# Opposition Brief — Ashcroft v. American Civil Liberties Union

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0700%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 656

## Text

a)

— or ) ‘4 + 003
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.

il

en

)
|

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0700%3A04. Public record. Not legal advice.