Appendix — Mukasey v. American Civil Liberties Union (No. 08-565)

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Jn the Supreme Court of the Gnited States

MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE

UNITED STATES, PETITIONER

V.

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

GREGORY G. GARRE

Solicitor General

Counsel of Record

(;REGORY G. KATSAS

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

WILLIAM M. JAY

Assistant to the Solicitor

General

SCOTT R. MCINTOSH

CHARLES W. SCARBOROUGH

Attorneys

Department of Justice

Washington, D.C. 29530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A - Court of appeals opinion (July 22,

PERT SEE ree eer a la

Appendix B ~- Court of appeals order denying

PORUITONE occ. osc eesy en eee 53a

Appendix C - District court opinion and order

(Mar. EE, WORT)... 2s vides secon een

Appendix D - Court of appeals opinion (Mar. 6,

i ee ey re fers oS 150a

Appendix E - Statutory provisions involved ...... 213a

(1)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2539

D.C. Civ. No. 98-ev-05591

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY

BOOKS, INC., D/B/A A DIFFERENT LIGHT BOOKSTORES;

AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION; ADDAZI, INC., D/B/A CONDOMANIA;

ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC

PRIVACY INFORMATION CENTER; FREE SPEECH

MEDIA; PHILADELPHIA GAY NEWS; POWELL’S

BOOKSTORES; SALON MEDIA GROUP, INC.;

PLANETOUT, INC.; HEATHER CORINNA REARICK;

NERVE.COM, INC.; AARON PECKHAM, D/B/A URBAN

DICTIONARY; PUBLIC COMMUNICATORS, INC.; DAN

SAVAGE; SEXUAL HEALTH NETWORK

Vv.

“MICHAEL B. MUKASEY, IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES

MICHAEL B. MUKASEY, APPELLANT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

Honorable Lowell A. Reed, District Judge

* Substituted as per FRAP 43(b).

(la)

2a

Argued: June 10, 2008

Filed: July 22, 2008

OPINION OF THE COURT

Before: AMBRO, CHAGAREFS, and GREENBERG, Circuit

Judges.

GREENBERG, Circuit Judge.

I] INTRODUCTION

This matter comes on before this Court on an appeal

from an order of the District Court entered March 22,

2007, finding that the Child Online Protection Act

(“COPA”), 47 U.S.C. § 231, facially violates the First and

Fifth Amendments of the Constitution and permanently

enjoining the Attorney Genera! from enforcing COPA.

The Government challenges the District Court’s conclu-

sions that: (1) COPA is not narrowly tailored to advance

the Government’s compelling interest in protecting chil-

dren from harmful material on the World Wide Web

(“Web”); (2) there are less restrictive, equally effective

alternatives to COPA; and (3) COPA is impermissibly

overbroad and vague. We will affirm.

II. FACTS AND PROCEDURAL HISTORY

It is useful at the outset to set forth a short history

of the background of COPA and an explanation of the

relationship between the Web and the Internet. Con-

gress enacted COPA to protect minors from exposure to

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sexually explicit material on the Web. The Web is just

one portion of the Internet, which “is an interactive me-

dium based on a decentralized network of computers.”

American Civil Liberties Union v. Gonzales, 478 F.

Supp. 2d 775, 781 (B.D. Pa. 2007) (“Gonzales”). “The

Internet may also be used to engage in other activities

such as sending and receiving emails, trading files, ex-

changing instant messages, chatting online, streaming

audio and video, and making voice calls.” /d. The Dis-

trict Court described how the Web functions:

On the Web, a client program called a Web browser

retrieves information from the Internet, such as Web

pages and other computer files using their network

addresses and displays them, typically on a computer

monitor. . . . Web pages, which can contain, inter

alia, text, still and moving picture files, sound files,

and computer scripts, are often arranged in collec-

tions of related material called Web sites, which con-

sist of one or more Web pages. . . . It is estimated

that there are between 25 and 64 billion Web pages

on the surface portion of the Web (‘Surface Web’)

—that is, the portion of the Web that is capable of

being indexed by search engines. These Web pages

may be displayed on a monitor screen and, thus, the

content may be seen by anyone operating a computer

or other Internet capable device which is properly

connected to the Internet.

Id. at 781-82 (citations omitted). The District Court

indicated that “{a] little more than 1 percent of all Web

pages on the Surface Web (amounting to approximately

275 million to 700 million Web pages) are sexually ex-

plicit.” /d. at 788.

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COPA provides for civil and criminal penalties—in-

cluding up to six months imprisonment—for anyone who

knowingly posts “material that is harmful to minors”

on the Web “for commercial purposes.” 47 U.S.C:

§ 231(a)(1). “Intentional” violations result in heavier

fines. Jd. at § 231(a)(2). “[MJaterial that is harmful to

minors” includes any communication that is obscene or

that:

(A) the average person, applying contemporary com-

munity standards, would find, taking the material as

a whole and with respect to minors, is designed to

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

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

manner patently offensive with respect to minors, an

actual or simulated sexual act or sexual! contact, an

actual or simulated normal or perverted sexual act,

or a lewd exhibition of the genitals or post-pubescent

female breast; and (C) taken as a whole, lacks serious

literary, artistic, political, or scientific value for mi-

nors.

Id. at § 231(e)(6). “The term ‘minor’ means any person

under 17 years of age.” Jd. at § 231(e)(7). A person

makes a communication “for commercial purposes” only

if the person when making the communication “is en-

gaged in the business of making such communications.”

Td. at § 231(e)(2)(A). A person is “engaged in the busi-

ness” when the person:

devotes time, attention, or labor to such activities,

as a regular course of such person’s trade or busi-

ness, with the objective of earning a profit as a result

of such activities . . . . [and] only if the person

knowingly causes [or solicits] the material that is

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harmful to minors to be posted on the World Wide

Web....

Id. at § 231(e)(2)(B). A Web publisher can assert an

affirmative defense to prosecution under COPA if he or

she:

has restricted access by minors to material that is

harmful to minors—(A) by requiring use of a credit

card, debit account, adult access code, or adult per-

sonal identification number; (B) by accepting a digi-

tal certificate that verifies age; or (C) by any other

reasonable measures that are feasible under avail-

able technology.

Id. at § 231(c)(1).

Congress enacted COPA after the Supreme Court

declared Congress’s first attempt to protect minors from

exposure to sexually explicit materials on the Web to be

unconstitutional. See Reno v. American Civil Liberties

Union, 521 U.S. 844, 1178. Ct. 2329 (1997) (holding that

the Communications Decency Act violated the First

Amendment). The day after COPA became law on Octo-

ber 21, 1998, plaintiffs, consisting of speakers, content

providers, and users of the Web, filed this action in the

District Court seeking an injunction barring COPA’s

enforcement. On February 1, 1999, the District Court

preliminarily enjoined the Government from enforcing

COPA pending a trial on the merits. American Civil

Liberties Union v. Reno, 31 F. Supp. 2d 473 (E.D. Pa.

1999). In its opinion the court pointed out, among many

other things, that the plaintiffs suggested that filtering

and blocking technology was an “example of a more effi-

cacious and less restrictive means to shield minors from

harmful materials” than COPA but that the final deter-

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mination of whether this was so “must await trial on the

merits.” Jd. at 497.

The Government appealed but we affirmed the Dis-

trict Court's order after concluding that the “community

standards” language in section 231(e)(6)(A) by itself ren-

dered COPA unconstitutionally overbroad. American

Civil Liberties Union v. Reno, 217 F.3d 162, 173 (3d Cir.

2000) (“ACLU I”). The Government then sought and

obtained certiorari and the Supreme Court vacated our

decision and remanded the case to us for further pro-

ceedings because the Court concluded that the “commu-

nity standards” language did not, standing alone, make

the statute unconstitutionally overbroad. Ashcroft v.

American Civil Liberties Union, 535 U.S. 564, 585, 122

S. Ct. 1700, 1713 (2002).

On the remand we ruled that, for a variety of rea-

sons, COPA was not narrowly tailored to serve the Gov-

ernment’s compelling interest in preventing minors from

being exposed to harmful material on the Web, was not

the least restrictive means available to effect that inter-

est, and was substantially overbroad. American Civil

Liberties Union v. Ashcroft, 322 F.3d 240, 251-271 (3d

Cir. 2003) (“ACLU IT”). Consequently, we again af-

firmed the District Court’s order granting the prelimi-

nary injunction. Jd. at 271. The Government again

sought and obtained certiorari but this time the Su-

preme Court affirmed our decision though it remanded

the case to the District Court for a trial on the merits.

The Court contemplated that the record would be up-

dated on the remand to reflect the then current techno-

logical developments and to account for any changes in

the legal landscape. The Court further directed that the

District Court determine whether Internet content fil-

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ters are more effective than enforcement of the COPA

restrictions or whether other possible alternatives are

less restrictive and more effective than COPA to effectu-

ate Congress’s intention. Ashcroft v. American Civil

Liberties Union, 542 U.S. 656, 670-73, 124 S. Ct. 2783,

2794-95 (2004).

After a bench trial, the District Court on March 22,

2007, issued extensive findings of fact, determined that

plaintiffs have standing to maintain this action, and con-

cluded that:

COPA facially violates the First and Fifth Amend-

ment rights of the plaintiffs because: (1) COPA is not

narrowly tailored to the compelling interest of Con-

gress; (2) defendant has failed to meet his burden of

showing that COPA is the least restrictive and most

effective alternative in achieving the compelling in-

terest; and (8) COPA is impermissibly vague and

overbroad.

Gonzales, 478 F. Supp. 2d at 821. The District Court

permanently enjoined the Attorney General and his offi-

cers, agents, employees, and attorneys, and those per-

sons in active concert or participation with him who re-

ceived actual notice of its order, from enforcing or pros-

ecuting matters premised upon COPA at any time for

any conduct. /d.

The Government then filed a timely appeal to this

Court.

Il. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C.

§ 1331 and we have jurisdiction pursuant to 28 U.S.C.

§ 1291. We review the constitutionality of a federal stat-

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ute and related questions of statutory interpretation de

novo. Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d

Cir. 2001). Although we generally review a district

court’s factual findings for clear error, “[i]Jn the First

Amendment context, seviewing courts have a duty to

engage in a searching, independent factual review of the

full record.” United States v. Scarfo, 263 F.3d 80, 91 (3d

Cir. 2001). The Supreme Court has emphasized that “an

appellate court has an obligation to ‘make an independ-

ent examination of the whole record’ in order to make

sure that ‘the judgment does not constitute a forbidden

intrusion on the field of free expression.’” Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485,

499, 104 S. Ct. 1949, 1958 (1984) (quoting New York

Times Co. v. Sullivan, 376 U.S. 254, 284-86, 84 S. Ct.

710, 728-29 (1964)).

IV. DISCUSSION

The First Amendment provides that “Congress shall

make no law .. . abridging the freedom of speech, or

of the press ... .” U.S. Const. amend. I. COPA

criminalizes a category of speech—“harmful to minors”

material—that is constitutionally protected for adults.

Because COPA is a content-based restriction on pro-

tected speech, it is presumptively invalid and the Gov-

ernment bears the burden of showing its constitutional-

ity. Ashcroft, 542 U.S. at 660, 124 S. Ct. at 2788.

The Government challenges the District Court’s deci-

sion that COPA facially violated plaintiffs’ First Amend-

ment rights because it was not narrowly tailored to fur-

ther a compelling government interest, i.e., was not the

least restrictive alternative to advance that interest, the

prevention of minors from being exposed to harmful

9a

material on the Web, and was impermissibly vague and

overbroad.’

A. Law-of-the-Case Doctrine

Before we reach the merits of the case, we must ad-

dress the effect of our prior decision in ACLU // on this

appeal, as the presence of that decision may make the

law-of-the-case doctrine relevant here. Under the law-

of-the-case doctrine, “when a court decides upon a rule

of law, that decision should continue to govern the same

issues in subsequent stages in the same case.”

Christianson v. Colt Indus. Operating Corp., 486 U.S.

800, 816, 108 S. Ct. 2166, 2177 (1988) (quoting Arizona

v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391

(1983)). “This rule of practice promotes the finality and

efficiency of the judicial process by protecting against

the agitation of settled issues.” /d. (citation and quota-

tion marks omitted).

We recently addressed the binding effect that our

prior decisions on legal issues at the preliminary injunc-

tion stage on an earlier appeal in the same case have on

later decisions. See Pitt News v. Pappert, 379 F.3d 96,

104-05 (3d Cir. 2004). Clearly the nature of the showing

that an applicant for a preliminary injunction must make

to obtain relief can present special difficulties in apply-

ing the law-of-the-case doctrine in later stages of the

litigation. In Pitt News we noted that “three separate

rules are relevant” when considering the effect of a pre-

liminary injunction later in ongoing litigation:

' The Government, however, does not challenge the District Court's

determination that plaintiffs have standiny to bring this action.

10a

First, it is our Court’s tradition that a panel may not

overrule ‘a holding’ of a prior panel. Second, it is well

established that neither this tradition nor the law-of-

the-case doctrine requires a panel hearing an appeal

from the entry of a final judgment to follow the legal

analysis contained in a prior panel decision address-

ing the question whether a party that moved for pre-

liminary injunctive relief showed a likelihood of suc-

cess on the merits. Third, although a panel entertain-

ing a preliminary injunction appeal generally decides

only whether the district court abused its discretion

in ruling on the request for relief and generally does

not go into the merits any farther than is necessary

to determine whether the moving party established

a likelihood of suecess, a panel is not always required

to take this narrow approach. If a preliminary in-

junction appeal presents a question of law and the

facts are established or of no controlling relevance,

the panel may decide the merits of the claim.

Id. at 104-05 (citations and most internal quotation

marks omitted). We explained:

In the typical situation—where the prior panel

stopped at the question of likelihood of success—the

prior panel’s legal] analysis must be carefully consid-

ered, but it is not binding on the later panel. Indeed,

particularly where important First Amendment is-

sues are raised, the later pane) has a duty, in the end,

to exercise its own best judgment. On the other

hand, if the first panel does not stop at the question

of likelihood of success and instead addresses the

merits, the later panel, in accordance with our

Court’s traditional practice, should regard itself as

bound by the prior panel’s opinion.

lla

Id. at 105.

But even if we subsequently conclude that in a partic-

ular case our prior determination ordinarily would bind

us, we may reconsider issues that we previously resolved

if any of the following “extraordinary circumstances”

are present: “(1) there has been an intervening change

in the law; (2) new evidence has become available; or (3)

reconsideration is necessary to prevent clear error or a

manifest injustice.” Council of Alternative Political

Parties v. Hooks, 179 F.3d 64, 69 (8d Cir. 1999) (citing

In re City of Philadelphia Litig., 158 F.3d 711, 718 (8d

Cir. 1998)).

In ACLU II we concluded that plaintiffs were likely

to succeed on the merits and thus concluded that the

District Court could grant them a preliminary injunc-

tion. Nevertheless we did not stop our analysis after

coming to that conclusion. Instead, we opined at length

on the constitutionality of COPA and construed a num-

ber of terms of the statute. Consequently, the proce-

dural posture of this case and the scope of our prior de-

cision has set a foundation for the possible applicability

of the law-of-the-case doctrine here.

Though we will explain in more detail the basis for

our conclusions in ACLU IT, for purposes of determining

the binding effect of that decision on this appeal it is

enough to note now that we expressly held the following:

(1) COPA’s definitions of “material that is harmful to

minors,” and “commercial purposes” and COPA’s affir-

mative defenses are not narrowly tailored to achieve the

Government’s compelling interest in protecting minors

from harmful material on the Web, 322 F.8d at 251; (2)

filtering software is a less restrictive alternative than

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the COPA restrictions to advance the Government’s

compelling interest in preventing minors from being

exposed to harmful material on the Web, 7d. at 265;

(3) COPA is “substantially overbroad” because of its use

of the terms “material harmful to minors,” “minor,”

“commercial purposes,” and “community standards”;

(4) COPA’s affirmative defenses do not save the statute

from sweeping too broadly; and (5) a narrowing con-

struction of COPA is not available to permit it to be up-

held, zd. at 266-71.

In its decision affirming ACLU IJ, the Supreme

Court expressly deciined to consider many of the issues

that we had determined. Specifically, the Court stated:

[W]e agree with the Court of Appeals that the Dis-

trict Court did not abuse its discretion in entering

the preliminary injunction. Our reasoning in support

of this conclusion, however, is based on narrower,

more specific grounds than the rationale the Court of

Appeals adopted. The Court of Appeals, in its opin-

ion affirming the decision of the District Court, con-

strued a number of terms in the statute, and held

that COPA, so construed, was unconstitutional.

None of those constructions of statutory terminol-

ogy, however, were relied on by or necessary to the

conclusions of the District Court. Instead, the Dis-

trict Court concluded only that the statute was likely

to burden some speech that is protected for adults,

which [the Government] does not dispute. As to the

definitional disputes, the District Court concluded

only that [the plaintiffs’] interpretation was ‘not un-

reasonable,’ and relied on their interpretation only to

conclude that [the plaintiffs] had standing to chal-

lenge the statute, which, again, [the Government]

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does not dispute. Because we affirm the District

Court’s decision to grant the preliminary injunction

for the reasons relied on by the District Court, we

decline to consider the correctness of the other argu-

ments relied on by the Court of Appeals.

Ashcroft, 542 U.S. at 665, 124 S. Ct. at 2791 (citations

omitted). The Court then addressed the issue of

whether there are less restrictive alternatives to the

COPA restrictions to further the Government’s compel-

ling interest in COPA’s objective and stated that

“(filters are less restrictive than COPA.” /d. at 667,

124 S. Ct. at 2792. The Court recognized, however, that

“there are substantial factual disputes remaining in the

case... [TJ]hereis a serious gap in the evidence as to

the effectiveness of filtering software. For us to assume,

without proof, that filters are less effective than COPA

would usurp the District Court’s factfinding role.” Jd. at

671, 124 S. Ct. at 2794 (citation omitted). Thus, the

Court recognized that restrictiveness and effectiveness

are separate matters. The Court also noted that:

[Tjhe factual record does not reflect current techno-

logical reality—a serious flaw in any case involving

the Internet. The technology of the Internet evolves

at a rapid pace. Yet the factfindings of the District

Court were entered in February 1999, over five

years ago ... . It is reasonable to assume that

other technological developments important to the

First Amendment analysis have also occurred during

that time. More and better filtering alternatives may

exist than when the District Court entered its find-

ings.

14a

Id. According!y, ‘he Court decided to remand the case

to the District ourt for a full trial on the merits to “up-

date and supplement the factual record to reflect cur-

rent technological realities” and “to take account of a

changed legal landscape” to determine if other methods

were less restrictive alternatives to COPA to further the

Government’s compelling interest in its objective. /d. at

672, 1248S. Ct. at 2795.

The Government contends that the portion of our

opinion in ACLU I] that goes beyond the Supreme

Court’s holding “is not binding because the Supreme

Court’s decision remanding for further consideration of

the question whether filtering is a less restrictive alter-

native than COPA contemplates a fresh examination of

all the issues in this case, including the scope of COPA’s

coverage and its efficacy and restrictiveness compared

to filtering.” Appellant’s Letter at 1 (May 30, 2008).*

We conclude, however, that the Government is incorrect

on this point. The Supreme Court’s decision explicitly

left untouched our conclusions in ACLU I] other than

our decision that filters are a less restrictive alternative

than COPA for advancing the Government’s compelling

interest at stake in this litigation. Moreover, our other

determinations—including our interpretation of the pro-

visions of COPA and whether they are narrowly con-

strued or impermissibly overbroad—did not depend on

the factual record and thus would not be implicated by

the evidence developed in the subsequent trial on the

merits in the District Court. Accordingly, those conclu-

sions remain binding on us now.

- The Government wrote this letter in response to our request that

the parties file supplemental letter briefs on the law-of-the-case issue.

15a

The Government also contends that we should recon-

sider the issues addressed in ACLU IJ on the basis of an

intervening change in the law since we decided that

case. In this regard it points to the Supreme Court’s

recent decision in United States v. Williams, 128 S. Ct.

1830 (2008), where the Court found that the Prosecuto-

rial Remedies and Other Tools to end the Exploita-

tion of Children Today Act of 2003, 18 U.S.C.

§ 2252A(a)(3)(B), is not overbroad under the First

Amendment. But the Court in Williams merely re-

stated and applied the well-established legal] doctrines

of overbreadth and vagueness and did not change the

law applicable to this case. Accordingly, we conclude

that there are not “extraordinary circumstances” justi-

fying us in departing from our holdings in ACLU I]

other than that with respect to filtering.

Now that we have delineated the contours of ACLU

Il’s effect on this appeal, we will address the issues the

Government raises. As we consider these issues, we will

determine whether, and if so the extent, that our conclu-

sions in ACLU I] are the law-of-the-case here.

B. Strict Scrutiny

First, the Government challenges the District

Court’s decision that COPA is unconstitutional because

it does not survive strict scrutiny, the standard that we

apply in this case inasmuch as COPA is a content-based

restriction on speech. See Turner Broadcasting Sys.,

Inc. v. Fed. Comme’ns Comm'n, 512 U.S. 622, 642, 114

S. Ct. 2445, 2459 (1994). To survive strict scrutiny anal-

ysis, a statute must: (1) serve a compelling governmen-

tal interest; (2) be narrowly tailored to achieve that in-

terest; and (3) be the least restrictive means of advanc-

16a

ing that interest. Sable Comme’ns of Cal., Inc. v. Fed.

Comme’ns Comm'n, 492 U.S. 115, 126, 109 S. Ct. 2829,

2836 (1989).

1. Compelling Interest

As we noted above, Congress enacted COPA to pro-

tect minors from exposure to sexually explicit material

on the Web. The Supreme Court has held that “there is

a compelling interest in protecting the physical and psy-

chological well-being of minors,” Sable, 492 U.S. at 126,

109 S. Ct. at 2836, and the parties agree that the Gov-

ernment has a compelling interest to protect minors

from exposure to harmful material on the Web. Inas-

much as we agree with them on that point, we turn to

the question of whether COPA is narrowly tailored to

effectuate its purpose.

2. Narrowly Tailored

As we stated above, to survive a strict scrutiny analy-

sis COPA must be narrowly tailored to advance a com-

pelling government interest. In ACLU IJ, we addressed

this issue and held that the following provisions of

COPA are not narrowly tailored:

(a) the definition of ‘material that is harmful to mi-

nors,’ which includes the concept of taking ‘as a

whole’ material designed to appeal to the ‘prurient

interest’ of minors; and material which (when judged

as a whole) lacks ‘serious literary’ or other ‘value’ for

minors; (b) the definition of ‘commercial purposes,’

which limits the reach of the statute to persons ‘en-

gaged in the business’ (broadly defined) of making

communications of material that is harmful to mi-

nors; and (c) the ‘affirmative defenses’ available to

17a

publishers, which require the technological screening

of users for the purpose of age verification.

ACLU I1, 322 F.3d at 251.

First, we addressed why we found that the “taking

the material as a whole” language in COPA’s definition

of “material that is harmful to minors,” was not nar-

rowly tailored. COPA defines such material to include

any matter that is obscene or that:

(A) the average person, applying contemporary com-

munity standards, would find, taking the material us

a whole and with respect to minors, is designed to

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

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

manner patently offensive with respect to minors, an

actual or simulated sexual act or sexual contact, an

actual or simulated normal or perverted sexual act,

or a lewd exhibition of the genitals or post-pubescent

female breast; and (C) taken as a whole, lacks seri-

ous literary, artistic, political, or scientific value for

minors.

47 U.S.C. § 231(e)(6) (emphasis added). We concluded

that the taken “as a whole” language, when read in con-

text with other language in the statute, mandates evalu-

ation of an exhibit on the Internet in isolation, rather

than in context. ACLU 1/1, 322 F.3d at 253. We ex-

plained that:

Because we view such a statute, construed as its own

text unquestionably requires, as pertaining only to

single individual exhibits, COPA endangers a wide

range of communications, exhibits, and speakers

whose messages do not comport with the type of

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harmful materials legitimately targeted under

COPA, i.e., material that is obscene as to minors.

Accordingly, 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. Thus, in our opinion, the Act, which pro-

scribes publication of material harmful to minors, is

not narrowly tailored to serve the Government’s

stated purpose in protecting minors from such mate-

rial.

Id. (citation omitted).

We also explained why we found that “COPA’s defini-

tion of the term ‘minor,’ viewed in conjunction with the

‘material harmful to minors’ test, is not tailored nar-

rowly enough to satisfy the First Amendment’s require-

ments.” Jd. at 255. COPA defines “minor” as “any per-

son under 17 years of age.” 47 U.S.C. § 231(e)(7). We

stated that the term “thus applies in a literal sense to an

infant, a five-year old, or a person just shy of age seven-

teen.” ACLU I], 322 F.3d at 254. We reasoned that

“Web publishers would face great uncertainty in decid-

ing what minor could be exposed to its publication, so

that a publisher could predict, and guard against, poten-

tial liability.” Jd. at 255. We explicitly rejected the Gov-

ernment’s argument that the term “should be read to

apply only to normal, older adolescents,” 7d. at 254, and

stated that under either our definition or the Govern-

ment’s proffered definition, “the term ‘minor,’ viewed in

conjunction with the ‘material harmful to minors’ test, is

not tailored narrowly enough to satisfy the First Amend-

ment’s requirements,” id. at 255.

19a

We then proceeded to explain why we found that

“COPA’s purported limitation of liability to persons

making communications ‘for commercial purposes’ does

not narrow the reach of COPA sufficiently.” /d. at 256.

COPA states that “[a] person shall be considered to

make a communication for commercial purposes only if

such person is engaged in the business of making such

communications,” and that

[t]he term ‘engaged in the business’ means that the

person who makes a communication . . . that in-

cludes any material that is harmful to minors, de-

votes time, attention, or labor to such activities, as a

regular course of such person’s trade or business,

with the objective of earning a profit . . . . A per-

son may be considered to be engaged in the business

... Only if the person knowingly causes [or solicits]

the material that is harmful to minors to be posted

on the World Wide Web... .

47 U.S.C. § 231(e)(2). We stated that:

we read COPA to apply to Web publishers who have

posted any material that is ‘harmful to minors’ on

their Web sites, even if they do not make a profit

from such material itself or do not post such material

as the principal part of their business. Under the

plain language of COPA, a Web publisher will be

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

Web site displays material ‘harmful to minors.’

ACLU II, 322 F.3d at 256. We stated that this group

included “those persons who sell advertising space on

their otherwise noncommercial Web sites . . . [, includ-

ing] the Web publisher who provides free content on his

or her Web site and seeks advertising revenue, perhaps

20a

only to defray the cost of maintaining the Web site.” /d.

We also rejected the Government’s argument that

“COPA’s definition of ‘engaged in the business’ limits

liability to those persons who publish material that is

harmful to minors ‘as a regular course of such person’s

299,

business or trade’”’:

COPA’s use of the phrase ‘regular course’ does not

narrow the scope of speech covered because it does

not place any limitations on the amount, or the pro-

portion, of a Web publisher’s posted content that

constitutes such material. Thus, even if posted mate-

rial that is harmful to minors constitutes only a very

small, or even infinitesimal, part of a publisher’s en-

tire Web site, the publisher may still be subject to

hability.

Id. at 257.

Finally, we explained why we found that COPA’s

affirmative defenses were not narrowly tailored. As we

already have noted above, a Web publisher can assert an

affirmative defense if it:

has restricted access by minors to material that is

harmful to minors—(A) by requiring use of a credit

card, debit account, adult access code, or adult per-

sonal identification number; (B) by accepting a digi-

tal certificate that verifies age; or (C) by any other

reasonable measures that are feasible under avail-

able technology.

47 U.S.C. § 231(c)(1). We first stated that implementa-

tion of the affirmative defenses in COPA “will likely de-

ter many adults from accessing restricted content, be-

cause many Web users are simply unwilling to provide

21a

identification information in order to gain access to con-

tent, especially where the information they wish to ac-

cess is sensitive or controversial.” ACLU J], 322 F.3d at

259 (footnote omitted). For this particular conclusion

we relied on factual findings the District Court made in

granting the preliminary injunction, so to this extent it

does not bind us on this appeal.

Though we are not bound by previous conclusions

with respect to deterrence of adults seeking restricted

eontent, in ACLU IJ we reached other conclusions about

COPA’s affirmative defenses that do not depend on the

facts as developed in the District Court, and those con-

clusions are binding on us on this appeal. For instance,

in ACLU I] we stated that “the affirmative defenses do

not provide Web publishers with assurances of freedom

from prosecution” because “‘[a]n affirmative defense

applies only after prosecution has begun, and the

speaker must himself prove . . . that his conduct falls

within the affirmative defense.’” Jd. at 260 (second al-

teration in original) (quoting Ashcroft v. Free Speech

Coalition, 535 U.S. 234, 255, 122 S. Ct. 1389, 1404

(2002)). We also considered the Government’s argument

that other cases dealing with display restrictions have

upheld the use of blinder racks to shield minors from

viewing harmful material. We distinguished those cases

because:

[tihe use of ‘blinder racks’ . . . does not create the

same deterrent effect on adults as would COPA’s

credit card or adult verification screens. Blinder

racks do not require adults to compromise their ano-

nymity in their viewing of material harmful to mi-

nors, nor do they create any financial burden on the

user. Moreover, they do not burden the speech con-

22a

tained in the targeted publications any more than is

absolutely necessary to shield minors from its con-

tent.

Id. We concluded that “[t]he effect of the affirmative

defenses, as they burden ‘material harmful to minors’

which is constitutionally protected for adults, is to drive

this protected speech from the marketplace of ideas on

the Internet. This type of regulation is prohibited under

the First Amendment.” /d.

In its decision made after the trial on the merits now

on appeal before us, the District Court concluded that

COPA is not narrowly tailored because it is both

overinclusive and underinclusive. First, the court deter-

mined that COPA is impermissibly overinclusive be-

cause it “prohibits much more speech than is necessary

to further Congress’ compelling interest. For example,

. the definitions of ‘commercial purposes’ and ‘en-

gaged in the business’ apply to an inordinate amount of

Internet speech and certainly cover more than just com-

mercial pornographers ... .” Gonzales, 478 F. Supp.

2d at 810 (citations omitted). The court also concluded

that COPA is overinclusive because it “applies to speech

that is obscene as to all minors from newborns to age

sixteen, and not just to speech that is obscene as to older

minors...” /d.

The Government contends that COPA is narrowly

tailored because it applies only to commercial porno-

graphers and only to material that is harmful to “older”

minors. But we addressed and rejected the Govern-

ment’s arguments in ACLU //, when we found there is

nothing in the text of COPA to limit its application solely

to “commercial pornographers” or to limit the phrase

23a

“material that is harmful to minors” to include material

that only is harmful to “older” minors. See 322 F.3d at

253-57. Our prior decision is binding on these issues on

this appeal.

The District Court also found that COPA is not nar-

rowly tailored because it is underinclusive. In ACLU J]

we did not address whether COPA is impermissibly

underinclusive and so we are free to review this finding

on the merits. In its Findings of Fact, the District

Court stated that “a substantial number (approximately

50 percent) of sexually explicit websites are foreign in

origin.” Gonzales, 478 F. Supp. 2d at 789. The court

then reasoned:

(T)here is a significant amount of sexually explicit

material on the Internet which originates from out-

side of the United States. . . . [Unlike Internet

content filters which are able to block from view un-

suitable material regardless of its origin, COPA has

no extra-territorial application. As a result,

COPA is not applicable to a large amount of material

that is unsuitable for children which originates over-

seas but is nevertheless available to children in the

United States . . . . COPA’s lack of extraterritorial

application renders it underinclusive.

Id. at 810-11 (citations omitted). The Government con-

tends that the District Court erred by construing COPA

not to apply to foreign Web sites, and thus the Govern-

ment argues that COPA is not underinclusive.

The problem with the Government’s argument in this

respect is that, as we explain below, the Supreme Court

already has determined that COPA does not apply to

foreign Web sites. But notwithstanding this significant

24a

limitation on COPA’s scope, if we had to pass on the is-

sue we might conclude that COPA is not unconstitution-

ally underinclusive. The Supreme Court has explained

the circumstances in which a court may find that a regu-

lation of speech is impermissibly underinclusive:

[A]n exemption from an otherwise permissible regu-

lation of speech may represent a governmental] ‘at-

tempt to give one side of a debatable public question

an advantage in expressing its views to the people.’

First Nat’l Bank of Boston v. Bellotti, 485 U.S. 765,

785-86, 98 S. Ct. 1407, 1420-21, 55 L. Ed. 2d 707

(1978). Alternatively, through the combined opera-

tion of a general speech restriction and its exemp-

tions, the government might seek to select the ‘per-

missible subjects for public debate’ and thereby to

‘control . . . the search for political truth.’ Consoli-

dated Edison Co. of N.Y. v. Public Serv. Comm’n of

N.Y., 447 U.S. 530, 538, 100 S. Ct. 2326, 2333, 65 L.

Eid. 2d 319 (1980).

City of Ladue v. Gilleo, 512 U.S. 43, 51, 114 S. Ct. 2038,

2043 (1994) (second alteration in original) (footnote

omitted). These quite narrow circumstances are hardly

applicable to COPA. Even though, as the District Court

recognized, COPA does not apply to foreign Web sites,

we cannot understand how that limitation on its scope

would “represent a governmental attempt to give one

side of a debatable public question an advantage in ex-

pressing its views to the people . . . [er] to select the

permissible subjects for public debate.” /d. (citations

and quotation marks omitted). There is no evidence in

the record of which we are aware that Congress sought

to favor foreign Web site publishers over domestic Web

site publishers when regulating sexually explicit mate-

25a

rial on the Web, nor is there any suggestion in the re-

cord that the Government is selecting the permissible

subject for public debate by excluding foreign Web sites

from COPA’s coverage.

In fact, we think that it is likely that Congress would

have desired to place COPA’s restrictions on foreign

Web sites available for access in this country but chose

not to do so because, as the District Court recognized:

[e]nforcement of COPA against overseas Web site

owners would . . . be burdensome and impractical

due to the knotty questions of jurisdiction which

arise in the Internet context. Furthermore, even if a

specific foreign Web site had sufficient contacts with

the forum to allow personal jurisdiction, it could be

quite difficult or impossible to ensure that the of-

fender would obey or could be forced to obey the

judgment of the U.S. court.

Gonzales, 478 F. Supp. 2d at 811. In these circum-

stances, even though COPA’s omission of foreign Web

sites from its regulations certainly is relevant in an in-

quiry into whether it is the most effective means of ad-

vaneing the Government’s compelling interest in

COPA’s object, the omission might not lead us to a con-

clusion that the statute is impermissibly underinclusive.

After all, as the Court of Appeals for the Fighth Circuit

recently noted, “a limitation on speech that is not all-

encompassing may still be narrowly tailored where the

underinclusivity does not favor a particular viewpoint or

undermine the rationale given for the regulation.” Bow-

man v. White, 444 F.3d 967, 983 (8th Cir. 2006).

On the other hand, we might conclude that because

COPA fails to apply to 50% of its purported commercial

2

26a

pornography targets, we lack the evidence necessary to

satisfy us that Congress had in mind its stated goal of

protecting minors from harmful material on the Web

when it passed COPA. It is not as though Congress is

unable to protect minors from harmful material on for-

eign Web sites; for instance, Congress could promote

the use of Internet content filters, which do not diserimi-

nate on the basis of geography. COPA’s failure to pro-

tect minors from harmful material on foreign Web sites

might raise the inference that Congress had some ulte-

rior, impermissible motive for passing COPA.

We note, however, that our possible disagreement

with the District Court on this one point would not

change our ultimate decision to affirm its order granting

a permanent injunction, as there are numerous other

grounds that require us to find that COPA is not nar-

rowly tailored and is unconstitutional. Accordingly, we

will refrain from deciding the matter.

The District Court also found that COPA’s affirma-

tive defenses “do not aid in narrowly tailoring COPA to

Congress’ compelling interest.” Gonzales, 478 F. Supp.

2d at 813. Specifically, the court found that:

there is no evidence of age verification services or

products available on the market to owners of Web

sites that actually reliably establish or verify the age

of Internet users. Nor is there evidence of such ser-

vices or products that can effectively prevent access

to Web pages by a minor.

Id. at 800. The court found that “(t]he rules of payment

eard associations in this country prohibit Web sites from

claiming that use of a payment card is an effective

method of verifying age, and prohibit Web site owners

27a

from using credit or debit cards to verify age,” and that

“a significant number of minors have access to [payment

eards].” Jd. at 801. The court also reviewed data verifi-

cation services, which are “non-payment card-based ser-

vices that attempt to verify the age or identity of an indi-

vidual Internet user,” and found that they are unreliable

because they “cannot determine whether the person

entering information into the Web site is the person to

whom the information pertains.” /d. at 802. The court

further found that the minimum information required by

a data verification services company “can easily be cir-

cumvented by children who generally know the first and

last name, street address and zip codes of their parents

or another adult.” /d.

The court later explained, “[t]he affirmative defenses

cannot cure COPA’s failure to be narrowly tailored be-

cause they are effectively unavailable. Credit cards,

debit accounts, adult access codes, and adult personal

identification numbers do not in fact verify age. Asa

result, their use does not, in good faith, ‘restrict [] ac-

cess’ by minors.” /d. at 811 (second alteration in origi-

nal) (quoting.47 U.S.C. § 231(¢)(1)(A)).

The court also concluded that COPA’s affirmative

defenses “raise unique First Amendment issues” that

make the statute unconstitutional. /d. at 813. The court

found that due to the fees associated with the use of the

procedures enumerated in all of the affirmative defenses

and verification services, “Web sites . . . which desire

to provide free distribution of their information, will be

prevented from doing so.” J/d. at 804. The court also

found that:

ld.

28a

[flor a plethora of reasons including privacy and fi-

nancial concerns . . . and the fact that so much Web

content is available for free, many Web users already

refuse to register, provide credit card information, or

provide real personal information to Web sites if

they have any alternative. Because requiring age

verification would lead to a significant loss of users,

content providers would have to either self-censor,

risk prosecution, or shoulder the large financial bur-

den of age verification.

at 805. Moreover, the court found that “many users

who are not willing to access information non-anony-

mously will be deterred from accessing the desired in-

formation. Web site owners . . . will be deprived of the

ability to provide this information to those users.” /d. at

806. The court also indicated that:

Id.

{rJequiring Internet users to provide payment card

information or other personally identifiable informa-

tion to access a Web site would significantly deter

many users from entering the site, because Internet

users are concerned about security on the Internet

and because Internet users are afraid of fraud and

identity theft on the Internet.

Based on these findings, the court concluded that:

[t]he affirmative defenses also raise their own First

Amendment concerns. For example, the utilization

of those devices to trigger COPA’s affirmative de-

fenses will deter listeners, many of whom will be un-

willing to reveal personal and financial information

in order to access content and, thus, will chill speech.

Similarly, the affirmative defenses also imper-

missibly burden Web site operators with demon-

29a

strating that their speech is lawful. Under the

COPA regime, Web site operators are unable to de-

fend themselves until after they are prosecuted.

Moreover, the affirmative defenses place substantial

economic burdens on the exercise of protected

speech because all of them involve significant cost

and the loss of Web site visitors, especially to those

plaintiffs who provide their content for free.

Id. at 812-13 (citations and quotations omitted).

The Government argues that the District Court

erred in rejecting the limiting effect of COPA’s affirma-

tive defenses. It contends that “[t]he possibility that

some minors may have access to credit cards merely

demonstrates that no system of age verification is fool-

proof. It does not call into question the availability of

credit card screening as an affirmative defense that tai-

lors COP:. more narrowly.” Appellant’s Br. at 37. The

Government also argues that “the court ignored testi-

mony that minors do not have access to traditional pay-

ment cards under their own control but simply have ac-

cess to cards supervised by adults.” /d.

But the District Court found that even if there is pa-

rental supervision of payment card use, the supervision

does not prevent access to harmful material by minors

because parents “may not be able to identify transac-

tions on sexually explicit Web sites because the adult

nature of such transactions is often not readily identifi-

able . . . .” Gonzales, 478 F. Supp. 2d at 802. In any

event, we conclude that the District Court correctly

found that the affirmative defenses are “effectively un-

available” because they do not actually verify age.

30a

The Government also argues that the District Court

incorrectly determined that the affirmative defenses

present their own First Amendment concerns by impos-

ing undue burdens on Web publishers due to the high

costs of implementing age verification technologies and

the loss of traffic that would result from the use of these

technologies. The Government contends that the:

court’s evaluation of the burdens imposed by COPA

was flawed because the court focused largely, if not

exclusively, on Web publishers who provide their

content for free. Whatever limited application COPA

might have beyond its core regulation of commercial

pornography, the court erred in evaluating the bur-

dens the statute imposes based entirely on these

marginal cases and ignoring the heartland of the stat-

ute’s proscriptions, where the burdens are far less

onerous.

Appellant’s Br. at 38-39 (citations and quotations omit-

ted). We reject this argument. The fact that COPA

piaces burdens on Web publishers whom the Govern-

ment does not consider to be within the “heartland” of

the statute does not make those burdens any less oner-

ous or offensive to the principles of the First Amend-

ment.

Moreover, there is good reason to believe that COPA

unduly would burden even those Web publishers whom

the Government considers to fall within the “heartland”

of the statute, because the District Court found that

those publishers also will face significant costs to imple-

ment the affirmative defenses and will suffer the loss of

legitimate visitors once they do so. And, contrary to the

Government's suggestion at oral argument, users would

sla

have alternatives to obtain pornography even if COPA

was in effect because, as we already have indicated and

discuss below, COPA does not apply to foreign Web

sites. The loss of traffic that would result clearly is an

undue burden on even those Web sites that the Govern-

ment contends are in the “heartland” of COPA.

We conclude that the District Court correctly found

that implementation of COPA’s affirmative defenses by

a Web publisher so as to avoid prosecution would involve

high costs and also would deter users from visiting im-

plicated Web sites. It is clear that these burdens would

chill protected speech and thus that the affirmative de-

fenses fail a strict scrutiny analysis.

The Government contends that nevertheless these

burdens “are no different in kind or degree from the

burdens imposed by state laws regulating the sale

and commercial! display of ‘harmful to minors’ materials.

. . . [T]he effect of the statute is simply to requir[e] the

commercial pornographer to put sexually explicit images

behind the counter.” Appellant’s Br. at 43 (citations and

certain internal quotation marks omitted) (second alter-

ation in original).

We rejected this argument in ACLU I]. See 322 F.3d

at 260 (“Blinder racks do not require adults to compro-

mise their anonymity in their viewing of material harm-

ful to minors, nor do they create any financial burden on

the user. Moreover, they do not burden the speech con-

tained in the targeted publications any more than is ab-

solutely necessary to shield minors from its content.”).

Blinder racks do not require adults to pay for speech

that otherwise would be accessible for free, they do not

require adults to relinquish their anonymity to access

32a

protected speech, and they do not create a potentially

permanent electronic record. Blinder racks simply do

not involve the privacy and security concerns that

COPA’s affirmative defenses raise, and so the Govern-

ment’s attempted analogy is ill-fitting.

In sum, after considering our previous conclusions in

ACLU II and our analyses of the issues ACLU IT has

not resolved, we are quite certain that notwithstanding

Congress’s laudable purpose in enacting COPA, the Gov-

ernment has not met its burden of showing that it is nar-

rowly tailored so as to survive a strict scrutiny analysis

and thereby permit us to hold it to be constitutional.

3. Least Restrictive Alternative

In addition to failing the strict scrutiny test because

it is not narrowly tailored, COPA does not employ the

least restrictive alternative to advance the Government’s

compelling interest in its purpose, the third prong of the

three-prong strict scrutiny test. “A statute that ‘effec-

tively suppresses a large amount of speech that adults

have a constitutional right to receive and to address to

one another . . . is unacceptable if less restrictive al-

ternatives would be at least as effective in achieving the

legitimate purpose that the statute was enacted to

serve.” Ashcroft, 542 U.S. at 665, 124 S. Ct. at 2791 (al-

teration in original) (quoting Reno, 521 U.S. at 874, 117

S. Ct. at 2346). “{T]he burden is on the Government to

prove that the proposed alternatives will not be as effec-

tive as the challenged statute.” /d. (citing Reno, 521

U.S. at 874, 117 S. Ct. at 2346). The Government’s bur-

den is “not merely to show that a proposed less restric-

tive alternative has some flaws; its burden is to show

33a

that it is less effective.” Jd. at 669, 124 S. Ct. at 2793

(citing Reno, 521 U.S. at 874, 1178S. Ct. at 2346).

Based on the preliminary injunction record in this

case, the Supreme Court held that “[bJlocking and filter-

ing software is an alternative that is less restrictive than

COPA, and, in addition, likely more effective as a means

of restricting children’s access to materials harmful to

them.” /d. at 666-67, 124 S. Ct. at 2792. We reached a

similar conclusion in ACLU J]. See 322 F.3d at 265.°

* Our opinion in ACLU 1] is not entirely clear on this point. We

started our discussion of the least restrictive alternative question by

indicating that “[wle are also satisfied that COPA does not employ the

‘least restrictive means’ to effect the Government’s compelling interest

in protecting minors.” ACLU //, 322 F.3d at 261. Then in considering

that question in more detail we discussed filters at length. At one point

in the opinion we stated that “filtering software is a less restrictive

alternative that can allow parents some measure of contro! over their

children’s access to speech that parents consider inappropriate.” /d. at

263. At several other points, we also stated that COPA is not the least

restrictive alternative. See id. at 261 (“We are . . . satisfied that

COPA does not employ the ‘least restrictive means’ to effect the

Government’s compelling interest in protecting minors.”); id. at 265-66

(“The existence of less restrictive alternatives renders COPA unconsti-

tutional under strict scrutiny. . . . COPA also fails strict scrutiny

because it does not use the least restrictive means to achieve its ends.

. Congress could have, but failed to employ the least restrictive

means to accomplish its legitimate goal . . . .”). Nevertheless we

stated that “[wJe agree with the District Court that the various blocking

and filtering techniques which that Court discussed may be substan-

tially less restrictive than COPA in achieving COPA’s objective of

preventing a minor’s access to harmful material.” /d. at 265 (emphasis

added). Because of this statement, we cannot state with certainty that

ACLU IT squarely holds that filters are less restrictive than COPA,

though it probably does. Thus, for law-of-the-case purposes, we might

not consider ourselves bound on this appeal by that determination. Of

course, this discussion of whether we determined that filters are less

restrictive than COPA or that filters only may be less restrictive than

34a

After the trial on the merits, the District Court con-

cluded that the Government did not meet its burden of

showing that COPA is the least restrictive effective al-

ternative for advancing Congress’s compelling interest

because filter software and the Government’s promotion

and support of filter software is a less restrictive effec-

tive alternative to COPA.

The District Court discussed Internet content filters

at length in its Findings of Fact. We will review these

findings in detail, as the need to determine whether fil-

ters are more effective than COPA to effectuate Con-

gress’s purpose in enacting that statute was the primary

reason the Supreme Court remanded the case. Accord-

ing to the District Court:

Internet content filters (‘filters’) are computer appli-

cations which, inter alia, attempt to block certain

categories of material from view that a Web browser

or other Internet application is capable of displaying

or downloading, including sexually explicit material.

Filters categorize and block Web sites or pages

based on their content. By classifying a site or page,

and refusing to display it on the user’s computer

screen, filters can be used to prevent children from

seeing material that might be considered unsuitable.

Gonzales, 478 F. Supp. 2d at 789. The court explained:

COPA is somewhat academic, for on the appeal of ACLU II the

Supreme Court explicitly addressed this issue and, though remanding

the case, flatly indicated that filters are “less restrictive” than COPA,

Ashcroft, 342 U.S. at 667, 124 S. Ct. at 2792, and that Court’s conclu-

sions supersede our decision in ACLU J// on this point.

35a

Filters can be programmed or configured in a variety

of different ways according to, inter alia, the values

of the parents using them and the age and maturity

of their children. . . . [Filters can be set up to re-

strict materials available on Web pages and other

Internet applications based on numerous factors in-

cluding the type of content they contain, the pres-

ence of particular words, the address of the Web site,

the Internet protocol used, or computer application

used. Some filters can also restrict Internet access

based on time of day, day of week, how long the com-

puter has been connected to the Internet, or which

user is logged onto a computer.

Id. at 790. The court then described in detail how filters

operate:

Filters use different mechanisms to attempt to block

access to material on the Internet including: black

lists, white lists, and dynamic filtering. Black lists

are lists of URLs or Internet Protocol (‘IP’) ad-

dresses that a filtering company has determined lead

to content that contains the type of materials its fil-

ter is designed to block. White lists are lists of

URLs or IP addresses that a filtering company has

determined do not lead to any content its filter is

designed to block, and, thus, should never be

blocked. . . . In addition to its own black and white

lists, filters often give parents or administrators the

option of creating customized black or white lists.

Dynamic filtering products use artificial intelligence

to analyze Web site content in real-time as it is being

requested and determine whether it should be

blocked by evaluating a number of different parts of

the content, both what the user can actually see on

Id.

36a

the Web page, and the various hidden pieces of infor-

mation contained with the content that are part of its

software code or script, known as the ‘metadata.’

Among other things, dynamic filters analyze the

words on the page, the metadata, the file names for

images, the URLs, the links on a page, the size of

images, the formatting of the page, and other statis-

tical pattern recognition features, such as the spatial

patterns between certain words and images, which

can often help filters categorize content even if the

actual words are not recognized. In addition to ana-

lyzing the content of Web pages, dynamic filters also

take the context of the page into consideration, to

ensure that the determinations are as accurate as

possible. For example, many companies will develop

templates that provide additional context to teach

the software how to recognize certain contexts-for

example, to block the word ‘breast’ when used in

combination with the word ‘sexy,’ but not when used

in combination with the words ‘chicken’ or ‘cancer.’

The software analyzes context, in part, by utilizing

statistical pattern recognition techniques to identify

common features of acceptable and unacceptable

Web pages, depending on the context in which the

content appears.

at 790-91 (citations omitted). The court found that:

[fjilters can be used by parents to block material that

is distributed on the Web and on the other widely

used parts of the Internet through protocols other

than HTTP and through other Internet applications.

For example, filters can be used to block any Inter-

net application, including email, chat, instant mes-

Saging, peer-to-peer file sharing, newsgroups,

ofa

streaming video and audio, Internet television and

voice over Internet protocol (‘VoIP’), and other

Internet protocols such as FTP. In addition to block-

ing access to these Internet applications completely,

some products provide parents with the option of

providing limited access to these applications. For

example, instant messaging and email may be per-

mitted, but some of the filtering products will only

permit the sending and receiving of messages from

certain authorized individuals, and will block e-mails

or instant messages containing inappropriate words

or any images. Filtering programs can also com-

pletely prevent children from entering or using chat

rooms, or some can merely filter out any inappropri-

ate words that come up during a chat session.

Id. at 791 (citations omitted). The court then described

the flexible nature of filters:

Some filtering programs offer only a small number of

settings, while others are highly customizable, allow-

ing a parent to make detailed decisions about what to

allow and what to block. Filtering products do this

by, among other things, enabling parents to choose

which categories of speech they want to be blocked

(such as sexually explicit material, illicit drug infor-

mation, information on violence and weapons, and

hate speech) and which age setting they want the

product to apply. . . . Filtering products can be

used by parents even if they have more than one

child. For example, if a family has four children,

many filtering products will enable the parent to set

up different accounts for each child, to ensure that

each child is able to access only the content that the

parents want that particular child to access.

38a

Td. (citations omitted). The court found that:

(fliltering products block both Web pages originating

from within the United States and Web pages origi-

nating from outside the United States. The geo-

graphic origin of a Web page is not a factor in how a

filter works because the filter analyzes the content of

the Web page, not the location from which it came.

Id. at 791-92. The court found that “[|fliltering products

block both non-commercial and commercial Web pages.”

Id. at 792. The court also found that:

{ijn addition to their content filtering features, filter-

ing products have a number of additional tools to

help parents control their children’s Internet activi-

ties. Other tools available to parents include moni-

toring and reporting features that allow supervising

adults to know which sites a minor has visited and

what other types of activities a minor has engaged in

online.

Id.

The District Court found that “[flilters are widely

available and easy to obtain,” and that “[fliltering pro-

grams are fairly easy to install, configure, and use and

require only minimal effort by the end user to configure

and update.” /d. at 793. The court found that “{i]nstal-

ling and setting up a filter will usually take a typical

computer user no more than ten or fifteen minutes. The

installation and set-up process is not technically complex

and does not require any special training or knowledge.”

Id. at 794. The court then considered the evidence re-

garding the effectiveness of filters. It found that:

Id.

39a

[fjiltering products have improved over time and are

now more effective than ever before. This is be-

cause, as with all software, the filtering companies

have addressed problems with the earlier versions of

the products in an attempt to make their products

better. Another reason the effectiveness of filtering

products has improved is that many products now

provide multiple layers of filtering. Whereas many

filters once only relied on black lists or white lists,

many of today’s products utilize black lists, white

lists, and real-time, dynamic filtering to catch any

inappropriate sites that have not previously been

classified by the product. There is a high level of

competition in the field of Internet content filtering.

That factor, along with the development of new tech-

nologies, has also caused the products to improve

over time.

at 794-95 (citations omitted).

The District Court then found that:

[o|ne of the features of filtering programs that adds

to their effectiveness is that they have built-in mech-

anisms to prevent children from byp.ssing or cir-

cumventing the filters, including password protec-

tion and other devices to prevent children from

uninstalling the product or changing the settings.

Some products even have a tamper detection feature,

by which they can detect when someone is trying to

uninstall or disable the product, and then cut off

Internet access altogether until it has been properly

reconfigured. Filtering companies actively take

steps to make sure that children are not able to come

up with ways to circumvent their filters. Filtering

40a

companies monitor the Web to identify any methods

for circumventing filters, and when such methods are

found, the filtering companies respond by putting in

extra protections in an attempt to make sure that

those methods do not succeed with their products.

Id. at 795 (citations omitted). The court also found that

“i]t is difficult for children to circumvent filters because

of the technical ability and expertise necessary to do so

.... Id. Finally, the court found that “filters gener-

ally block about 95% of sexually explicit material.” /d.

After describing filtering technology, the District

Court concluded that the Government “failed to success-

fully defend against the plaintiffs’ assertion that filter

software and the Government’s promotion and support

thereof is a less restrictive alternative to COPA.” /d. at

813. The court reasoned that “unlike COPA there are no

fines or prison sentences associated with filters which

would chill speech. Also unlike COPA, . . . filters are

fully customizable and may be set for different ages and

for different categories of speech or may be disabled

altogether for adult use. As a result, filters are less re-

strictive than COPA.” /d. (citations omitted).

The District Court also concluded that the Govern-

ment “failed to show that filters are not at least as effec-

tive as COPA at protecting minors from harmful mate-

rial on the Web.” /d. at 814. The court determined that

COPA will not reach sexually explicit materials on the

Web that originate from foreign sources, its affirmative

defenses are not effective, and it is unlikely that COPA

will be enforced widely. The court found that:

filters block sexually explicit foreign material on the

Web, parents can customize filter settings depending

4la

on the ages of their children and what type of content

they find objectionable, and filters are fairly easy to

install and use. . . . [F]ilters are very effective at

blocking potentially harmful sexually explicit materi-

als.

Id. at 815 (citations omitted). The court concluded that

“felven defendant’s own study shows that all but the

worst performing filters are far more effective than

COPA would be at protecting children from sexually

explicit material onthe Web... .” /d.

The Government does not challenge the District

Court’s factual findings and therefore we need not set

forth the evidence on which the court based its findings.

The Government does contend, however, that the Dis-

trict Court erred in concluding that filters are a less

restrictive alternative because the court applied a

“flawed analytical framework” and that filters cannot be

considered a less restrictive alternative because they

are part of the “status quo.” Appellant’s Br. at 43-44.

But the Supreme Court’s statement on this issue con-

travenes the Government’s argument:

In considering this question, a court assumes that

certain protected speech may be regulated, and then

asks what is the least restrictive alternative that can

be used to achieve that goal . . . . The purpose of

the test is to ensure that the speech is restricted no

further than necessary to achieve the goal, for it is

important to assure that legitimate speech is not

chilled or punished. For that reason, the test does

not begin with the status quo of existing regulations,

then ask whether the challenged restriction has some

additional] ability to achieve Congress’ legitimate in

42a

terest. Any restriction on speech could be justified

under that analysis. Instead, the court should ask

whether the challenged regulation is the least re-

strictive means among available, effective alterna-

tives.

Ashcroft, 542 U.S. at 666, 124 S. Ct. at 2791. This rea-

soning explains why the Court then instructed the par-

ties to update the factual record regarding “the effec-

tiveness of filtering software” so that the District Court

could determine whether “filters are less effective than

COPA.” /d. at 671, 1248S. Ct. at 2794. Accordingly, the

Government is incorrect in its assertion that the District

Court applied an erroneous analytical framework.

We agree with the District Court’s conclusion that

filters and the Government’s promotion of filters are

more effective than COPA. The Supreme Court already

has written how the Government could act to promote

and support the use of filters:

Congress undoubtedly may act to encourage the use

of filters. We have held that Congress can give

strong incentives to schools and libraries to use

them. It could also take steps to promote their de-

velopment by industry, and their use by parents. It

is incorrect, for that reason, to say that filters are

part of the current regulatory status quo. The need

for parental cooperation does not automatically dis-

qualify a proposed less restrictive alternative. In

enacting COPA, Congress said its goal was to pre-

vent the ‘widespread availability of the Internet’

from providing ‘opportunities for minors to access

materials through the World Wide Web in a manner

that can frustrate parental supervision or control.’

43a

COPA presumes that parents lack the ability, not the

will, to monitor what their children see. By enacting

programs to promote use of filtering software, Con-

gress could give parents that ability without subject-

ing protected speech to severe penalties.

Id. at 6€9-70, 124 S. Ct. at 2793 (citations omitted).

As the District Court pointed out, filters can be used

to block foreign Web sites, which COPA does not regu-

late. Though the Government contends that COPA ap-

plies to foreign Web sites, the Supreme Court already

has rejected the Government’s construction of the stat-

ute. In Ashcroft the Court stated that:

a filter can prevent minors from seeing all pornogra-

phy, not just pornography posted to the Web from

America. . . . COPA does not prevent minors from

having access to those foreign harmful materials.

.. . LIJf COPA is upheld, . . . providers of the ma-

terials that would be covered by the statute simply

can move their operations overseas.

Id. at 657, 124 S. Ct. at 2792. In light of the Supreme

Court’sexpress conclusion that COPA does not apply to

foreign Web sites—a determination that does not de-

pend upon the facts developed at the later trial in the

District Court—we cannot construe COPA to apply to

foreign Web sites.

Given the vast quantity of speech that COPA does

not cover but that filters do cover, it is apparent that

filters are more effective in advancing Congress’s inter-

est, as i made plain it is in COPA. Moreover, fillers are

more fkxible than COPA because parents can tailor

them totheir own values and needs and to the age and

44a

maturity of their children and thus use an appropriate

flexible approach differing from COPA’s “one size fits

all” approach. Finally, the evidence makes clear that,

although not flawless, with proper use filters are highly

effective in preventing minors from accessing sexually

explicit material on the Web.

At oral argument, the Government made much of a

study that found that only 54 percent of parents use fil-

ters. But the Government has neglected the fact that

this figure represents a 65 percent increase from a prior

study done four years earlier, which indicates that sig-

nificantly more families are using filters. App. at 159-60.

Furthermore, the circumstance that some parents

choose not to use filters does not mean that filters are

not an effective alternative to COPA. Though we recog-

nize that some of those parents may be indifferent to

what their children see, others may have decided to use

other methods to protect their children—such as by

placing the family computer in the living room, instead

of their children’s bedroom—or trust that their children

will voluntarily avoid harmful material on the Internet.

Studies have shown that the primary reason that par-

ents do not use filters is that they think they are unnec-

essary because they trust their children and do not see

a need to block content. Jd. at 160, 164, 278, 1567. The

Government simply has not carried its burden of show-

ing that COPA is a more effective method than filters in

advancing the Government’s compelling interest as evi-

denced in COPA.

In addition to being more effective, it is clear that

filters are less restrictive than COPA. As the Supreme

Court has stated:

45a

[fjilters are less restrictive than COPA. They impose

selective restrictions on speech at the receiving end,

not universal restrictions at the source. Under a fil-

tering regime, adults without children may gain ac-

cess to speech they have a right to see without hav-

ing to identify themselves or provide their credit

card information. Even adults with children may

obtain access to the same speech on the same terms

simply by turning off the filter on their home com-

puters. Above all, promoting the use of filters does

not condemn as criminal any category of speech, and

so the potential chilling effect is eliminated, or at

least much diminished. All of these things are true,

moreover, regardless of how broadly or narrowly the

definitions in COPA are construed.

Ashcroft, 542 U.S. at 667, 124 S. Ct. at 2792. Although

the Supreme Court made this statement after reviewing

the record from the hearing on the preliminary injunc-

tion, the evidence produced at the trial on the merits

confirms the Court’s initial impression. Unlike COPA,

filters permit adults to determine if and when they want

to use them and do not subject speakers to criminal or

civil penalties.

During oral argument, the Government contended

that the First Amendment does not prohibit Congress

from adopting a “belt-and-suspenders” approach to ad-

dressing the compelling government interest of protect-

ing minors from accessing harmful material on the Web,

with filters acting as the “belt” and COPA as the “sus-

penders.” But as counsel for plaintiffs correctly pointed

out, under the First Amendment, if the belt works at

least as effectively as the suspenders, then the Govern-

ment cannot prosecute people for not wearing suspend-

46a

ers. Here, based on the prior litigation in the Supreme

Court and this Court in ACLU II] and the District

Court’s findings on the remand, the Government has not

shown that COPA is a more effective and less restrictive

alternative to the use of filters and the Government’s

promotion of ther in effectuating COPA’s purposes.

Indeed, we would reach this conclusion on the basis of

either the prior litigation or the District Court’s findings

on the remand. Accordingly, COPA fails the third prong

of a strict scrutiny analysis and is unconstitutional.

C. Vagueness and Overbreadth

The Government also challenges the District Court’s

decision that COPA facially violates the First and Fifth

Amendments because it is impermissibly vague and

overbroad.

1. Vagueness

The Supreme Court recently described the vague-

ness doctrine:

Vagueness doctrine is an outgrowth not of the First

Amendment, but of the Due Process Clause of the

Fifth Amendment. A conviction fails to comport with

due process if the statute under which it is obtained

fails to provide a person of ordinary intelligence fair

notice of what is prohibited, or is so standardless

that it authorizes or encourages seriously discrimina-

tory enforcement. Although ordinarily a plaintiff

who engages in some conduct that is clearly pro-

scribed cannot complain of the vagueness of the law

as applied to the conduct of others, we have relaxed

that requirement in the First Amendment context,

permitting plaintiffs to argue that a statute is

47a

overbroad because it is unclear whether it regulates

a substantial amount of protected speech. But per-

fect clarity and precise guidance have never been

required even of regulations that restrict expressive

activity.

Williams, 1288S. Ct. at 1845 (citations, quotation marks,

and brackets omitted). The Court further explained:

What renders a statute vague is not the possibility

that it will sometimes be difficult to determine

whether the incriminating fact it establishes has

been proved; but rather the indeterminacy of pre-

cisely what that fact is. Thus, we have struck down

statutes that tied criminal culpability to whether the

defendant’s conduct was ‘annoying’ or ‘indecent’—

wholly subjective judgments without statutory defi-

nitions, narrowing context, or settled legal meanings.

Id. at 1846.

Our discussion in ACLU I] of the question of

whether COPA is impermissibly vague was quite limited

but in a footnote we stated that we considered COPA’s

use of the term “minor” as incorporated in COPA’s defi-

nition of “material that is harmful to minors” to be

impermissibly vague. We reached this conclusion be-

cause we believed that “a Web publisher will be forced

to guess at the bottom end of the range of ages to which

the statute applies,” and thus will not have “fair notice

of what conduct would subject them to criminal sanc-

tions under COPA” and “will be deterred from engaging

in a wide range of constitutionally protected speech.”

322 F.3d at 268 n.37.

48a

The District Court on the remand concluded that

COPA is vague for several reasons. First, the court

pointed out that COPA utilizes two different scienter

requirements—“knowingly” end “intentionally’—but

does not define either standard. Gonzales, 478 F. Supp.

2d at 816-17. Second, the court determined that al-

though Congress intended COPA to apply solely to com-

mercial pornographers, the phrase “communication for

commercial purposes” as modified by the phrase “en-

gaged in the business” does not limit COPA’s application

to commercial pornographers. /d. at 817. Thus, Web

publishers that are not commercial pornographers will

be uncertain as tu whether they will face prosecution

under the statute, chilling their speech. Jd. Third, the

court found that the definition of “minor” as any person

under 17 years of age creates vagueness in COPA be-

cause materials that could have “serious literary, artis-

tic, political, or scientific value” for a 16-year-old would

not necessarily have the same value for a three-year-old.

Id. Thus, Web publishers cannot tell which of these mi-

nors should be considered in deciding the content of

their Web sites. /d. at 817-18. Fourth, the court stated

that COPA’s use of the phrase “as a whole” is vague be-

cause it is unclear how that phrase would apply to the

Web. /d. at 818.

The Government contends that the District Court

erred in finding COPA impermissibly vague and argues

that the statutory provisions that the District Court con-

cluded rendered the statute vague instead served to

limit the reach of the statute.

We are bound by our conclusion in ACLU II that

COPA’s definition of “minor” renders the statute vague.

Furthermore we agree with the District Court’s conclu-

49a

sion that COPA’s use of the phrases and terms “commu-

nication for commercial purposes,” “as a whole,” “inten-

tional,” and “knowing” renders it vague, for the reasons

the District Court stated in its opinion.

2. Overbreadth

The Supreme Court also addressed the First Amend-

ment overbreadth doctrine in Williams, stating that:

[A] statute is facially invalid if it prohibits a substan-

tial amount of protected speech. The doctrine seeks

to strike a balance between competing social costs.

On the one hand, the threat of enforcement of an

overbroad law deters people from engaging in consti-

tutionally protected speech, inhibiting the free ex-

change of ideas. On the other hand, invalidating a

law that in some of its applications is perfectly con-

stitutional—particularly a law directed at conduct so

antisocial that it has been made criminal—has obvi-

ous harmful effects. In order to maintain an appro-

priate balance, we have vigorously enforced the re-

quirement that a statute’s overbreadth be substan-

tial, not only in an absolute sense, but also relative to

the statute’s plainly legitimate sweep. Invalidation

for overbreadth is strong medicine that is not to be

casually employed.

128 S. Ct. at 1838 (citations and quotation marks omit-

ted).

In ACLU II we held that COPA is “substantially

overbroad” because:

it places significant burdens on Web publishers’ com-

munication of speech that is constitutionally pro-

tected as to adults and adults’ ability to access such

50a

speech. In so doing, COPA encroaches upon a signif-

icant amount of protected speech beyond that which

the Government may target constitutionally in pre-

venting children’s exposure to material that is ob-

scene for minors.

322 F.3d at 266-67. We found that COPA’s definition of

“material harmful to minors” “impermissibly places at

risk a wide spectrum of speech that is constitutionally

protected” because it “calls for evaluation of ‘any mate-

rial’ on the Web in isolation.” Id. at 267. Thus, we ex-

plained:

an isolated item located somewhere on a Web site

that meets the ‘harmful to minors’ definition can sub-

ject the publisher of the site to liability under COPA,

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

provides the context for the item would be constitu-

tionally protected for adults (and indeed, may be pro-

tected as to minors).

Id. We also found that COPA’s definition of “minors”

renders the statute overinclusive because it “broadens

the reach of ‘material that is harmful to minors’ under

the statute to encompass a vast array of speech that is

clearly protected for adults—-and indeed, may not be

obscene as to older minors ... .” /d. at 268. We next

found that COPA’s definition of “eommercial purposes”

rendered the statute overbroad for the same reasons

that it failed strict scrutiny. /d. at 269.

We also found that “COPA’s application of ‘commu-

nity standards’ exacerbates these constitutional prob-

lems in that it further widens the spectrum of protected

speech that COPA affects.” /d. at 270. We stated that

“COPA essentially requires that every Web publisher

5la

subject to the statute abide by the most restrictive and

conservative state’s community standards in order to

avoid criminal liability.” Jd. (quoting ACLU J, 217 F.3d

at 166). Finally, we found that there was no available

narrowing construction that would make COPA constitu-

tional. /d. at 270-71. These conclusions bind us here.

The District Court also found that COPA is

overbroad for several reasons. First, the court deter-

mined that the vagueness of the phrases “communica-

tion for commercial purposes” and “engaged in the busi-

ness” means that COPA could apply to a wide swath of

the Web and thus COPA would prohibit and chill a sub-

stantial amount of constitutionally protected speech for

adults. Gonzales, 478 F. Supp. 2d at 819. Second, be-

cause the definition of “minor” includes any person un-

der 17, Web publishers do not have fair notice regarding

what they can place on the Web that will not be consid-

ered harmful to any minor. Jd. Thus, the definition of

“minor” renders COPA overinclusive because it broad-

ens the statute to encompass a large array of protected

speech. /d. Finally, the court found that because the

statute does not reference commercial pornographers,

it found that it could not read such a limitation into the

statute to save it from being overbroad. Jd. at 819-20.

The Government claims that COPA is not overbroad,

but it is clear that our prior decision in ACLU II binds

us this issue. It is apparent that COPA, like the

Communications Decency Act before it, “effectively sup-

presses a large amount of speech that adults have a con-

stitutional right to receive and to address to one an-

other,” Reno, 521 U.S. at 874, 117 S. Ct. at 2346, and

thus is overbroad. For this reason, COPA violates the

First Amendment.

52a

V. CONCLUSION

In sum, COPA cannot withstand a strict scrutiny,

vagueness, or overbreadth analysis and thus is unconsti-

tutional. We reach our result both through the applica-

tion of the law-of-the-case doctrine to our determination

in ACLU IJ and on the basis of our independent analysis

of COPA and would reach the same result on either ba-

sis standing alone. For the foregoing reasons, we will

affirm the District Court’s March 22, 2007 order.

58a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 07-2539

D.C. Civ. No. 98-05591

AMERICAN CIVIL LIBERTIES UNION; ANDROGYNY

BOOKS, INC., D/B/A A DIFFERENT LIGHT BOOKSTORES;

AMERICAN BOOKSELLERS FOUNDATION FOR FREF

EXPRESSION; ADDAZI, INC., D/B/A CONDOMANIA;

ELECTRONIC FRONTIER FOUNDATION; ELECTRONIC

PRIVACY INFORMATION CENTER; FREE SPEECH

MEDIA; PHILADELPHIA GAY NEWS; POWELL’S

BOOKSTORES; SALON MEDIA GROUP, INC.;

PLANETOUT, INC.; HEATHER CORINNA REARICK;

NERVE.COM, INC.; AARON PECKHAM, D/B/A URBAN

DICTIONARY; PUBLIC COMMUNICATORS, INC.; DAN

SAVAGE; SEXUAL HEALTH NETWORK

UV.

“MICHAEL B. MUKASEY, IN HIS OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF THE UNITED STATES

MICHAEL B. MUKASEY, APPELLANT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

* Substituted as per FRAP 43(b).

_—

54a

SUR PETITION FOR REHEARING

Before: SCIRICA, Chief Judge, and SLOVITER, MCKER,

RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER,

CHAGARES, JORDAN, HARDIMAN, and GREENBERG, Cir-

curt Judges

The petition for rehearing filed by appellant, Michael

B. Mukasey, in the above captioned matter having been

submitted to the judges who participated in the decision

of this court and to all the other available circuit judges

of the court in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in reg-

ular active service not having voted for rehearing by the

court en bane, the petition for rehearing is denied.

Judge Greenberg’s vote is limited to denying rehearing

before the original panel.

BY THE COURT:

/s/ MORTON I. GREENBERG

MORTON I. GREENBERG

Circuit Judge

DATED: 16 Sept. 2008

55a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

No. 98-5591

AMERICAN CIVIL LIBERTIES UNION, ETAL.

Vv.

ALBERTO R. GONZALES IN HIS OFFICIAL CAPACITY AS

ATTORNEY GENERAL OF THE UNITED STATES

FINAL ADJUDICATION

Mar. 22, 2007

LOWELL A. REED, JR., SR. J.

At issue in this case is the constitutionality of the

Child Online Protection Act, 47 U.S.C. § 231 (“COPA”)

and whether this court should issue a permanent injunc-

tion against its enforcement due to its alleged constitu-

tional infirmities. COPA provides both criminal and civil

penalties for transmitting sexually explicit materials and

communications over the World Wide Web (“Web”)

which are available to minors and harmful to them. 47

U.S.C. § 231(a). After a trial on the merits, for the rea-

sons that follow, notwithstanding the compelling interest

of Congress in protecting children from sexually explicit

material on the Web, I conclude today that COPA fa-

cially violates the First and Fifth Amendment rights of

56a

the plaintiffs because: (1) at least some of the plaintiffs

have standing; (2) COPA is not narrowly tailored to Con-

gress’ compelling interest; (3) defendant has failed to

meet his burden of showing that COPA is the least re-

strictive, most effective alternative in achieving the com-

pelling interest; and (3) COPA is impermissibly vague

and overbroad. As a result, I will issue a permanent in-

junction against the enforcement of COPA.

|Table of contents omitted |

I. PROCEDURAL HISTORY

The plaintiffs in this action, which include both the

individual and institutional plaintiffs listed below, have

challenged the constitutionality of COPA under the

First and Fifth Amendments. COPA, which was de-

signed to protect minors from exposure to sexually ex-

plicit materials on the Web deemed harmful to them,

was signed into law on October 21, 1998. COPA is the

second attempt by Congress to protect children from

such material. The first attempt was the Communica-

tions Decency Act of 1996, 47 U.S.C. § 223 (“the CDA”)

which the Supreme Court held was unconstitutional be-

cause it was not narrowly tailored to serve a compelling

governmental interest and because less restrictive alter-

natives were available. See Ashcroft v. ACLU, 542 U.S.

656, 661 (2004) (discussing Reno v. ALCU, 521 U.S. 844

(1997)). COPA was designed to directly address the

faults that the Supreme Court found with the CDA. The

day after COPA was signed, the plaintiffs filed this suit

seeking injunctive relief from its enforcement. On Feb-

ruary 1, 1999, after having previously granted the plain-

tiffs’ motion for a temporary restraining order, this

court granted the plaintiffs’ motion for a preliminary

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

57a

1999). After an interim trip to the Supreme Court (see

Ashcroft v. ACLU, 535 U.S. 564 (2002))', this court’s de-

cision granting the preliminary injunction was finally

affirmed by the Supreme Court on June 29, 2004, and

remanded to this court for a trial on the merits in order

to, inter alia, update the factual record to reflect cur-

rent technological developments, account for any chang-

es in the legal landscape, and to determine whether In-

ternet content filters are more effective than COPA or

whether other possible alternatives are less restrictive

and more effective than COPA. Ashcroft, 542 U.S. at

671-673. For a more detailed description of the history

and background of this case, see the Supreme Court’s

opinion. /d. at 663-664. This court held a trial on the

merits of the within action, beginning on October 28,

2006 and concluding on November 20, 2006.

Il. THE RELEVANT LANGUAGE OF COPA AND THE

CONSTITUTION

COPA provides that:

Whoever knowingly and with knowledge of the char-

acter of the material, in interstate or foreign com-

merce by means of the World Wide Web, makes any

communication for commercial purposes that is

available to any minor and that includes any mate-

rial that is harmful to minors shall be fined not more

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

both.

' The Court of Appeals for the Third Circuit twice reviewed the ef-

ficacy of the preliminary injunction, once on direct appeal (ACLU v.

Reno, 217 F.3d 162 (3d Cir. 2000)) and once upon remand from the Sup-

reme Court (ACLU v. Ashcroft, 322 F.3d 240 (3d Cir. 2003)), each time

affirming the decision of this court.

58a

47 U.S.C. § 231(a)(1). There is an additional monetary

penalty for intentional violations of the above quoted

language and a provision for additional civil penalties.

47 U.S.C. § 231(a)(2) & (3).

The crux of the statute is found in the definition of

“harmful to minors” which tracks the familiar Miller

obscenity standard. See Miller v. California, 413 U.S.

15, 24 (1973). Specifically, “material that is harmful to

minors”, means:

any communication, picture, image, graphic image

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

any kind that is obscene or that—

(A) the average person, applying contemporary com-

munity standards, would find, taking the material] as

a whole and with respect to minors, is designed to

appeal to, or 1s designed to pander to, the prurient

interest;

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

patently offensive with respect to minors, an actual

or simulated sexual act or sexual contact, an actual

or simulated normal or perverted sexual act, or a

lewd exhibition of the genitals or post-pubescent

female breast; and

(C) taken as a whole, lacks serious literary, artistic,

political, or scientific value for minors.

47 U.S.C. § 231(e)(6). A minor is defined as “any person

under 17 years of age.”” 47 U.S.C. § 231(e)(7).

“[Bly means of the World Wide Web” is defined as

the “placement of material in a computer server-based

file archive so that it is publicly accessible, over the

Internet, using hypertext transfer protocol [(“HTTP”)]

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or any successor protocol.” 47 U.S.C. § 231(e)(1). Un-

der COPA, the Internet “means the combination of com-

puter facilities and electromagnetic transmission media,

and related equipment and software, comprising the

interconnected worldwide network of computer net-

works that employ the Transmission Control Proto-

col/Internet Protocol or any successor protocol to trans-

mit information.” 47 U.S.C. § 2381(e)(3).

Another important feature of COPA for the pur-

poses of this action is that “{a] person shall be consid-

ered to make a communication for commercial purposes

only if such person is engaged in the business of making

such communication.” 47 U.S.C. § 231(e)(2)(a). More-

over, “engaged in the business” means that:

the person who makes a communication, or offers to

make a communication, by means of the World Wide

Web, that includes any material that is harmful to

minors, devotes time, attention, or labor to such ac-

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

business, with the objective of earning a profit as a

result of such activities (although it is not necessary

that the person make a profit or that the making or

offering to make such communications be the per-

son’s sole or principal] business or source of income).

A person may be considered to be engaged in the

business of making, by means of the World Wide

Web, communications for commercial purposes that

include material that is harmful to minors, only if

the person knowingly causes the material that is

harmful to minors to be posted on the World Wide

Web or knowingly solicits such material to be posted

on the World Wide Web.

47 U.S.C. § 231(e)(2)(b).

60a

Although COPA brands all speech falling within its

reach as criminal speech, it also provides an affirmative

defense against liability if:

the defendant, in good faith, has restricted access by

minors to material! that is harmful to minors-

(A) by requiring use of a credit card, debit account,

adult access code, or adult persona! identification

number;

(B) by accepting a digital certificate that verifies

age; or

(C) by any other reasonable measures that are feasi-

ble under available technology.

47 U.S.C. § 231(e)(1).

Moreover, those exempt from liability include tele-

communications carriers, Internet access service provid-

ers, those engaged in the business of providing an Inter-

net information location tool, or those:

similarly engaged in the transmission, storage, re-

trieval, hosting, formatting, or translation (or any

combination thereof) of a communication made by

another person, without selection or alteration of

the content of the communication, except that such

person’s deletion of a particular communication or

material made by another person in a manner con-

sistent with subsection (c) of this section or section

230 of this title shall not constitute such selection or

alteration of the content of the communication.

47 U.S.C. § 231(b).

6la

The First Amendment to the Constitution of the

United States provides that “Congress shall make no

law .. . abridging the freedom of speech, or of the

press.” U.S. Const. Amend. I.*

Ill. FINDINGS OF FACT’

Having presided at the trial, having seen and heard

the testimony of the parties’ representatives and other

witnesses, and having reviewed the other evidence re-

ceived, I find that, unless otherwise noted, the facts set

forth in the parties’ Joint Exhibit 1, and the testimony

of the witnesses as well as the evidence excerpted and

referenced in these Findings of Fact are true, reliable,

and credible and I accept those facts and that testimony

as the foundation of the following Findings of Fact and

Conclusions of Law.

A. The Internet

1. The Internet is an interactive medium based on

a decentralized network of computers. One portion of

the Internet is known as the World Wide Web (“Web”).

The [nternet may also be used to engage in other activi-

ties such as sending and receiving emails, trading files,

exchanging instant messages, chatting online, streaming

audio and video, and making voice calls. Joint Exhibit

(“J. Ex.”) 1 99 78-79, 94.

* The plaintiffs also rely upon the Fifth Amendment to the Constitu-

tion which is the due process vehicle by which this action arrives in fed-

eral court.

* To the extent that the following Findings of Fact include Conclu-

sions of Law or mixed Findings of Fact and Conclusions of Law, those

Findings and Conclusions are hereby adopted by this court.

62a

2. The results of the U.S. Census Bureau’s Cur-

rent Population Survey show that in September 2001,

approximately 54 percent of the U.S. population was

using the Internet from any location. That figure rose

to 59 percent in 2003. /d. % 97.

3. On the Web, a client program called a Web

browser retrieves information from the Internet, such as

Web pages and other computer files using their network

addresses and displays them, typically on a computer

monitor, using a markup language that determines the

details of the display. One can then follow hyperlinks in

each Web page to other resources on the Web of infor-

mation whose location is provided by these hyperlinks.

The act of following hyperlinks is frequently called

“browsing” or “surfing” the Web. /d. 1 79.

4. Web pages, which can contain, inter alia, text,

still and moving picture files, sound files, and computer

seripts, are often arranged in collections of related ma-

terial called Web sites, which consist of one or more

Web pages. /d. 1 80.

5. Modern search engines search for and index

Web pages individually. Search engines are Web sites

that provide links to relevant Web pages, in response to

search terms (words or phrases) entered by a user.

They are a popular way of finding information online.

Td. 183.

6. {tis estimated that there are between 25 and 64

billion Web pages on the surface portion of the Web

(“Surface Web”)—that is, the portion of the Web that is

capable of being indexed by search engines. Mewett

Testimony, 11/7 Tr. 100:23-101:1; Def. Ex. 82, at 13.

These Web pages may be displayed on a monitor screen

and, thus, the content may be seen by anyone operating

63a

a computer or other Internet capable device which is

properly connected to the Internet. The court takes ju-

dicial notice of the fact that the computers relevant to

this case are used throughout the modern world in, inter

alia, homes, schools, hotels, businesses, public Internet

cafes, and libraries and that portable computers and

other Internet capable devices can be operated almost

anywhere and have wide access to the Internet.

7. HTTP stands for hypertext transfer protocol

which is widely used on the Internet. In fact, most Web

site addresses (“URLs”) use HTTP. J. Ex. 1 V9 111,

113.

8. FTP stands for file transfer protocol. It is used

primarily to transfer files across the Internet. Jd. 1 110.

B. The Parties

9. Defendant Alberto R. Gonzales is the Attorney

General of the United States and is charged with enfore-

ing the provisions of COPA challenged in this action. /d.

11. Attorney General Gonzales is sued here in his offi-

cial capacity. Doc. No. 175, at 15.

10. The plaintiffs represent a range of individuals

and entities including speakers, content providers, and

ordinary users on the Web, as that term is defined in

COPA. The plaintiffs post content on their Web sites

including, inter alia, resources on sexual health, safer

sex, and sexual education; visual art and poetry; re-

sources for gays and lesbians; online magazines and arti-

cles; music; and books and information about books that

are being offered for sale. J. Ex. 1 1 2.

11. Some of the plaintiffs provide interactive fora

on their Web sites, such as online discussion groups,

bulletin boards and chat rooms, which enable users to

64a

create their own material on the plaintiffs’ Web sites.

Some of the verbal and visual exchanges that could po-

tentially occur in these chatrooms or in the postings on

their bulletin boards may include language or images

that contain sexually explicit content. /d. 13.

12. Plaintiff American Civil Liberties Union

(“ACLU”) is a nationwide, non-partisan organization

which states that it is dedicated to defending the princi-

ples of the Bill of Rights. ACLU members Patricia Nell

Warren (“Warren”) and Lawrence Ferlinghetti

(“Ferlinghetti”) engage in speech on the Internet. /d.

14.

13. Plaintiff ACLU sues in part on behalf of its

member Ferlinghetti, who is a writer and San Francis-

co’s poet laureate. Ferlinghetti is the co-founder of City

Lights Bookstore, which maintains a website “that pro-

motes books available from the bookstore” and “contains

lists of hiterary events and a brief history of City Lights

Bookstore and Publishing,” has a section describing

Ferlinghetti’s 1956 obscenity trial for selling the Allen

Ginsberg poem Howl, and also has Ferlinghetti’s poetry.

Id. 15.

14. Plaintiff ACLU also sues in part on behalf of

Warren, who is an author of novels, poetry, numerous

articles, and essays. Her novels are alleged to be the

most popular novels among classic gay literature. War-

ren is a co-owner of Wildeat International and its pub-

lishing arm, Wildcat Press. The Web site for Wildcat

Press contains excerpts of her work, including “sexually

explicit details such as the description of a ‘foursome’ [of

people] erotically dancing and a description of two men

passionately kissing.” /d. 9 7.

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15. Plaintiff Condomania is the nation’s first con-

dom store and a leading seller of condoms and distribu-

tor of safer sex materials. Condomania engages in

speech on the Internet. /d. § 8. Adam Glickman

(“Glickman”) is the CEO of Condomania. Glickman Tes-

timony, 10/30 Tr. 91:18-20.

16. Plaintiff Heather Corinna (“Corinna”) is a writ-

er, artist, sex-educator, and activist whose primary pres-

ence on the Web consists of Secarletletters.com, Scarlet-

een.com, and Femmerotic.com, “each of which deals with

issues of sex and sexuality with an explicit focus on chal-

lenging and combating the sexual oppression of tradi-

tionally marginalized groups.” J. Ex. 1 119-10.

17. Corinna operates the website Scarleteen.com.

“Scarleteen is the Internet’s largest independent, unaf-

filiated, free resource for young adult sex education,

information, and discussion, serving nearly two million

teens, young adults, parents, and educators each year.”

The Scarleteen Web site states that “{wle offer Scar-

leteen as a far better resource for sex information for

teens than adult sexuality sites, as well as a supplement

to in-home and schoolbased sex education. Many par-

ents we have heard from have used it as a tool to initiate

discussion with their teens on some of the topics ad-

dressed. Homeschooling parents have used Scarleteen

as curricula for sex education; colleges add our articles

to their syllabi often.” Jd. 911.

18. “Femmerotic is Heather Corinna’s personal

Web site for showcasing her photographic and textual

work and providing an ‘open and intimate look at her life

as an artist and activist.’” On this Web site, Corinna

states that “|glenerally, | intend to examine sexuality, to

document sexual relationship[s], to explore the human

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body and how I and viewers perceive it, to examine the

female body and feelings about it, to explore my own

identity and use all those aims to create work that cre-

ates questions.” /d. 9712.

19. Plaintiff Electronic Frontier Foundation

(“EFF”) sues in part on behalf of John W. “Bill” Boush-

ka, who has work on the Web site www.doaskdotell.com.

In the Amended Complaint, Mr. Boushka states that he

fears prosecution for his book “Do Ask, Do Tell: A Gay

Conservative Lashes Back,” which he describes as “an

exposé about gays in the military” that is a “politically-

charged text” containing “subject-matter and language

that might be deemed harmful to minors.” Jd. 913.

20. Plaintiff Free Speech Media, LLC in partner-

ship with Public Communicators Inc., operates free-

speech.org, which provides speech on the Internet and

is “designed to encourage the democratic expression of

progressive ideals through promoting, curating and

hosting independent creators of audio and video content

on the Web.” Its video and audio files “cover a wide

range of topics, including human rights, homelessness,

labor issues, racism, prison conditions, sexuality, AIDS,

feminism and environmentalism.” /d. 17 15-16.

21. Plaintiff Nerve.com, Inc. (“Nerve”) is an online

magazine consisting of original fiction, personal essays,

columns, photography, video, blogs, quizzes, polls, and

crosswords. Griscom Testimony, 10/23 Tr. 61:15-62:5; Pl.

Ex. 38. Nerve is run by Rufus Griscom (“Griscom”). J.

Ex. 1917. According to Griscom, “Nerve is, in theory

and hopefully in practice, a smart magazine about sex

and culture.” Griscom Testimony, 10/23 Tr. 52:13-14.

22. Plaintiff Aaron Peckham d/b/a Urban Dictio-

nary operates an online dictionary of contemporary

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slang “whose terms and definitions are solely user-yen-

erated and user-rated.” J. Ex. 1 19 18-19.

23. Plaintiff Philadelphia Gay News (“PGN”), is

the “oldest gay newspaper in Philadelphia” and pub-

lishes both in print and online. The online and print edi-

tions “share much of the same content, including na-

tional and local news stories written by PGN correspon-

dents, arts and events sections, regular columns, a cal-

endar of events, and editorials on a variety of social and

political topics.” The online edition also contains per-

sonal and classified advertisements. /d. 11 20-21.

24. Plaintiff American Booksellers Foundation For

Free Expression (““ABFFE”) is a non-profit organiza-

tion founded by the American Booksellers Association.

Plaintiff Powell’s Bookstore is a member of ABFFE. /d.

4 22.

25. Plaintiff Powell’s Bookstore operates seven

bookstores in Portland, Oregon and states that it is the

“world’s largest independent new and used bookstore.”

Powell’s Bookstore also operates a website that “allows

users to browse and purchase new, used, rare, and out-

of-print books.” Jd. 1) 23-24.

26. Plaintiff Salon Media Group, Inc. (“Salon’’) pub-

lishes an online magazine featuring articles on current

events, the arts, politics, the media, and relationships

and states that it “is a well-known, popular on-line maga-

zine” that contains “news articles; commentaries on and

reviews of music, art, television, and film; and regular

columns on politics, relationships, the media, business,

and other areas of interest.” Salon also has music and

video downloads and user-generated content. Salon’s

“goal is to break news as well as produce the most com-

pelling sort of social commentary . . . on the web,” and

68a

it seeks to attract a “broad genera! interest audience”

with its readership. Joan Walsh (“Walsh”) is the Editor

and Chief of Salon. /d. 12526; Walsh Testimony, 10/23

Tr. 107:17-18, 112:8-12.

27. Plaintiff Sexual Health Network owns and op-

erates Sexualhealth.com which is “dedicated to provid-

ing easy access to sexuality information, education, sup-

port and other sexuality resources for everyone, includ-

ing those with disability, chronic illness or other health-

related problems.” The Web site is run by Dr. Mitchell

Tepper (“Dr. Tepper”). Jd. 191 27-28

28. Plaintiff Electronic Privacy Information Center

(“EPIC”) “is a nonprofit educational organization estab-

lished in 1994 to examine civil liberties and privacy is-

sues arising on the Internet.” EPIC alleges that it ac-

cesses information on the Internet, including sexually

explicit pages, as part of its mission, which includes re-

porting on how well content filters work. /d. 1 29.

C. The Experts

1. Plaintiffs’ Experts

29. Professor Lorrie Faith Cranor (“Dr. Cranor”)

is currently employed at Carnegie Meilon University as

an associate research professor in the school of com-

puter science. Cranor Testimony, 10/23 Tr. 201:25-202:4.

Dr. Cranor was qualified in this case as an expert in the

areas of Internet filtering products and other parental

control tools used to control access to material on the

Internet. Cranor Testimony, 10/23 Tr. 227:6-21.

30. Professor Edward William Felten (“Dr. Fel-

ten”) is currently employed at Prineeton University as

a tenured professor of computer science and public af-

fairs and director of the Center for Information Tech-

69a

nology Policy. Felten Testimony, 10/24 Tr. 182:2-22.

Dr. Felten was qualified in this case as an expert on the

technology and use of Internet protocols, the technology

and use of filtering products, and the technology and use

of search engines. Felten Testimony, 10/24 Tr. 186:25-

187:16.

31. Professor Matthew Alan Zook (“Dr. Zook”) is

currently employed at the University of Kentucky as an

assistant professor of geography. Zook Testimony,

10/26 Tr. 53:12-19. Dr. Zook was qualified in this case as

an expert in the area of Internet geography, which en-

tails finding the locations of people using the Internet.

Zook Testimony, 10/26 Tr. 66:22-67:5, 70:23-71:12.

32. Michael Russo (“Russo”) is currently employed

as the president of the YNOT Network. Russo Testi-

mony, 10/25 Tr. 67:14-16. Russo was qualified as an ex-

pert in this case on the effectiveness of various online

verification schemes, including payment card screens

and data verification services, the availability of adult

material outside the United States, and the availability

of adult materials on the Internet. Russo Testimony,

10/25 Tr. 106:20-107:19.

33. Professor Ronald Mann (“Mann”) is currentiy

employed at the University of Texas as a law professor

of electronic commerce and payment systems. Mann

Testimony, 11/6 Tr. 59:6-10. Mann was qualified in this

case as an expert on payment systems, payment card

companies, business models of payment card companies,

and the use of payment cards in E-commerce. Mann

Testimony, 11/6 Tr. 73:2-75:16.

34. Professor Henry Reichman (“Dr. Reichman”)

is currently employed at California State University,

East Bay, and is the associate editor of the American

70a

Library Association’s “Newsletter on Intellectual Free-

dom.” Reichman Testimony, 10/30 Tr. 5:5-7, 7:1-8:5. Dr.

Reichman was qualified in this case as an expert in the

area of censorship and the suppression of speech.

Reichman Testimony, 10/30 Tr. 18:2-20.

2. Defendant’s Experts

35. Dr. Jeffrey Eisenach (“Dr. Eisenach”) is cur-

rently employed as chairman of Criterion Economics.

Eisenach Testimony, 11/138 Tr. 42:1-5. Dr. Eisenach was

qualified as an expert in this case on the Internet and its

impact on markets and public policy. Ejisenach Testi-

mony, 11/13 Tr. 71:25-72:10.

36. Professor Stephen Neale (“Dr. Neale”) is cur-

rently employed at Rutgers University as a professor of

philosophy. Neale Testimony, 11/8 Tr. 186:1-5. Dr.

Neale was qualified in this case as an expert on informa-

tion content on the theoretical bases of linguistic classifi-

cation and the classification of text documents for con-

tent. Dr. Neale was also received as an expert regard-

ing the theoretical or inherent limits of Internet filtering

software as a mechanism to block access to types of con-

tent on the Web to the extent that such software relies

on text-based classification. Neale Testimony, 11/8 Tr.

203:11-205:21.

37. Professor Philip Bradford Stark (“Dr. Stark”)

is currently employed at the University of California,

Berkley as a tenured statistics professor. Stark Testi-

mony, 11/8 Tr. 74:1-25. Dr. Stark was qualified as an

expert in this case in the areas of statistics and com-

puter-related statistics. Stark Testimony, 11/8 Tr. 83:3-

bz.

7la

38. Paul Mewett (“Mewett”) is currently employed

at CRA International as the head of the Internet Intelli-

gence Unit. Mewett Testimony, 11/7 Tr. 85:18-86:11.

Mewett was qualified in this case as an expert in the

areas of computer technology, the interaction of comput-

ers with the Internet and the Web, and the identification

of content on the Internet. Mewett Testimony, 11/7 Tr.

93:4-18.

39. Arthur E. Clark, Jr. (“Clark”) is currently em-

ployed as a managing partner of Business Insights.

Clark Testimony, 11/14 Tr. 11:12-13. Clark was quali-

fied as an expert in this case on the use and effective-

ness of payment cards on the Internet and related as-

pects. Clark Testimony, 11/14 Tr. 34:18-37:13.

40. Professor Scott Morris Smith (“Dr. Smith”) is

currently employed at Brigham Young University as a

professor of marketing and director of the institute for

marketing. S. Smith Testimony, 11/15 Tr. 4:3-9. Dr.

Smith was qualified as an expert in this case in the areas

of Internet research and methodology, advanced com-

puter applications for Internet survey research and

analysis, Internet marketing in businesses, and buyer or

consumer behavior. S. Smith Testimony, i1/15 Tr.

40:17-42:15.

D. Information Regarding Plaintiffs’ Web Sites and

the Content Thereon and Sclect Plaintiffs’ Fear

of Prosecution under COPA

41. There are numerous examples of material on

the plaintiffs’ Web pages that contain an actual or simu-

lated sexual act or sexual contact, an actual or simulated

normal or perverted sexual act, or a lewd exhibition of

the genitals or post-pubescent female breast which

might be considered harmful to minors. Walsh Testi-

72a

mony, 10/23 Tr. 141:10-17, 144:3-145:8, 146:6-13, 146:24-

147:5, 147:9-18, 147:25-148:12, 152:8-15; Pl. Ex. 39, at 1-

5, 61-78, 94-135; Findings of Fact 55, 58; Griscom Testi-

mony, 10/23 Tr. 68:16-69:1, 70:4-9, 73:25-74:6, 74:16-23,

77:10-14, 79:7-13; Pl. Ex. 38 at 13, 17-18; Findings of

Fact 51-52; Glickman Testimony, 10/30 Tr. 130:23-131:10

(stating that Condomania has frank and honest discus-

sions on the “website about anal sex, lubricants and con-

doms for anal sex, lubricants for such acts as fisting,

dental dams for both vaginal oral sex and anal oral

sex”); Peckham Testimony, 10/31 Tr. 26:13-27:4; Pl. Ex.

41 (defining sexual slang words and giving sexually

graphic examples of their use); Corinna Testimony, 11/2

Tr. 81:10-15, 82:7-12, 87:25-88:6, 89:6-11, 95:10-15; PI.

Ex. 42, at 2, 12, 13-15, 16-17, 26-28; Findings of Fact 46-

48.

42. The plaintiffs speak in support of their busi-

nesses on the Web. The speech on the plaintiffs’ Web

sites is designed to assist in making a profit. Walsh Tes-

timony, 10/23 Tr. 112:20-21; Tepper Testimony, 10/30 Tr.

176:11-13; Glickman Testimony, 10/30 Tr. 92:12-13;

Griscom Testimony, 10/23 Tr. 52:25-53:1; Peckham Tes-

timony, 10/31 Tr. 23:6-10; Corinna Testimony, 11/2 Tr.

100:1-5.

43. Nonetheless, the majority of information on the

plaintiffs’ Web sites is provided to users for free. Walsh

Testimony, 10/23 Tr. 161:4-6 (all of Salon’s content is

available today for free); Tepper Testimony, 10/30 Tr.

194:13-15 (all of Sexual Health Network’s content is

available for free); Glickman Testimony, 10/30 Tr.

108:11-20; Griscom Testimony, 10/23 Tr. 64:5-13 (mest

of Nerve’s content is available for free); Peckham Testi-

mony, 10/31 Tr. 55:17-56:6; Corinna Testimony, 11/2 Tr.

73a

74:10-11 (Scarleteen.com’s content is available for free),

95:25-96:1 (some of the content on Femmerotic.com is

available for free), 102:1-24, 126:2-127:9 (all of the con-

tent ef Scarletletters.com posted in the last two years is

available for free).

44. Most of the information on the plaintiffs’ Web

sites can be accessed without requiring users to regis-

ter, provide a password or log-in, or otherwise provide

any personal, identifying information in order to access

the material. Walsh Testimony, 10/23 Tr. 158:16-22;

Tepper Testimony, 10/30 Tr. 190:11-18; Peckham Testi-

mony, 10/31 Tr. 30:12-18, 42:19-238.

45. A significant number of the Internet users who

access the materia! on the plaintiffs’ Web sites are indi-

viduals who do not live in the United States. Walsh Tes-

timony, 10/23 Tr. 113:23-114:19 (“we get roughly 20 per-

cent of our traffic now from international readers”);

Tepper Testimony, 10/30 Tr. 181:10-18 (“approximately

15 percent” of users come from overseas); Griscom Tes-

timony, 10/23 Tr. 56:14-17 (15 percent of Nerve’s visitors

are from overseas); Peckham Testimony, 10/31 Tr.

25:14-17 (87 percent of Urban Dictionary’s users are

from overseas); Glickman Testimony, 10/30 Tr. 99:16-22.

46. Scarletletters.com is a Web site “intended to

deliver sexuality information as well as entertainment

by women for female users” and includes content that is

sexually explicit. Corinna Testimony, 11/2 Tr. 73:2-5,

88:1-89:25; J. Ex. 1 19 9-10, 35; Pl. Ex. 42, at 12 (showing

sketches of male and female genitalia and intercourse),

13-15 (displaying an erotic story describing, 7nter alza,

interludes involving masturbation, bondage, intercourse,

and oral sex), 16 (depicting, enter alia, erotic photo-

graphs of genitalia and sexual situations).

74a

47. Scarleteen.com is a “sex education and informa-

tion clearing house that’s aimed at teenagers and young

adults” which includes content that is sexual explicit.

Corinna Testimony, 11/2 Tr. 74:1-2, 77:24-85:23; J. Ex.

199 11, 34; Pl. Ex. 42.

48. Femmerotic.com provides sexuality information

“by women pertaining to women” and includes content

that is sexually explicit. Corinna Testimony, 11/2 Tr.

75:1-5, 94:21-95:15, 127:13-16; J. Ex. 1 19 12, 36; Pl. Ex.

42, at 1-2, 17, 26-28 (displaying erotic pictures of naked

breasts, genitalia and buttocks and sexual situations).

49. Scarleteen.com, Scarletletters.com, and Femm-

erotic.com are operated to make a profit. Corinna Testi-

mony, 11/2 Tr. 100:2-5.

50. Corinna does not understand the terms in

COPA or what speech the statute prohibits. Corinna

Testimony, 11/2 Tr. 75:20-22. Corinna also fears prose-

cution under COPA because she believes that some of

her content is pornographic and would be prohibited by

COPA. Corinna Testimony, 11/2 Tr. 76:7-17, 91:13-22,

97:13-19.

51. Nerve has speech that “frequently” includes nu-

dity and descriptions of sexual acts. Griscom Testimony,

10/28 Tr. 58:7-18, 66:18-79:13 (2nter alia, discussing the

Henry Miller awards which include excerpts of the best

sex scenes in American novels); Pl. Ex. 38, at 13 (depict-

ing, znter alia, a photograph of a naked woman with

stars obscuring her nipples and genitals apparently

masturbating), 17-18 (describing, inter alia, vaginal and

oral sex in graphic language), 22-24 (describing, in erotic

detail, Tantric sex); J. Ex. 1 191 39-40.

75a

52. Nerve has video and blog sections that include

nudity and depictions of sexual acts and sexual contact

that are available for free and accessible to anyone.

Griscom Testimony, 10/23 Tr. 73:25-74:6, 77:2-78:7.

53. Nerve is a for-profit venture with advertising

being its largest revenue stream. Griscom Testimony,

10/23 Tr. 81:17-82:23.

54. Griscom, on behalf of Nerve, does not under-

stand the terms in COPA or what speech the statute

prohibits. Griscom Testimony, 10/23 Tr. 56:18-57:21.

Griscom also fears prosecution under COPA and be-

lieves that others could find that some content on Nerve

is harmful to minors. Griscom Testimony, 10/23 Tr. 58:3-

59:7, 80:7-17.

55. Salon’s Web site, Salon.com, contains content

that describes and depicts sexual acts and sexual contact

and exhibitions of the genitals or post-pubescent female

breast. Walsh Testimony, 10/23 Tr. 141:10-17, 144:3-

145:8 (discussing article entitled “My Date With A Vir-

tual Sex Machine”), 146:6-13, 146:24-147:5 (discussing

sexually explicit Japanese wood cuts), 147:9-18 (discuss-

ing sex gallery photographs from Kinsey Institute),

147:25-148:12 (discussing Abu Ghraib prison photo-

graphs including one in which a prisoner is “appearing

to sodomize himself’), 152:8-15 (discussing explicit pho-

tographs on a blog entitled “My So-Called Lesbian

Life”); Pl. Ex. 39, at 1-5 (depicting, inter alia, a photo-

graph of two topless women in an erotic position, and

two other photographs of nude women posing erotically),

24, 29 (describing sexual encounters involving oral and

vaginal sex), 57-59 (discussing anal sex with a strap-on

phallus), 64-74 (describing a memoir of anal sex), 75-78,

76a

94-100 (depicting Japanese wood cuts involving, inter

alia, oral sex with sheet-like demons, hot wax, children

engaging in digital penetration, intercourse with a half-

woman, half-octopus creature, vaginal penetration with

a demon’s nose, and clitoral stimulation with chop-

sticks), 101-111 (depicting Kinsey Institute images in-

volving bondage, naked breasts, buttocks, erect penises,

vaginas, and a variety of sexual situations including a

woman straddling a seated man whose penis is penetrat-

ing the woman’s vagina), 112-118 (depicting erotic pho-

tographs of naked breasts buttocks and genitalia), 119-

135.

56. Salon is a for-profit company which primarily

generates revenue through online advertising. Walsh

Testimony, 10/23 Tr. 112:20-21, 157:17-158:4.

57. Walsh, on behalf of Salon, does not understand

the terms in COPA or what speech the statute prohibits.

Walsh Testimony, 10/23 Tr. 135:22-137:5. Walsh also

helieves that some of Salon’s content might be consid-

ered harmful to minors. Walsh Testimony, 10/23 Tr.

137:15-138:10.

58. Walsh fears prosecution under COPA, in part,

because Salon has received complaints about the sexual

nature of some of its material and has lost some adver-

tising due to articles incorporating unpopular views on

sexuality. Walsh Testimony, 10/23 Tr. 154:19-156:7,

157:4-15.

59. Glickman, on behalf of Condomania, does not

understand the terms in COPA or what speech the stat-

ute prohibits. Glickman Testimony, 10/30 Tr. 130:3-22.

T7a

60. Dr. Tepper, on behalf of Sexual Health Net-

work, does not understand the terms in COPA or what

speech the statute prohibits. Tepper Testimony, 10/30

Tr. 195:14-197:2.

61. If COPA is enforced, Griscom, Walsh, Glick-

man, and Corinna would have various reactions such as

considering moving overseas and risking prosecution.

Griscom Testimony, 10/23 Tr. 91:7-17; Walsh Testimony,

10/23 Tr. 173:21-24; Glickman Testimony, 10/30 Tr.

136:13-18; Corinna Testimony, 11/2 Tr. 104:17-105:5.

Dr. Tepper does not know what he would do if COPA

went into effect because he does not think it would be

financially feasible for his company to use an age verifi-

cation system and he does not know if he would be will-

ing to risk violating COPA. Tepper Testimony, 10/30 Tr.

243:7-17.

E. Sexually Explicit Materials Available on the

Web

1. In General

62. A little more than 1 percent of all Web pages

on the Surface Web (amounting to approximately 275

million to 700 million Web pages) are sexually explicit.

Zook Testimony, 10/26 Tr. at 88:22-89:17; Mewett Testi-

mony, 11/8 Tr. 48:19-49:9; Pl. Ex. 29, at 6-7; Pl. Ex. 54,

at 101; Def. Ex. 65.

2. The Amount of Foreign Sexuaily Explicit

Material on the Web

63. Although the parties disagree on how to deter-

mine whether a Web site is foreign or domestic in origin,

their experts’ views regarding the amount of foreign

sexually explicit materials available on the Web are not

78a

dissimilar. The evidence submitted by the plaintiffs’

expert Dr. Zook shows that 32 percent of adult member-

ship Web sites and 58 percent of free adult Web sites

originate from outside the United States. Zook Testi-

mony, 10/26 Tr. 111:2-112:1; Pl. Ex. 29 at 18-19. The

evidence submitted by defendant’s expert Dr. Stark

shows that 55.8 percent of the Web pages randomly

sampled from the Google search engine index were

hosted outside of the United States and 44.4 percent of

the Web pages randomly sampled from the MSN search

engine index were hosted outside of the United States.

Def. Ex. 62 110; Def. Ex. 65. From the weight of the

evidence excerpted here, I find that a substantial num-

ber (approximately 50 percent) of sexually explicit web-

sites are foreign in origin.

64. Dr. Stark’s data also indicated that, of the sexu-

ally explicit Web pages returned in response to a ran-

dom sample of search terms entered into the AOL, MSN

and Yahoo! search engines, 11.6 percent of those Web

pages were from foreign Web sites. Dr. Stark’s data

further indicated that, of the sexually explicit Web pages

returned in response to the most popular search terms

according to Wordtracker, which markets lists of the

most popular search terms, 12.6 percent of those Web

pages were from foreign Web sites. Def. Ex. 62, at 10-

11; Def. Ex. 65. However, T find that this data is not

relevant because I find that Dr. Stark’s samples from

search engine index data (detailed in Finding of Fact

63), which consists of all of the Web sites indexed by the

search engines, are a more accurate indication of how

many Web sites are sexually explicit and foreign than

samples of search term results which show only the fre-

79a

quency with which searches return sexually explicit Web

pages.

65. The National Research Council (“NRC”) re-

port, commissioned by Congress, specifically noted that

some estimates place as much as 75 percent of adult

membership Web sites overseas. PI. Ex. 54, at 101.

66. The percentage of adult Web sites registered

overseas is increasing while, in the past five years, there

has been a corresponding decrease in the percentage of

adult Web sites located in the United States. Zook Tes-

timony, 10/26 Tr. 107:24-112:9; Pl. Ex. 29, at 13-17, Ta-

bles 4, 6, 8,9. Free adult Web sites are migrating at the

highest rates. From 2001 to 2006, the United States’

share of free adult Web sites dropped from 60 percent to

42 percent. Zook Testimony, 10/26 Tr. 109:25-111:1; PI.

Ex. 29, Table 9.

F. Internet Content Filtering Technology and its

Effectiveness

l. In General

67. Internet content filters (“filters”) are computer

applications which, inter alia, attempt to block certain

categories of material from view that a Web browser or

other Internet application is capable of displaying or

downloading, including sexually explicit material. Fil-

ters categorize and block Web sites or pages based on

their content. By classifying a site or page, and refusing

to display it on the user’s computer screen, filters can be

used to prevent children from seeing material that

might be considered unsuitable. In addition, businesses

often use filters to prevent employees from accessing on

employer controlled computers Internet resources that

80a

are either not work related or otherwise deemed inap-

propriate. J. Ex. t 185.

68. Filters can be programmed or configured in a

variety of different ways according to, znter alza, the

values of the parents using them and the age and matu-

rity of their children. As discussed more fully below, fil-

ters can be set up to restrict materials available on Web

pages and other Internet applications based on numer-

ous factors including the type of content they contain,

the presence of particular words, the address of the Web

site, the Internet protocol used, or computer application

used. Some filters can also restrict Internet access

based on time of day, day of week, how long the com-

puter has been connected to the Internet, or which user

is logged onto a computer. Cranor Testimony, 10/23 Tr.

233:1-234:13, 250:1-251:16; Cranor Testimony, Tr. 10/24

Tr. 5:9-6:8, 7:1-8:9; Allan Testimony, 11/2 Tr. 204:22-

207:16, 236:22-237:7, 238:16-20, 240:18-241:8, 246:19-

247:21; Allan Testimony, 11/6 Tr. 5:22-6:2; Whittle Testi-

mony, 10/31 Tr. 200:2-16, 201:18-212:24, 212:25-213:24,

220:5-221:14; Murphy Testimony, 11/1 Tr. 210:7-213:25,

217:21-221:7;'Pl. Ex. 6; Pl. Ex. 11; Pl. Ex. 54; Pl. Ex. 86.

69. Some filters can be purchased on a Compact

Dise (“CD”) or downloaded from the Internet and in-

stalled on a personal computer. Some filters are de

signed to be run on a server in a business, library, or

school environment. Other filters are built into the ser-

vices provided by Internet Service Providers (“ISP”). J.

Ex. 19 86.

70. Filters use different mechanisms to attempt to

block access to material on the Internet including: black

lists, white lists, and dynamic filtering. /d. 19 87, 90, 92.

sla

71. Black lists are lists of URLs or Internet Proto-

col (“IP”) addresses that a filtering company has deter-

mined lead to content that contains the type of materials

its filter is designed to block. /d. 1| 87.

72. White lists are lists of URLs or IP addresses

that a filtering company has determined do not lead to

any content its filter is designed to block, and, thus,

should never be blocked. A very restrictive filter, like a

“walled garden” filter, might block all URLs except

those included on a white list. Jd. 190.

73. In addition to its own black and white lists, fil-

ters often give parents or administrators the option of

creating customized black or white lists. /d. 191.

74. Dynamic filtering products use artificial intelli-

gence to analyze Web site content in real-time as it is

being requested and determine whether it should be

blocked by evaluating a number of different parts of the

content, both what the user can actually see on the Web

page, and the various hidden pieces of information con-

tained with the content that are part of its software code

or script, known as the “metadata.” Among other

things, dynamic filters analyze the words on the page,

the metadata, the file names for images, the URLs, the

links on a page, the size of images, the formatting of the

page, and other statistical pattern recognition features,

such as the spatial patterns between certain words and

images, which can often help filters categorize content

even if the actual words are not recognized. /d., 1 92;

Cranor Testimony, 10/23 Tr. 289:23-244:18.

75. In addition to analyzing the content of Web

pages, dynamic filters also take the context of the page

into consideration, to ensure that the determinations are

&2a

as accurate as possible. For example, many companies

will develop templates that provide additional context to

teach the software how to recognize certain contexts—

for example, to block the word “breast” when used in

combination with the word “sexy,” but not when used in

combination with the words “chicken” or “cancer.” The

software analyzes context, in part, by utilizing statistical

pattern recognition techniques to identify common fea-

tures of acceptable and unacceptable Web pages, de-

pending on the context in which the content appears.

Cranor Testimony, 10/23 Tr. 243:5-244:6; Whittle Testi-

mony, 10/31 Tr. 201:4-17, 204:17-205:25.

76. Filters can be used by parents to block material

that is distributed on the Web and on the other widely

used parts of the Internet through protocols other than

HTTP and through other Internet applications. For

example, filters can be used to block any Internet appli-

cation, including email, chat, instant messaging, peer-to-

peer file sharing, newsgroups, streaming video and au-

dio, Internet television and voice over Internet protocol

(“VoIP”), and other Internet protocols suchas FTP. J.

Ex. 1 195; Cranor Testimony, 10/24 Tr. 47:25-48:19; PI.

Ex. 6; Pl. Ex. 8; Pl. Ex. 54; Pl. Ex. 86; Pl. Ex. 88; Whittle

Testimony, 10/31 Tr. 207:17-209:24, 212:25-213:15,

220:14-20; Murphy Testimony, 11/1 Tr. 203:21-204:3,

217:19-218:22; Allan Testimony, 11/2 Tr. 236:22-239:5,

246:19-248:10; Allan Testimony, 11/6 Tr. 5:22-8:23.

77. In addition to blocking access to these Internet

applications completely, some products provide parents

with the option of providing limited access to these ap-

plications. For example, instant messaging and email

may be permitted, but some of the filtering products will

only permit the sending and receiving of messages from

83a

certain authorized individuals, and will block e-mails or

instant messages containing inappropriate words or any

images. Filtering programs can also completely prevent

children from entering or using chat rooms, or some can

merely filter out any inappropriate words that come up

during a chat session. Cranor Testimony, 10/24 Tr. 7:1-

17; Allan Testimony, 11/2 Tr. 236:24-237:3, 238:11-20;

Allan Testimony, 11/6 Tr. 5:22-7:8; Whittle Testimony,

10/31 Tr. 202:10-209:24, 212:25-213:15, 220:14-20;

Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:19-221:7,

235:21-238:13; Pl. Ex. 86, at 6-7.

78. Some filtering programs offer only a small

number of settings, while others are highly customiz-

able, allowing a parent to make detailed decisions about

what to allow and what to block. Filtering products do

this by, among other things, enabling parents to choose

which categories of speech they want to be blocked (such

as sexually explicit material, illicit drug information,

information on violence and weapons, and hate speech)

and which age setting they want the product to apply.

For example, AOL’s filtering product enables parents to

choose from four different age settings: general (unre-

stricted); mature teen; young teen; and kids only. Sur-

feontrol’s product has 13 different categories of speech

that can be blocked if a parent so desires. Cranor Testi-

mony, 10/23 Tr. 233:2-21; Pl. Ex. 86; Allan Testimony,

11/2 Tr. 205:16-207:16, 240:18-243:2; Whittle Testimony,

10/31 Tr. 200:2-16, 202:10-203:8, 206:23-212:13, 220:5-25;

Murphy Testimony, 11/1 Tr. 210:7-213:25, 217:25-221:7.

79. Filtering products can be used by parents even

if they have more than one child. For example, if a fam-

ily has four children, many filtering products will enable

the parent to set up different accounts for each child, to

84a

ensure that each child is able to access only the content

that the parents want that particular child to access.

Cranor Testimony, 10/23 Tr. 239:11-22; Cranor Testi-

mony, 10/24 Tr. 36:16-38:11; Pl. Ex. 86, at 15-22, 33-39.

80. Filtering products block both Web pages origi-

nating from within the United States and Web pages

originating from outside the United States. The geo-

graphic origin of a Web page is not a factor in how a fil-

ter works because the filter analyzes the content of the

Web page, not the location from which it came. Cranor

Testimony, 10/24 Tr. 46:20-47:8; Pl. Ex. 6; P] Ex. 54;

Allan Testimony, 11/2 Tr. 185:6-12; Whittle Testimony,

10/31 Tr. 202:1-3; Murphy Testimony, 11/1 Tr. 224:6-14,

226:6-228:21; Pl. Ex. 138.

81. Filtering products block both non-commercial

and commercial Web pages. It does not make a differ-

ence to filtering products’ effectiveness if a page is from

a non-commercial or a commercial entity. Cranor Testi-

mony, 10/24 Tr. 47:9-24; Pl. Ex. 6; Pl. Ex. 54; Whittle

Testimony, 10/31 Tr. 202:7-9; Allan Testimony. 11/2 Tr.

246:6-11.

82. In addition to their content filtering features,

filtering products have a number of additional tools to

help parents control their children’s Internet activities.

Other tools available to parents include monitoring and

reporting features that allow supervising adults to know

which sites a minor has visited and what other types of

activities a minor has engaged in online. AOL, for exam-

ple, offers a feature called AOL Guardian, which pro-

vides a parent with a report indicating which Web sites

a child visited, which sites were blocked, the number of

emails and instant messages a child sent, and to whom

85a

a child sent email or instant messages. Surfcontrol simi-

larly provides parents with reports of the Web sites a

child has visited, as well as those that were blocked. Sur-

feontrol’s product also has the ability simply to monitor

a child’s activity without actually blocking anything, if a

parent prefers that option. Some of the products, such

as Contentwaich’s filter, have features that permit par-

ents to monitor their child’s Internet aciivities remotely,

for example, while they are at work, and some products

e€.°n send email alerts to parents when inappropriate

material is accessed by a child so that, if a parent so de-

Sires, it can supervise their child’s Internet activities

even when they are not physically with the child. Cranor

Testimony, 10/23 Tr. 234:2-18, 249:21-251:15; Cranor

Testimony, 10/24 Tr. 28:5-29:13; Pl. Ex. 2; Pl. Ex. 86, at

10-13, 32; Whittle Testimony, 10/31 Tr. 210:2-212:13;

Murphy Testimony, 11/1 Tr. 218:23-220:23.

83. Some Internet content is now capable of being

viewed on devices other than traditional personal com-

puters. Examples include mobile devices such as cellu-

lar phones, personal digital assistants (“PDAs”) such as

the Blackberry, portable audio/video players such as the

iPod, and game consoles such as the XBox or PlaySta-

tion. J. Ex. 11 96.

84. Several vendors, including large, experienced

software companies, currently offer content filtering

products for alternative devices. Examples include pro-

ducts offered by Ace*comm, Bytemobile, Blue Coat, Cis-

co, and RuleSpace. Felten Testimony, 10/25 Tr. 25:4-20;

Sena Testimony, 11/2 Tr. 33:4-6, 60:7-14; Pl. Ex.13, at

22-23; Pl. Ex. 70; Allan Testimony, 11/2 Tr. 223:2-23.

86a

85. At this time, however, there are no U.S. mobile

telecommunications carriers that use filters for their

cellular phones other than walled garden filters and cer-

tain other parental control features which can prevent

children from using chat rooms, instant messaging, text

messaging, email, purchasing any file downloads or hav-

ing any access to the Internet at all. Felten Testimony,

10/25 Tr. 25:22-26:17; Ryan Testimony, 11/6 Tr. 30:20-

36:19; Allan Testimony, 11/2 Tr. 223:2-23.

86. Nonetheless, mobile carriers are actively solic-

iting bids for the provision of mobile content filtering

services. The top five mobile carriers in the United

States, Cingular, Verizon Wireless, T-Mobile, Sprint,

and Alltel, are all soliciting bids. Sena Testimony, 11/2

Tr. 56:19-57:09.

2. The Availability and Cost of Filters

87. Filters are widely available and easy to obtain.

Numerous filtering products are sold directly to con-

sumers, either in stores or over the Internet. Filters are

also readily available through ISPs. Because most ISPs

offer filtering products, a parent does not have to do

anything to obtain a filter other than to activate it

through the ISP’s Web site or to call the ISP. Cranor

Testimony, 10/24 Tr. 8:8-9:9.

88. Many of the ISPs offer filters to their custom-

ers for free. AOL’s filter is now even available for free

to anyone who wants to use it, even non-AOL subscrib-

ers. Cranor Testimony, 10/24 Tr. 9:10-24.

89. Non-ISP filtering products vary in cost, rang-

ing from approximately $20 to $60. Cranor Testimony,

10/24 Tr. 9:10-17.

87a

90. Most of the filtering products offer money-back

guarantees or free trial periods, so that parents can sim-

ply download a filtering product for free over the In-

ternet and then use it for a set time period to see if it is

something that they want to continue using. Cranor

Testimony, 10/24 Tr. 12:12-22; Eisenach Testimony,

11/13 Tr. 177:8-25.

91. Microsoft’s new operating system for personal

computers, Vista, also includes parental controls and

filters which are available at no additional cost to users

of computers with the Vista operating system. Vista’s

content filter provides features similar to what are

found in most current filtering products, including the

ability to select which categories of speech should be

filtered. Vista’s filter also provides parents with other

access control tools, such as time management, the abil-

ity to filter non-Web Internet applications like email,

and the ability to block or restrict access to online

games. Cranor Testimony, 10/24 Tr. 12:23-13:7, 16:14-

17:8; Pl. Ex. 2.

3. Filter Ease of Use and User Satisfaction

92. Filtering programs are fairly easy to install,

configure, and use and require only minimal effort by

the end user to configure and update. Cranor Testi-

mony, 10/24 Tr. 21:3-39:7; Pl. Ex. 3, at 4-5; Pl. Ex. 6; Pl.

Ex. 54, at 317-320; Pl. Ex. 85, at 4; Pl. Ex. 86.

93. The plaintiffs’ expert Dr. Cranor has confirmed

this finding in various tests performed over the past

decade in connection with her work for the Internet On-

line Summit, her testimony before the COPA Commis-

sion, and her expert testimony in the five previous law-

suits challenging state versions of COPA. For example,

88a

Dr. Cranor recently tested four filters and found that

three were very, very easy to use and one was somewhat

easy to use. Dr. Cranor also found that the current ver-

sions of the filter products had improved and were eas-

ier to use than the older versions. Cranor Testimony,

10/24 Tr. 18:13-19:1, 19:2-18, 168:11-18.

94. Dr. Cranor’s opinion is consistent with the find-

ings of filtering studies conducted over the years. Those

studies have found that many filtering products require

little effort for parents to install and use. For example,

a study conducted for NetAlert and the Australia Broad-

cast Authority concluded that certain products, such as

AOL’s filter, were quite easy to use and install. Cranor

Testimony, 10/24 Tr. 57:9-18, 68:7-21; Pl. Ex. 5, at 32; PI.

Ex. 6, at 21; Pl. Ex. 85, at 4.

95. Almost all parents will be able to install filter-

ing products and use them by selecting from one of their

standard settings. Many filters have user interfaces

that are quite easy to use and that make it easy for users

to create customized settings, especially if all they are

concerned about blocking is adult material. Cranor Tes-

timony, 10/24 Tr. 19:19-20:7, 20:19-21:2, 27:1-24; Whittle

Testimony, 10/31 Tr. 200:2-16, 206:23-212:13; Murphy

Testimony, 11/1 Tr. 221:8-224:5; Pl. Ex. 2, at 17; Pl. Ex.

6; Pl. Ex. 85, at 4; Pl. Ex. 86, at 8-9.

96. Installing and setting up a filter will usually

take a typical computer user no more than ten or fifteen

minutes. The installation and set-up process is not tech-

nically complex and does not require any special train-

ing or knowledge. Cranor Testimony, 10/24 Tr. 21:3-

22:8; Pl. Ex. 86.

89a

97. Configuring a filtering product for more than

one child is straightforward and easy with many prod-

ucts. For example, it takes about two minutes to set up

an account for an additional child using AOL’s filter

product. Cranor Testimony, 10/24 Tr. 36:16-38:15; PI.

Ex. 86, at 33-39.

98. Most filtering products do not pose any compat-

ibility issues for computers, meaning that using filters

will not affect the typical user’s ability to use other com-

puter software. Cranor Testimony, 10/24 Tr. 40:9-41:6.

99. A study done for AOL found that 85 percent of

parents are highly satisfied with their AOL Parental

Controls products, and that 87 percent of the parents

find them easy to use. Surfcontrol has also found that

customer response is positive and that 70 to 80 percent

of their customers renew their subscriptions to Surf-

eontrol’s filter. Cranor Testimony, 10/24 Tr. 83:7-11,

129:9-130:13; Murphy Testimony, 11/1 Tr. 222:25-223:20;

Pl. Ex. 85, at 4.

4. The Effectiveness of Filters

a. In General

100. There are two main concerns regarding the

effectiveness of filters: underblocking and overblocking.

Underblocking occurs when the filter fails to block con-

tent that the filter is configured to block. Overblocking

occurs when the filter prevents access to material that

it is not configured to block. Cranor Testimony, 10/24

Tr. 52:16-21; Stark Testimony, 11/8 Tr. 95:16-96:18,

105:25-106:12.

101. The plaintiffs contend that in determining whe-

ther filters are effective, the filter’s underblocking rate

90a

is more important than its overblocking rate. Cranor

Testimony, 10/24 Tr. 52:22-53:6. Defendant claims that

overblocking is a significant concern as well. Stark Tes-

timony, 11/8 Tr. 95:22-96:18. While both aspects are

important, I agree with the plaintiffs that underblocking

is the more important concern since the underlying issue

in this case is the prevention of children from accessing

sexually explicit material deemed harmful to them.

Moreover, when a filter overblocks, a parent may add

the Web sites that were erroneously overblocked to the

filter’s white list so that those Web sites are not blocked

again. J. Ex.1 4191.

102. Even though the Web is very large, only a small

fraction of it is actually viewed frequently. To ensure

that those parts that are actually being viewed by users

have been loeated, filtering companies review lists of the

most popular Web sites because the pages on those sites

are the most likely ones that a child will be able to find

and access. Cranor Testimony, 10/238 Tr. 236:22-237:7;

Murphy Testimony, 11/1 Tr. 194:6-196:6.

108. Filtering products have improved over time and

are now more effective than ever before. This is be-

cause, as with all software, the filtering companies have

addressed problems with the earlier versions of the pro-

ducts in an attempt to make their products better. Cra-

nor Testimony, 10/24 Tr. 81:18-82:10; Murphy Testi-

mony, 11/1 Tr. 194:6-196:6, 221:8-222:24.

104. Another reason the effectiveness of filtering

products has improved is that many products now pro-

vide multiple layers of filtering. Whereas many filters

once only relied on black lists or white lists, many of to-

day’s products utilize black lists, white lists, and real-

9la

time, dynamic filtering to catch any inappropriate sites

that have not previously been classified by the product.

Cranor Testimony, 10/23 Tr. 246:20-247:9; Cranor Testi-

mony, 10/24 Tr. 81:18-82:4.

105. There is a high level of competition in the field

of Internet content filtering. That factor, along with the

development of new technologies, has also caused the

products to improve over time. Murphy Testimony, 11/1

Tr. 223:21-224:5; Pl. Ex. 2, at 16-17.

106. One of the features of filtering programs that

adds to their effectiveness is that they have built-in

mechanisms to prevent children from bypassing or cir-

cumventing the filters, including password protection

and other devices to prevent children from uninstalling

the product or changing the settings. Some products

even have a tamper detection feature, by which they can

detect when someone is trying to uninstall or disable the

product, and then cut off Internet access altogether un-

til it has been properly reconfigured. Cranor Testi-

mony, 10/24 Tr. 86:19-87:21; Felten Testimony, 10/25 Tr.

37:5-38:7; Murphy Testimony, 11/1 Tr. 216:12-217:18;

Whittle Testimony, 10/31 Tr. 215:7-14; Pl. Ex. 2; Pl. Ex.

86.

107. Filtering companies actively take steps to make

sure that children are not able to come up with ways to

circumvent their filters. Filtering companies monitor

the Web to identify any methods for circumventing fil-

ters, and when such methods are found, the filtering

companies respond by putting in extra protections in an

attempt to make sure that those methods do not succeed

with their products. Cranor Testimony, 10/24 Tr. 86:19-

87:21; Felten Testimony, 10/25 Tr. 38:8-39:1.

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108. It is difficult for children to cireumvent filters

because of the technical ability and expertise necessary

to do so by disabling the product on the actual computer

or by accessing the Web through a proxy or intermedi-

ary computer and successfully avoiding a filter on the

minor’s computer. Cranor Testimony, 10/24 Tr. 86:19-

87:21; Felten Testimony, 10/25 Tr. 36:6-40:4; Murphy

Testimony, 11/1 Tr. 216:12-217:18; Whittle Testimony,

10/31 Tr. 215:7-14.

109. Accessing the Web through a proxy or interme-

diary computer will not enable a minor to avoid a filter-

ing product that analyzes the content of the Web page

requested, in addition to where the page is coming from.

Any product that contains a real-time, dynamic filtering

component cannot be avoided by use of a proxy, whether

the filter is located on the network or on the user’s com-

puter. Felten Testimony, 10/25 Tr. 38:08-39:24.

b. Study Results

110. Based upon the testimony of Dr. Cranor, which

I accept, I find that filters generally block about 95% of

sexually explicit material. Cranor Testimony, 10/24 Tr.

59:8-23.

111. One study, conducted for NetAlert and the Aus

tralia Broadcast Authority, measured the effectiveness

of various filtering products at blocking a variety of dif-

ferent categories of content that parents might want to

block, including pornography and erotica. The study

found that some products, such as AOL’s filter, blocked

close to 100 percent of all pornography or erotica when

the most restrictive setting (for children under the age

of 12) was chosen. When a less restrictive setting (for 13

to 15 vear-olds) was selected, the study found that about

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90 percent of the pornography and erotica was blocked.

Pl. Ex. 5, at 35-36.

112. Another study, conducted by Corey Finnel

(“Finne)”) for the government in another case, analyzed

the overblocking rates of three filtering products.

F inne! found that the overblocking rates for those three

products respectively were between 4.69 percent and

7.99 percent, between 5.25 percent and 11.03 percent,

and between 6.92 and 9.36 percent, using a 95 percent

confidence interval. Cranor Testimony, 10/24 Tr. 60:4-

61:25; Pl. Ex. 4.

113. Consumer Reports has also conducted reviews

of the various filtering products available to parents.

Their most recent study concluded that filters are very

good or excellent at blocking pornography, and that they

block most, but not all, of that content. More specifi-

cally, Consumer Reports found that three products,

from AOL, KidsNet and MSN, blocked practically every

pornographic site that they tested, and that the least

effective product they tested still blocked 8&8. percent of

pornography. Cranor Testimony, 10/24 Tr. 70:9-22; PI.

Ex. 8, at 3. Although the methodology for this study may

well be less rigorous than that of other more academic

studies, the study is still informative because Consumer

Reports focuses its evaluations on the criteria that are

important to potential consumers and helps to shed light

on whether the filters tested will be usable by a parent.

Cranor Testimony, 10/24 Tr. 69:14-70:4.

114. Two separate reports commissioned by Con-

gress, from the Commission on Child Online Protection

(“COPA Commission”) and the NRC, have confirmed

that content filters can be effective at preventing minors

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from accessing harmful materials online. Cranor Testi-

mony, 10/24 Tr. 71:2-76:5; Pl. Ex. 6; Pl. Ex. 54.

115. The COPA Commission was established by

Congress as part of the COPA legislation. The COPA

Commission report concluded that although filters are

not perfect, server-side filters (meaning filters provided

by an ISP) using only black lists and not utilizing other

technologies such as dynamic filtering “can be highly

effective” and client-side filters (meaning filters in-

stalled on a home computer) using only black lists “can

be effective” in “directly blocking access to global harm-

ful to minors content on the Web and also on news-

groups, email, and chat rooms.” Cranor Testimony,

10/24 Tr. 71:22-72:9; Pl. Ex. 6, at 19, 21.

116. The NRC issued a lengthy report in 2005. The

NRC report concluded that although not perfect because

filters overblock and underblock, and children can gain

access to computers without filters, “[f]ilters have some

significant utility in denying access to content that may

be regarded as inappropriate” and, “filters can be highly

effective in reducing the exposure of minors to inappro-

priate content if the inability to access large amounts of

appropriate material is acceptable.” Cranor Testimony,

10/24 Tr. 75:15-76:3; Pl. Ex. 54, at 40, 331.

117. Defendant’s expert Mewett found that, in the

filter study conducted by Dr. Stark and himself, with

regard to the Web pages that were returned in response

to the most popular search terms, the AOL filter per-

formed the best and blocked 98.7 percent of sexually

explicit Web pages. However, Mewett found that the

AOL filter overblocked 19.6 percent of non-sexually ex-

plicit Web pages. Mewett also found that the other fil-

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ters he tested accurately blocked between 98.6 and 87.4

percent of the sexually explicit Web pages. In fact, of

the filters tested, only two failed to block at least 90 per-

cent of the sexually explicit Web pages and the vast ma-

jority blocked at least 95 percent of such pages. Mewett

further found that these filters overblocked between 2.9

and 32.8 percent of non-sexually explicit Web pages.

Def. Ex. 78.

118. Mewett also found that, with regard to the Web

pages drawn randomly from the search engine indexes,

the AOL filter again performed the best and blocked

between 91.1 and 91.4 percent of sexually explicit Web

pages. However, Mewett found that the AOL filter

overblocked 22.3 to 23.6 percent of non-sexually explicit

Web pages. Mewett further found that the other filters

tested accurately blocked between 87.6 and 39.8 percent

of the sexually explicit Web pages and overblocked be-

tween .4 and 21.9 percent of non-sexually explicit Web

pages. Def. Ex. 68.

119. Mewett also found that, with regard to the Web

pages that were returned in response to a random sam-

ple of search terms, the AOL filter again performed the

best and blocked 93.8 percent of sexually explicit web

pages. However, Mewett found that the AOL filter

overblocked 12.5 percent of non-sexually explicit Web

pages. Mewett further found that the other filters he

tested accurately blocked between 90 and 56.6 percent

of the sexually explicit Web pages and overblocked be-

tween 0 and 20.7 percent of the non-sexually explicit

Web pages. Def. Ex. 74.

120. I do not find Meweti’s overblocking rates to be

reliable because he sometimes concluded that a filter

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had overblocked even when the filler was performing ex-

actly as intended. This occurred because Mewett was

not always able to limit the filter to screening only sexu-

ally explicit material and sometimes the filter was con-

figured to block other types of material as well. Mewett

Testimony, 11/7 Tr. 210:13-212:20; see e.g. Def. Ex. 82,

at 17 (stating that the “AOL [filter] does not have a de-

fault setting, nor does it allow for customization beyond

choosing an appropriate age range for the surfer. Thus,

AOL was tested on the mature teen setting . .. the ma-

ture teen setting should allow the surfer to visit all Web

sites except those known to contain violent or adult con-

tent”) (emphasis added).

121. Many of the findings in defendant’s Mewett/

Stark study are consistent with and similar to the find-

ings of other filtering studies which have been con-

ducted over the years in that the Mewett/Stark data

shows that there are several filtering products that are

quite effective and accurate at blocking sexually explicit

material, especially the most popular Web content, and

that many of the products have less than a 10 percent

underblocking rate regarding such content. Cranor Tes-

timony, 10/24 Tr. 78:3-12, 81:1-17; Def. Ex. 68; Def. Ex.

74; Def. Ex. 78.

G. Select Legislative History of COPA and the Lim-

itations of COPA

122. According to House Report 105-775, “(t]he pur-

pose of [COPA] is to amend the Communications Act of

1934 [47 U.S.C. § 151, et seqg.] by prohibiting the sale of

pornographic materials on the World Wide Web (or the

Web) to minors.” H.R. Rep. 105-775, at *5.

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123. The intended “effect of [COPA] is simply to re-

order the process in such a way as to require age verifi-

cation before pornography is made available, essentially

requiring the commercial pornographer to put sexually

explicit images ‘behind the counter.’” /d. at *15.

124. The House Report also lists the following Con-

gressional findings:

(1) while custody, care, and nurture of the child re-

sides first with the parent, the widespread availabil-

ity of the Internet presents opportunities for minors

to access materials through the World Wide Web in

a manner that ~an frustrate parental supervision or

control;

(2) the protection of the physical and psychological

well-being of minors by shielding them from materi-

als that are harmful to them is a compelling govern-

mental interest;

(3) to date, while the industry has developed innova-

tive ways to help parents and educators restrict ma-

terial that is harmful to minors through parental

control protections and self-regulation, such efforts

have not provided a national] solution to the problem

of minors accessing harmful material on the World

Wide Web;

(4) a prohibition on the distribution of material

harmful to minors, combined with legitimate defens-

es, is currently the most effective means by which to

satisfy the compelling government interest, and

(5) notwithstanding the existence of protections that

limit the distribution over the World Wide Web of

material that is harmful to minors, parents, educa-

GSa

tors, and industry must continue efforts to protect

children from dangers posed by the Internet.

Fd. at *2.

125. COPA was drafted in direct response to the

Supreme Court’s decision in Reno, 521 U.S. 844 regard-

ing the CDA. /d. at *5.

126. COPA’s reach is specifically limited only to files

publically aecessible over the Web via HTTP or a suc-

cessor protocol and does not reach other forms of com-

munication and data transfer over the Internet including

email, newsgroups, message boards, peer-to-peer and

other file sharing networks, chat, instant messaging,

VoIP, and FTP. 47 U.S.C. § 231(e)(1); H.R. Rep. 105-

775, at *12.

127. Congress added this limitation in an attempt to

not burden more spee

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