No. 00-1293: Ashcroft v. ACLU

No. 00-1293

In the Supreme Court of the United States

JOHN ASHCROFT, ATTORNEY GENERAL OF THE
UNITED STATES, PETITIONER

AMERICAN CIVIL LIBERTIES UNION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BARBARA D. UNDERWOOD
Acting Solicitor General
Counsel of Record
STUART E. SCHIFFER
Deputy Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
BARBARA L. HERWIG
JACOB M. LEWIS
CHARLES SCARBOROUGH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

The Child Online Protection Act (COPA) makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). COPA relies in part on "community standards" to identify material that is "harmful to minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). The question presented is whether the court of appeals properly barred enforcement of COPA on First Amendment grounds because it relies on community standards to identify material that is harmful to minors.

PARTIES TO THE PROCEEDINGS

Petitioner is John Ashcroft, Attorney General of the United States. Respondents are American Civil Liberties Union, Androgyny Books, Inc. d/b/a/ a Different Light BookStores, American Booksellers Foundation for Free Expression, Artnet Worldwide Corporation, Blackstripe, Addazi Inc., d/b/a Condomania, Electronic Frontier Foundation, Electronic Privacy Information Center, Free Speech Media, Internet Content Coalition, OBGYN.net, Philadelphia Gay News, Planetout Corporation, Powell's Bookstore, Riotgrrl, Salon Internet, Inc., and West Stock, Inc.

In the Supreme Court of the United States

No. 00-1293

JOHN ASHCROFT, ATTORNEY GENERAL OF THE
UNITED STATES, PETITIONER

AMERICAN CIVIL LIBERTIES UNION, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the Attorney General of the United States, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Third Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a-39a) is reported at 217 F.3d 162. The opinion of the district court granting respondents' motion for a preliminary injunction (App., infra, 40a-100a) is reported at 31 F. Supp. 2d 473. The opinion of the district court granting respondents' application for a temporary restraining order (App., infra, 101a-114a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 22, 2000. A petition for rehearing was denied on September 15, 2000 (App., infra, 124a-125a). On December 5, 2000, Justice Souter extended the time within which to file a petition for a writ of certiorari to and including January 15, 2001. On January 9, 2001, Justice Souter further extended the time within which to file a petition for a writ of certiorari to and including February 12, 2001. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides in relevant part that "Congress shall make no law * * * abridging the freedom of speech, or of the press." The pertinent provisions of the Child Online Protection Act are reprinted in an appendix to this petition. App., infra, 115a-123a.

STATEMENT

1. This case involves the scope of Congress's power to protect children from the harmful effects of sexually explicit material on the Internet. Congress first sought to address that serious problem through the enactment of the Communications Decency Act of 1996 (CDA). See Pub. L. No. 104-104, Tit. V, § 502, 110 Stat. 133-134. The CDA prohibited the knowing transmission of "indecent" messages over the Internet to persons under the age of 18, 47 U.S.C. 223(a) (Supp. II 1996), as well as the sending or display of "patently offensive" sexually explicit messages in a manner available to those under 18 years of age. 47 U.S.C. 223(d) (Supp. II 1996). The CDA provided a defense to prosecution to persons who had "taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors" to covered communications. 47 U.S.C. 223(e)(5) (Supp. II 1996).

In Reno v. American Civil Liberties Union (Reno v. ACLU), 521 U.S. 844 (1997), the Court held that the CDA's regulation of "indecent" and "patently offensive" speech violated the First Amendment. The Court reaffirmed that the government has a "'compelling interest in protecting the physical and psychological well-being of minors' which extend[s] to shielding them from indecent messages that are not obscene by adult standards." Id. at 869. It concluded, however, that the government had failed to demonstrate that the CDA was the least restrictive alternative available to further that compelling interest. Id. at 879.

2. Congress reexamined the problem of children's access to sexually explicit material on the Internet in light of this Court's decision in Reno v. ACLU. Both the House and the Senate conducted hearings on the subject. See Legislative Proposals to Protect Children from Inappropriate Materials on the Internet: Hearing Before the Subcomm. on Telecomm., Trade, and Consumer Protection of the House Comm. on Commerce, 105th Cong., 2d Sess. (1998); S. Rep. No. 225, 105th Cong., 2d Sess. 8 (1998) (discussing hearings held by the Senate Committee on Commerce, Science and Transportation). Following those hearings, Congress enacted and the President signed into law the Child Online Protection Act (COPA), Pub. L. No. 105-277, Div. C, Tit. XIV, §§ 1401-1406, 112 Stat. 2681-736 to 2681-741 (47 U.S.C. 231 (Supp. IV 1998)). In crafting COPA, Congress sought to "address[] the specific concerns raised by the Supreme Court" when it invalidated the CDA. See H.R. Rep. No. 775, 105th Cong., 2d Sess. 12 (1998); see also S. Rep. No. 225, supra, at 2.

a. COPA authorizes the imposition of criminal and civil penalties on any person who "knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors." 47 U.S.C. 231(a)(1) (Supp. IV 1998). COPA defines "material that is harmful to minors" to mean "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 community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(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

47 U.S.C. 231(e)(6) (Supp. IV 1998) (App., infra, 12a). COPA's definition of nonobscene material that is "harmful to minors" parallels the three-part "harmful to minors" standard this Court approved in Ginsberg v. New York, 390 U.S. 629 (1968), except that it has been modified to take into account the greater flexibility permitted under Miller v. California, 413 U.S. 15 (1973). Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. at 24. See H.R. Rep. No. 775, supra, at 13, 27-28. COPA's definition also tracks the standard that is used in state laws that prohibit the display to the public of material that is harmful to minors and that require that such material be placed behind a blinder rack, in a sealed wrapper, or in an opaque cover. Id. at 13. Like those state laws, COPA is intended to shield children from material that is "clearly pornographic and inappropriate for [them]," but that is not obscene by adult standards. Id. at 28.

COPA provides "an affirmative defense to prosecution" if a person, "in good faith, has restricted access by minors to material that is harmful to minors." 47 U.S.C. 231(c)(1) (Supp. IV 1998) (App., infra, 117a). A person can qualify for that affirmative defense by (1) "requiring use of a credit card, debit account, adult access code, or adult personal identification number," (2) "accepting a digital certificate that verifies age," or (3) "any other reasonable measures that are feasible under available technology." 47 U.S.C. 231(c)(1) (Supp. IV 1998).

b. Congress enacted legislative findings that explain the basis for COPA. 47 U.S.C. 231 note (Supp. IV 1998) (Congressional Findings). Congress found that the "widespread availability of the Internet" continues to "present[] opportunities for minors to access materials through the World Wide Web in a manner that can frustrate parental supervision or control." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 1). Congress further determined that "the protection of the physical and psychological well-being of minors by shielding them from materials that are harmful to them is a compelling governmental interest." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 2). Congress noted that "the industry has developed innovative ways to help parents and educators restrict material that is harmful to minors through parental control protections and self-regulation." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 3). It found, however, that "such efforts have not provided a national solution to the problem of minors accessing harmful material on the World Wide Web." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 3). Congress concluded that "a prohibition on the distribution of material harmful to minors, combined with legitimate defenses, is currently the most effective and least restrictive means by which to satisfy the compelling government interest." 47 U.S.C. 231 note (Supp. IV 1998) (Finding 4).

c. COPA differs from the CDA in important ways that support Congress's judgment that COPA is the least restrictive way to further the government's compelling interest in protecting children from the effects of materials that are harmful to minors.

First, the CDA applied not only to communications on the World Wide Web, but to all forms of communication on the Internet, including communications through e-mail, listservs, newsgroups, and chat rooms. Reno v. ACLU, 521 U.S. at 851. In contrast, COPA applies only to material posted on the World Wide Web. 47 U.S.C. 231(a)(1) (Supp. IV 1998); H.R. Rep. No. 775, supra, at 12, 25.

Second, the CDA prohibited the display or transmittal of materials that were "indecent" or "patently offensive," without defining those terms, and the CDA did not indicate whether the "indecent" and "patently offensive" determinations "should be made with respect to minors or the population as a whole." Reno v. ACLU, 521 U.S. at 871 & n.37, 873, 877. COPA, by contrast, is specifically limited to material that is "patently offensive with respect to minors," and it identifies the particular types of sexual activities the depiction, description, or representation of which is prohibited. 47 U.S.C. 231(e)(6)(B) (Supp. IV 1998).

Third, the CDA applied to large amounts of nonpornographic materials that have serious educational and other value, including any of the seven "dirty words" used in the monologue in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library. Reno v. ACLU, 521 U.S. at 873, 877-878. Indeed, the Court noted, the CDA "omit[ted] any requirement that the 'patently offensive' material covered by [the CDA] lack serious literary, artistic, political, or scientific value." Id. at 865. In contrast, COPA contains all three prongs of the Ginsberg test, and thus, by its terms, applies only to material that is designed to appeal to the "prurient interest" of minors and that, "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6)(A) and (C) (Supp. IV 1998).

Fourth, the CDA defined a minor as any person under the age of 18. Reno v. ACLU, 521 U.S. at 859, 865-866. In contrast, COPA, like the state law upheld in Ginsberg, defines minor to mean "any person under 17 years of age." 47 U.S.C. 231(e)(7) (Supp. IV 1998).

Fifth, the CDA applied not only to commercial entities or transactions like the statute in Ginsberg, but also to all nonprofit entities and to individuals posting messages on their own computers. Reno v. ACLU, 521 U.S. at 856, 865, 877. In contrast, COPA applies only to those Web communications that are made "for commercial purposes." 47 U.S.C. 231(a)(1) (Supp. IV 1998).

Sixth, the CDA made it unlawful for parents to permit their children to use the family computer to view indecent or patently offensive material, regardless of whether the parents believed that it was appropriate for their children to obtain that material because of its value. Reno v. ACLU, 521 U.S. at 865, 878. In contrast, COPA contains no such prohibition. H.R. Rep. No. 775, supra, at 15; see also S. Rep. No. 225, supra, at 6.

3. The American Civil Liberties Union and several other entities and individuals (respondents) filed suit in the United States District Court for the Eastern District of Pennsylvania against the Attorney General of the United States, seeking to invalidate COPA. Respondents alleged that COPA violates the First and Fifth Amendments to the Constitution, and they sought to enjoin its enforcement. App., infra, 12a & n.13, 42a.

The district court entered a preliminary injunction preventing any enforcement of the harmful-to-minors provisions of the Act against anyone. App., infra, 40a-100a. Many of the court's findings and conclusions, however, support the Act's constitutionality. The court found that "[m]any of the same characteristics which make cyberspace ideal for First Amendment expression-ease of participation and diversity of content and speakers-make it a potentially harmful media for children." App., infra, 41a. The court explained that "[a] child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web." Ibid. For example, the court noted, "typing the word 'dollhouse' or 'toys' into a typical Web search engine will produce a page of links, some of which connect to what would be considered by many to be pornographic Web sites," and those sites offer "free sexually explicit images and animated graphic image files." Ibid. The district court held that Congress has a compelling interest in shielding children from such pornographic materials. Id. at 90a.

The court also found that adult identification systems are readily available that permit Web site operators to prevent children from obtaining access to harmful materials while still offering such materials to adults. App., infra, 71a. The court noted, for example, that Adult Check provides (at no cost to the Web site operator) a script that can be placed at any point on a Web site to which the operator wishes to prevent access by minors. Id. at 75a. An adult user who comes across such a screen may click on a link to the Adult Check site and immediately purchase a Personal Identification Number (PIN) for an annual fee of $16.95, return to the original site, and use the PIN to obtain access to the site. Id. at 75a-76a.

The district court nonetheless held that respondents were likely to prevail in their challenge to COPA for two reasons. First, the court found that the placement of adult screens in front of materials that are harmful to children "may deter users from accessing such materials," and "the loss of users of such material may affect the speakers' economic ability to provide such communications." App., infra, 89a. Based on that finding, the court concluded that respondents were likely to show that COPA imposes a burden on speech that is protected for adults. Id. at 90a.

Second, the district court concluded that "it is not apparent" that the government "can meet its burden to prove that COPA is the least restrictive means available to achieve the goal of restricting the access of minors to [harmful-to-minors] material." App., infra, 93a. In the court's view, "blocking or filtering technology may be at least as successful as COPA" in restricting the access of children to harmful material. Id. at 94a. The court acknowledged that blocking software is both over and under inclusive-it blocks some sites that are not harmful, and it allows other sites that are harmful to slip through. Ibid. The court also found that "[i]t is possible that a computer-savvy minor with some patience would be able to defeat the blocking device." Id. at 82a. The court concluded, however, that the use of blocking software may be as effective as COPA, because software blocks certain sources of harmful material that COPA does not, such as foreign sites and content outside the Web. Ibid.

4. The court of appeals affirmed the district court's judgment granting a preliminary injunction. App., infra, 1a-39a. It did so, however, on a ground upon which the district court had not relied, the parties had not briefed on appeal, and the court of appeals had raised for the first time at oral argument, id. at 21a, 22a n.19.

Like the district court, the court of appeals held that "the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards." App., infra, 20a. And unlike the district court, the court of appeals did not question the government's ability to demonstrate that COPA is the least restrictive means available to further that compelling interest. Indeed, the court of appeals specifically rejected the district court's reliance on blocking software as a less restrictive alternative. Id. at 15a n.16. The court of appeals also acknowledged that, in passing COPA, Congress sought to "address[] the specific concerns raised by the Supreme Court" in Reno v. ACLU in invalidating the CDA, App., infra, 6a (quoting H.R. Rep. No. 775, supra, at 12, and citing S. Rep. No. 225, supra, at 2), and it expressed the view that "there may be no other means by which harmful material on the Web may be constitutionally restricted," id. at 3a. The court nevertheless enjoined the enforcement of COPA.

The court of appeals based its "particular determination of COPA's likely unconstitutionality * * * on COPA's reliance on 'contemporary community standards' in the context of the electronic medium of the Web to identify material that is harmful to minors." App., infra, 21a. The court stated that COPA's reliance on community standards, "in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." Id. at 3a. The court further stated that COPA's reliance on community standards affects the constitutionality of "the entire COPA statute." Id. at 21a. The court could "see no means by which to excise those 'unconstitutional' elements of the statute from those that are constitutional." Id. at 33a.

The court of appeals noted that in Reno v. ACLU, this Court, in identifying various features of the CDA that contributed to its breadth of coverage, had pointed out that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." See App., infra, 22a (quoting 521 U.S. at 577-578). In that light, the court found it significant that "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users." Id. at 24a. As a result, the court reasoned, "to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system." Id. at 24a-25a. If Web publishers were to choose to place their harmful material behind screens, the court explained, it "would prevent access to protected material by any adult * * * without the necessary age verification credentials," and it "would completely bar access to those materials to all minors * * * even if the material would not otherwise have been deemed 'harmful' to them in their respective geographic communities." Id. at 25a. Based on those considerations, the court concluded that COPA "imposes an overreaching burden and restriction on constitutionally protected speech." Id. at 29a.

The court of appeals acknowledged that in Hamling v. United States, 418 U.S. 87 (1974), and Sable Communications of California v. FCC, 492 U.S. 115 (1989), this Court upheld the application of varying community standards to persons whose commercial conduct had effects in different geographic areas. App., infra, 25a-26a. The court of appeals distinguished those cases, however, on the ground that the parties involved "had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it." Id. at 26a.

The government's petition for rehearing and rehearing en banc was denied. App., infra, 124a-125a. Judge Alito voted in favor of rehearing en banc. Id. at 125a.

REASONS FOR GRANTING THE PETITION

The court of appeals, relying on an argument not addressed by the district court or made by the parties on appeal, held that COPA's reliance on community standards to identify material that is harmful to minors "must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." App., infra, 21a. The court's decision prevents the government from enforcing COPA against anyone under any circumstances, and the court was further of the view that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web. Id. at 3a. The court of appeals thus has gravely- indeed, in its own view, perhaps fatally-constricted Congress's power to address that serious problem. The court of appeals' holding is also incorrect. The court's decision is based on a misreading of this Court's decision in Reno v. ACLU, 521 U.S. 844 (1997), and it conflicts with decisions of this Court that have upheld the application of community standards to determine whether material appeals to the prurient interest and is patently offensive. Review by this Court is therefore warranted.

A. COPA makes it unlawful to make any communication for commercial purposes by means of the World Wide Web that is available to minors and that includes material that is "harmful to minors," unless good faith efforts are made to prevent children from obtaining access to such material. 47 U.S.C. 231(a)(1) and (c)(1) (Supp. IV 1998). Material is harmful to minors if it (1) is designed to appeal to the "prurient interest" of minors, (2) depicts sexual activity or specified parts of the anatomy in a manner that is "patently offensive" with respect to minors, and (3) "taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6) (Supp. IV 1998). COPA relies on community standards to determine whether material appeals to the "prurient interest" of minors and is "patently offensive" with respect to minors. 47 U.S.C. 231(e)(6) (Supp. IV 1998).1

The court of appeals held that COPA's reliance on community standards to identify material that is harmful to minors "must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute." App., infra, 21a. The court flatly stated that "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards' the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." Id. at 3a. The court also stated, without qualification, that COPA's use of community standards leads to a "result [that] imposes an overreaching burden and restriction on constitutionally protected speech." Id. at 29a.

As relief, the court of appeals did not simply enjoin the use of community standards under COPA. The court enjoined the enforcement of COPA across the board, concluding that COPA's reliance on community standards affects the constitutionality of "the entire COPA statute." App., infra, 21a. In the court's view, the use of community standards to identify material that is harmful to minors "is an integral part of the statute, permeating and influencing the whole of the statute," and the court could "see no means by which to excise those 'unconstitutional' elements of the statute from those that are constitutional (assuming for the moment, without deciding, that the remaining clauses of COPA are held to be constitutional)." Id. at 33a. Moreover, as the court saw it, "there may be no other means by which harmful material on the Web may be constitutionally restricted." Id. at 3a. The court therefore apparently was prepared to leave Congress no room to assert its authority to protect children from pornographic material on the Web.

The court of appeals' decision is therefore dramatic and extraordinary in its scope. The decision prevents the government from enforcing a recent Act of Congress against anyone under any circumstances, and it suggests that there may be no constitutional means to protect children from the harmful effects of the voluminous amount of pornographic material on the World Wide Web. The court of appeals' decision therefore clearly warrants this Court's review. See United States v. Gainey, 380 U.S. 63, 65 (1965) (certiorari granted "to review the exercise of the grave power of annulling an Act of Congress").

B. Review is also warranted because the court of appeals erred in its First Amendment analysis of COPA's reliance on community standards. The court of appeals premised its constitutional ruling on a finding that "Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users." App., infra, 24a. As a result, the court reasoned, "to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system." Id. at 24a-25a. In the court's view, under this Court's decision in Reno v. ACLU, id. at 22a, that consequence "imposes an overreaching burden and restriction on constitutionally protected speech," id. at 29a.

1. The court of appeals' reading of Reno v. ACLU is incorrect. The sentence in Reno v. ACLU discussing community standards, on which the court of appeals relied, was part of a two-paragraph discussion in which the Court noted that "[t]he breadth of the CDA's coverage is wholly unprecedented." 521 U.S. at 877. In that discussion, the Court identified as factors contributing to the CDA's breadth that it was "not limited to commercial speech or commercial entities," but rather applied to "all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors"; that the terms "indecent" and "patently offensive" used in the CDA were undefined and covered "large amounts of nonpornographic material with serious educational or other value"; and that the CDA criminalized parental decisions to allow children to view covered material. Id. at 877-878. It was in connection with the second of those features that the Court pointed out that "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Ibid.

The Court did not suggest that the breadth of the CDA rendered it per se unconstitutional, much less that the CDA's reliance on community standards was per se unconstitutional. Instead, the Court held that "[t]he breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA." 521 U.S. at 879. The Court then invalidated the CDA because the government failed to satisfy that burden. Ibid.

The court of appeals' reliance on Reno v. ACLU is misplaced for two reasons. First, the use of a community standards criterion was only one of several factors that cumulatively led the Court in Reno v. ACLU to place an especially heavy burden of justification on the government, and none of the other factors is present here. Unlike the CDA, COPA defines the covered material as that which is both designed to appeal to the "prurient interest" and is "patently offensive" "with respect to minors"; it enumerates the particular sexual activities that are within its scope; it applies only to communications made for commercial purposes; it expressly does not cover material that has "serious literary, artistic, political, or scientific value" for minors; and it does not penalize the decisions of parents to permit their children to view "harmful" material. Because COPA is carefully limited in scope-and because under COPA reliance on community standards is itself limited to determining what adults would conclude appeals to the prurient interest and is patently offensive specifically "with respect to minors" -COPA's reliance on community standards is quite different from that in the CDA. COPA therefore does not trigger any burden of justification beyond the one that applies to other content-based restrictions.

Second, even if we assume that COPA's reliance on community standards raises the same concerns as all the factors together raised in Reno v. ACLU, COPA's reliance on community standards at most places "an especially heavy burden" on the government to show that COPA is the least restrictive alternative. 521 U.S. at 879. Rather than proceeding to that step in the analysis, however, the court of appeals instead held that COPA's reliance on community standards, "in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech." App., infra, 3a. That error had dramatic consequences, because the court of appeals did not find that the government failed to show that COPA is the least restrictive alternative available to protect children from harmful material on the Web. To the contrary, the court of appeals specifically rejected the district court's reliance on blocking software as a less restrictive alternative, id. at 15a n.16, 38a n.24, and it expressed the view that "there may be no other means by which harmful material on the Web may be constitutionally restricted," id. at 3a. Reno v. ACLU therefore provides no support for the court of appeals' decision invalidating COPA.

2. The court of appeals' decision regarding COPA's reliance on community standards also conflicts with this Court's decisions in Hamling v. United States, 418 U.S. 87 (1974), and Sable Communications of California, Inc. v. FCC, 492 U.S. 115 (1989). In Hamling, the Court rejected the contention that a federal statute that makes it unlawful to use the mail to distribute obscene publications must incorporate a single national standard of obscenity. The Court stated that "[t]he fact that distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity." 418 U.S. at 106.

In Sable, the Court upheld the constitutionality of a federal prohibition against obscene "dial-a-porn" telephone messages. The Court rejected the contention that the dial-a-porn ban is unconstitutional because "it places message senders in a 'double bind' by compelling them to tailor all their messages to the least tolerant community." 492 U.S. at 124. The Court held that "[t]here is no constitutional barrier under Miller to prohibiting communications that are obscene in some communities under local standards even though they are not obscene in others." Id. at 125-126. The Court explained that "[i]f Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages." Id. at 126.

The court of appeals sought to distinguish Hamling and Sable on the ground that the parties involved in those cases "had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it." App., infra, 26a. The Court's analysis in Hamling and Sable, however, did not depend on that fortuity. Instead, the controlling principle that emerges from Hamling and Sable is that a person whose commercial conduct has effects in more than one community has the responsibility to ensure that those effects are lawful in each of the affected communities. That principle applies as much to a commercial pornographer on the World Wide Web as to the parties involved in Hamling and Sable.

When persons post material on the Web, they make it "available, simultaneously, to all communities in the world where a computer can be plugged in." H.R. Rep. No. 775, supra, at 28. Web publishers who make communications for commercial purposes also obtain the benefits of a nationwide market for their products. Under Hamling and Sable, there is "no constitutional barrier" to placing the responsibility upon such publishers to make sure that their communications are not harmful to children in the communities that those communications reach. Sable, 492 U.S. at 125-126. "If [such a publisher's] audience is comprised of different communities with different local standards, [that publisher] ultimately bears the burden of complying with the [restrictions] on [harmful-to-minors] messages." Id. at 126.

3. The court of appeals' constitutional analysis also fails to give sufficient weight to the features of COPA that make its reliance on community standards particularly unproblematic.

a. First, Congress expressly found that COPA's harmful to minors standard is "one that is reasonably constant among adults in America with respect to what is suitable for minors." H.R. Rep. No. 775, supra, at 28. The court of appeals rejected Congress's judgment based on this Court's statement in Miller that communities throughout the United States may vary in their views on what material is obscene for adults. App., infra, 32a. The court erred in relying on that statement. Even if the average adult in a particular State or locality might feel that adults should have relatively free access to pornographic material, there is no reason to believe that those same adults would want children in the State or locality to be exposed to such material. For similar reasons, there is every reason to expect a far greater degree of agreement from community to community with respect to what adults believe is suitable for children on a nationwide and readily accessible medium like the Internet. Moreover, whatever divergence might exist at the margins, Congress had an ample basis for concluding that there would be no significant geographical divergence on the question whether children should have access to the numerous sites that freely display the equivalent of Penthouse centerfolds as teasers to entice the purchase of other more graphic material.

b. COPA also establishes firm limits on the kinds of material that can be viewed as "harmful to minors," thereby confining any potential divergence among communities to a narrow band of material. By its terms, COPA applies only to material that, taken as a whole, has no "serious literary, artistic, political, or scientific value for minors." 47 U.S.C. 231(e)(6)(C) (Supp. IV 1998). In the obscenity context, this Court has held that community standards do not apply in deciding whether material has serious value. Pope v. Illinois, 481 U.S. 497, 500-501 (1987). Instead, the question is whether "a reasonable person would find such value in the material, taken as a whole." Id. at 501. Congress intended for that same approach to be followed in deciding whether material has serious value for children. H.R. Rep. No. 775, supra, at 27-28.

The serious value prong "allows appellate courts to impose some limitations and regularity * * * by setting, as a matter of law, a national floor for socially redeeming value." Reno v. ACLU, 521 U.S. at 873. The existence of that prong of the inquiry also undermines the court of appeals' assumption that COPA requires Web publishers to place "vast amounts of material" behind age verification screens, App., infra, 25a, except to the extent that the court of appeals was referring to the obligations of commercial purveyors of what is truly pornographic for minors. Compare Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618, 624 (Va. 1988) (finding, upon certification following this Court's decision in Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1998), that none of the 16 books that the plaintiff booksellers submitted as perhaps covered by the harmful-to-minors standard in the Virginia display law lacked serious literary, artistic, political, or scientific value).

Moreover, just as this Court held in Jenkins v. Georgia, 418 U.S. 153 (1974), that the First Amendment imposes "substantive constitutional limitations," enforceable by a reviewing court, on what a jury may find to be "patently offensive" for adults, see id. at 159-161, a reviewing court may also enforce substantive limitations on what may be found to be "patently offensive" with respect to minors. The harmful-to-minors test was intended to capture material that is "clearly pornographic and inappropriate for minor children." H.R. Rep. No. 775, supra, at 28. Congress did not intend to permit communities to treat as patently offensive "entertainment, library, or news materials that merely contain nudity or sexual information." Ibid. That limitation adds important additional protection against significant geographic variations in what may be found harmful to minors.

c. To the extent that there remains some meaningful degree of divergence among communities concerning what material is harmful to minors, a commercial Web publisher can easily comply with COPA by placing behind an age verification screen any material that appears to satisfy all three prongs of the statutory definition. That is the approach a commercial Web publisher would be likely to follow even if it had to comply with the standards of a single community. The placement of material behind adult verification screens that reasonably appears designed to appeal to the prurient interest of minors, depicts sexual activity or certain parts of the anatomy in a manner that is patently offensive with respect to minors, and lacks any serious value for minors, does not impose an unconstitutional burden on adult access to such material.

The district court found that adult verification services would provide personal identification numbers (PINs) to adults for $16.95 a year, and would furnish Web site operators with the software necessary to screen for such numbers at no cost. App., infra, 75a-76a. And the court of appeals even identified a Web service that will provide a person who has a valid credit card an adult PIN "without cost." Id. at 14a n.15 (citing www.freecheck.com). But whether an adult PIN costs $16.95 per year or is free, it is not an unacceptable price to pay for protecting children from the harmful effects of graphic pornographic images.

d. By requiring the placement of material covered by the Act behind age verification screens, COPA in effect directs "the commercial pornographer to put sexually explicit images 'behind the counter.'" H.R. Rep. No. 775, supra, at 15. COPA therefore requires nothing more than what state "blinder rack," "sealed wrapper," "opaque cover," and other display laws require in the world outside cyberspace. See, e.g., Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988). Despite claims that such laws impose an unconstitutional burden on adult access to protected speech, those laws have been repeatedly upheld. See, e.g., Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997); American Booksellers v. Webb, 919 F.2d 1493, 1509 (11th Cir. 1990), cert. denied, 500 U.S. 942 (1991); American Booksellers Ass'n v. Virginia, 882 F.2d 125, 127-128 (4th Cir. 1989), cert. denied, 494 U.S. 1056 (1990); Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1399 (8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281, 1289 (10th Cir. 1983). There is no basis for reaching a different conclusion here.

C. No further proceedings in the lower courts are needed to clarify the question presented or to render that question suitable for resolution by this Court. As previously noted, the court of appeals held that COPA's reliance on community standards leads inexorably to the conclusion, here and now, that the Attorney General must be enjoined on First Amendment grounds from enforcing COPA against anyone. No further proceedings in the district court are needed for this Court to resolve that legal issue at this stage.

Moreover, the government has been subject for some time to a nationwide preliminary injunction that prevents it from enforcing COPA against anyone.2 Given the nature of the court of appeals' decision affirming that preliminary injunction based on its view of community standards, and the denial of en banc review, there is every reason to expect that further proceedings in the district court would simply result in a permanent injunction of a similarly wide scope on the same ground, and an affirmance of that injunction by the court of appeals. The result would be simply to delay this Court's resolution of the important question presented concerning Congress's ability to rely on community standards in determining whether material appeals to the prurient interest and is patently offensive with respect to minors. That result would only exacerbate the adverse consequences of the decision below.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

BARBARA D. UNDERWOOD
Acting Solicitor General
STUART E. SCHIFFER
Deputy Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
IRVING L. GORNSTEIN
Assistant to the Solicitor
General
BARBARA L. HERWIG
JACOB M. LEWIS
CHARLES SCARBOROUGH

Attorneys

FEBRUARY 2001

1 COPA's definition of material that is "harmful to minors" parallels the three-part "harmful to minors" standard this Court approved in Ginsberg v. New York, 390 U.S. 629 (1968), except that it has been modified to take into account the greater flexibility permitted under Miller v. California, 413 U.S. 15 (1973), including Miller's approval of the use of "community standards" to determine whether material appeals to the "prurient interest" and is "patently offensive." Compare 47 U.S.C. 231(e)(6) (Supp. IV 1998) with Ginsberg, 390 U.S. at 632-633, and Miller, 413 U.S. at 24, 30. Although the text of the standard approved in Miller uses the phrase "community standards" in describing the "prurient interest" inquiry, id. at 24, Miller makes clear that community standards also apply to the inquiry into whether material is "patently offensive," id. at 30. Congress intended to incorporate that aspect of Miller. See H.R. Rep. No. 775, supra, at 13, 27.

2 The district court rejected the government's contention that any injunction should be limited to barring enforcement of the Act against the parties who brought this action. App., infra, 109a-110a n.8. But see United States Department of Defense v. Meinhold, 510 U.S. 939 (1993) (staying injunction insofar as it granted relief to persons other than plaintiff).

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-1324

AMERICAN CIVIL LIBERTIES UNION;
ANDROGYNY BOOKS, INC. D/B/A A DIFFERENT
LIGHT BOOKSTORES; AMERICAN BOOKSELLERS
FOUNDATION FOR FREE EXPRESSION;
ARTNET WORLDWIDE CORPORATION; BLACKSTRIPE;
ADDAZI INC. D/B/A CONDOMANIA;
ELECTRONIC FRONTIER FOUNDATION;
ELECTRONIC PRIVACY INFORMATION CENTER;
FREE SPEECH MEDIA; INTERNET CONTENT
COALITION; OBGYN.NET; PHILADELPHIA GAY NEWS;
POWELL'S BOOKSTORE; RIOTGRRL;
SALON INTERNET, INC.; WEST STOCK, INC.;
PLANETOUT CORPORATION

JANET RENO, IN HER OFFICIAL CAPACITY
AS ATTORNEY GENERAL OF THE UNITED STATES,
APPELLANT

[Argued: Nov. 4, 1999
Opinion filed: June 22, 2000]

Before: NYGAARD, MCKEE Circuit Judges and GARTH, Senior Circuit Judge

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal "presents a conflict between one of society's most cherished rights-freedom of expression-and one of the government's most profound obligations-the protection of minors." American Booksellers v. Webb, 919 F.2d 1493, 1495 (11th Cir. 1990). The government challenges the District Court's issuance of a preliminary injunction which prevents the enforcement of the Child Online Protection Act, Pub. L. No. 105-277, 112 Stat. 2681 (1998) (codified at 47 U.S.C. § 231) ("COPA"), enacted in October of 1998. At issue is COPA's constitutionality, a statute designed to protect minors from "harmful material" measured by "contemporary community standards" knowingly posted on the World Wide Web ("Web") for commercial purposes.1

We will affirm the District Court's grant of a preliminary injunction because we are confident that the ACLU's attack on COPA's constitutionality is likely to succeed on the merits. Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict access to its site based on the geographic locale of each particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. Thus, because the standard by which COPA gauges whether material is "harmful to minors" is based on identifying "contemporary community standards" the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.

In affirming the District Court, we are forced to recognize that, at present, due to technological limitations, there may be no other means by which harmful material on the Web may be constitutionally restricted, although, in light of rapidly developing technological advances, what may now be impossible to regulate constitutionally may, in the not-too-distant future, become feasible.

I. BACKGROUND

COPA was enacted into law on October 21, 1998. Commercial Web publishers subject to the statute that distribute material that is harmful to minors are required under COPA to ensure that minors do not access the harmful material on their Web site. COPA is Congress's second attempt to regulate the dissemination to minors of indecent material on the Web/ Internet. The Supreme Court had earlier, on First Amendment grounds, struck down Congress's first endeavor, the Communications Decency Act, ("CDA") which it passed as part of the Telecommunications Act of 1996.2 See Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997) ("Reno II"). To best understand the current challenge to COPA, it is necessary for us to briefly examine the CDA.

A. CDA

The CDA prohibited Internet users from using the Internet to communicate material that, under contemporary community standards, would be deemed patently offensive to minors under the age of eighteen. See Reno II, 521 U.S. at 859-60, 117 S. Ct. 2329.3 In so restricting Internet users, the CDA provided two affirmative defenses to prosecution; (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. See id. at 860, 117 S. Ct. 2329. In holding that the CDA violated the First Amendment, the Supreme Court explained that without defining key terms the statute was unconstitutionally vague. Moreover, the Court noted that the breadth of the CDA was "wholly unprecedented" in that, for example, it was "not limited to commercial speech or commercial entities . . . [but rather] [i]ts open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers." Id. at 877, 117 S. Ct. 2329.

Further, the Court explained that, as applied to the Internet, a community standards criterion would effectively mean that because all Internet communication is made available to a worldwide audience, the content of the conveyed message will be judged by the standards of the community most likely to be offended by the content. See id. at 877-78. Finally, with respect to the affirmative defenses authorized by the CDA, the Court concluded that such defenses would not be economically feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. See id. at 881. As a result, the Court held that the CDA was not tailored so narrowly as to achieve the government's compelling interest in protecting minors, and that it lacked the precision that the First Amendment requires when a statute regulates the content of speech. See id. at 874. See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (U.S. 2000).

B. COPA

COPA, the present statute, attempts to "address[ ] the specific concerns raised by the Supreme Court" in invalidating the CDA. H.R. REP. NO. 105-775 at 12 (1998); See S.R. REP. NO. 105-225, at 2 (1998). COPA prohibits an individual or entity from:

knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.

47 U.S.C. § 231(a)(1) (emphasis added). As part of its attempt to cure the constitutional defects found in the CDA, Congress sought to define most of COPA's key terms. COPA attempts, for example, to restrict its scope to material on the Web rather than on the Internet as a whole;4 to target only those Web communications made for "commercial purposes";5 and to limit its scope to only that material deemed "harmful to minors."

Under COPA, whether material published on the Web is "harmful to minors" is governed by a three-part test, each of which must be found before liability can attach:6

47 U.S.C. § 231(e)(6) (emphasis added).7 The parties conceded at oral argument that this "contemporary community standards" test applies to those communities within the United States, and not to foreign communities. Therefore, the more liberal community standards of Amsterdam or the more restrictive community standards of Tehran would not impact upon the analysis of whether material is "harmful to minors" under COPA.

COPA also provides Web publishers subject to the statute with affirmative defenses. If a Web publisher "has restricted access by minors to material that is harmful to minors" through the use of a "credit card, debit account, adult access code, or adult personal identification number . . . a digital certificate that verifies age . . . or by any other reasonable measures that are feasible under available technology," then no liability will attach to the Web publisher even if a minor should nevertheless gain access to restricted material under COPA. 47 U.S.C. § 231(c)(1).8 COPA violators face both criminal (maximum fines of $50,000 and a maximum prison term of six months, or both) and civil (fines of up to $50,000 for each day of violation) penalties.9

C. Overview of the Internet and the World Wide Web

In recent years use of the Internet and the Web has become increasingly common in mainstream society. Nevertheless, because the unique character of these new electronic media significantly affect our opinion today, we briefly review their relevant elements.10

The Internet is a decentralized, self-maintained networking system that links computers and computer networks around the world, and is capable of quickly transmitting communications. See American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 164 (S.D.N.Y. 1997); ACLU v. Reno, 31 F. Supp.2d 473, 481 (E.D. Pa. 1999) ("Reno III"). Even though the Internet appears to be a "single, integrated system" from a user's perspective, in fact no single organization or entity controls the Internet. ACLU v. Reno, 929 F. Supp. 824, 838 (E.D. Pa. 1996) ("Reno I"); Reno III, 31 F. Supp.2d at 484. As a result, there is no "centralized point from which individual Web sites or services can be blocked from the Web." Id. Although estimates are difficult because of the Internet's rapid growth, it was recently estimated that the Internet connects over 159 countries and more than 109 million users. See ACLU v. Johnson, 194 F.3d 1149, 1153 (10th Cir. 1999).

The World Wide Web is a publishing forum consisting of millions of individual "Web sites" each containing information such as text, images, illustrations, video, animation or sounds provided by that site's creator. See American Libraries, 969 F. Supp. at 166. Some of these Web sites contain sexually explicit material. See Reno III, 31 F. Supp.2d at 484. As a publishing forum, the Web is the best known method of communicating information online. See id. Information is said to be published on the Web as soon as it is made available to others by connecting the publisher's computer to the Internet. See Reno I, 929 F. Supp. at 844; Reno III, 31 F. Supp.2d at 483. Each site is connected to the Internet by means of certain protocols that permit "the information to become part of a single body of knowledge accessible by all Web visitors." American Libraries, 969 F. Supp. at 166; Reno III, 31 F. Supp.2d at 483.11 As a part of this unified body of knowledge, Web pages are all linked together so that the Internet user can freely move from one Web page to another by "clicking" on a "link." See id. Because the Internet has an "international, geographically-borderless nature,"12 with the proper software every Web site is accessible to all other Internet users worldwide. See American Libraries, 969 F. Supp. at 166; Reno I, 929 F. Supp. at 837; Reno III, 31 F. Supp.2d at 483-84. Indeed, the Internet "negates geometry . . . it is fundamentally and profoundly anti-spatial. You cannot say where it is or describe its memorable shape and proportions or tell a stranger how to get there. But you can find things in it without knowing where they are. The [Internet] is ambient-nowhere in particular and everywhere at once." Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 956 (1998).

It is essential to note that under current technology, Web publishers cannot "prevent [their site's] content from entering any geographic community." Reno III, 31 F. Supp.2d at 484. As such, Web publishers cannot prevent Internet users in certain geographic locales from accessing their site; and in fact the Web publisher will not even know the geographic location of visitors to its site. See American Libraries, 969 F. Supp. at 171. Similarly, a Web publisher cannot modify the content of its site so as to restrict different geographic communities to access of only certain portions of their site. Thus, once published on the Web, existing technology does not permit the published material to be restricted to particular states or jurisdictions.

D. Procedural History

On October 22, 1998, the day after COPA was enacted, the American Civil Liberties Union ("ACLU") brought the present action in the United States District Court for the Eastern District of Pennsylvania, challenging COPA's constitutionality and seeking to enjoin its enforcement.13 After granting a temporary restraining order against enforcement of the law on November 20, 1998, the District Court held extensive evidentiary hearings which, on February 1, 1999, resulted in the entry of a preliminary injunction preventing the government from enforcing COPA.

E. District Court's Findings of Fact

After five days of testimony, the District Court rendered sixty-seven separate findings of fact concerning the Internet, the Web, and COPA's impact on speech activity in this relatively-new medium. See Reno III, 31 F. Supp.2d at 482-92. It bears noting that none of the parties dispute the District Court's findings (including those describing the Internet and the Web), nor are any challenged as clearly erroneous. Thus, we accept these findings.

The District Court first rendered findings concerning the physical medium known as the Internet, which it recognized consisted of many different methods of communication, only one of which is the World Wide Web. See Reno III, 31 F. Supp.2d at 482-83. It found that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographical community." Id.

The Court then made findings as to the costs and burdens COPA imposes on Web publishers and on the adults who seek access to sites covered by COPA. See Reno III, 31 F. Supp.2d at 482-492. As observed earlier, the statute provides for a limited number of defenses for Web publishers. See 47 U.S.C. § 231(c).14 The Court found that as a technological matter the only affirmative defenses presently available are the implementation of credit card or age verification systems because there is no currently functional digital certificate or other reasonable means to verify age. See Reno III, 31 F. Supp.2d at 487.

With respect to the credit card option, the court found that the cost to Web publishers could range from $300 to "thousands of dollars" (exclusive of transaction fees incurred from each verification). Id. at 488. These costs were also exclusive, according to the court, of the labor and energy that would be required of the Web publisher to implement such a system. Id. This labor and energy would include reorganizing a particular Web site to ensure that material considered "harmful to minors" could only be accessed after passing through a credit card or other age verification system. See id. at 490. With this in mind, the court found, for example, that textual material that consisted primarily of non-sexual material, but also included some content that was "harmful to minors" would also be subject to such age verification systems. See id.

As for age verification systems, the District Court's findings were more optimistic. The court found that a Web publisher "can sign up for free with Adult Check [one company providing such a service] to accept Adult Check PINs, and a Web site operator can earn commissions of up to 50% to 60% of the fees generated by [their] users." Id. at 489. The District Court also downplayed the cost (both in price and in energy) that would be incurred by the individual seeking to access "harmful to minors" material on the Web, finding that an Adult Check password could be easily purchased for only $16.95. See id. at 490.15 The same burdens concerning the reorganization of a particular Web site mentioned above would, of course, equally apply to a Web publisher that elected to utilize a PIN number for age verification.

Either system, according to the District Court, would impose significant residual or indirect burdens upon Web publishers. Most importantly, both credit card and age verification systems require an individual seeking to access material otherwise permissible to adults to reveal personal statistics. Because many adults will choose not to reveal these personal details, those otherwise frequently visited Web sites will experience "a loss of traffic." Id. at 491. This loss of traffic, in turn, would inflict "economic harm" upon the particular Web site, thus increasing the burden that COPA imposes. Id. ¶ 61.

Finally, the District Court considered whether voluntary parental blocking or filtering software was a less restrictive means by which to achieve the government's compelling objective of protecting minors from harmful material on the Web. The court found that "[s]uch technology may be downloaded and installed on a user's home computer at a price of approximately $40.00." Id. at 492 ¶ 65. The court, however, acknowledged that such software "is not perfect" as it is both over and under inclusive in the breadth of the material that it blocks and filters. See id. ¶ 66.16

F. District Court's Conclusions of Law

Initially, the government moved the District Court to dismiss the ACLU's action insofar as the individuals and entities that it purported to represent were not in danger of prosecution under COPA and therefore lacked standing. In particular, the government asserted that the material placed on plaintiffs' Web sites was not "harmful to minors" and that each of the plaintiffs were not "engaged in the business" of posting such material for "commercial purposes." See supra note 13.

The District Court interpreted COPA to impose liability on those Web publishers who profited from Web sites that contained some, even though not all, material that was harmful to minors. See Reno III, 31 F. Supp.2d at 480. The court therefore concluded that the plaintiffs could reasonably fear prosecution because their Web sites contained material "that is sexual in nature." Id.

Having established plaintiffs' standing17-an analysis with which we agree-the District Court began its First Amendment analysis by stating that insofar as COPA prohibits Web publishers from posting material that is "harmful to minors," it constitutes a content-based restriction on speech that "is presumptively invalid and is subject to strict scrutiny." Id. at 493 (citing R.A.V. v. City of St. Paul, 505 U.S. 377, 381, 112 S. Ct. 2538, 120 L.Ed.2d 305 (1992); Sable Comm. of Calif. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989)) See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000). Pursuant to this strict scrutiny analysis, the District Court held that COPA placed too large a burden on protected expression. In particular, the court found that the high economic costs that Web publishers would incur in implementing

an age verification system would cause them to cease publishing such material, and further, that the difficulty in accurately shielding harmful material from minors would lead Web publishers to censor more material than necessary. See id. at 494-95. Moreover, the District Court believed that because of the need to use age verification systems, adults would be deterred from accessing these sites, and that the resulting loss of Web traffic would affect the Web publishers' abilities to continue providing such communications in the future.

The court then considered whether the government could establish that COPA was the least restrictive and most narrowly tailored means to achieve its compelling objective. See Reno III, 31 F. Supp.2d at 496. The government contends that COPA meets this test because COPA does not " 'ban . . . the distribution or display of material harmful to minors [but] simply requires the sellers of such material to recast their message so that they are not readily available to children.' "Appellant's Brief at 27 (quoting H.R. REP. NO. 105-775 at 6 (1998)). The court concluded, however, that even if COPA were enforced, children would still be able to access numerous foreign Web sites containing harmful material; that some minors legitimately possess credit cards-thus defeating the effectiveness of this affirmative defense in restricting access by minors; that COPA prohibits a "sweeping category of form of content" instead of limiting its coverage to pictures, images and graphic image files-most often utilized by the adult industry as "teasers" Reno III, 31 F. Supp.2d at 497; and that parental blocking and filtering technology would likely be as effective as COPA while imposing fewer constitutional burdens on free speech. Therefore, the District Court concluded that COPA was not the least restrictive means for the government to achieve its compelling objective of protecting minors from harmful material. Id. at 492. As a result, the court held that the ACLU had shown a substantial likelihood of succeeding on the merits in establishing COPA's unconstitutionality.

In concluding its analysis, the District Court held that losing First Amendment freedoms, even if only for a moment, constitutes irreparable harm. See id. (citing Hohe v. Casey, 868 F.2d 69, 72-73 (3d Cir. 1989)). And, in balancing the interests at stake for issuing a preliminary injunction, the District Court concluded that the scale tipped in favor of the ACLU, as the government lacks an interest in enforcing an unconstitutional law. See id. (citing ACLU v. Reno, 929 F. Supp. 824, 849 (E.D. Pa. 1996)). Because the ACLU met its burden for a preliminary injunction, the District Court granted its petition.

II. ANALYSIS

In determining whether a preliminary injunction is warranted, we must consider:

(1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting preliminary relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest.

Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999) (citing ACLU v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir. 1996) (en banc)). We review a district court's grant of a preliminary injunction according to a three-part standard. Legal conclusions are reviewed de novo, findings of fact are reviewed for clear error, and the "ultimate decision to grant or deny the preliminary injunction" is reviewed for abuse of discretion. See Maldonado v. Houstoun, 157 F.3d 179, 183 (3d Cir. 1998), cert. denied, 526 U.S. 1130, 119 S. Ct. 1802, 143 L.Ed.2d 1007 (1999).

A. Reasonable probability of success on the merits

We begin our analysis by considering what, for this case, is the most significant prong of the preliminary injunction test-whether the ACLU met its burden of establishing a reasonable probability of succeeding on the merits in proving that COPA trenches upon the First Amendment to the United States Constitution. Initially, we note that the District Court correctly determined that as a content-based restriction on speech, COPA is "both presumptively invalid and subject to strict scrutiny analysis." See Reno III, 31 F. Supp.2d at 493. As in all areas of constitutional strict scrutiny jurisprudence, the government must establish that the challenged statute is narrowly tailored to meet a compelling state interest, and that it seeks to protect its interest in a manner that is the least restrictive of protected speech. See, e.g., Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980); Sable Comm of Calif. v. FCC, 492 U.S. 115, 126, 109 S. Ct. 2829 (1989).18 These principles have been emphasized again in the Supreme Court's most recent opinion, United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000), where the Court, concerned with the "bleeding" of cable transmissions, held § 505 of the Telecommunications Act of 1996 unconstitutional as violative of the First Amendment.

It is undisputed that the government has a compelling interest in protecting children from material that is harmful to them, even if not obscene by adult standards. See Reno III, 31 F. Supp.2d at 495 (citing Sable, 492 U.S. at 126, 109 S. Ct. 2829 (1989); Ginsberg v. New York, 390 U.S. 629, 639-40, 88 S. Ct. 1274, 20 L.Ed.2d 195 (1968)). At issue is whether, in achieving this compelling objective, Congress has articulated a constitutionally permissible means to achieve its objective without curtailing the protected free speech rights of adults. See Reno III, 31 F. Supp.2d at 492 (citing Sable, 492 U.S. at 127, 109 S. Ct. 2829; Butler v. Michigan, 352 U.S. 380, 383, 77 S. Ct. 524, 1 L.Ed.2d 412 (1957)). As we have observed, the District Court found that it had not-holding that COPA was not likely to succeed in surviving strict scrutiny analysis.

We base our particular determination of COPA's likely unconstitutionality, however, on COPA's reliance on "contemporary community standards" in the context of the electronic medium of the Web to identify material that is harmful to minors. The overbreadth of COPA's definition of "harmful to minors" applying a "contemporary community standards" clause-although virtually ignored by the parties and the amicus in their respective briefs but raised by us at oral argument-so concerns us that we are persuaded that this aspect of COPA, without reference to its other provisions, must lead inexorably to a holding of a likelihood of unconstitutionality of the entire COPA statute. Hence we base our opinion entirely on the basis of the likely unconstitutionality of this clause, even though the District Court relied on numerous other grounds.19

As previously noted, in passing COPA, Congress attempted to resolve all of the problems raised by the Supreme Court in striking down the CDA as unconstitutional. One concern noted by the Supreme Court was that, as a part of the wholly unprecedented broad coverage of the CDA, "the 'community standards' criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message." Reno II, 521 U.S. at 877-78, 117 S. Ct. 2329. We are not persuaded that the Supreme Court's concern with respect to the "community standards" criterion has been sufficiently remedied by Congress in COPA.

Previously, in addressing the mailing of unsolicited sexually explicit material in violation of a California obscenity statute, the Supreme Court held that the fact-finder must determine whether "'the average person, applying contemporary community standards' would find the work taken as a whole, [to appeal] to the prurient interest." Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973) (quoting Kois v. Wisconsin, 408 U.S. 229, 230, 92 S. Ct. 2245, 33 L.Ed.2d 312 (1972)). In response to the Supreme Court's criticism of the CDA, Congress incorporated into COPA this Miller test, explaining that in so doing COPA now "conforms to the standards identified in Ginsberg, as modified by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973)." H.R. REP. NO. 105-775 at 13 (1998); 47 U.S.C. § 231(e)(6)(A). Even in so doing, Congress remained cognizant of the fact that "the application of community standards in the context of the Web is controversial." H.R. REP. NO.. 107-775, at 28. Nevertheless, in defending the constitutionality of COPA's use of the Miller test, the government insists that "there is nothing dispositive about the fact that [in COPA] commercial distribution of such [harmful] materials occurs through an online, rather than a brick and mortar outlet." See Reply Brief at 18 n. 3.

Despite the government's assertion, "[e]ach medium of expression 'must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.'" Reno III, 31 F. Supp.2d at 495 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S. Ct. 1239, 43 L.Ed.2d 448 (1975)). See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, at --, 120 S. Ct. 1878, 1887, 146 L.Ed.2d 865, at _____ (2000). In considering "the unique factors that affect communication in the new and technology-laden medium of the Web," we are convinced that there are crucial differences between a "brick and mortar outlet" and the online Web that dramatically affect a First Amendment analysis. Id.

Unlike a "brick and mortar outlet" with a specific geographic locale, and unlike the voluntary physical mailing of material from one geographic location to another, as in Miller, the uncontroverted facts indicate that the Web is not geographically constrained. See Reno III, 31 F. Supp.2d at 482-92; American Libraries, 969 F. Supp. at 169 ("geography, however, is a virtually meaningless construct on the Internet"). Indeed, and of extreme significance, is the fact, as found by the District Court, that Web publishers are without any means to limit access to their sites based on the geographic location of particular Internet users. As soon as information is published on a Web site, it is accessible to all other Web visitors. See American Libraries, 969 F. Supp. at 166; Reno III, 31 F. Supp.2d at 483. Current technology prevents Web publishers from circumventing particular jurisdictions or limiting their site's content "from entering any [specific] geographic community." Reno III, 31 F. Supp.2d at 484. This key difference necessarily affects our analysis in attempting to define what contemporary community standards should or could mean in a medium without geographic boundaries.

In expressing its concern over the wholly unprecedented broad coverage of the CDA's scope, the Supreme Court has already noted that because of the peculiar geography-free nature of cyberspace, a "community standards" test would essentially require every Web communication to abide by the most restrictive community's standards. See Reno II, 521 U.S. at 877-78, 117 S. Ct. 2329. Similarly, to avoid liability under COPA, affected Web publishers would either need to severely censor their publications or implement an age or credit card verification system whereby any material that might be deemed harmful by the most puritan of communities in any state is shielded behind such a verification system. Shielding such vast amounts of material behind verification systems would prevent access to protected material by any adult seventeen or over without the necessary age verification credentials. Moreover, it would completely bar access to those materials to all minors under seventeen-even if the material would not otherwise have been deemed "harmful" to them in their respective geographic communities.

The government argues that subjecting Web publishers to varying community standards is not constitutionally problematic or, for that matter, unusual. The government notes that there are numerous cases in which the courts have already subjected the same conduct to varying community standards, depending on the community in which the conduct occurred. For example, the Supreme Court has stated that "distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the material [but that] does not render a federal statute unconstitutional because of the failure of the application of uniform national standards of obscenity." Hamling v. United States, 418 U.S. 87, 106, 94 S. Ct. 2887, 41 L.Ed.2d 590 (1974). Similarly, the government cites to the "dial-a-porn" cases in which the Supreme Court has held that even if the "audience is comprised of different communities with different local standards" the company providing the obscene material "ultimately bears the burden of complying with the prohibition on obscene messages" under each community's respective standard. Sable Comm. of California v. F.C.C., 492 U.S. 115, 125-26, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989).

These cases, however, are easily distinguished from the present case. In each of those cases, the defendants had the ability to control the distribution of controversial material with respect to the geographic communities into which they released it. Therefore, the defendants could limit their exposure to liability by avoiding those communities with particularly restrictive standards, while continuing to provide the controversial material in more liberal-minded communities. For example, the pornographer in Hamling could have chosen not to mail unsolicited sexually explicit material to certain communities while continuing to mail them to others. Similarly, the telephone pornographers ("dial-a-porn") in Sable could have screened their incoming calls and then only accepted a call if its point of origination was from a community with standards of decency that were not offended by the content of their pornographic telephone messages.20

By contrast, Web publishers have no such comparable control. Web publishers cannot restrict access to their site based on the geographic locale of the Internet user visiting their site. In fact, "an Internet user cannot foreclose access to . . . work from certain states or send differing versions of . . . communication[s] to different jurisdictions . . . The Internet user has no ability to bypass any particular state." American Libraries Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997). As a result, unlike telephone or postal mail pornographers, Web publishers of material that may be harmful to minors must "comply with the regulation imposed by the State with the most stringent standard or [entirely] forego Internet communication of the message that might or might not subject [the publisher] to prosecution." Id.

To minimize this distinction between Web publishers and all other forms of communication that contain material that is harmful to minors, the government cites to one Sixth Circuit case-presently the only case in which a court has applied a "community standards" test in the context of the electronic medium. See United States v. Thomas, 74 F.3d 701 (6th Cir. 1996). The Thomas court determined that whether the material on the defendant's electronic bulletin board is harmful must be judged by the standards of each individual community wherein the disputed material was received, even if the standards in each of the recipient communities varied one from the next, and even if the material was acceptable in the community from which it was sent. See id. at 711. Despite the "electronic medium" in which electronic bulletin boards are found, Thomas is inapposite inasmuch as electronic bulletin boards, just as telephones, regular mail and other brick and mortar outlets, are very different creatures from that of the Web as a whole. Thomas itself recognized this difference, and by limiting its holding accordingly, completely undercuts the government's argument, stating explicitly that:

Defendants and Amicus Curiae appearing on their behalf argue that the computer technology used here requires a new definition of community, i.e., one that is based on the broad-ranging connections among people in cyberspace rather than the geographic locale of the federal judicial district of the criminal trial. . . . Therefore, they contend . . . [bulletin board publishers] will be forced to censor their material so as not to run afoul of the standards of the community with the most restrictive standards. Defendants' First Amendment issue, however, is not implicated by the facts of this case. This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. Access to the Defendants' [bulletin board] was limited. Membership was necessary and applications were submitted and screened before passwords were issued and materials were distributed. Thus, Defendants had in place methods to limit user access in jurisdictions where the risk of a finding of obscenity was greater than in California

. . . . If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability.

. . . . Thus, under the facts of this case, there is not need for this court to adopt a new definition of "community' for use in obscenity prosecutions involving electronic bulletin boards. This court's decision is guided by one of the cardinal rules governing the federal courts, i.e., never reach constitutional questions not squarely presented by the facts of a case." Id. at 711-12.

Thus, it is clear that Thomas fails to support the government's position. Indeed, no federal court has yet ruled on whether the Web/Internet may be constitutionally regulated in light of differing community standards.

Our concern with COPA's adoption of Miller's "contemporary community standards" test by which to determine whether material is harmful to minors is with respect to its overbreadth in the context of the Web medium. Because no technology currently exists by which Web publishers may avoid liability, such publishers would necessarily be compelled to abide by the "standards of the community most likely to be offended by the message" Reno II, 521 U.S. at 877-78, 117 S. Ct. 2329, even if the same material would not have been deemed harmful to minors in all other communities. Moreover, by restricting their publications to meet the more stringent standards of less liberal communities, adults whose constitutional rights permit them to view such materials would be unconstitutionally deprived of those rights. Thus, this result imposes an overreaching burden and restriction on constitutionally protected speech.21

We recognize that invalidating a statute because it is overbroad is "strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S. Ct. 2908, 37 L.Ed.2d 830 (1973). As such, before concluding that a statute is unconstitutionally overbroad, we seek to determine if the statute is "'readily susceptible' to a narrowing construction that would make it constitutional . . . [because courts] will not rewrite a . . . law to conform it to constitutional requirements." Virginia v. American Booksellers' Ass'n, 484 U.S. 383, 397, 108 S. Ct. 636, 98 L.Ed.2d 782 (1988) (quoting Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L.Ed.2d 125 (1975)). See also Broadrick, 413 U.S. at 613, 93 S. Ct. 2908; Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S. Ct. 2395, 120 L.Ed.2d 101 (1992); Shea, 930 F. Supp. at 939.

Two possible ways to limit the interpretation of COPA are (a) assigning a narrow meaning to the language of the statute itself, or (b) deleting that portion of the statute that is unconstitutional, while preserving the remainder of the statute intact. See e.g. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S. Ct. 2794, 86 L.Ed.2d 394 (1985); Shea, 930 F. Supp. at 939. We therefore turn our attention to whether either limiting construction is feasible here.

The government, in attempting to make use of the first of these salvaging mechanisms, suggests that we should interpret narrowly the "contemporary community standards" language in COPA as an "adult" rather than as a "geographic" standard. The House Report itself suggests this construction to sidestep the potential constitutional problems raised by the Supreme Court in interpreting the CDA's use of a "community standards" phrase. Congress explained:

"The committee intends for the definition of material harmful to minors to parallel the Ginsberg and Miller definitions of obscenity and harmful to minors. . . . In essence, the Committee intends to adopt the 'variable obscenity' standard for minors. The Committee recognizes that the applicability of community standards in the context of the Web is controversial, but understands it as an 'adult' standard, rather than a 'geographic' standard, and one that is reasonably constant among adults in America with respect to what is suitable for minors." . . . . Thus, the person posting the material is engaged in interstate commerce and is subjecting himself to the jurisdiction of all communities in a manner similar to the way obscenity laws apply today.

H.R. REP. NO. 105-775 at 28 (1998). Congress reiterated this very position in its amicus brief stating: "COPA adopted a non-geographic, adult age community standard for judging the prurience and offensiveness prongs of the Harmful to Minors test." Brief of Members of Congress as Amici Curiae, at 16.

Despite the government's effort to salvage this clause of COPA from unconstitutionality, we have before us no evidence to suggest that adults everywhere in America would share the same standards for determining what is harmful to minors. To the contrary, it is significant to us that throughout case law, community standards have always been interpreted as a geographic standard without uniformity. See, e.g., American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 182-83 (S.D.N.Y. 1997) ("Courts have long recognized, however, that there is no single 'prevailing community standard' in the United States. Thus, even were all 50 states to enact laws that were verbatim copies of the New York [obscenity] Act, Internet users would still be subject to discordant responsibilities.").

In fact, Miller, the very case from which the government derives its "community standards" concept, has made clear that community standards are to be construed in a localized geographic context. "People in different States vary in their tastes and attitudes and this diversity is not to be strangled by the absolutism of imposed uniformity." Miller 413 U.S. at 33, 93 S. Ct. 2607. Even more directly, the Supreme Court stated in Miller that "our nation is simply too big and too diverse for this Court to reasonably expect that such standards [of what is patently offensive] could be articulated for all 50 states in a single formulation. . . . To require a State to structure obscenity proceedings around evidence of a national 'community standard' would be an exercise in futility." Id. at 30, 93 S. Ct. 2607. We therefore conclude that the interpretation of "contemporary community standards" is not "readily susceptible" to a narrowing construction of "adult" rather than "geographic" standard.

With respect to the second salvaging mechanism, it is an "'elementary principle that the same statute may be in part constitutional and in part unconstitutional, and that if the parts are wholly independent of each other, that which is constitutional may stand while that which is unconstitutional will be rejected'" Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 105 S. Ct. 2794, 86 L.Ed.2d 394 (1985) (quoting Allen v. Louisiana, 103 U.S. 80, 83-84, 26 L.Ed. 318 (1880)). As a result, if it is possible for a court to identify a particular part of the statute that is unconstitutional, and by striking only that language the court could leave the remainder of the statute intact and within the intent of Congress, courts should do so. See Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684-85, 107 S. Ct. 1476, 94 L.Ed.2d 661 (1987).

Here, however, striking "contemporary community standards" from COPA is not likely to succeed in salvaging COPA's constitutionality as this standard is an integral part of the statute, permeating and influencing the whole of the statute. We see no means by which to excise those "unconstitutional" elements of the statute from those that are constitutional (assuming for the moment, without deciding, that the remaining clauses of COPA are held to be constitutional). This is particularly so in a preliminary injunction context when we are convinced that the very test or standard that COPA has established to determine what is harmful to minors is more likely than not to be held unconstitutional. See Brockett, 472 U.S. at 504-05, 105 S. Ct. 2794.

Our foregoing discussion that under either approach -of narrowing construction or deleting an unconstitutional element-COPA is not "readily susceptible" to a construction that would make it constitutional. We agree with the Second Circuit that "[t]he State may not regulate at all if it turns out that even the least restrictive means of regulation is still unreasonable when its limitations on freedom of speech are balanced against the benefits gained from those limitations." Carlin Communications, Inc. v. FCC, 837 F.2d 546, 555 (2d Cir. 1988). As regulation under existing technology is unreasonable here, we conclude that with respect to this first prong of our preliminary injunction analysis, it is more likely than not that COPA will be found unconstitutional on the merits.22

Our holding in no way ignores or questions the general applicability of the holding in Miller with respect to "contemporary community standards." We remain satisfied that Miller's "community standards" test continues to be a useful and viable tool in contexts other than the Internet and the Web under present technology. Miller itself was designed to address the mailing of unsolicited sexually explicit material in violation of California law, where a publisher could control the community receiving the publication. Miller, however, has no applicability to the Internet and the Web, where Web publishers are currently without the ability to control the geographic scope of the recipients of their communications. See Reno II, 521 U.S. at 889, 117 S. Ct. 2329 (O'Connor, J., concurring in judgment in part and dissenting in part) (noting that the "twin characteristics of geography and identity" differentiate the world of Ginsberg [and Miller] from that of the Internet.).

B. Irreparable Harm By Denial of Relief

The second prong of our preliminary injunction analysis requires us to consider "whether the movant will be irreparably harmed by denial of the relief." Allegheny Energy, Inc. v. DQE, Inc. 171 F.3d 153, 158 (3d Cir. 1999). Generally, "[i]n a First Amendment challenge, a plaintiff who meets the first prong of the test for a preliminary injunction will almost certainly meet the second, since irreparable injury normally arises out of the deprivation of speech rights." Reno I, 929 F. Supp. 824 at 866. This case is no exception.

If a preliminary injunction were not to issue, COPA-affected Web publishers would most assuredly suffer irreparable harm-the curtailment of their constitutionally protected right to free speech. As the Supreme Court has clearly stated, "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L.Ed.2d 547 (1976). We, therefore, conclude that this element of our preliminary injunction analysis has been satisfied.

C. Injury Outweighs Harm

The third prong of our preliminary injunction analysis requires us to consider "whether granting preliminary relief will result in even greater harm to the nonmoving party." Allegheny Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). We are convinced that in balancing the parties' respective interests, COPA's threatened constraint on constitutionally protected free speech far outweighs the damage that would be imposed by our failure to affirm this preliminary injunction. We are also aware that without a preliminary injunction, Web publishers subject to COPA would immediately be required to censor constitutionally protected speech for adults, or incur substantial financial costs to implement COPA's affirmative defenses.23 Therefore, we affirm the District Court's holding that plaintiffs sufficiently met their burden in establishing this third prong of the preliminary injunction analysis.

D. Public Interest

As the fourth and final element of our preliminary injunction analysis, we consider "whether granting the preliminary relief will be in the public interest." Allegheny Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). Curtailing constitutionally protected speech will not advance the public interest, and "neither the Government nor the public generally can claim an interest in the enforcement of an unconstitutional law." Reno I, 929 F. Supp. at 866. Having met this final element of our preliminary injunction analysis, the District Court properly granted the ACLU's petition for a preliminary injunction.

III. CONCLUSION

Due to current technological limitations, COPA- Congress' laudatory attempt to achieve its compelling objective of protecting minors from harmful material on the World Wide Web-is more likely than not to be found unconstitutional as overbroad on the merits.24 Because the ACLU has met its burden in establishing all four of the necessary elements to obtain a preliminary injunction, and the District Court properly exercised its discretion in issuing the preliminary injunction, we will affirm the District Court's order.

In so affirming, we approvingly reiterate the sentiments aptly noted by the District Court: "sometimes we must make decisions that we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result." Reno III, 31 F. Supp.2d at 498.25 We also express our confidence and firm conviction that developing technology will soon render the "community standards" challenge moot, thereby making congressional regulation to protect minors from harmful material on the Web constitutionally practicable. Indeed, in the context of dealing with technology to prevent the "bleeding" of cable transmissions, the Supreme Court in United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 at --, 120 S. Ct. 1878, 1883, 146 L.Ed.2d 865 at _____ (2000) recognized, as do we, that "technology may one day provide another solution."

Therefore, we will affirm the District Court's order dated February 1, 1999, issuing a preliminary injunction.

1 The District Court exercised subject matter jurisdiction pursuant to the general federal question statute, 28 U.S.C. § 1331. This court exercises appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), which provides a court of appeals with jurisdiction over appeals from "[i]nterlocutory orders of the district courts of the United States . . . granting, continuing, modifying, refusing, or dissolving injunctions . . . except where a direct review may be had in th Supreme Court."

2 For ease of reference the various applicable cases will be referred to as follows: ACLU v. Reno, 929 F. Supp. 824 (E.D. Pa. 1996), hereinafter "Reno I" (addressing CDA); Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997), hereinafter "Reno II" (striking down the CDA as unconstitutional); ACLU v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999), hereinafter "Reno III" (case currently on appeal addressing constitutionality of COPA).

3 The Communications Decency Act, 47 U.S.C. § 223(d) provides that:

Whoever-

"(1) in interstate or foreign communications knowingly-"

"(A) uses an interactive computer service to send a specific person or persons under 18 years of age, or"

"(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, 'any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or'"

"(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity"

"shall be fined under Title 18, or imprisoned not more than two years, or both."

4 COPA defines the clause "by means of the World Wide Web" 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 or any successor protocol." 47 U.S.C. § 231(e)(1).

5 COPA defines the clause "commercial purposes" as those individuals or entities that are "engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A). In turn, COPA defines a person "engaged in the business" as one

who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).

Id. § 231(e)(2)(B).

6 In the House Report that accompanied the bill that eventually became COPA, this "harmful to minors" test attempts to conform to the standards identified by the Supreme Court in Ginsberg v. New York, 390 U.S. 629, 88 S. Ct. 1274, 20 L.Ed.2d 195 (1968), as modified by Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L.Ed.2d 419 (1973) in identifying "patently offensive" material. See H.R. REP. NO. 105-775, at 13 (1998).

7 Under COPA, a minor is defined as one under age seventeen. See 47 U.S.C. § 231(e)(7).

8 The defense also applies if an individual or entity attempts "in good faith to implement a defense" listed above. See id. 47 U.S.C. § 231(c)(2).

9 An individual found to have intentionally violated COPA also faces an additional fine of not more than $50,000 for each day of violation. See 47 U.S.C. § 231(a)(2).

10 For more thorough descriptions of the Internet and the Web see e.g., Reno I, 929 F. Supp. 824, 830-45; Reno II, 521 U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874; American Libraries Ass'n v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997); Hearst Corp. v. Goldberger, 1997 WL 97097 *1 (S.D.N.Y. Feb. 26, 1997) (citing cases).

11 A user who wishes to access the Web resources employs a "browser." Browser software-such as Netscape Navigator, Mosaic, or Internet Explorer-enables the user to display, print, and download documents that are formatted in the standard Web formatting language. See American Libraries, 969 F. Supp. at 166. The Web "uses a 'hypertext' formatting language called hypertext markup language (HTML), and programs that 'browse' the Web can display HTML documents containing text, images, sound, animation and moving video stored in many other formats. . . . [Hyperlinks] allow information to be accessed and organized in very flexible ways, and allow individuals to locate and efficiently view related information even if the information is stored on numerous computers all around the world." Reno III, 31 F. Supp.2d at 483.

12 People v. Barrows, 177 Misc.2d 712, 729, 677 N.Y.S.2d 672 (N.Y. 1998)

13 Other parties joined the ACLU in asserting the unconstitutionality of COPA. For ease of reference, we will refer to all party-plaintiffs as "ACLU" throughout this opinion.

14 The statute provides:

It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number,

(B) by accepting a digital certificate that verifies age; or

See 47 U.S.C. § 231(c).

15 It now seems that those with a valid credit card who wish to acquire an adult PIN may do so without cost using a Web service such as www.freecheck.com.

16 We question, however, the effectiveness of actions taken by a minor's parent to supervise or block harmful material by using filtering software. We are of the view that such actions do not constitute government action, and we do not consider this to be a lesser restrictive means for the government to achieve its compelling interest. See also n. 24 supra. But see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000).

17 See Reno III, 31 F. Supp.2d at 479.

18 The Supreme Court has recognized that each medium of expression may permit special justifications for regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S. Ct. 1239, 43 L.Ed.2d 448 (1975); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L.Ed.2d 371 (1969); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S. Ct. 3026, 57 L.Ed.2d 1073 (1978). For example, broadcast media, due to the history of extensive government regulation, its "invasive" nature, and the scarcity of available frequencies at its inception justified heightened regulation. See, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-38, 114 S. Ct. 2445, 129 L.Ed.2d 497 (1994); Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 128, 109 S. Ct. 2829, 106 L.Ed.2d 93 (1989). See also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S. Ct. 1878, 146 L.Ed.2d 865 (2000). However, the Supreme Court has also recognized that these same elements, which justified heightened regulation of the broadcast medium, do not exist in cyberspace. See Reno v. ACLU, 521 U.S. 844, 868, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997). The Internet has not been historically subject to regulation. Nor has the Internet suffered from a scarcity of available frequencies. See id. at 869-70, 117 S. Ct. 2329. Therefore, the Supreme Court held that there is "no basis for qualifying the level of First Amendment scrutiny that should be applied to this [cyberspace] medium." Id. at 870, 117 S. Ct. 2329.

19 As a result, we do not find it necessary to address the District Court's analysis of the definition of "commercial purposes"; whether the breadth of the forms of content covered by COPA could have been more narrowly tailored; whether the affirmative defenses impose too great a burden on Web publishers or whether those affirmative defenses should have been included as elements of the crime itself; whether COPA's inclusion of criminal as well as civil penalties was excessive; whether COPA is designed to include communications made in chat rooms, discussion groups and links to other Web sites; whether the government is entitled to so restrict communications when children will continue to be able to access foreign Web sites and other sources of material that is harmful to them; what taken "as a whole" should mean in the context of the Web and the Internet; or whether the statute's failure to distinguish between material that is harmful to a six year old versus a sixteen year old is problematic.

We recognize that in focusing on the "contemporary community standards" aspect of COPA we are affirming the District Court's ruling on a ground other than that emphasized by the District Court. See PAAC v. Rizzo, 502 F.2d 306, 308 n. 1 (1974).

20 The Sable court found that: "Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve. While Sable may be forced to incur some costs in developing and implementing a system for screening the locale of incoming calls, there is no constitutional impediment to enacting a law that may imposes such costs on a medium electing to provide these messages." Sable 492 U.S. at 125-26, 109 S. Ct. 2829.

21 Even if we were to overlook the unconstitutional overbreadth of the COPA "contemporary community standards" test and if COPA were to be deemed effective, it still would not eliminate much of the harmful material which a minor could access. For example, minors could still access harmful material published by non-commercial Web publishers, and by foreign Web publishers. Thus, for example, materials "harmful to minors" but generated in foreign communities with contemporary community standards far more liberal than those of any state in the United States may, nevertheless, remain available and be exposed to children in the United States by means of the Web/Internet, despite COPA's restrictions.

22 Although our concern here has been with the overbreadth of the "contemporary community standards" clause, we recognize that if we were to address that portion of COPA which speaks to communications made for commercial purposes, 47 U.S.C. § 231(e)(2)(A), the Supreme Court has taught that "[f]or the purposes of applying the overbreadth doctrine . . . it remains relevant to distinguish between commercial and noncommercial speech." Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 632 n. 7, 100 S. Ct. 826, 63 L.Ed.2d 73 (1980). For instance, it has declined to apply the overbreadth doctrine to statutes regulating commercial advertising:

[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context . . . [T]here are "commonsense differences" between commercial speech and other varieties. Since advertising is linked to commercial well-being, it seems unlikely that such speech is particularly susceptible to being crushed by overbroad regulation. Moreover, concerns for uncertainty in determining the scope of protection are reduced . . .

Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S. Ct. 2691, 53 L.Ed.2d 810 (1977) (citations omitted). See also Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of New York, 447 U.S. 557, 564 n. 6, 100 S. Ct. 2343, 65 L.Ed.2d 341 (1980) ("[C]ommercial speech, the offspring of economic self-interest, is a hardy breed of expression that is not 'particularly susceptible to being crushed by overbroad regulation.'").

However, although COPA regulates the commercial content of the Web, it amounts to neither a restriction on commercial advertising, nor a regulation of activity occurring "in the ordinary commercial context." Bates, 433 U.S. at 380-81, 97 S. Ct. 2691. As we have noted, the Web is a new type of medium which allows the average person with relatively little capital investment to place content on it for a commercial purpose. The speech such Web sites provide is in far greater danger of being stifled by government regulation than the commercial advertising at issue in cases such as Bates and Central Hudson Gas.

As the Supreme Court has also made clear, the benefits gained by the challenged statute must also outweigh the burden imposed on commercial speech. See Elrod v. Burns, 427 U.S. 347, 363, 96 S. Ct. 2673, 49 L.Ed.2d 547 (1976); Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173, 188, 119 S. Ct. 1923, 144 L.Ed.2d 161 (1999) (in regulating commercial speech, "the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose."). The Supreme Court has repeatedly stated that the free speech rights of adults may not be reduced to allow them to read only what is acceptable for children. See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 74-75, 103 S. Ct. 2875, 77 L.Ed.2d 469 (1983) ("The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."). See also Sable, 492 U.S. at 127, 109 S. Ct. 2829. Therefore, there is no inconsistency between our position that COPA is overbroad, and the line of authority refusing to apply overbreadth analysis to certain types of commercial speech.

23 These costs with respect to Web publishers and to those who desire access to those Web sites were enumerated by the District Court in its findings of fact.

24 Although much attention at the District Court level was focused on the availability, virtues and effectiveness of voluntary blocking or filtering software that can enable parents to limit the harmful material to which their children may otherwise be exposed, the parental hand should not be looked to as a substitute for a congressional mandate. See also n. 16 supra.

25 "When sensitive matters of freedom of speech collide with images of children's vulnerability, and are framed in terms of the battle between good and evil, even well intentioned people can lose sight of fundamental constitutional principles." Catherine J. Ross, Anything Goes: Examining the State's Interest in Protecting Children from Controversial Speech, 53 VAND. L. REV. 427, 521 (2000).

APPENDIX B

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA

No. CIV. A. 98-5591

AMERICAN CIVIL LIBERTIES UNION, ET AL.

JANET RENO, IN HER OFFICIAL CAPACITY
AS ATTORNEY GENERAL OF THE UNITED STATES

[Feb. 1, 1999]

MEMORANDUM

REED, District Judge.

The First Amendment to the United States Constitution provides that "Congress shall make no law

. . . abridging the freedom of speech." Although there is no complete consensus on the issue, most courts and commentators theorize that the importance of protecting freedom of speech is to foster the marketplace of ideas. If speech, even unconventional speech that some find lacking in substance or offensive, is allowed to compete unrestricted in the marketplace of ideas, truth will be discovered. Indeed, the First Amendment was designed to prevent the majority, through acts of Congress, from silencing those who would express unpopular or unconventional views.

Despite the protection provided by the First Amendment, unconventional speakers are often limited in their ability to promote such speech in the marketplace by the costs or logistics of reaching the masses, hence, the adage that freedom of the press is limited to those who own one. In the medium of cyberspace, however, anyone can build a soap box out of web pages and speak her mind in the virtual village green to an audience larger and more diverse than any the Framers could have imagined. In many respects, unconventional messages compete equally with the speech of mainstream speakers in the marketplace of ideas that is the Internet, certainly more than in most other media.

But with freedom come consequences. Many of the same characteristics which make cyberspace ideal for First Amendment expression-ease of participation and diversity of content and speakers-make it a potentially harmful media for children. A child with minimal knowledge of a computer, the ability to operate a browser, and the skill to type a few simple words may be able to access sexual images and content over the World Wide Web. For example, typing the word "dollhouse" or "toys" into a typical Web search engine will produce a page of links, some of which connect to what would be considered by many to be pornographic Web sites. These Web sites offer "teasers," free sexually explicit images and animated graphic image files designed to entice a user to pay a fee to browse the whole site.

Intending to address the problem of children's access to these teasers, Congress passed the Child Online Protection Act ("COPA"), which was to go into effect on November 29, 1998. On October 22, 1998, the plaintiffs, including, among others, Web site operators and content providers, filed this lawsuit challenging the constitutionality of COPA under the First and Fifth Amendments and seeking injunctive relief from its enforcement. Two diametric interests-the constitutional right of freedom of speech and the interest of Congress, and indeed society, in protecting children from harmful materials-are in tension in this lawsuit.

This is not the first attempt of Congress to regulate content on the Internet. Congress passed the Communications Decency Act of 1996 ("CDA") which purported to regulate the access of minors to "indecent" and "patently offensive" speech on the Internet. The CDA was struck down by the Supreme Court in Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 138 L.Ed.2d 874 (1997) ("Reno I") as violative of the First Amendment. COPA represents congressional efforts to remedy the constitutional defects in the CDA.

Plaintiffs attack COPA on several grounds: (1) that it is invalid on its face and as applied to them under the First Amendment for burdening speech that is constitutionally protected for adults, (2) that it is invalid on its face for violating the First Amendment rights of minors, and (3) that it is unconstitutionally vague under the First and Fifth Amendments. The parties presented evidence and argument on the motion of plaintiffs for a temporary restraining order on November 19, 1998. This Court entered a temporary restraining order on November 20, 1998, enjoining the enforcement of COPA until December 4, 1998. (Document Nos. 29 and 30). The defendant agreed to extend the duration of the TRO through February 1, 1999. (Document No. 34). The parties conducted accelerated discovery thereafter. While the parties and the Court considered consolidating the preliminary injunction hearing with a trial on the merits, the Court, upon due consideration of the arguments of the parties, ultimately decided that it would proceed only on the motion for preliminary injunction. (Document No. 39). There necessarily remains a period for completion of discovery and preparation before a trial on the merits.

The defendant filed a motion to dismiss the entire action pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing in addition to her arguments in response to the motion for preliminary injunction. (Document No. 50). The plaintiffs filed a response to the motion to dismiss (Document No. 69), to which the defendant filed a reply. (Document No. 81).

On the motion of plaintiffs for preliminary injunction, the Court heard five days of testimony and one day of argument on January 20, 1999 through January 27, 1999. In addition, the parties submitted briefs, expert reports, declarations from many of the named plaintiffs, designated portions of deposition transcripts, and documentary evidence for the Court's review. Based on this evidence and for the reasons that follow, the motion to dismiss will be denied and the motion for a preliminary injunction will be granted.

I. The Child Online Protection Act

In what will be codified as 47 U.S.C. § 231, COPA provides that:

(1) PROHIBITED CONDUCT.-Whoever knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months, or both.

(2) INTENTIONAL VIOLATIONS.-In addition to the penalties under paragraph (1), whoever intentionally violates such paragraph shall be subject to a fine of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

(3) CIVIL PENALTY.-In addition to the penalties under paragraphs (1) and (2), whoever violates paragraph (1) shall be subject to a civil penalty of not more than $50,000 for each violation. For purposes of this paragraph, each day of violation shall constitute a separate violation.

COPA specifically provides that a person shall be considered to make a communication for commercial purposes "only if such person is engaged in the busi- ness of making such communication." 47 U.S.C. § 231(e)(2)(A). A person will be deemed to be "engaged in the business" if the person who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income). A person may be considered to be engaged in the business of making, by means of the World Wide Web, communications for commercial purposes that include material that is harmful to minors, only if the person knowingly causes the material that is harmful to minors to be posted on the World Wide Web or knowingly solicits such material to be posted on the World Wide Web.

47 U.S.C. § 231(e)(2)(B).

Congress defined material that is harmful to minors as:

any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that-

Id. at § 231(e)(6). Under COPA, a minor is any person under 17 years of age. Id. at § 231(e)(7).

COPA provides communicators on the Web for commercial purposes affirmative defenses to prosecution under the statute. Section 231(c) provides that:

(1) DEFENSE.-It is an affirmative defense to prosecution under this section that the defendant, in good faith, has restricted access by minors to material that is harmful to minors-

(A) by requiring use of a credit card, debit account, adult access code, or adult personal identification number;

(B) by accepting a digital certificate that verifies age; or

The disclosure of information collected in implementing the affirmative defenses is restricted in

§ 231(d):

(d) PRIVACY PROTECTION REQUIREMENTS.-

(1) DISCLOSURE OF INFORMATION LIMITED.-A person making a communication described in subsection (a)-

(A) shall not disclose any information collected for the purposes of restricting access to such communications to individuals 17 years of age or older without the prior written or electronic consent of-

(i) the individual concerned, if the individual is an adult; or

(ii) the individual's parent or guardian, if the individual is under 17 years of age; and

(B) shall take such actions as are necessary to prevent unauthorized access to such information by a person other than the person making such communication and the recipient of such communication.

(2) EXCEPTIONS.-A person making a communication described in subsection (a) may disclose such information if the disclosure is-

(A) necessary to make the communication or conduct a legitimate business activity related to making the communication; or

(B) made pursuant to a court order authorizing such disclosure.

II. Arguments of the Parties

The arguments of the parties are plentiful and will be only summarized here for purposes of the motion for a preliminary injunction. Plaintiffs argue that COPA is unconstitutional on its face and as applied to them because the regulation of speech that is "harmful to minors" burdens or threatens a large amount of speech that is protected as to adults.1 According to the plaintiffs, the fact that COPA is vague, overbroad, and a direct ban on speech that provides only affirmative defenses to prosecution contributes to the burden COPA places on speech. The plaintiffs argue that the affirmative defenses provided in COPA do not alleviate the burden on speech because their implementation imposes an economic and technological burden on speakers which results in loss of anonymity to users and consequently loss of users to its Web sites. The plaintiffs contend that the defendant cannot justify the burden on speech by showing that COPA is narrowly tailored to a compelling government interest or the least restrictive means to accomplish its ends. Alternatively, plaintiffs frame their facial attack to the statute as an overbreadth challenge, arguing that speech will be chilled on the Web because the statute covers more speech than it was intended to cover, even if it can be constitutionally applied to a narrow class of speakers. The plaintiffs also challenge COPA as being unconstitutionally vague under the First and Fifth Amendments and facially unconstitutional as to speech protected for minors.

Defendant argues that COPA passes constitutional muster because it is narrowly tailored to the government's compelling interest in protecting minors from harmful materials. The defendant argues that the statute does not inhibit the ability of adults to access such speech or the ability of commercial purveyors of materials that are harmful to minors to make such speech available to adults. The defendant points to the presence of affirmative defenses in the statute as a technologically and economically feasible method for speakers on the Web to restrict the access of minors to harmful materials. As to the plaintiffs' argument that COPA is overbroad, the defendant argues that the definition of "harmful to minors" material does not apply to any of the material on the plaintiffs' Web sites, and that the statute only targets commercial pornographers, those who distribute harmful to minors material "as a regular course" of their business. The defendant contends that plaintiffs cannot succeed on their motion for a preliminary injunction because they cannot show a likelihood of success on their claims and that their claim of irreparable harm is merely speculative.

Some of the defendant's substantive arguments are conceptually intertwined with her arguments in support of the pending motion to dismiss the complaint on the basis that the plaintiffs lack standing to attack the statute. The motion to dismiss will serve as a starting point for the Court's analysis.

III. Resolution of Defendant's Motion to Dismiss

Among other things, the "irreducible constitutional minimum" of standing requires that the plaintiffs allege that they have suffered or imminently will suffer an injury. It is well established that a credible threat of present or future criminal prosecution will confer standing. See, e.g., Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 L.Ed.2d 782 (1988) (noting that the Court was "unconcerned by the pre-enforcement nature of th[e] suit" and holding that the injury-in-fact requirement was met, in part, because "plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them"); Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L.Ed.2d 505 (1974) ("It is not necessary that [a party] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights."); Doe v. Bolton, 410 U.S. 179, 188-89, 93 S. Ct. 739, 35 L.Ed.2d 201 (1973). The rationale underlying this rule is that a credible threat of present or future prosecution is itself an injury that is sufficient to confer standing,