No. 99 - 1324

In the United States Court of Appeals

for the Third Circuit

  

American Civil Liberties Union, et al.,

Plaintiffs-Appellees,

v.

Janet Reno, in her official capacity as

Attorney General of the United States,

Defendant-Appellant.

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

 

BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE,
 
Senator John S. McCain, Senator Dan Coats (ret.), Representative Thomas J. Bliley, Representative Michael G. Oxley, Representative James C. Greenwood,
 
IN SUPPORT OF APPELLANT, HON. JANET RENO,
ATTORNEY GENERAL OF THE UNITED STATES, AND REVERSAL

 

Bruce A. Taylor, Counsel of Record for Amici Curiae

J. Robert Flores, Co-Counsel for Amici Curiae

Chadwicke L. Groover, Legal Counsel

National Law Center for Children and Families

3819 Plaza Drive

Fairfax, VA 22030-2512

(703) 691-4626, Fax: 703-691-4669

James J. West, Local Counsel for Amici Curiae

105 North Front Street

Harrisburg, PA 17101

(717) 233-5051

 

TABLE OF CONTENTS

 

INTEREST OF CONGRESSIONAL AMICI CURIAE...1

 

LAW AND ARGUMENT

I. COPA, 47 U.S.C. Sect. 231, IS A VALID, NARROWLY TAILORED RESPONSE TO A MOST SERIOUS PROBLEM AND SHOULD BE SO CONSTRUED AND UPHELD...2

II. THE HTM STANDARD FOR WHAT IS OBSCENE FOR MINORS IS JUDICIALLY LIMITED TO PORNOGRAPHY...8

III. THIS COURT SHOULD CONSTRUE AND UPHOLD COPA WITHIN REQUIRED CONSTITUTIONAL PARAMETERS...13

IV. COPA IS A NECESSARY AND LEAST RESTRICTIVE MEANS OF PROTECTING MINORS FROM ADULT PORNOGRAPHY THAT IS OBSCENE AND HARMFUL FOR THEM AND NOT PROTECTED FOR SALE OR DISPLAY TO THEM...22

CONCLUSION...25

CERTIFICATE OF SERVICE...27

APPENDIX

A. Child Online Protection Act

B. House Committee Report

C. Testimony of NLC for House Committee Hearing

D. Luhn Check Algorithm as a compliance measure

E. Decision Below Granting Preliminary Injunction

(Appendices are not present in this HTML version; these documents are presumably available elsewhere.)

 

INTEREST OF CONGRESSIONAL AMICI CURIAE

 

Amici Curiae are Congressional leaders and sponsors of the Child Online Protection Act of 1998 ("COPA"): Senator John S. McCain, Chairman of the Senate Committee on Commerce, Science and Transportation, Senator Dan Coats (retired), primary sponsor and author of COPA and the Communications Decency Act of 1996, Representative Thomas J. Bliley, Chairman of the House Committee on Commerce, and Representatives Michael G. Oxley and James C. Greenwood, primary sponsors and authors of COPA. These honorable gentlemen file this Brief of Members of Congress as Amici Curiae in Support of Appellant, Hon. Janet Reno, Attorney General of the United States, with written consent of the parties, urging reversal of the Order of the District Court granting a Preliminary Injunction. ACLU v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999).

In light of the sponsorship of COPA by these and many other Members of Congress, the passage of the Act by Congress, and its enactment into law by the signature of the President, your amici have a continuing interest in seeking the benefits it was intended to provide America's children and wish to proffer their views and concerns to this Court, as they did below, as to the legitimate reach of this new federal law to pornographic "adult" materials that are obscene or harmful to minors.

Their perspective on this Act, its tests, defenses, and good faith compliance issues, in addition to the Report of the House Committee on Commerce, should be a further help to this Court in its obligation to review the Order and opinion below and assist in the exercise of this Court's independent duty to interpret and authoritatively construe the Act, 47 U.S.C. Sect. 231, so as to be constitutionally valid and enforceable as intended by Congress.

LAW AND ARGUMENT

I. COPA, 47 U.S.C. Sect. 231, IS A VALID, NARROWLY TAILORED RESPONSE TO A MOST SERIOUS PROBLEM AND SHOULD BE SO CONSTRUED AND UPHELD.

Your Congressional amici maintain that the Child Online Protection Act is a constitutionally valid federal adoption of the traditional protections for minors that have existed for over thirty years in state Harmful To Minors ("HTM") laws. (Copy of COPA in Appendix A hereto.) This law, 47 U.S.C. Sect. 231, would protect the overwhelming majority of minor children in America from the instant and unrestricted access to the free pornographic "teaser" pictures now openly available on the front pages of tens of thousands of commercial porn Websites that sell hard-core and soft-core pornography on the World Wide Web. In light of the dire situation existing since the CDA's indecency provisions were invalidated in Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329 (1997), Congress found that COPA would be effective and reasonable in dealing with this tragic feature of the Web. As stated in the Report, to accompany H.R. 3783, House Committee on Commerce, H. Rep. No. 105-775, 105th Cong., 2d Sess. (1998), Committee Report at 16 (copy in Appendix B hereto):

In light of the Reno decision, the Committee has thoughtfully and thoroughly considered a number of ways to help protect children from being exposed to harmful material. Each proposal has merit, but the Committee concludes that H.R. 3873 is currently the most effective, yet least restrictive approach that should be taken given the current state of technology.

Commercial pornography is big business and a major presence on the Web. Tens of thousands of sites sell pornography. Committee Report at 7. Most openly allow children, as well as adults, to view hard-core and soft-core porn pictures by simply clicking on any link to a pornography company's Web page, even when searching for innocent material such as "teen", "boy", "girl", "toy", "pet", etc. Committee Report at 10, citing Testimony of National Law Center for Children and Families (copy in Appendix C hereto). By 1998, "almost 70 percent of the traffic on the Web is adult-oriented material" and exposure to pornography is just as unintentional as intended, especially by children. Committee Report at 10. The Committee found that exposing children to pornographic HTM material does cause harm to children and is a dangerous influence in their development. Committee Report at 11. Other testimony and evidence was provided to the Committee at its Hearing on Legislative Proposals to Protect Children from Inappropriate Materials on the Internet, House Commerce Committee (September 11, 1998), and the Committee Report chronicles this and other findings about the serious problem of freely available pornography and the free "teaser" samples of porn pictures that can be viewed, downloaded, and printed by children. Committee Report at 6-12, 16, 20-21.

COPA was specifically designed to require such commercial porn sellers to make a good faith effort, by credit card, credit card number, adult access number, etc., to protect visiting children or teenagers from seeing graphic sex pictures on front pages of porn Websites. Committee Report at 6, 11-12.

The legislative intent of this Act, discussed in the Committee Report, clearly establishes that COPA was intentionally limited in scope to deal only with this problem as it exists on the World Wide Web and only for commercial sellers of pornography that is "obscene" (even for adults) or "harmful to minors" (i.e., "obscene as to minors"). It is equally clear from the Committee Report that the Act was not intended to apply to the serious or merely controversial treatments of sex or sexual issues that form the complaints of Plaintiffs below.

These Members of Congress respectfully submit that the District Court below erred grievously in failing to interpret COPA as narrowly as intended. The District Court should have excluded COPA's application to Plaintiffs' materials as outside the scope of what is "harmful to minors" as the Supreme Court and federal and state courts have construed that legal test for what is "obscene for minors". Committee Report at 12-13.

The technical capability of commercial pornographers on WWW sites to use credit cards and PIN codes was recognized in Reno v. ACLU, 521 U.S. 844, 117 S. Ct. 2329, 2349 (1997), and by the Court below, 31 F.Supp.2d at 488-91. Congress adopted the Supreme Court's pronouncements to deal with this narrow part of the problem of online pornography. COPA applies only to the World Wide Web and excludes all other Internet, Usenet, email, BBS, chat, and online services. The Act applies only to commercial sellers of HTM pornography and excludes all non-commercial, non-profit, educational, governmental, and private communications. Finally, COPA employs existing, constitutionally valid definitions of "obscene" and "harmful to minors," limiting its reach to pornography that is not protected speech for juveniles to receive and unprotected when provided or displayed to juveniles by adults. Therefore, COPA is an intentionally narrow focus on a "least restrictive means" to control the unrestricted display to minors of legally "harmful" pornographic materials on pornsite Web pages.

COPA is limited solely to regulating the manner of displaying for sale adult pornography. COPA does not prohibit adults from obtaining HTM pornography online. COPA requires commercial Websites that are regularly "engaged in the business" of trying to make money from selling HTM pornography to have visitors identified as adults before sampling adult materials. Sites are protected by defenses in Section 231(c) when attempting to restrict access "by any other reasonable measures that are feasible under available technology". COPA acts like existing HTM display laws that require vendors of "adult" pornography to put HTM materials out of minors' reach in commercial and public places. Over the past four decades in every state, magazine retailers, video outlets, and "adult" pornshops, have complied with state HTM laws, yet continued to sell such materials to adults while restricting access and display from minors.

COPA separately incorporates both the adult "Miller" test for what is "obscene," as well as the traditional definition of "harmful to minors", thus making the Act applicable to hard-core pornography that is obscene and soft-core pornography that is "Harmful To Minors" even if not obscene for adults. The HTM test was upheld thirty years ago in Ginsberg v. New York, 390 U.S. 629 (1968), and is now known as the "Millerized-Ginsberg Test." See Committee Report at 12-13. The obscenity test derives from Miller v. California, 413 U.S. 15, at 24-25 (1973), Smith v. United States, 431 U.S. 291, at 300-02, 309 (1977) (the "average person, applying contemporary community standards" would "judge" patent offensiveness in prong two), and Pope v. Illinois, 481 U.S. 497, at 500-01 (1987) ("a reasonable person" would "judge" serious value in prong three).

In thirty years, there has been virtually no enforcement of state harmful to minors laws, due to universal compliance with HTM sale and display laws by businesses across the Nation. However, obscenity prosecutions and civil challenges to HTM laws provide guidance and authoritative construction precedent for understanding the scope of COPA. It is worth noting that some "men's" magazines have been found "obscene" as a matter of law, even for adults, by federal and state courts: Penthouse v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980); Penthouse v. Webb, 594 F.Supp. 1186 (N.D. Ga. 1984); City of Urbana v. Downing, 539 N.E.2d 140, 149-50 (Ohio, 1989); State v. Flynt, 264 S.E.2d 669, 679 (Ga. App. 1980), cert. denied, 449 U.S. 888 (1980); City of Belleville v. Morgan, 376 N.E.2d 704 (Ill. App. 1978); City of Cleveland v. Hustler Magazine, Inc., No. 76-959230, Rec. vol. 330, pp. 545-55 (Ohio Common Pleas, 1976).

Such "men's sophisticate" magazines are well-known and universally treated in the magazine and print medium as "harmful to minors." Consequently, this type of pornography is not displayed to minors in print form and is the type of pornography that would be restricted from open commercial display to minors on the Web under COPA. No court should find that these long-existing HTM laws are misunderstood or unreasonable in the print medium and film industry. This system works in all other media and commercial settings in this Country and COPA would be no different for porn sellers on the Web.

Though HTM laws have heretofore been state statutes and city ordinances, the standard is familiar to the federal courts, which have routinely upheld such laws. See, for example: Crawford v. Lungren, 96 F.3d 380 (9th Cir. 1996), cert. denied, 520 U.S. 1117 (1997) (Calif. statute requiring adult tokens for HTM vending machines); American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990); American Booksellers Ass'n v. Commonwealth of Virginia, 882 F.2d 125 (4th Cir. 1989), on remand, 488 U.S. 905 (1988), upholding HTM law as construed on certified questions in Commonwealth v. American Booksellers Ass'n, 372 S.E.2d 618 (Va. 1988); Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389 (8th Cir. 1985); M.S. News Co. v. Casado, 721 F.2d 1281 (10th Cir. 1983). See Committee Report at 13.

II. THE HTM STANDARD FOR WHAT IS OBSCENE FOR MINORS IS JUDICIALLY LIMITED TO PORNOGRAPHY.

COPA's definition of Harmful To Minors, 47 U.S.C. Sect. 231 (e)(6), includes that which is "obscene" even as to adults, as well as that which is "obscene as to minors" under the variable obscenity test for what is unprotected as to minors.

In adopting the established test for Harmful To Minors, COPA must be interpreted and construed to narrow its reach to materials that are intentionally pornographic and inappropriate for minor children of the intended and probable age groups to which it is exhibited. As stated in the Committee Report at 28:

The Committee also notes that the "harmful to minors" standard has been tested and refined for thirty years to limit its reach to materials that are clearly pornographic and inappropriate for minor children of the age groups to which it is directed. Cases such as Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), and Board of Education v. Pico, 457 U.S. 853 (1982), prevent the traditional "harmful to minors" test from being extended to entertainment, library, or news materials that merely contain nudity or sexual information, regardless of how controversial they may be for their political or sexual viewpoints. [Emphasis added.]

Erznoznik and Pico also prevent viewpoint discrimination and suppression of ideas, which are not permitted under the HTM test. Minors are entitled to sexual information that has serious value for their age groups, even if "someone" might find them offensive or prurient. These cases are binding on all courts with respect to the scope and applicability of state and federal HTM laws, as well as COPA. They protect Plaintiffs and the public in rejecting unfounded, hypothetical scare tactics of those who would have them believe that such protected speech may be in jeopardy. Erznoznik, 422 U.S. at 213, held that "all nudity cannot be deemed obscene even as to minors" and cited Cohen v. California, 403 U.S. 15, 20 (1971) ("such expression must be, in some significant way, erotic"). Such statements were repeated in later cases such as Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977) ("[W]here obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.") and FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) ("that society may find speech offensive is not a sufficient reason for suppressing it"). Erznoznik, 422 U.S. at 213, held that law overbroad because it was "not directed against sexually explicit nudity, nor is it otherwise limited.... Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

Most reported decisions are federal reviews of state harmful to minors display or sales laws and do not involve factual findings as to the harmful to minors nature vel non of any particular materials. In a few major decisions, however, there were findings as to certain trial exhibits as to what could be within the reach of the laws and authoritative constructions were offered to provide guidance on the scope of such laws.

American Booksellers v. Webb, supra, 919 F.2d at 1503-05, upholding Georgia's HTM display law and "Millerized-Ginsberg Test" and finding that a defendant's exhibit would be subject to the law, stating in footnote 22:

This is not to say that the statute covers only material already subject to Georgia's general obscenity statute.... For example, Defendant's Exhibit 1, Human Digest (June 1984), found in a convenience store with no restrictions on in-store access by minors, would be 'harmful to minors' and thus subject to section 16-12-103's bans on sales to minors and display. The cover refers to several articles within that are written from the juvenile perspective: "'Why My Mom Loves Oral Sex!'"; "'I Made X-Rated Videos for Dad!'"; "'Sex Slave Sis!'"; and "'My Anal Aunt!'".

Upper Midwest Booksellers v. City of Minneapolis, 602 F.Supp. 1361, at 1369 (D. Minn. 1985), upholding city HTM display ordinance and declaring that it was lawfully applicable to "sexually explicit materials" that are "harmful to minors" and stating:

A child who walks into a store which openly displays material with sexually explicit covers may be harmed simply by viewing those covers.

In affirming that District Court opinion, the Court of Appeals in Upper Midwest Booksellers v. City of Minneapolis, supra, 780 F.2d at 1395, recognized the limitations and construction of such HTM laws in upholding the display provision as valid time, place, and manner protection for minors. The ordinance did not prohibit adults from obtaining "adult" materials, even though adults must comply with the "incidental effect of the permissible regulation" by purchase, requesting of a copy from a clerk, or perusal in "adults only bookstores or in segregated sections of ordinary retail establishments".

In the Virginia Supreme Court's opinion on certified questions from the U.S. Supreme Court, 484 U.S. 383, the State Court held that each of the 16 works feared to be threatened by Virginia's HTM law were not legally "harmful to minors," though the federal courts had presumed the books were in jeopardy of the law when interpreted in an overly broad fashion. Commonwealth v. American Booksellers, supra, 372 S.E.2d at 622:

The 16 books in question run the gamut, as the Supreme Court aptly put it, from classic literature to pot-boiler novels. Having examined them all, we conclude that although they vary widely in merit, none of them lacks "serious literary, artistic, political or scientific value" for a legitimate minority of older, normal adolescents. It would serve no purpose to review the books in detail. Because none of them meets the third prong of the tripartite test, we hold that none of the books is "harmful to juveniles" within the meaning of [Virginia] Code Sects. 18.2-390 and 391.

This recognition that the HTM test must consider serious value for the age group to which it is directed was a major holding of the Supreme Court of Virginia, and is another narrowing limitation on COPA. See also American Booksellers v. Webb, supra, 919 F.2d at 1504-06, and Committee Report at 28.

These precedents form the basis for COPA's constitutionally valid reach to pornography that is not protected in its display to minors.

The District Court's interpretation and conclusions of law, 31 F.Supp.2d at 481, 497, are beyond the clear bounds of the binding precedent applicable to COPA's HTM test. The legislative history is clear that those decisions were adopted into COPA and the trial court erred in failing to so construe the Act. Those decisions mandate the authoritative construction of this new federal law in such a constitutional manner. This Court should do so and enter the judgment that was warranted below.

III. THIS COURT SHOULD CONSTRUE AND UPHOLD COPA
WITHIN REQUIRED CONSTITUTIONAL PARAMETERS.

Though federal courts cannot authoritatively construe a state statute and must declare them wholly or partially valid, invalid, or severable, Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-05 (1985), the rule is appositive for federal statutes, which federal courts are bound to interpret in a constitutional fashion so as to protect legitimate rights. COPA is readily susceptible to such authoritative constitutional construction. The rule was stated in New York v. Ferber, 458 U.S. 747, 769, n. 24 (1982):

When a federal court is dealing with a federal statute challenged as overbroad, it should, of course, construe the statute to avoid constitutional problems, if the statute is subject to such a limiting construction.

It was recognized in Ferber, supra, that First Amendment challenges may be heard to a law that is facially overbroad by one to whom the statute could have been validly applied. The opposite is also true. The courts should not strike a statute on its face as to those to whom it has a legitimate reach when the court can protect the rights of those before it by limiting its reach. By declaring it inapplicable to those to whom it cannot be applied, such narrowing construction will exclude and guide those protected speakers.

Ferber, at 766-74, discussed the "substantial overbreadth" doctrine and reiterated that facial invalidity is a drastic and narrow exception that must be "carefully tied to the circumstances in which facial invalidation of a statute is truly warranted" and is "strong medicine" employed "only as a last resort." Plaintiffs were never required to offer proof of any real or substantial overbreadth claimed for this Act and this Court of Appeals should reject the trial court's presumed overbreadth by narrowly construing the Act so as to prevent and forbid any such unconstitutional applications. As further stated in Ferber, at 773-74:

While the reach of the statute is directed at the hard core of child pornography, the Court of Appeals was understandably concerned that some protected expression, ranging from medical textbooks to pictorials in the National Geographic, would fall prey to the statute. ...Yet we seriously doubt, and it has not been suggested, that these arguably impermissible applications of the statute amount to more than a tiny fraction of the materials within the statute's reach. Nor will we assume that the New York courts will widen the possibly invalid reach of the statute by giving an expansive construction to the proscription on "lewd exhibition[s] of the genitals." Under these circumstances, Sect. 263.15 is "not substantially overbroad and ... whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied." [Emphasis added.]

In the instant case, this statute is admittedly and explicitly directed at the pornographic core of what is obscene or harmful to minors, not at literary, artistic, political, or scientific treatments of sex and not at materials that are not pandered to prurient interests. In this case, the ACLU argued that the HTM test could be expanded to reach much of the speech traditionally protected from prosecution under existing harmful to minors laws, without any evidence, factual basis, or examples to substantiate such fears of expansive application.

The District Court did not find anything in the record to be Harmful To Minors as defined in COPA, did not find any image, text, or information on any plaintiff's Website to be subject to COPA, and did not find that COPA would apply to any identifiable utterance of protected speech presented as evidence in the record. ACLU Plaintiffs offered no example of any HTM materials in their possession, they identified none on anyone else's sites, and denied that any of them had any pornography, much less pornography that could be harmful to minors. The basis for the findings of fact were the fears that some information of a sexual nature could be offensive to "someone" in another state or prosecuted by "some" prosecutor somewhere. Especially on the basis of this legally inaccurate and speculative testimony, amici submit that this is not a proper record upon which the federal courts should be asked to strike down a federal statute.

This Court, like the Supreme Court in Ferber, should correct the assumption that federal courts can "widen the possibly invalid reach of the statute by giving an expansive construction" to COPA and apply the clearly binding precedents discussed herein and in the Committee Report.

Courts recognize the need to follow these principles in applying the HTM test to pornographic treatments, rather than to ideas or messages in controversial works, as in the school cases: Board of Education v. Pico, 457 U.S. 853 (1982); Bicknell v. Vergennes Union High School Board of Directors, 638 F.2d 438 (2d Cir. 1980); Presidents Council v. Community School Board, 457 F.2d 289 (2d Cir. 1972), cert. denied, 409 U.S. 998 (1980).

COPA adopted a non-geographic, adult age community standard for judging the prurience and offensiveness prongs of the Harmful To Minors test. As stated in the Committee Report at 28:

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.

This is a reflection of the power of legislatures to do so, as recognized by the Court in upholding non-specific "community standard" instructions in state and federal courts. See Jenkins v. Georgia, 418 U.S. 87, 157 (1974), Hamling v. United States, 418 U.S. 87, 101-07 (1974), even though trials could occur in various federal districts, as they could under various state laws. It was in Jenkins, at 157, that the Court held that courts and juries need not apply any hypothetical geographic standards. Congress, likewise, further narrowed COPA to suit the Web by giving its legislative intent to apply a generic "adult" standard.

In the Supreme Court's Erznoznik and Pico cases, and in the Harmful To Minors cases decided by the other federal and state courts cited above, the courts have already held that minors may receive sexual materials that are not "harmful" or "obscene as to minors" in the legal sense. Sexual information and sexually explicit materials that are not factually and legally Harmful To Minors under the Millerized-Ginsberg test may not be proscribed to minors simply because "someone" disapproves of the message, viewpoint, or orientation of the materials.

Like obscenity generally, the terms "harmful to minors" or "obscene as to minors" are legal terms of art, subject to the constitutional procedures of the courts, and protected against unconstitutionally overbroad applications or vague interpretations. As stated in Hamling v. United States, 418 U.S. 87, 118 (1974):

The definition of obscenity, however, is not a question of fact, but one of law; the word "obscene," as used in ...[federal law], is not merely a generic or descriptive term, but a legal term of art. ... The legal definition of obscenity does not change with each indictment; it is a term sufficiently definite in legal meaning to give a defendant notice ....

So it is with the term "harmful to minors" as adopted into federal law by COPA. So it is also that the federal courts are bound to apply this Act in accordance with First Amendment principles and thus protect even those who suffer unfounded fears instilled by propaganda, advocacy, or lack of trust or knowledge in the law. The courts should not accept such hypothetical exaggerations, because laws are not to be so impermissibly applied or expanded, as the Court noted in Ferber, supra at 773. The body of law and the diligence of the courts are expected to protect and apply these required legal principles, despite the lack of knowledge or confidence that some individuals may have in the law enforcement or judicial system.

Properly construed and applied, HTM laws apply to pornographic adult materials, not serious or controversial treatments of sex. Serious sex education, AIDS or STD information, disease prevention, sexual politics, news accounts of sexual offenses or legal questions, and political or social treatments of sexual issues cannot be obscene or Harmful To Minors because the courts know they have serious literary, artistic, political, or scientific value for minors.

The established test for Harmful To Minors only affects a minor's unrestricted access to that which lacks serious literary, artistic, political, or scientific value for the intended and probable age group of the minors to which it is made available.

Furthermore, because of limitations in the statutory elements, secondary transmissions ("hot links" to offending sites) would not, standing alone, violate the statute, even if commercial. COPA requires that an offender be the one who knows the character of the matter and then knowingly "makes any communication for commercial purposes...that includes any material that is harmful to minors" under Section 231 (a). The law then adds further limitations in the definition of such maker of the harmful communication as being one who is "engaged in the business" of trying to profit from "such" harmful communications "as a regular course of such person's trade or business" under Section 231 (e)(2). COPA, therefore, only applies to commercial WWW sites that can be proven by the Government to regularly and knowingly sell or attempt to profit from pornographic materials that are obscene or Harmful To Minors. COPA does not apply to private, governmental, news, non-profit, or other sites that cannot be shown to regularly market obscene or HTM pornography. COPA is a valid proscription against a definitive type of pornography, but it would not, as a matter of law, affect the release nor the commercial or public re-distribution of any serious work.

A most important case in the history of harmful to minors laws since Ginsberg, especially as a lesson in the need for properly construing such a law as COPA, is Commonwealth of Virginia v. American Booksellers Ass'n, supra, which clarified and limited the scope of such laws at the request of the U.S. Supreme Court. The federal courts found Virginia's display law overbroad and vague. American Booksellers Ass'n v. Strobel, 617 F.Supp. 699 (E.D. Va. 1985), aff'd, sub nom American Booksellers v. Com. of Va.., 792 F.2d 1261 (4th Cir. 1986), amended opinion, 802 F.2d 691 (4th Cir. 1986). Jurisdiction was noted on the appeal, but the Supreme Court then proffered two certified questions to the Supreme Court of Virginia, Virginia v. American Booksellers Ass'n, 484 U.S. 383 (1988):

1. Does the phrase "harmful to juveniles" as used in Virginia Code Sects. 18.2-390 and 18.2-391 ..., properly construed, encompass any of the books introduced as plaintiff's exhibits below, and what general standard should be used to determine the statute's reach in light of juveniles' differing ages and levels of maturity?

2. What meaning is to be given to the provision of Virginia Code Sect. 18.2-391(a) ... making it unlawful "to knowingly display for commercial purpose in a manner whereby juveniles may examine or peruse" certain materials? Specifically, is the provision complied with by a plaintiff bookseller who has a policy of not permitting juveniles to examine and peruse materials covered by the statute and who prohibits such conduct when observed, but otherwise takes no action regarding the display of restricted materials? If not, would the statute be complied with if the store's policy were announced or otherwise manifested to the public?

The Virginia Supreme Court replied, 372 S.E.2d at 625: "The first certified question is answered in the negative. The second certified question is answered in the affirmative."

The Virginia Supreme Court interpreted Virginia's "harmful to juveniles" display law in light of Miller, Ginsberg, Pope, etc., as applicable only to "explicit sexual content," "pornographic," or "borderline obscenity" and found that sixteen exhibits would not be "harmful to juveniles" because they contained serious literary, artistic, political, or scientific value "for a legitimate minority of older, normal adolescents". As so construed, Virginia's law was then upheld on remand, sub nom American Booksellers Ass'n v. Com. of Va., 882 F.2d 125 (4th Cir. 1989).

It is clear, these amici submit, that the concerns of the U.S. Supreme Court were in (1) whether the reach of such harmful to minors laws as upheld in Ginsberg were still limited to pornographic "adult" materials, rather than to serious or redeeming, if frank, sexual information or treatments; (2) whether the "variable obscenity standard" was variable, not only for minors as a class, but variable as to age groups of minors within that class; and (3) whether possible restrictions on marketing or display of such "harmful" pornography that is "obscene as to minors" are reasonably related to safeguarding children from exposure to such unprotected materials as to them by various methods available to businesses in modern commerce.

Just as the highest federal Court asked the highest state Court for its authoritative interpretation and construction of the law under consideration, your Congressional amici similarly request that this Court of Appeals, with a corresponding power and duty to interpret and construe this federal law, fairly and authoritatively read the Child Online Protection Act so as to protect the legitimate rights of those to whom it is applied and to uphold it as to all others to whom it is facially applicable and who are not challenging the act or who may face the Act only on a fact specific case-by-case basis in the future.

In doing so, the guidance of the historical precedent and the limitations recognized in the legislative record and Committee Report, should be adopted by this Court and thus avoid any real or substantial overbreadth or vagueness claimed by the Plaintiffs and their amici in this matter. This Court would thus guide the District Court on remand to protect the rights of those before it and all those who are not before it, since both groups will benefit from the limiting focus and clarifying gloss put on the law by an authoritative declaratory judgment by this Court and, when directed, by the District Court.

IV. COPA IS A NECESSARY AND LEAST RESTRICTIVE MEANS OF PROTECTING MINORS FROM ADULT PORNOGRAPHY THAT IS OBSCENE OR HARMFUL FOR THEM AND NOT PROTECTED FOR SALE OR DISPLAY TO THEM.

As the legislative record, Committee Report, and Commerce Committee Hearing should make clear, these amici Members of Congress fully support the constitutional validity and the law enforcement effectiveness of COPA. Since existing obscenity laws and the level of federal obscenity prosecutions are not deterring pornographic Websites and their "teasers" now, this new law would add a much-needed level of protection for children. The law would empower the efforts of parents, police, and child advocates to require the porn industry to take responsibility for selling "adult" materials to adults by asking for adult-world identifications, like credit card numbers or PIN codes, before showing pornography pictures on their sales sites.

As recognized in the Committee Report at 14, COPA's allowed access restriction methods will protect "most juveniles" even though COPA cannot protect all juveniles. This is an adoption of the finding by the Supreme Court in Sable Communications of Cal. v. FCC, 429 U.S. 115, 130 (1989), that the credit card/access number regulations of the FCC for dial-porn "would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages." Sable at 130 (emphasis added).

In light of Reno v. ACLU , Congress did not try to be as "extremely effective" as the FCC regulations approved in Sable, but "the Committee believes that H.R. 3783 is currently the most effective, yet least restrictive, way to reduce a minor's access to harmful material." Committee Report at 6. See also the discussion of protection issues and compliance alternatives in the Committee Report at 13-20. COPA's defenses are thus similar, but not identical, to prior FCC or CDA defenses. The COPA requirement allows a defense if the Website tries to restrict access by minors "by requiring use of a credit card", PIN, or "any other reasonable measures that are feasible under available technology". These Sect.231(C) defenses protect the Website whether or not the visitor is a minor and whether or not a visiting minor stole a real card or PIN, or was given one by a parent or friend, or was ingenious enough to generate a card number that passes the Luhn Check Algorithm. COPA protects a site that in good faith tries to have the visitor show he's an adult, even if the site is lied to or defrauded by an "enterprising and disobedient" juvenile. Presumably, this class of juveniles with such extraordinary computer and mathematical skills and the willingness to be dishonest, fraudulent, or criminal to satisfy their prurient interest in seeing pornography is a small part of the class of all minors. The COPA would, therefore, protect almost all children from open access to the porn teasers and would greatly "reduce" even the most sophisticated juvenile's access to such harmful material. Right now there is nothing to stop any child from searching for "toys" or "teen" and getting immediate photos of bondage items, group sex, or other porn. COPA would make those sites take the card, PIN, or card number before showing their"teaser" samples. That would restrict hundreds of thousands of free porn pictures from minor children. This would be a great benefit to confer on children and families and Congress sought to do so with COPA.

CONCLUSION

This new law would protect children from commercial pornography that is "harmful" to them, because it is legally "obscene as to" them. This is a "compelling governmental purpose" of "surpassing importance" that the Supreme Court and the other federal and state courts have said legislatures can provide for our most vulnerable citizens. It was the least Congress could do to extend that protection to America's children and grandchildren. This is no more than State display laws do when requiring merchants of "adult" magazines and videos that are "harmful to minors" to sell them on display racks out of reach or sight of minors, while still available for purchase by adults. Such an adult sales method is what this Act intends to and would extend to the commercial Web, as it fairly should.

These laws as they have existed from coast to coast have coexisted with newspapers, magazines, films, books, and computer communications, with the obvious avoidance of public displays of the sexually explicit materials on the covers, advertisements, billboards, video cases, and even many Web pages. A groundless and judicially avoidable fear of the over-expansion of a federal harmful to minors law is an impermissible basis to assume or allow unconstitutional applications of such an historically constitutional standard and reasonably non-burdensome restrictions on adult access to adult materials that are harmful and obscene as to minor children.

Therefore, your Congressional amici curiae respectfully submit that this Honorable Court should reverse the decision below, interpret and construe COPA within constitutional bounds as discussed above and in the Committee Report, and remand with instructions for the District Court to similarly apply COPA as a constitutionally valid and proper statute, as intended by Congress.

Respectfully submitted,

Bruce A. Taylor, Counsel of Record

J. Robert Flores, Co-Counsel

Chadwicke L. Groover, Co-Counsel

James J. West, Local Co-Counsel

Attorneys for Members of Congress

as Amici Curiae

CERTIFICATE OF SERVICE

Four copies of the foregoing Brief of Members of Congress as Amici Curiae in Support of Defendant-Appellant were mailed, First Class postage prepaid, to the following counsel for the parties on this 18th of July, 1999:

Ann Beeson, Esq. Jacob Lewis, Esq.

Christopher Hansen, Esq. Civil Appellate Staff

ACLU Foundation Theodore Hirt, Esq.

125 Broad Street Karen Stewart, Esq.

New York, NY 10004 Federal Programs Branch

(212) 549-2500 Civil Division

U.S. Department of Justice

Attorneys for Plaintiffs-Appellees 601 D Street, N.W., Rm. 9134

Washington, D.C. 20530-0001

(202) 514-5090

Attorneys for Defendant-Appellant

 So certified:

 Bruce A. Taylor

Counsel of Record for Amici Curiae

July 18, 1999