 25

Ashcroft v. American Civil Liberties Union,

a a I chnctetiinndenencesensecsenssensesved 9,18

Ashcroft v. Free Speech Coalition,

a ie ek a ciirnnictientientenoccnmntnntensenneees 14, 15, 16, 17

Bolger v. Young Drug Prods. Corp.,

SE > Gap acc cnceceenensmsnsnmnantmenescsemnnnesssneesien 15,17

Bookfriend v. Taft,

223 F. Supp. 2d 932 (S.D. Ohio 2002)............. ccc eeeee eee 26

Viil

Broadrick v. Oklahoma,

ee ts ie I certecncsceetneemsnscsemnniemnenmmennesscsemets 15

Butler v. Michigan,

ee Se Pirnereenconsnaminnincementsonesmensnens 15,17

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n,

GE Chas Se CD iccrenencecieseccennsmenemesnmnemesenemnmed 27

Cyberspace Communications v. Engler, .

142 F. Supp. 2d 827 (E.D. Mich. 2001)..................0008 25

Denver Area Telecommunications Consortium, Inc. v. FCC,

Fe i itiernccavnsninessacseentasenssacensininenion 23

Erznoznik v. City of Jacksonville,

a re Be Ce Oe ctnccncsscscerenmnennsmesnreemmscccemamnnenmens 15

Florida Star v. B.J.F.,

Fe ie eR icccecniccscsccensnceneninenesiesinndiperesmennsnecies 27

Lamont v. Postmaster General,

re Be Ce cenenensenenenennssesenantesnsertacesaiiguanenmemnees 23

Martin v. City of Struthers,

I ee BES Cte ccencnncsenssnssssnsnsencetcsnemerstanemermaesen 23

PSINet, Inc. v. Chapman,

167 F. Supp. 2d 878 (W.D. Va. 2001) ........cccccceeeeeeeeeeeneees 25

R.A.V. v. City of St. Paul,

Be ee FH ee ccecnscnnsnerescenersnnscorensmesennensesernmneniess 14

Reno v. American Civil Liberties Union,

Fee Ce Ce OP cccrnccerscnespecsenessseecsenesementernemeenes passim

ix

Sable Communications v. FCC,

Re i a a RE ee 15,17

Shea v. Reno,

930 F. Supp. 916 (S.D.N.Y. 1996)...........cccccccceecceeeeeeeeees 19

United States v. American Library Ass'n,

ee 23, 26

United States v. National Treasury Employees Union,

EES SR Rs Nie TO ee IT a 16

United States v. Playboy Entertainment Group, Inc.,

ee IIc: ’ seheiaaidinsecinidosanaiibelbuntciiiatealaada 16, 23, 27

United States v. Reese,

I 16

STATUTES AND OTHER AUTHORITIES

47 US.C. § OS aitlaienriinieiniaial 2

a as Ol TE indicaicienianaainanininandaniiaiiecmadthiiammedd passim

Commission on Child Online Protection, Final Report to

Congress,Oct. 20, 2002

http://www.copacommission.org/report.......... 19, 23, 26, 27

Committee to Study Tools and Strategies for Protecting

Kids from Pornography, National Research Council,

Youth, Pornography, and the Internet, Dick Thornburgh

and Herbert S Lin, eds., (2002) at

I INIIIOI Ec surrinnendacsiavededntndavinnsennnecssousd passim

IN THE

SUPREME COURT OF THE UNITED STATES

No. 03-218

JOHN ASHCROFT, ATTORNEY GENERAL OF THE

UNITED STATES,

Petitioner,

Vv.

AMERICAN CIVIL LIBERTIES UNION, ETAL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Pursuant to United States Supreme Court Rule 15, the

respondents American Civil Liberties Union, et al., hereby

submit this brief in opposition to the petition for a wnt of

certiorari.

STATEMENT OF THE CASE

The Child Online Protection Act (“COPA”), 47

U.S.C. § 231 (1998), was signed into law on October 21,

1998. The following day, plaintiffs filed this suit in the

United States district court for the Eastern District of

Pennsylvania, alleging that COPA violated the First

Amendment to the Constitution. Plaintiffs sought an

injunction to prevent COPA’s enforcement.

A. The District Court’s Decision and Factual

Findings

On February 1, 1999, following an evidentiary

hearing, the district court preliminarily enjoined enforcement

of COPA, which imposes severe criminal and civil sanctions

on persons who “by means of the World Wide Web, make []

any communication for commercial purposes that is available

to any minor and that includes any material that is harmful to

minors.” 47 U.S.C. § 231(a)(1)-(3). The district court’s

decision was supported by detailed findings of fact based on

six days of testimony, numerous affidavits and extensive

documentary evidence submitted by both sides. The findings

describe the character and the dimensions of the Internet, the

nature of the speech at nsk under the law, the inability to

verify the age of Internet users and the effect of the law on

speakers and adult readers. The majority of factual findings

and conclusions mirror those found in Reno v. American Civil

Liberties Union, 521 U.S. 844 (1997), in which this Court

struck down the very similar Communications Decency Act

(the “CDA”), 47 U.S.C. § 223, holding that “it would be

prohibitively expensive for . . . some commercial[] speakers

who have Web sites to verify that their users are adults.

These limitations must inevitably curtail a significant amount

of adult communication on the Internet.” Jd. at 877 (citation

omitted); see also Appendix to Petition for a Wnt of

Certiorari (“App.”) 146a, 147a. Petitioner has not disputed

the district court’s findings either on appea! or in this

petition, and some of those findings were derived from a joint

stipulation submitted by the parties. See App. 121a-148a.

Based on this record, the district court held that plaintiffs

were likely to succeed on their claim that COPA violates the

First Amendment, because “COPA imposes a burden on

speech that is protected for adults,” App. 156a, and because

the government could not prove that COPA is the “least

restrictive means available to achieve the goal of restricting

2

the access of minors to [harmful to minors] material,” App.

159a.

l. Plaintiffs and Their Speech Affected

By COPA

Plaintiffs include a diverse range of individuals,

entities, and organizations, ranging from “new media” online

magazines to long-established booksellers and large media

companies. All plaintiffs use the World Wide Web (the

“Web”) to provide information on a variety of subjects,

including sexually oriented issues that they fear could be

construed as “harmful to minors.” See App. 129a-133a,

9921, 24-26.

Plaintiffs and their users post, read and respond to

sexually explicit content on the Web including visual art and

poetry; information about obstetrics, gynecology, and sexual

health; books and photographs; online magazines; and

resources designed for gays and lesbians. See App. 129a,

421. Several plaintiffs host Web-based discussion groups

and chat rooms that allow readers to converse on various

subjects. See App. 129a, $22.

Like the vast majority of speakers on the Web,

plaintiffs provide the great bulk of their online information

for free. See App. 129a, 923. Like traditional newspapers

and magazines, they earn advertising revenues by virtue of

their speech. They are thus engaged in speech “for

commercial purposes” within the meaning of COPA, because

they communicate with the objective of making a profit. See

App. 134a-134a, 933; 47 U.S.C. §231(e)(2)(B). Although

certain plaintiffs are large, well-known Web publishers,

others are start-up operations run by single individuals. See,

e.g., Court of Appeals Joint Appendix (“J.A.”) 139-40.

7 The _ Impact Of COPA On

Communication On The Web

The growth of commercial activity on the Web has

been explosive. At the time of the district court’s decision,

approximately one third of the 3.5 million sites on the Web

were commercial within the meaning of COPA in that their

operators “intend to make a profit.” App. 133a, 427.

Because “{t]he best way to stimulate user traffic on a Web

site is to offer some content for free to users . . . . virtually all

Web sites offer at least some free content.” App. 135a, 434.

The “vast majority of information . . . on the Web... is

provided to users for free.” App. 129a, 423. It is generally

not possible for a Web speaker to verify the age of a person

accessing the speaker’s content. See App. 128a, 418; 155a.

COPA provides three affirmative defenses to Web

site operators who provide centent deemed “harmful to

minors”: (1) requiring the use of a credit card, debit account,

adult access code, or adult personal identification number; (2)

accepting a digital certificate that verifies age; or (3) any

other reasonable measures feasible under available

technology. See App. 136a-137a, 937; 177a. The district

court found, and petitioner does not dispute, that there is no

“authority that will issue a digital certificate that verifies a

user’s age.” App. 136a-137a, 937. Thus, the uncontested

evidence showed that the only technologies currently

available for compliance with COPA are online credit cards

and adult access codes. Either option would require users to

register and provide a credit card or other proof of identity

' Respondents cite to the Joint Appendix, which was originally filed in the

petitioner’s initial appeal to the Third Circuit, and incorporated into all

subsequent appellate proceedings.

4

before gaining access to restricted content. Jd. at 131a-133a,

9125-26; 155a.

In addition, petitioner’s own expert testified that “the

only way to comply with COPA regarding potentially

harmful-to-minors materials in chat rooms and bulletin

boards is to require that a credit card screen or adult

verification be placed before granting access to all users

(adults and minors) to such fora.” App. 145a, 958. Web-

based interactive fora are inherently dynamic, and there is no

way to prohibit access to some materials “and still allow

unblocked access to the remaining content for adults and

minors, even if most of the content in the fora was not

harmful to minors.” /d. Plaintiffs testified that these

interactive fora are essentis] in attracting users to their Web

sites. See J.A. 221.

The district court also found that credit cards and

adult access codes would deter adults from accessing other

Web-based content and impermissibly burden their First

Amendment nghts. See App. 13la-133a, 9925-26; 155a.

Because almost all content on the Web is available without

the need to register and provide personal information, Web

users are reluctant to provide such information to Web sites.

See id. 129a, 923; 135a, 935; 136a, 936. Peer-reviewed

studies have shown that up to 75% of Web users are deterred

by registration requirements; two-thirds of consumers would

not even accept money in exchange for giving up personal

information to Web sites. J.A. 227, 238 (Hoffman

Testimony). Users “will only reveal credit card information

at the time they want to purchase a product or service.” App.

136a, 936. For this reason, Web sites that have required

registration or payment before granting access “have not been

successful.” Jd. Plaintiffs testified that any mandatory

registration would drive away their users. See J.A. 330-31,

344, 367-68, 370. Many of the plaintiffs’ readers and other

Web users are particularly reluctant to identify themselves

5

because the information they seek is intensely personal,

sensitive, or controversial. Mr. Tepper of the Sexual Health

Network, for example, testified that some of his readers

would simply not go to his site if they had to identify

themselves. App. 13la, 925. His site aims to provide

information about sexuality to disabled persons who will only

seek it anonymously. Similarly, many gay or lesbian people

who are “closeted” rely on a Web site such as PlanetOut

“because it allows closeted people access to this information

while preserving their anonymity.” Jd. at 132a, 426.

In addition, to utilize COPA’s credit card defense, a

content provider “would need to undertake several steps,”

App. 138a, 941, with start-up costs ranging from

“approximately $300 . . . to thousands of dollars. . . .” App.

138a, 942. The district court found that “it was not clear

from the conflicting testimony” whether credit card

verification services will authorize or verify a credit card

number in the absence of a financial transaction. App. 139a,

945. Without such a service, a content provider would have

to charge the user’s credit card for accessing the content. See

J.A. 126, 129. Even if this service were available, the credit

card company would charge the content provider $0.15 to

$0.25 per authorization. See App. 139a, 445. Such per-

authorization fees would allow users hostile to certain content

to drive up costs to the provider by repeatedly accessing

restricted content. See J.A. 133.

Finally, COPA’s credit card and adult access defenses

would require speakers to redesign their Web sites in order to

restrict only “harmful to minors” content. The district court

found that this could be prohibitively expensive, and, in some

cases, would require plaintiffs to shield even some materials

not “harmful to minors” behind age verification screens. As

the district court recognized, the technological requirements

for implementing credit card or adult access code verification

to comply with COPA could be substantial — depending on

6

the amount of content on a Web site, the amount of content

that may be “harmful to minors,” the degree to which a Web

site is organized into files and directories, the degree to

which “harmful to minors” material is currently segregated

into a particular file or directory and the level of expertise of

the Web site operator. See App. 137a, 939; App. 144a, 956.

COPA would require some Web sites to reorganize and

redesign literally millions of files. See J.A. 158-59. A

content provider also would have to reorganize individual

files and pages in order to restrict only content that could be

“harmful to minors”. See App. 143a, 954. In addition, even

a single page of Web content could have some content that

was prohibited under COPA and some that was not, making

it difficult if not impossible to segregate such material. See

App. 143a-144a, 955.

In sum, the district court concluded that “the

implementation of credit cards or adult verification screens

before gaining full access to 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.”

App. 155a.

3. : lt

!n contrast to the burden imposed by COPA, user-

based filtering software constitutes a less restrictive and more

effective alternative. As the district court found, COPA does

not even reach a substantial portion of material posted on the

Web that may be “harmful to minors.” COPA does not

restrict the wide range of “harmful to minors” materials

provided noncommercially on the Web, and through non-

Web protocols on the Internet such as newsgroups and non-

Web chat rooms. See App. 159a. In addition, at the time of

the district court’s opinion, at least forty percent of Web

content originated abroad, and minors could just as easily

-

access this material as they could the remaining sixty percent

originating domestically. See App. 128a, 420.

In contrast, even the government’s expert conceded

ts can use user-based blocking software to prevent

pom yr materials, in addition to blocking Web-based

commercial materials. See App. 147a-148a, 965. To

establish these controls, parents need only purchase software

for their home computers or choose an Internet Service

Provider or online service such as American Online that

offers parental software controls. /d. These services also

may provide tracking and monitoring software to determine

which resources a child has accessed, and offer access to

children-only discussion groups that are closely monitored by

adults. Thus, though not perfect, the district court found that

user-based blocking software is at least equally effective and

less restrictive than COPA’s criminal penalties.

B. The Court of Appeals’ Initial Opinion

On appeal, the Third Circuit upheld the district

court’s ruling that COPA violates the First Amendment, see

App. 69a. The court heid that “because the standard by

which COPA gauges whether material is “harmful to minors

phere so tantiarett nm flew wy

,]’ the inability of W

wo thetr Web sites based on the geographic locale of the ste

visitor, in and of itself, imposes an impermissible burden on

constitutionally protected First Amendment speech. App.

69a. The court affirmed on this narrow ground, and did not

reach the other grounds relied upon by the distnct court.

Cc. This Court’s Prior Ruling

This Court vacated and remanded the decision by the

Court of Appeals finding COPA unconstitutional. Rejecting

the Third Circuit’s approach, the Court narrowly held “that

COPA’s reliance on community standards to identify

‘material that is harmful to minors’ does noi by itself render

the statute substantially overbroad for purposes of the First

Amendment.” Ashcroft v. American Civil Liberties Union,

122 S. Ct. at 1713 (emphasis in original). Significantly,

however, the Court did not lift the injunction preventing the

government from enforcing COPA absent further action. /d.

at 1713-14. The Court then remanded the case for further

proceedings on issues including “whether COPA suffers from

substantial overbreadth for other reasons, whether the statute

is unconstitutionally vague, or whether the district court

correctly concluded that the statute likely will not survive

strict scrutiny analysis....” Jd. at 1713.

D. The Court of Appeals’ Ruling on Remand

On remand, the Third Circuit reaffirmed its

conc.usion that COPA was unconstitutional. App. 18a. In its

primary holding, the court ruled that COPA failed strict

scrutiny because it would deprive adults of material they are

constitutionally entitled to receive. App. 38a. The court also

held that the statute was both overbroad and vague. App 49a-

58a.

Reviewing the plain language of the statute, the court

concluded that COPA “endangers a wide range of

communications, exhibits, and speakers whose messages do

not comport with the type of harmful materials legitimately

targeted ....- App. 23a. The court rejected the

government's plea to re-write the statute to narrow its

application, and found that COPA’s affirmative defenses,

identical to those previously rejected by this Court in Reno v.

ACLU, did nothing to ameliorate the statute’s burden on

speech protected for adults. The court further held that other

alternatives, including Internet filtering software, were

“substantially less restrictive than COPA in achieving

9

COPA’s objective of preventing a minor’s access to harmful

materials.” App. 47a.

SUMMARY OF THE ARGUMENT

Petitioner seeks further review of the Child Online

Protection Act (COPA), which makes it a crime to

communicate material that is harmful to minors on the Web.

There are, however, no new issues left in this case that merit

review. The relevant facts are uncontested and the governing

legal framework has been clearly set forth in this Court’s

prior decisions.

COPA was passed in 1998, when the Internet was still

relatively new and less well understood. Like Congress’ first

attempt at legislation in this area, struck down by this Court

in Reno v. ACLU, COPA relies exclusively on threatening

Web speakers with severe criminal and civil penalties for

communicating constitutionally protected speech. COPA

was passed prior to any serious study of alternatives by

Congress. Since then, two commissions have provided

Congress with detailed reports that offer a number of ways to

protect children from harm online without restricting adult

speech rights. This Court has also recently upheld another

federal statute that requires the use of one of those

alternatives — user-based filtering software - in all public

schools and libraries.

Given this altered landscape, there is no reason for

further review of the lower court decision enjoining COPA.

The decision below establishes no new principles, but merely

applies this Court’s well-established rule, specifically

affirmed in the Internet context, that Congress may not

enforce its interest in protecting minors by making it a crime

to communicate constitutionally protected material to adults.

In accordance with that rule, federal courts have now

10

unanimously struck down seven state statutes nearly identical

to COPA.

Specifically, COPA threatens protected speech with

criminal sanctions and suppresses a large amount of speech

that adults have a constitutional right to communicate and

receive on the Web. Petitioners argue that review is

necessary because the lower court misinterpreted the breadth

of the statute. But under any interpretation COPA clearly

criminalizes speech that adults are constitutionally entitled to

receive. The extensive record in this case, undisputed by the

government, establishes that COPA reaches millions of

content providers who have no effective way to prevent

minors from obtaining their speech without also deterring and

burdening access by adults. The two reports commissioned

by Congress now confirm the district court’s key findings in

this case: credit cards and adult access codes are ineffective

and deter adults from accessing protected speech, whereas

filters are a more effective and less restrictive option for

parents who wish to restrict their children’s online viewing.

Under this Court’s clear precedents, COPA thus violates

strict scrutiny and is overbroad.

For all of these reasons, the petition for certiorari

should therefore be denied.

11

ARGUMENT

THIS CASE DOES NOT MERIT REVIEW BECAUSE

THE DECISION BELOW APPLIES THIS COURT’S

WELL-ESTABLISHED RULE THAT CONGRESS

MAY NOT CRIMINALIZE SPEECH PROTECTED

FOR ADULTS IN AN EFFORT TO PROTECT

MINORS.

A. COPA Criminalizes A Wide Range Of

Speech That Is Constitutionally Protected

For Adults.

In its attempt to deny minors access to certain speech,

COPA suppresses a broad array of speech that adults have a

constitutional right to receive. See App. at 23a (“while

COPA penalizes publishers for making available improper

material for minors, at the same time it impermissibly

burdens a wide range of speech and exhibits otherwise

protected for adults”); Reno v. ACLU, 521 U.S. at 876-77.

There is no way for a Web speaker to know the age of a user

who is accessing her communications on the Web. In order

to avoid the risk of criminal prosecution and civil penalties,

on its face COPA effectively requires Web speakers to deny

both minors and adults access to any speech that may be

considered “harmful to minors.” COPA’s threat of jail time

“may well cause speakers to remain silent rather than

communicate even arguably unlawful words or ideas, and

images.” Reno v. ACLU, 521 U.S. at 874.

COPA criminalizes a category of speech that is

unquestionably protected for adults. The record in this case

is full of examples that illustrate the breadth of protected

speech that falls within COPA’s ambit:

12

e ArtNet’s Web site displays photographs from Andres

Serrano’s series “A History of Sex.” J.A. 710-13

(ArtNet PI Exhs.).

e¢ ACLU member Patricia Nell Warren’s Web site

includes a graphic account of a fifteen-year-old who

was date-raped when she was thirteen. J.A. 732-36

(Warren PI Exhs.).

e A Different Light’s site contains an article describing

a gay author’s first experience of masturbation. J.A.

609-12 (Laurila PI Exhs.).

e Salon publishes Susie Brght’s columns describing

her sexual experiences including anally penetrating

her boyfriend and having sex outdoors. J.A. 617-26

(Talbot PI Exhs.).

e PlanetOut offers archives of an Internet radio show

called “Dr. Ruthless” that discusses topics such as

anal sex and masturbation. J.A. 658-60 (Reilly PI

Exhs.).

See also App. at 52a-54a & n.35 (citing amicus curiae

briefs).

Popular Web-based chat rooms and discussion boards

involving sexual topics are also covered. COPA would

criminalize PlanetOut’s forty chat rooms about gay sexuality

and Salon’s frank discussions about whether “boys can find

the night spot.” See J.A. 359 (Reilly Testimony); J.A. 638-41

(Talbot Pl Exhs.). Given the popularity of interactive

messages and the more than one million commercial Web

sites, the examples above are far from isolated. App. 133a,

927; see also App. at 52a-54a (citing AMICUS BRIEFS).

While such content is appropriate for adults, such

13

unapologetically explicit speech finds itself well within

COPA’s reach.

As a content-based regulation of protected speech,

COPA is presumptively invalid. R.A.V. v. City of St. Paul,

505 U.S. 377, 391 (1992). Content-based regulations of

speech will be upheld only if they are justified by a

compelling governmental interest and are “narrowly tailored”

to effectuate that interest. In concluding that strict scrutiny

applies to content-based bans, this Court has held that there is

“no basis for qualifying the level of First Amendment

scrutiny that should be applied to this medium.” Reno v.

ACLU, 521 US. at 870; see also id. at 874 (“Th{e] burden on

adult speech is unacceptable if less restrictive alternatives

would be at least as effective in achieving the legitimate

purpose that the statute was enacted to serve.”).

Just in the last few years, this Court has struck down

two federal statutes aimed at protecting minors because they

“proscribe[d] a significant universe of speech that is neither

obscene ... nor child pornography.” Ashcroft v. Free Speech

Coalition, 122 S. Ct. 1389, 1396 (2002) (invalidating

Congress’ attempt to ban “virtual” child pornography); Reno

v. ACLU, 521 U.S. 844 (1997) (invalidating statute that

criminalized indecent communications on the Internet).

While this Court “ha[s]... recognized the governmental

interest in protecting children from harmful materials... that

interest does not justify an unnecessarily broad suppression

of speech addressed to adults.” Reno v. ACLU, 521 US. at

875 (citations omitted); Ashcroft v. Free Speech Coalition,

122 S. Ct. 1389, 1402 (2002) (“speech within the rights of

adults to hear may not be silenced completely in an attempt

to shield children from it.”).

Indeed, because “[t]he level of discourse reaching a

mailbox simply cannot be limited to that which would be

suitable for a sandbox,” this Court has never upheld a

14

criminal prohibition on non-obscene communications

between adults. Reno v. ACLU, 521 U.S. at 875 (quoting

Bolger v. Young Drug Prods. Corp., 463 U.S. 60, 74-75

(1983) (internal quotations omitted)); see also Sable

Communications v. FCC, 492 U.S. 115, 131 (1989)

(invalidating statute that banned and criminalized the

distribution of indecent speech); Bolger v. Young Drug

Prods. Corp., 463 U.S. 60, 74 (1983) (striking down a ban on

mail advertisements for contraceptives); Erznoznik v. City of

Jacksonville, 422 U.S. 205, 217-18 (1975) (striking down a

statute that criminalized the showing of certain movie content

at drive-in theaters); Butler v. Michigan, 352 U.S. 380, 383-

84 (1957) (invalidating a conviction for distribution of

indecent publications).

COPA was also correctly analyzed and enjoined

under this Court’s overbreadth cases, which hold that a

statute is “unconstitutional on its face if it prohibits a

substantial amount of protected expression.” Free Speech

Coalition, 122 S. Ct. at 1399; see also Broadrick v.

Oklahoma, 413 U.S. 601, 612 (1973). The Third Circuit held

that COPA cannot stand because it “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.”

App. at 5la; see also Reno v. ACLU, 521 U.S. at 874

(invalidating CDA because it “effectively suppresses a large

amount of speech that adults have a constitutional right to

receive and to address to one another.”) Indeed, because

COPA “impos(es] criminal penalties on protected speech,” it

is a “textbook example of why ... facial challenges [are

permitted] to statutes that burden expression.” Free Speech

Coalition, 122 S. Ct. at 1398.

15

B. COPA Cannot Be Saved By Radical

Surgery That Would Alter Its Plain

Language

Petitioner urges review because the Third Circuit, in

his view, has misinterpreted the breadth of the statute. As an

initial matter, the correct interpretation of the statute poses no

question for review because under any interpretation COPA

unconstitutionally burdens speech clearly protected for

adults. While narrower than the online indecency standard

invalidated by this Court in Reno v. ACLU, speech that is

harmful to minors is by definition non-obscene. This Court

has struck down similar laws that restrict narrower but

undisputedly protected categories of speech because of their

burden on adult access. See, e.g., Free Speech Coalition, 122

S. Ct. at 1399; United States v. Playboy, 529 U.S. 803, 806

(2000).

Applying this Court’s precedents, the lower court

correctly declined to rewrite the statute to narrow its reach,

and there is no need for this Court to grant review to perform

the kind of radical surgery it has rejected in prior cases. See

Reno v. ACLU, 521 U.S. at 884-85; United States v. National

Treasury Employees Union, 513 U.S. 454, 479 n.26 (1995);

United States v. Reese, 92 U.S. 214, 221 (1875).

First, petitioner has now largely conceded that

COPA’s application to Web sites operated for “commercial

purposes” does nothing to limit its reach. COPA applies to

speech that is provided for free on the Web by commercial

businesses like Salon magazine and PlanetOut, and not just to

speech that is for sale. Thus, petitioners agree that COPA

extends “to businesses that seek to profit from harmful

material by selling advertising space.” Cert. Pet. at 21.

Petitioner also concedes an intent to apply COPA’s criminal

sanctions to businesses that offer material that is harmful to

minors, even if not a “principle part” of their businesses. See

16

Cert. Pet. at 21. Indeed, the statute specifically notes that

speakers are subject to prosecution even if providing

“harmful” materials is not their “sole or principal business or

source of income.” 47 U.S.C. § 231(e)(2)(B). The text of

COPA also imposes liability on any speaker who knowingly

makes any communication for commercial purposes “that

includes any material that is harmful to minors.” 47 U.S.C.

231(a); 47 U.S.C. 231(e)(2)(B). Thus, any harmful-to-minors

material posted on a Web site — even just one Serrano

photograph on the Web site of plaintiff ArtNet or one

“Sexpert Opinion” column in Salon, J.A. at — — would

subject the speaker to COPA’s criminal penalties.

Second, the Court of Appeals correctly rejected

petitioner’s plea to rewrite the statute to exclude all material

with serious value for “normal, older adolescents.” In

passing COPA, Congress itself identified as objects of

concern children who cannot be described as older

adolescents. See App. 25a (quoting H.R. Rep. No. 105-775,

at 9-10). Even if the statute were rewritten to exclude

material with value for older minors, COPA remains

defective under this Court’s clear precedents because it still

unconstitutionally restricts adults from viewing that category

of material. ACLU v. Reno, 521 U.S. 844; Free Speech

Coalition, 122 S. Ct. at 1396; Sable, 492 U.S. at 131; Bolger,

463 US. at 74; Butler, 352 U.S. at 383-84.

Third, the Court of Appeals rightly held that the

Statute is too broad because it requires “evaluation of an

exhibit on the Internet in isolation, rather than in context.”

App. 22a. Petitioner criticizes that holding by referencing

language in the statute that requires consideration of the

material “as a whole,” Cert. Pet. At 17, but never explains

what that requirement means in the context of the seamless

Web. That is, petitioner still has no answer to Justice

Kennedy’s question in his prior concurring opinion in this

case: “It is unclear whether what is to be judged as a whole

17

is a single image on a Web page, a whole Web page, an

entire multipage Web site, or an interlocking set of Web

sites.” 122 S. Ct. at 1717; see also App. 128a, 417 (“From a

user’s perspective, [the Web] may appear to be a single,

integrated system.”). In fact, petitioner has previously argued

to this Court that some of the individual Web pages on

respondents’ enormous Web sites “plainly do test, and likely

exceed, the legal limitations” of the harmful-to-minors test.

See Gov. S. Ct. Br. at 37. The Third Circuit thus correctly

concluded that this flaw, one of many, contributes to COPA’s

overbreadth.

Se COPA’s Affirmative Defenses Do Not Save

The Statute, Because They Will Prevent Or

Deter Adult Web Users From Accessing A

Wide Range Of Protected Speech.

COPA threatens any speaker on the Web who

displays any material that is “harmful to minors” with severe

criminal and civil sanctions. COPA provides only

affirmative defenses for “good faith” efforts to restrict access

by minors to material that is “harmful to minors,” such as by .

requiring the use of a credit card or adult access code. See 47

U.S.C. § 231(c)(1)(A). Consistent with this Court’s

rejection of the same defenses in Reno v. ACLU, the district

court found that either option would inevitably deter adults

from accessing protected speech. In addition, as discussed

below, last year Congress received two commissioned reports

that confirm the findings of the district court. The first report

was mandated through another provision enacted by

Congress when it passed COPA.’ See Commission on Child

Online Protection, Final Report to Congress, Oct. 20, 2002 at

? The COPA Report essentially served as a substitute for thorough

congressional findings. COPA was passed as part of an omnibus

appropriations bill, with no hearings in the Senate and only one in the

House.

18

http://www.copacommission.org/report (hereinafter “COPA

Report’). The second report was conducted by the National

Research Council, and is a comprehensive four-hundred-page

study edited by former Attorney General Dick Thornburgh.

See Committee to Study Tools and Strategies for Protecting

Kids from Pornography, National Research Council, Youth,

Pornography, and the Internet, Dick Thornburgh and Herbert

S. Lin, eds., (2002) at http://www.nap.edu (hereinafter “NRC

Report”).

1. COPA’s Affirmative Defenses Do Not

Protect Speakers From Prosecution for

Communicating Protected Speech.

As.an initial matter, the Third Circuit rightly noted

that “the affirmative defenses do not provide the Web

publishers with assurances of freedom from prosecution.”

App. at 36a-37a. COPA’s criminal penalties will thus have a

strong chilling effect even on those speakers who may be

entitled to rely on an affirmative defense at trial. As this

Court explained when striking down the Child Pornography

Prevention Act (“CPPA”), “[t]he Government raises serious

constitutional difficulties by seeking to impose on the

defendant the burden of proving his speech is not unlawful.

An affirmative defense applies only after prosecution has

begun, and the speaker must himself prove, on pain of a

felony conviction, that his conduct falls within the

affirmative defense.” 122 S. Ct. at 1404; see also Shea v.

Reno, 930 F. Supp. 916, 944 (S.D.N.Y. 1996) (striking down

the federal CDA, and noting that affirmative defenses “in no

way shield[] a content provider from prosecution”), aff'd, 521

U.S. 1113 (1997). Speakers who want to communicate

harmful-to-minors materials to adults are forced by COPA

into the Hobson’s choice of risking prosecution or

implementing costly defenses that would inhibit vast

numbers of their adult users from accessing protected speech.

19

z 2. COPA Would Require V eb-Based

Interactive Chat Rooms To ct

Speech Not Even Covered By The

tatute.

COPA’s affirmative defenses do nothing to alleviate

the burden on protected speech in Web-based chat rooms and

discussion groups. These interactive forums are vital

contributors to the popularity of many commercial Web sites.

J.A. 148-49, 358-59 (Talbot, Reilly Testimony). The

hundreds of thousands of people who have communicated on

respondents’ sites alone represent only a miniscule portion of

the discussions occurring at any moment on the Web. Yet

COPA would require that users of any Web chat or

discussion provide a credit card or adult access code before

entering the discussion — even if the discussion ultimately

contains no speech that is not harmful to minors. As the

district court explained,

The uncontroverted evidence showed that

there is no way to restrict the access of

minors to harmful materials in chat rooms

and discussion groups, which the plaintiffs

assert draw traffic to their sites, without

screening all users before accessing any

content, even that which is not harmful to

minors, or editing all content before it is

posted to exclude material that is harmful to

minors. This has the effect of burdening

speech in these fora that is not covered by

the statute.

See App. 156a. COPA would thus halt the great majority of

all online discussions on commercial Web sites, and the

“worldwide conversation” that is the Internet would be

greatly curtailed as a result. See American Civil Liberties

Union v. Reno, 929 F. Supp. 824, 883 (E.D. Pa. 1996).

_20

The district court also found that “the implementation

of credit card or adult verification screens in front of material

that Is harmful to minors may deter [adult] users from

accessing such materials.” App. 155a. The record showed

that there is no technology available to enable credit card

verification for speakers on the Web who publish through

commercial online services such as America Online, J.A. 392

(Farmer Testimony), which has millions of subscribers. See

generally J.A. at 389-90 (Farmer Testimony) (discussing the

absence of credit card verification generally on the Web).

For these speakers, the credit card defense is no defense at

all. See Reno v. ACLU, 521 U.S. at 881-82.. In addition,

COPA will prevent all adults who do not have credit cards

from accessing harmful-to-minors materials on the Web. For

these adults, COPA operates as a complete ban on their

ability to access protected speech. Reno v. ACLU, 521 U.S.

at 874-75.

COPA will deter most adults (even those with credit

cards) from accessing restricted content, because Web users

are simply unwilling to provide identifying information in

order to gain access to content. To utilize either COPA’s

adult access code or credit card defense, Web providers

would have to require all of their users to provide identifying

information before accessing protected speech, perhaps to an

untrusted third-party Web site. J.A. 379 (Farmer Testimony).

kespondents testified that their customers would simply

forgo accessing their material entirely if forced to apply for

an adult access code, provide a credit card number, or pay for

content. J.A. 330-31, 344, 367-68, 370 (Barr, Rielly, Tepper

Testimony).

21

The record shows that up to 75% of Web users are

deterred by registration requirements. J.A. 227, 238

(Hoffman Testimony). Another peer-reviewed study showed

that two-thirds of consumers would not give up personal

information to Web sites even in exchange for money. J.A.

227, 238 (Hoffman Testimony). These findings are

consistent with the findings affirmed by this Court in striking

down the Communications Decency Act, where evidence

suggested “that adult users, particularly casual Web

browsers, would be discouraged from retrieving information

that required use of a credit card or password.” Reno v.

ACLU, 521 US. at 857 n.23.

Web users who wish to access sensitive or

controversial information are even less likely to register to

receive it. For example, Dr. Tepper testified that persons

who access the Sexual Health Network “have already been

too embarrassed or ashamed to ask even their doctor. I think

if they come across this barrier to access, that they are just

not going to take the next step and put their name and credit

card information in.” J.A. 344 (Tepper Testimony). The use

of credit card or adult access code verification may also

require users to pay a fee, further increasing COPA’s

deterrent effects. J.A. 396 (Farmer Testimony). Finally, the

evidence showed that respondents’ users would be deterred

by adult access code services that cater to the pornography

industry, and would not want to affiliate with such services in

order to gain access to plaintiffs’ and similar “harmful to

minors” materials. J.A. 156 (Talbot Testimony).

The COPA and NRC Reports support the lower

courts’ rulings. The COPA Report found that where either

age verification or credit cards are required, “[a]n adverse

impact on First Amendment values arises from the costs

imposed on content providers, and because requiring

identification has a chilling effect on access.” COPA Report

at 26-7. The National Research Council found that

22

“widespread [use of age verification technology] may

compromise the privacy of adult viewing.” NRC Report at

347, section 13.3.7. When users are required to give

personally identifying information to verify age, “the

reasonable assumption would be that records are being kept

(whether or not they are in practice), and so the user has a

plausible reason to be concerned that his name is associated

with certain types of material.” NRC Report at 344, section

13.3.5. This loss of privacy “may inhibit free flow of

information and create a chilling effect on the freedom of

adults who wish to access lawful though perhaps

controversial material.” NRC Report at 348, section 13.3.7.

This Court has held in many prior cases that this form

of inhibition renders a statute unconstitutional. See Reno v.

ACLU, 521 US. at 857 1.23; Denver Area

Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727,

746 (1996) (holding that statute blocking certain cable

channels and requiring users to request that those channels be

unblocked unconstitutionally burdened subscribers access to

information); Playboy, 529 U.S. at 924 (finding that requiring

cable operators upon request by a subscriber to scramble or

block any unwanted channel was less restrictive alternative

than forcing operations to scramble channels as a default);

Lamont v. Postmaster General, 381 U.S. 301, 307 (1965)

(invalidating on First Amendment grounds a statute requiring

that individuals request certain mail in writing, holding the

statute would have “a deterrent effect”); Martin v. City of

Struthers, 319 U.S. 141, 148 (1943) (holding that statute

prohibiting door-to-door distribution of information violated

First Amendment rights of “those desiring to receive it”).°

* Petitioners wrongly rely on this Court’s decision in United States v.

American Library Association, 123 S. Ct. 2297 (2003), to argue that

COPA’s deterrent effects do not render it unconstitutional. Unlike

COPA, the statute upheld in that case did not threaten protected speech

23

Ignoring contrary case law from courts around the

country, petitioner argues that this case menits Teview

because the burdens COPA imposes are no different in kind

or degree from display requirements that many states impose

on material deemed harmful to minors. Cert. Pet. at 22-23.

As the lower court held, COPA’s burden on speech is far

greater than in any of the cases cited by petitioner. App. 32a-

38a. None of the blinder rack get ene te unique

roblems presented by regulation o -to-minors

amnere on the ~alling Reno v. ACLU, 521 US. at 889-91

(“the Court has previously only considered laws that operated

in the physical world”). Federal courts have now struck

down seven state harmful-to-minors display laws modeled on

COPA and enacted to govern the Internet because they

unconstitutionally deter adults from accessing protected

speech.* In addition, unlike COPA, state blinder rack laws

with criminal sanctions, and was not subjected to strict scrutiny. In

addition, the Court interpreted that statute to mimimuze any deterrent on

adult access by allowing library patrons to gain unfettered access to all

Internet speech without having to ask for specific access to potentially

illegal content. Indeed, the case confirms that user-based filters are a less

restrictive alternative to COPA. See discussion infra at 25-27.

* See Cyberspace Communications v. Engler, 142 F. Supp. 24 827 (E.D.

Mich. 2001),; ACLU v. Johnson, 4 F. Supp. 2d 1029 (D.N.M. 1998),

aff d, 194 F. 3d 1149 (10® Cir. 1999) (New Mexico); American Libraries

Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997) (New York); PSINet,

Inc. v. Chapman, 167 F. Supp. 2d 878 (W.D. Va. 2001), certifying

questions to 317 F.3d 413 (Virginia); American Booksellers Found. for

Free Expression v. Dean, 202 F. Supp. 2d 300 (D. Vt. 2002)aff‘d in part,

No. 02 Civ. 7785, 2003 WL 22016812 (2d Cir. Aug. 27, 2003)

(Vermont); American Civil Liberties Union v. Napolitano, No. Civ. 00-

505 TUC ACM (D. Ariz. June 14, 2002) (order granting permanent

injunction) (Arizona); Bookfriend v. Taft, 232 F. Supp. 2d 932 (S.D. Ohio

2002) (granting temporary restraining order) (Ohio).

24

do not require adults to pay for speech that would otherwise

have been accessible for free, or to relinquish their anonymity

in order to access those materials. App. 38a.

D. COPA Is An Ineffective Means For

Achieving The Government’s Compelling

Interest, and Less Restrictive Alternatives

Are Available.

The lower court correctly concluded that COPA

would be ineffective at protecting children from harmful

materials, and that more effective alternatives are available to

parents. App. 39a-47a. Since COPA was passed, the COPA

and NRC Reports identified less restrictive alternatives

consistent with the lower court’s conclusions. Both

independently identified a number of methods to reduce

access by minors to sexually explicit material online, and

both concluded that applying criminal laws to protected

speech on the Internet poses significant First Amendment

problems while failing to protect children effectively. See

COPA Report, at 9, 11, 13, 25, 39; NRC Report, Executive

Summary at 11-13 (summarizing alternatives); Section 14.4.3

(“in an online environment in which it is very difficult to

differentiate between adults and minors, it is not clear

whether denying access based on age can be achieved in a

way that does not unduly constrain the viewing rights of

adults”).

Like the lower court in this case, the COPA Report

found that requiring age verification systems would not be

“effective at blocking access to [non Web-based] chat,

newsgroups, or instant messaging.” COPA Report at 27;

App. 145a, § 58. Under strict (and even intermediate)

scrutiny, a law “may not be sustained if it provides only

ineffective or remote support for [defendant’s] purpose.”

25

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n,

447 U.S. 557, 564 (1980); see also Florida Star v. B.J.F., 491

U.S. 524, 541-42 (1989) (Scalia, J., concurring) (“a law

cannot be regarded as . . . justifying a restriction upon truthful

speech, when it leaves appreciable damage to (defendant s]

supposedly vital interest unprohibited.”).

Moreover, the lower court correctly held that COPA

is not the least restrictive means of achieving defendant’s

asserted interest. See App. 47a-48a; see also Sable, 492 U.S.

at 126 (“It is not enough to show that the Government's ends

are compelling; the means must be carefully tailored to

achieve those ends.”). The record shows, and both reports to

Congress now confirm, that many alternative means are more

effective at addressing minors’ access to certain material.

The COPA Report applauds the use of “voluntary methods

and technologies to protect children,” and notes that,

“{cjoupled with information to make these methods

understandable and useful, these voluntary approaches

provide powerful technologies for families.” COPA Report

at 39; see also id. at 8, 21, 25, 27; NRC Report, Executive

Summary at 10 (“filters can be highly effective in reducing

the exposure of minors to inappropriate content if the

inability to access large amounts of appropriate material is

acceptable”).

Just last term, this Court upheld another federal law

mandating that public libraries and schools require use of

filters on all Internet access terminals. U.S. v. American

Library Assoc., 123 S. Ct. 2297, 2307 (2003). Petitioner

vigorously and successfully defended that statute by arguing

that filters were an effective means of protecting children

online. Filters, while not perfect, are clearly a less restrictive

alternative to COPA’s criminal ban on protected speech by

adults. Having mandated their use of public libraries and

schools, petitioner can no longer argue that the same option 1s

insufficient for use by parents who wish to restrict online

26

viewing in the home. See Playboy, 529 U.S. at 805 ("A court

should not assume a plausible, less restrictive alternative

would be ineffective; and a court should not presume parents,

given full information, will fail to act.")

In addition, the NRC Report highlights a number of

other specific steps that the government can take to address

the availability of sexually explicit material to minors online,

including vigorous education and outreach to parents,

teachers, librarians and other adults about Internet safety, and

support for self-regulation by private parties. NRC Report at

8. This Court has repeatedly invalidated content-based

burdens on adult speech when such less restrictive

alternatives are available. See Reno v. ACLU, 521 USS. at

879; Denver Area, 518 U.S. at 759-60 (informational

requirements and user-based blocking are more narrowly

tailored than speaker-based schemes as a means of limiting

minors’ access to indecent material on cable television);

Playboy, 529 U.S. at 815 (finding that requiring cable

operators upon request by a subscriber to scramble or block

any unwanted channel was less restrictive alternative than

forcing operations to scramble channels as a default).°

In Summary, the Third Circuit’s decision fully

comports with this Court’s precedents and raises no unique

question of constitutional law. The factual findings

supporting the decision are consistent with two congressional

reports, and a number of federal courts have now invalidated

similar state statutes. Five years after COPA was passed and

first enjoined, the government clearly has far more effective,

less restrictive solutions to address its concerns. The Third

Circuit correctly enjoined COPA’s criminal sanctions on

* Of course, as Congress has now reiterated in its two reports, Petitioner

can also address its interest by vigorously enforcing other criminal

statutes, such as obscenity and child pornography laws. See NRC Report

at Section 14; see also id. at Section 9.1; COPA Report at 43.

27

protected speech for adults, and the decision does not merit

this Court’s review.

CONCLUSION

For all the reasons discussed above, the petition for

certiorari should be denied.

Respectfully submitted,

Ann E. Beeson

Counsel of Record

Christopher A. Hansen

Steven R. Shapiro

American Civil Liberties Union Foundation

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500

Stefan Presser

American Civil Liberties Union of

Pennsylvania

125 South 9th Street, Suite 701

Philadelphia, PA 19107

(215) 592-1513 ext. 216

David L. Sobel

Electronic Privacy Information Center

1718 Connecticut Avenue NW

Washington, DC 20009

(202) 483-1140

Lee Tien

Electronic Frontier Foundation

454 Shotwell Street

San Francisco, CA 94110

(415) 436-9333

28

Attomeys for All Respondents

Alexandra A.E. Shapiro

Christopher R. Harris

Michele M. Pyle

Nia Cross

Latham & Watkins LLP

885 Third Avenue, Suite 1000

New York, NY 10022

(212) 906-1200 .

Of Counsel to American Civil Liberties Union

Foundation on behalf of respondents

American Civil Liberties Union, Androgyny

Books, Inc. d/b/a A Different Light

Bookstores, Artnet Worldwide Corporation,

BlackStnpe, Adazzi Inc. d/b/a Condomania,

Electronic Frontier Foundation, Electronic

Privacy Information Center, Free Speech

Media, OBGYN.net, Philadelphia Gay News,

PlanetOut Corporation, Powell’s Bookstore,

RiotGrrl, Salon Internet, Inc. and West Stock,

Inc., now known as ImageState North

America, Inc.

29