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

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

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

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

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

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

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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."

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.

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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).

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

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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."

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."

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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

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

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).

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).

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.

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.

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

available technology.

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

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

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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.

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 i