Filed June 22, 2000

 

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

 

v.

 

JANET RENO, in her official capacity as

ATTORNEY GENERAL OF THE UNITED STATES

 

       Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 98-cv-05591)

District Judge: Honorable Lowell A. Reed, Jr.

 

Argued Thursday, November 4, 1999

 

BEFORE: NYGAARD, McKEE Circuit Judges and

GARTH, Senior Circuit Judge

 

(Opinion filed June 22, 2000)

 

 


 

 

       David W. Ogden

       Acting Assistant Attorney General

       Michael R. Stiles

       United States Attorney

       Barbara L. Herwig

       Jacob M. Lewis (Argued)

       Charles Scarborough

       Attorneys, Appellate Staff

       Civil Division, Room 9120

       Department of Justice

       601 D Street, N.W.

       Washington, D.C. 20530-0001

 

       Attorneys for Appellant

 

       Douglas A. Griffin

       Christopher R. Harris

       Catherine E. Palmer

       Michele M. Pyle

       Katherine M. Bolger

       Latham & Watkins

       885 Third Avenue

       Suite 100

       New York, New York 10022-4802

 

       Christopher A. Hansen

       Ann E. Beeson (Argued)

       John C. Salyer

       American Civil Liberties Union

       125 Broad Street

       New York, New York 10004

 

       Attorneys for Appellee

       American Civil Liberties Union

 

                                2


 

 

       Stefan Presser

       Christopher A. Hansen

       Ann E. Beeson (Argued)

       John C. Salyer

       Suite 701

       American Civil Liberties Union

       125 South Ninth Street

       Philadelphia, Pennsylvania 19107

 

       Attorneys for Appellees

       Androgyny Books, Inc., d/b/a

        A Different Light Bookstores;

       American Booksellers Foundation

        for Free Expression;

       Artnet Worldwide; 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

 

       David L. Sobel

       Electronic Privacy Information

        Center

       666 Pennsylvania Ave., S.E.

       Suite 301

       Washington, D.C. 20003

 

       Attorney for Appellee

       Electronic Privacy Information Center

 

       Shari Steele

       Electronic Frontier Foundation

       6999 Barry's Hill Road

       Bryans Road, Maryland 20616

 

       Attorney for Appellee

       Electronic Frontier Foundation

 

                                3


 

 

       David Affinito

       Dell'Italia, Affinito, Jerejian

        & Santola

       18 Tony Galento Plaza

       Orange, New Jersey 07050

 

       Paul J. McGeady

       Robin S. Whitehead

       Of counsel

       475 Riverside Drive

       New York, New York 10115

 

       Attorneys for Amici Curiae

       Morality in Media, Inc.

       American Catholic Lawyers

       Association

 

       Bruce A. Taylor

       J. Robert Flores

       Chadwicke L. Groover

       National Law Center for

        Children and Families

       3819 Plaza Drive

       Fairfax, Virginia 22030-2512

 

       James J. West

       105 North Front Street

       Harrisburg, Pennsylvania 17101

 

       Attorneys for Amici Curiae-Appellant

       John S. McCain, Senator; Dan Coats,

       Senator; Thomas J. Bliley,

       Representative; Michael G. Oxley,

       Representative; James C. Greenwood,

       Representative

 

       Janet M. LaRue

       Family Research Council

       801 G Street, N.W.

       Washington, D.C. 20001

 

       Attorney for Amicus Curiae-

       Appellants Family Research Council;

       Enough is Enough; The Jewish Policy

       Center

 

                                4


 

 

       R. Bruce Rich

       Elizabeth S. Weiswasser

       Weil, Gotshal & Manges

       767 Fifth Avenue

       New York, New York 10153

 

       Attorneys for Amicus Curiae-

       Appellees The American Society of

       Newspaper Editors; Bibliobytes, Inc.;

       The Center for Democracy and

       Technology; The Comic Book Legal

       Defense Fund; The Commercial

       Internet Exchange Association and

       PSINET, Inc.; Freedom Read

       Foundation; Internet Alliance;

       Magazine Publishers of America; The

       National Association of Recording

       Merchandisers; People for the

       American Way; Periodical Book

       Association; PSINET, Inc.; The

       Publishers Marketing Association; The

       Recording Industry Association of

       America; The Society for Professional

       Journalists

 

       Stephen A. Bokat

       National Chamber Litigation Center

       1615 H St., N.W.

       Washington, D.C. 20062

 

       Bruce J. Ennis

       Jenner & Block

       601 13th Street, N.W.

       12th Floor

       Washington, D.C. 20005

 

       Attorney Amicus Curiae-Appellee

       The Chamber of Commerce of the

       United States of America

 

                                5


 

 

       Bruce J. Ennis

       Jenner & Block

       601 13th Street, N.W.

       12th Floor

       Washington, D.C. 20005

 

       Attorney for Amicus Curiae-Appellee

       Internet Education Foundation

 

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. S 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

_________________________________________________________________

 

1. The District Court exercised subject matter jurisdiction pursuant to

the general federal question statute, 28 U.S.C.S 1331. This court

exercises appellate jurisdiction pursuant to 28 U.S.C. S 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 the Supreme Court."

 

                                6


 

 

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 1996.2See ACLU v. Reno, 521

U.S. 844 (1997) ("Reno II"). To best understand the current

challenge to COPA, it is necessary for us to briefly examine

the CDA.

_________________________________________________________________

 

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); ACLU v. Reno, 521 U.S. 844 (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).

 

                                7


 

 

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 859-60.3 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.

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.

 

Further, the Court explained that, as applied to the

Internet, a community standards criterion would effectively

mean that because all Internet communication is made

_________________________________________________________________

 

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

 

                                8


 

 

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.,

2000 WL 646196 (U.S. May 22, 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. S 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."

_________________________________________________________________

 

4. COPA defines the clause "by means of the World Wide Web" as the

"placement of material in a computer server-basedfile archive so that it

is publicly accessible, over the Internet, using hypertext transfer protocol

or any successor protocol." 47 U.S.C. S 231(e)(1).

5. COPA defines the clause "commercial purposes" as those individuals

or entities that are "engaged in the business of making such

 

                                9


 

 

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

 

       (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

 

       (C) taken as a whole, lacks serious, literary, art istic,

       political, or scientific value for minors.

 

47 U.S.C. S 231(e)(6) (emphasis added).7 The parties

conceded at oral argument that this "contemporary

community standards" test applies to those communities

_________________________________________________________________

 

communications." 47 U.S.C. S 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. S 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 (1968), as modified by Miller v. California, 413 U.S. 15 (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. S 231(e)(7).

 

                                10


 

 

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. S 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

_________________________________________________________________

 

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. S 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. S 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; American

Libraries Ass'n v. Pataki, 969 F. Supp. 160, 164-67 (S.D.N.Y. 1997);

Hearst Corp. v. Goldberger, 1999 WL 97097 *1 (S.D.N.Y. Feb. 26, 1997)

(citing cases).

 

                                11


 

 

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

_________________________________________________________________

 

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


 

 

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, 955 P.2d 951, 956 (Ariz.

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

_________________________________________________________________

 

12. People v. Barrows, 177 Misc. 2d 712, 729 (NY 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.

 

                                13


 

 

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. S 231(c). 14 The Court found that

_________________________________________________________________

 

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 accou nt, adult access

       code, or adult personal identification number,

 

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

 

       (C) by any other reasonable measures that are feas ible under

       available technology.

 

See 47 U.S.C. S 231(c).

 

                                14


 

 

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

_________________________________________________________________

 

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.

 

                                15


 

 

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. P 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 P 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.  P 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

_________________________________________________________________

 

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., 2000 WL

646196 (U.S. May 22, 2000).

 

                                16


 

 

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 (1992); Sable Comm. of Calif. v.

FCC, 492 U.S. 115,126 (1989)) See also United States v.

Playboy Entertainment Group, Inc., 2000 WL 646196 (U.S.

May 22, 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

_________________________________________________________________

 

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

 

                                17


 

 

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.

 

                                18


 

 

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, 119 S. Ct. 1802 (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., Schaumberg v. Citizens for a Better

Environment, 444 U.S. 620, 637 (1980); Sable Comm of

Calif. v. FCC, 492 U.S. 115,126 (1989).18 These principles

_________________________________________________________________

 

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 (1975); Red Lion

Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica

Foundation, 438 U.S. 726 (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 (1994); Sable Communications of Cal., Inc. v. FCC, 492 U.S.

115, 128 (1989). See also United States v. Playboy Entertainment Group,

Inc., 2000 WL 646196 (U.S. May 22, 2000). However, the Supreme Court

 

                                19


 

 

have been emphasized again in the Supreme Court's most

recent opinion, United States v. Playboy Entertainment

Group, Inc., 2000 WL 646196 (U.S. May 22, 2000), where

the Court, concerned with the "bleeding" of cable

transmissions, held S 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

(1989); Ginsberg v. New York, 390 U.S. 629, 639-40

(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; Butler v. Michigan, 352 U.S. 380, 383 (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.

_________________________________________________________________

 

has also recognized that these same elements, which justified heightened

regulation of the broadcast medium, do not exist in cyberspace. See

ACLU v. Reno, 521 U.S. 844, 868 (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. 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.

 

                                20


 

 

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. 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' wouldfind

the work taken as a whole, [to appeal] to the prurient

_________________________________________________________________

 

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).

 

                                21


 

 

interest." Miller v. California, 413 U.S. 15, 24 (1973)

(quoting Kois v. Wisconsin, 408 U.S. 229, 230 (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 (1973)." H.R. REP. NO. 105-

775 at 13 (1998); 47 U.S.C. S 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. N O. 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

(1975)). See also United States v. Playboy Entertainment

Group, Inc., 2000 WL 646196, at *8 (U.S. May 22, 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

 

                                22


 

 

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. 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

 

                                23


 

 

application of uniform national standards of obscenity."

Hamling v. United States, 418 U.S. 87, 106 (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 (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."

_________________________________________________________________

 

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.

 

                                24


 

 

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

 

                                25


 

 

       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, 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

 

                                26


 

 

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 (1972). 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 (1988) (quoting

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)). See

also Broadrick, 413 U.S. at 613; Forsyth County v.

Nationalist Movement, 505 U.S. 123, 130 (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 (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 thefirst 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

_________________________________________________________________

 

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.

 

                                27


 

 

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

 

                                28


 

 

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. 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 . 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 (1985) (quoting Allen v.

Louisiana, 103 U.S. 80, 83-84 (1881)). 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

(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.

 

                                29


 

 

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

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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. S 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 (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 (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 (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. As we have noted, the Web is a new type of

 

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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 (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

_________________________________________________________________

 

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 (1976);

Greater New Orleans Broad. Ass'n, Inc. v. United States, 527 U.S. 173,

188 (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. Young Drug Prods

Corp., 463 U.S. 60, 74-75 (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. 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.

 

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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

(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."

Allegeny 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.

_________________________________________________________________

 

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.

 

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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." Allegeny

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

_________________________________________________________________

 

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).

 

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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., 2000

WL 646196 at *4 (U.S. May 22, 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.

 

A True Copy:

Teste:

 

       Clerk of the United States Court of Appeals

       for the Third Circuit

 

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