Judge Lowell A. Reed's Questions
for Plaintiffs and Defendants in ACLU v. Reno II

Presented Wednesday, January 27, 1999

ACLU v. Reno, No. 98-5591
January 26, 1999

Questions are directed to both parties unless otherwise marked.

STANDING

1. The defendant in her standing brief argues that "regular course of business" has a particular meaning as used in COPA. What is the plaintiffs' argument regarding the meaning of "regular course of business" as used in COPA?

OVERBREADTH

2. For the defendant: Given the defendant's position that Congress only intended COPA to apply to commercial pornographers, and her position that the plaintiffs are not commercial pornographers, does the defendant agree that if COPA applies to plaintiffs and at least some of their speech, the statute would be unconstitutionally overbroad?

BURDEN OF COMPLIANCE

3. For the plaintiffs: Do the plaintiffs agree that COPA does apply to commercial pornographers (even though the plaintiffs argue that COPA also applies to them)? If so, what is the burden that COPA imposes on those (or any website) that already utilize credit card screens or third party age verification services to block some of their speech? Does COPA constitutionally apply to such commercial pornographic websites? If so, does this defeat or undermine the plaintiffs' facial attack on the statute (as distinct from their overbreadth argument)?

4. What does it mean for the affirmative defenses to be economically feasible in a facial challenge? Does it mean affordable? and to whom? Cite any supporting case law for your position.

5. On its face, is COPA a complete ban on speech that is protected as to adults? Does it make a difference in the constitutional analysis that the statute provides the ways to comply with COPA as affirmative defenses instead of as elements of the crime itself?. (This presumably puts the burden of proof on the websites in the context of a criminal prosecution.)

6. Does the fact that many commercial pornography sites already utilize screening devices reduce the burden that COPA imposes on their protected speech?

LEAST RESTRICTIVE MEANS

7. What if the Court finds that COPA is the least restrictive means available but that it still places an undue burden on speech? Is the statute constitutional?

8. For the defendant: Is there case law that indicates that if the Court concludes that the statute is overbroad, the statute may be upheld if the defendant can show that it is the least restrictive means?

HARMFUL TO MINORS DETERMINATION

9. Will the Court be required as a matter of law to decide whether the content of the plaintiffs' websites falls within the three prongs of the "harmful to minors" standard? If so, in what part of the analysis will be Court be required to make this determination? If the Court determined that the content on plaintiffs' websites is outside the scope of COPA, would such a determination be binding on prosecutors as to these plaintiffs?

10. Plaintiffs content that their sites have value for minors. COPA excludes material that has literary, artistic, political, or scientific value for minors. Is sexually explicit educational or medical information that is not scientific, literary, artistic or political similarly excluded?

INTERPRETATION OF COPA

11. How should a court or prosecutor apply the terms "as a whole" with respect to the Internet? Does the term "as a whole" apply to the content of the entire website?

12. "Hosting ... without selection or alteration of the content of the communication" is exempt from COPA-- Does this exempt websites from liability for links to other sites? For chat rooms? For bulletin boards? What is the defendant's response to plaintiffs' argument that the "selecting" language exposes them to liability for links?

CASE LAW

13. For plaintiffs: Can plaintiffs distinguish the cases that the defendant relies on from the 8th and 9th Circuits, Upper Midwest Booksellers Association and Crawford v. Lungren, specifically regarding the findings that alternative proposed measures, including voluntary blocking, were not less restrictive means?

14. For defendant: Can defendant distinguish this case from Fabulous Associates, specifically regarding the findings that the statute in question imposed a burden on speech and that a less restrictive means was available?

FACTUAL QUESTIONS

15. What is the relevance of the testimony from the plaintiffs as to the number of page views and/or unique hosts that their websites receive? In what part of the analysis does this have relevance? (As applied challenge only?)

16. Is there any disagreement that minors may legitimately possess their own credit card or debit card?

17. Is there evidence in the record that a website can avail itself of the affirmative defenses by any means other than requiring a user's credit card or debit card number (even for the adult access code or adult PIN)?

If some third party adult verification services will accept a copy of a birth certificate or driver's license, how can the service verify that the user who sends in the information is the owner of the driver's license or birth certificate?

18. Assume I am a website owner for commercial purposes on AOL or another ISP which does not allow the use of CGI scripts. If I contact Adult Check (or similar service) to comply with COPA and am given a free script to insert into my website, will I be able to run the script on my current ISP, or will I have to switch my website to another ISP to use the adult verification service?

19. What is the evidence in the record regarding the ability of a content provider to segregate text (as opposed to images) in an effort to place only harmful to minors materials behind either credit card or adult verification screens? Could Adult Check be set up such that if a user entered an adult PIN she could see the whole page of text (no images), but if a user did not enter a PIN she could see only the text on the page that was not harmful to minors?